AMENDED AND RESTATED
TRUST AGREEMENT
among
CRESTAR FINANCIAL CORPORATION, as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATORS NAMED HEREIN
Dated as of December 31, 1996
CRESTAR CAPITAL TRUST I
CRESTAR CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to Sections 310 through 318 of
the Trust Indenture Act of 1939:
Trust Indenture Trust
Act Section Agreement
Section
(ss) 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8
(ss) 311 (a) 8.13
(b) 8.13
(ss) 312 (a) 5.7
(b) 5.7(c)5.7
(ss) 313 (a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.8
(d) 8.14(c)
(ss) 314 (a) 8.15
(b) Not
(c)(1) 8.16
(c)(2) 8.16
(c)(3) Not
(d) Not
(e) 1.1, 8.16
(ss) 315 (a) 8.1(a),
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not
(ss) 316 (a) Not
(a)(1)(A) Not(a)(1)(B)Not
(a)(2) Not
(b) 5.14
(c) 6.7
(ss) 317 (a)(1) Not
(a)(2) Not
(b) 5.9
(ss) 318 (a) 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
PAGE
TABLE OF CONTENTS
PAGE
ARTICLE 1DEFINED TERMS
SECTION 1.01. Definitions 2
ARTICLE 2CONTINUATION OF THE TRUST
SECTION 2.01. Name 14
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
Business14
SECTION 2.03. Initial Contribution of Trust Property; Organization
Expenses 14
SECTION 2.04. Issuance of the Capital Securities 15
SECTION 2.05. Issuance of the Common Securities; Subscription and Purchase
of Debentures 15
SECTION 2.06. Declaration of Trust 15
SECTION 2.07. Authorization to Enter into Certain Transactions 16
SECTION 2.08. Assets of Trust 20
SECTION 2.09. Title to Trust Property 20
ARTICLE 3PAYMENT ACCOUNT
SECTION 3.01. Payment Account 20
ARTICLE 4DISTRIBUTIONS; REDEMPTION
SECTION 4.01. Distributions 21
SECTION 4.02. Redemption 22
SECTION 4.03. Subordination of Common Securities 24
SECTION 4.04. Payment Procedures 25
SECTION 4.05. Tax Returns and Reports 25
SECTION 4.06. Payment of Taxes, Duties, Etc. of the Trust 25
SECTION 4.07. Reduction for Payments under Indenture or Pursuant to Direct
Actions 25
ARTICLE 5TRUST SECURITIES CERTIFICATES
SECTION 5.01. Initial Ownership 26
SECTION 5.02. The Trust Securities Certificates; Execution and Delivery
Thereof 26
SECTION 5.03. Execution and Delivery of Trust Securities Certificates
26
SECTION 5.04. Registration of Transfer and Exchange of Capital Securities
Certificates 26
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates 28
SECTION 5.06. Persons Deemed Securityholders 29
SECTION 5.07. Access to List of Securityholders Names and Addresses 29
PAGE
SECTION 5.08. Maintenance of Office or Agency for Transfers 29
SECTION 5.09. Appointment of Paying Agent 30
SECTION 5.10. Ownership of Common Securities by Depositor 30
SECTION 5.11. Book-entry Interests 31
SECTION 5.12. Notices to Clearing Agency 34
SECTION 5.13. Procedures for Issuance of Definitive Capital Securities
Certificates 34
SECTION 5.14. Rights of Securityholders 35
ARTICLE 6ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. Limitations on Voting Rights 37
SECTION 6.02. Notice of Meetings 38
SECTION 6.03. Meetings of Capital Securityholders 38
SECTION 6.04. Voting Rights 39
SECTION 6.05. Proxies, Etc 39
SECTION 6.06. Securityholder Action by Written Consent 39
SECTION 6.07. Record Date for Voting and Other Purposes 39
SECTION 6.08. Acts of Securityholders 40
SECTION 6.09. Inspection of Records 41
ARTICLE 7REPRESENTATIONS AND WARRANTIES
SECTION 7.01. Representations and Warranties of the Bank, the Property
Trustee and the Delaware Trustee 41
SECTION 7.02. Representations and Warranties of Depositor 42
ARTICLE 8THE TRUSTEES
SECTION 8.01. Corporate Property Trustee Required; Eligibility of
Trustees43
SECTION 8.02. Certain Duties and Responsibilities 44
SECTION 8.03. Certain Notices 45
SECTION 8.04. Certain Rights of Property Trustee 46
SECTION 8.05. Not Responsible for Recitals or Issuance of Securities 48
SECTION 8.06. May Hold Securities 48
SECTION 8.07. Compensation; Indemnity; Fees 48
SECTION 8.08. Conflicting Interests 50
SECTION 8.09. Co-trustees and Separate Trustee 50
SECTION 8.10. Resignation and Removal; Appointment of Successor 51
SECTION 8.11. Acceptance of Appointment by Successor 53
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business
54
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust54
SECTION 8.14. Reports by Property Trustee 55
SECTION 8.15. Reports to the Property Trustee 56
SECTION 8.16. Evidence of Compliance with Conditions Precedent 56
SECTION 8.17. Number of Trustees 56
SECTION 8.18. Delegation of Power 57
PAGE
ARTICLE 9TERMINATION, LIQUIDATION AND MERGER
SECTION 9.01. Termination upon Expiration Date 57
SECTION 9.02. Early Termination 57
SECTION 9.03. Termination 58
SECTION 9.04. Liquidation 58
SECTION 9.05. Mergers, Consolidations, Amalgamations or Replacements of
the Trust 60
ARTICLE 10MISCELLANEOUS PROVISIONS
SECTION 10.01. Limitation of Rights of Securityholders to Terminate
Trust61
SECTION 10.02. Amendment 62
SECTION 10.03. Separability 63
SECTION 10.04. Governing Law 63
SECTION 10.05. Payments Due on Non-business Day 63
SECTION 10.06. Successors 63
SECTION 10.07. Headings 64
SECTION 10.08. Reports, Notices and Demands 64
SECTION 10.09. Agreement Not to Petition 64
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act
65
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture 65
SECTION 10.12. Counterparts 66
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 31, 1996, among (i)
Crestar Financial Corporation, a Virginia banking corporation (including any
successors or assigns, the "Depositor"), (ii) The Chase Manhattan Bank, a
banking corporation duly organized and existing under the laws of the State of
New York, as property trustee, (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) Chase Manhattan Bank Delaware, a Delaware banking corporation
that maintains its principal place of business in Delaware, as Delaware trustee
(the "Delaware Trustee"), (iv) Xxxxxx X. Xxxxxx, Xx., an individual, Xxxxxx X.
Xxxxxxxx, an individual, and Xxxx Xxxxx, an individual, each of whose address is
c/o Crestar Financial Corporation, X.X. Xxx 00000, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx Xxxxxxxx 00000-0000 (each an "Administrator" and collectively the
"Administrators") (the Property Trustee, the Delaware Trustee and the
Administrators referred to collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and created a business trust pursuant to the Delaware Business Trust
Act by entering into that certain Trust Agreement, dated as of December 19, 1996
(the "Original Trust Agreement"), and by the execution and filing with the
Secretary of State of the State of Delaware of a Certificate of Trust, filed on
December 20, 1996, (the "Certificate of Trust") attached as Exhibit A;
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust
pursuant to the Purchase Agreement, (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (iv) the
appointment of the Administrators and (v) the mandatory exchange by the Property
Trustee with the Depositor of the Private Debentures for the Exchange
Debentures, and the exchange by the Trust with the Securityholders of the
Private Capital Securities for the Exchange Capital Securities, each such
exchange registered under the Securities Act;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
I. ARTICLE
DEFINED TERMS
A. SECTION . Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
1 the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
2 all other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
3 unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
4 the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Distributions" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Special Interest
(as defined in the Capital Securities Exchange and Registration Rights
Agreement) paid by the Depositor on a Like Amount of Debentures of such period.
"Additional Sums" has the meaning specified in Section 4.08 of the
Indenture.
"Administrator" means a Person satisfying the eligibility requirements set
forth in Section 8.01(b) and initially means each of Xxxxxx X. Xxxxxx, Xx.,
Xxxxxx X. Xxxxxxxx and Xxxx Xxxxx, solely in such Person's capacity as
Administrator of the Trust heretofore created and continued hereunder and not in
such Person's individual capacity, or such Administrator's successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Book-Entry Capital Securities Certificates" has the meaning specified
in Section 5.11.
"Business Day" means any day which is not a Saturday or Sunday and which is
neither a legal holiday nor a day on which banking institutions in the City of
New York are authorized or required by law or regulation to close or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit B.
"Capital Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Capital Securities Exchange and Registration Rights Agreement" means an
agreement dated December 31, 1996 among the Depositor, the Trust and the
Initial Purchasers named in Schedule I of the Purchase Agreement.
"Capital Treatment Event" means the reasonable determination by the
Depositor that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement, action or
decision is announced on or after the date of issuance of the Capital Securities
under this Trust Agreement, there is more than an insubstantial risk that the
Depositor will not be entitled to treat an amount equal to the aggregate
Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the Board
of Governors of the Federal Reserve System, as then in effect and applicable to
the Depositor.
"Certificate Depository Agreement" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit C, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means December 31, 1996, which is the date of execution and
delivery of this Trust Agreement, or such other date as may be designated the
Closing Date pursuant to the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit D.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal corporate trust office of the Property Trustee
located in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal corporate trust office of the Debenture Trustee located
in New York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Exchange and Registration Rights Agreement" means an agreement
dated December 31, 1996 among the Depositor, the Trust and the Initial
Purchasers named in the Purchase Agreement.
"Debenture Prepayment Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, in its capacity as
debenture trustee under the Indenture, and any successor thereto under the
Indenture.
"Debentures" means the aggregate principal amount of the Depositor's 8.16%
Junior Subordinated Deferrable Interest Debentures due December 15, 2026, issued
pursuant to the Indenture.
"Definitive Capital Securities Certificates" means Capital Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss) 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust heretofore created and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in 4.01.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Capital Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure to appoint a successor Property Trustee within 60 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Capital Securities" means Capital Securities representing
undivided beneficial interests in the assets of the Trust, issued by the Trust
in an exchange offer for the Private Capital Securities, such exchange offer
being registered under the Securities Act, all pursuant to the Capital
Securities Exchange and Registration Rights Agreement; provided however that the
aggregate Liquidation Amount of the Private Capital Securities and the Exchange
Capital Securities at any one time outstanding shall not exceed $200,000,000.
"Exchange Debentures" means a new series of junior subordinated debentures
issued by the Depositor in a mandatory exchange offer for the Private
Debentures, such exchange offer being registered under the Securities Act, all
pursuant to the Debenture Exchange and Registration Rights Agreement.
"Exchange Guarantee" means the Exchange Guarantee extended by the Depositor
for the benefit of the Holders of Capital Securities pursuant to the Exchange
Guarantee Agreement, and registered under the Securities Act pursuant to the
Guarantee Exchange and Registration Rights Agreement.
"Exchange Guarantee Agreement" means the Guarantee Agreement to be entered
into by the Depositor, as Guarantor and The Chase Manhattan Bank, as Guarantee
Trustee, pursuant to the Guarantee Exchange and Registration Rights Agreement.
"Exchange Offer" means an exchange offer of the Exchange Capital Securities
for the Private Capital Securities, which is registered under the Securities Act
pursuant to the Capital Securities Exchange and Registration Rights Agreement.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit E, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Guarantee" means (i) prior to the exchange in connection with the Exchange
Offer, the Private Guarantee and (ii) following the exchange in connection with
the Exchange Offer, the Exchange Guarantee.
"Guarantee Agreement" means the Capital Securities Guarantee Agreement
dated as of December 31, 1996 between the Depositor, as Guarantor, and The Chase
Manhattan Bank, as Guarantee Trustee.
"Guarantee Exchange and Registration Rights Agreement" means an agreement
dated December 31, 1996 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I of the Purchase Agreement.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of December 31, 1996, between the
Depositor and the Debenture Trustee, as trustee, as supplemented by the First
Supplemental Indenture dated as of December 31, 1996, as amended or supplemented
from time to time.
"Initial Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Institutional Accredited Investor" means an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after
the date of original issuance of the Capital Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers Certificate" means a certificate signed by the Chairman of the
Board or any Vice Chairman of the Board or the President or any Vice Chairman or
any Vice President of the Depositor (whether or not designated by a number or a
word or words added before or after the title Vice President) and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Depositor and delivered to the appropriate Trustee. Any Officers
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor), who is experienced in matters related to the
substance of the opinion.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to 5.04,
5.05, 5.11 and 5.13; provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of the Outstanding Capital Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the outstanding Capital Securities are owned by the Depositor,
one or more of the Trustees and/or any such Affiliate. Capital Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Administrators the pledgee s
right so to act with respect to such Capital Securities and that the pledgee is
not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Capital Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its corporate trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. (or any successor thereto).
"Private Capital Securities" means the $200,000,000 aggregate Liquidation
Amount of the Trust's 8.16% Capital Securities representing undivided beneficial
interests in the assets of the Trust, having a Liquidation Amount of $1,000 per
Capital Security and having the rights provided therefor in this Trust
Agreement, and the certificates of which initially shall bear legends indicating
that they have not been registered under the Securities Act and restricting
transfers thereof.
"Private Debentures" means the $206,200,000 aggregate principal amount of
the Depositor's 8.16% Junior Subordinated Deferrable Interest Debentures due
December 15, 2026, issued pursuant to the Indenture on the Closing
Date.
"Private Guarantee" means the Guarantee extended by the Depositor for the
benefit of the Holders of Private Capital Securities pursuant to the Guarantee
Agreement.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore created and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of December 20,
1996, among the Trust, the Depositor and the Purchasers named in Schedule I
thereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Prepayment Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Registration Rights Agreements" means the Capital Securities Exchange
and Registration Rights Agreement, the Debenture Exchange and Registration
Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement, collectively.
"Regulation S" means Regulation S under the Securities Act or any successor
provision.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Rule 144" means Rule 144 as promulgated under the Securities Act, or any
successor rule.
"Rule 144A" means Rule 144A as promulgated under the Securities Act, or any
successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the Securities Act, or
any successor rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Tax Event" means the receipt by the Depositor and the Trust of an Opinion
of Counsel to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Capital Securities
under this Trust Agreement, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Depositor on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, will not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date of
such Opinion of Counsel, subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Property
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Capital
Securities. The Trust Securities represent undivided beneficial interests in the
Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrators.
I. ARTICLE
CONTINUATION OF THE TRUST
A. SECTION . Name. The Trust continued hereby shall be known as "Crestar
Capital Trust I," as such name may be modified from time to time by the
Administrators following written notice to the Securityholders and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and xxx and
be sued.
B. SECTION . Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Chase Manhattan
Bank Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trustee Administration Department, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o Crestar Financial Corporation, X.X. Xxx 00000, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000.
C. SECTION . Initial Contribution of Trust Property; Organization Expenses.
The Delaware Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
D. SECTION . Issuance of the Capital Securities. The Depositor, on behalf
of the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Purchase Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrator, on behalf of the Trust,
shall execute in accordance with Section 5.02 and deliver to the Initial
Purchasers Capital Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of 200,000
Capital Securities having an aggregate Liquidation Amount of $200,000,000,
against receipt of such aggregate purchase price of such Capital Securities of
$200,000,000, which amount the Administrator shall promptly deliver to the
Trust.
E. SECTION . Issuance of the Common Securities; Subscription and Purchase
of Debentures. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall execute in accordance
with Section 5.02 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 6,200 Common
Securities having an aggregate Liquidation Amount of $6,200,000 against payment
by the Depositor of such amount, which amount such Administrator shall promptly
deliver to the Trust. Contemporaneously therewith, an Administrator, on behalf
of the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $206,200,000, and, in satisfaction of the purchase price for such
Debentures, the Trust, shall deliver to the Depositor the sum of $206,200,000
(such sum being the sum of the amounts delivered to the Trust pursuant to (i)
the second sentence of Section 2.04 and (ii) the first sentence of this Section
2.05).
F. SECTION . Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities
(including the Exchange Capital Securities pursuant to the Exchange Offer),
(b) to use the proceeds from the sale of Trust Securities to acquire the
Private Debentures, (c) to exchange the Private Debentures for the Exchange
Debentures pursuant to the Indenture and (d) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Property Trustee and the Delaware Trustee as trustees of the Trust, to have all
the rights, powers and duties to the extent set forth herein, and the Property
Trustee and the Delaware Trustee hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrators shall have only those ministerial duties set
forth herein with respect to accomplishing the purposes of the Trust and shall
not be trustees of the Trust or, to the fullest extent permitted by law,
fiduciaries with respect to the Trust or the Securityholders. The Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property Trustee or
the Administrators set forth herein. The Delaware Trustee shall be one of the
Trustees of the Trust for the sole and limited purposes of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and accepting
service of process on the Trust in the State of Delaware.
A. SECTION . Authorization to Enter into Certain Transactions. The Trustees
shall conduct the affairs of the Trust in accordance with the terms of this
Trust Agreement. Subject to the limitations set forth in paragraph (b) of this
Section and in accordance with the following provisions (i) and (ii), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
a) As among the Trustees, each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the following matters:
1 the issuance and sale of the Trust Securities including any
agreements necessary with respect to such issuance and sale;
2 to cause the Trust to enter into, and to execute, deliver and perform on
behalf of the Trust, the Registration Rights Agreements, the Expense Agreement
and the Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the
Trust;
3 assisting in the registration of the Exchange Offer and the Exchange
Capital Securities under the Securities Act, and under the state securities or
blue sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act, all in accordance with the Capital
Securities Exchange and Registration Rights Agreement;
4 assisting in any listing of the Exchange Capital Securities upon such
securities exchange or exchanges as shall be determined by the Depositor and the
registration of the Exchange Capital Securities under the Exchange Act and the
preparation and filing of all periodic and other reports and other documents
pursuant to the foregoing, all in accordance with the Capital Securities
Exchange and Registration Rights Agreement;
5 the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
6 the appointment of a Paying Agent and Securities Registrar
in accordance with this Trust Agreement;
7 executing the Trust Securities in accordance with this Trust
Agreement;
8 to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
9 unless otherwise determined by the Depositor, the Property Trustee or the
Administrators, or as otherwise required by the Delaware Business Trust Act or
the Trust Indenture Act, to execute on behalf of the Trust (either acting alone
or together with any or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to this Trust Agreement; and
10 the taking of any action incidental to the foregoing as the
Administrators may from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder).
b) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
matters:
1 the establishment of the Payment Account;
2 the receipt of the Debentures;
3 the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
4 the distribution through the Paying Agent of amounts owed to
the Securityholders in respect of the Trust Securities;
5 the exercise of all of the rights, powers and privileges of
a holder of the Debentures in accordance with the terms of this Trust
Agreement;
6 the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
7 the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
8 to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
9 to exchange the Private Guarantee for the Exchange Guarantee pursuant to
the Guarantee Exchange and Registration Rights Agreement in the exchange in
connection with the Exchange Offer;
10 to exchange the Private Debentures for the Exchange Debentures in an
exchange in connection with the Exchange Offer pursuant to the Debenture
Exchange and Registration Rights Agreement;
11 after an Event of Default (other than under paragraph (b), (c), (d) or
(e) of the definition of such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder) and, within 90 days after the occurrence of any Event
of Default actually known to an officer of the Property Trustee assigned to its
Corporate Trust Office, to give notice thereof to the Securityholders; and
12 except as otherwise provided in this Section 2.07(a)(ii), or in the
Trust Indenture Act (regardless of whether applicable or not), the Property
Trustee shall have none of the duties, liabilities, powers or the authority of
the Administrators set forth in Section 2.07(a)(i).
2. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees on behalf of the Trust shall not (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrators shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Trust or the Securityholders in their capacity as Securityholders.
3. In connection with the issuance and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
a) negotiation of the terms of, and the execution and delivery
of, the Purchase Agreement providing for the sale of the Capital
Securities; and
b) preparation of an application for designation of the Private
Capital Securities for trading in the PORTAL Market at the time of issuance
thereof; and
c) the preparation of an offering memorandum and the preparation and
filing by the Trust with the Commission and the execution on behalf of the Trust
of a registration statement on the appropriate form in relation to the Exchange
Offer, including any amendments thereto and/or a "shelf" registration statement
to register the Private Capital Securities, the Private Guarantee and the
Private Debentures, in each case in accordance with the provisions of the
Registration Rights Agreements;
d) the determination of the states, if any, in which to take appropriate
action to qualify or register for sale all or part of the Capital Securities and
the Guarantee and the determination of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and the advice to the Trustees
of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents
to be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the applicable
laws of any such state; and
e) any other actions necessary or desirable to carry out any of
the foregoing activities.
4 Notwithstanding anything herein to the contrary, the Administrators are
authorized and directed to conduct the affairs of the Trust and to operate the
Trust so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act or fail or cease to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrators are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and any Administrator determines in its discretion to be necessary
or desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Capital Securities.
G. SECTION . Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
H. SECTION . Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Trust Agreement.
I. ARTICLE
PAYMENT ACCOUNT
A. SECTION . Payment Account. On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property Trustee and any agent
of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Securityholders and for distribution as
herein provided, including (and subject to) any priority of payments provided
for herein.
2 The Property Trustee shall deposit in the Payment Account, promptly upon
receipt, all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending distribution thereof.
I. ARTICLE
DISTRIBUTIONS; REDEMPTION
1. SECTION . Distributions. Distributions (including Distributions of
Additional Amounts) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including of Additional Interest, as defined in
the Indenture and of Special Interest, as defined in the Capital Securities
Exchange and Registration Rights Agreement) are made on the Debentures.
Distributions on the Trust Securities shall be cumulative, and will accumulate
whether or not there are funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from December 15, 1996 and, except
in the event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, shall be
payable semiannually in arrears on June 15 and December 15 of each year,
commencing on June 15, 1997. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay) (each
date on which Distributions are payable in accordance with this Section 4.01(a),
a "Distribution Date").
2 Assuming payments of interest on the Debentures are made when due and
assuming compliance by the Depositor and the Trust with their obligations under
the Capital Securities Exchange and Registration Rights Agreement (and before
giving effect to any Additional Amounts, if applicable, or to Additional
Distributions, if applicable), Distributions on the Trust Securities shall be
payable at a rate of 8.16% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any, and the Additional Distribution, if any.
3 Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
4 Distributions on the Trust Securities with respect to a Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the first day of the month in which the relevant Distribution Date occurs.
5. SECTION . Redemption. On each Debenture Prepayment Date and on the
stated maturity of the Debentures, the Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
6 Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 15 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
a the Redemption Date;
b the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice of redemption is required to be
sent, the manner of calculation thereof;
c the CUSIP number;
d if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
e that on the Redemption Date the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after said date.
7. The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
8 If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then, by 12:00 noon,
New York City time, on the Redemption Date, subject to Section 4.02(c), the
Property Trustee will, so long as the Capital Securities are in book-entry-only
form, irrevocably deposit with the Clearing Agency for the Capital Securities
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof. If Capital Securities are no longer in
book-entry-only form, the Property Trustee, subject to Section 4.02(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price with respect to such Capital Securities to
the Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be outstanding. In the event that any
date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
9 Payment of the Redemption Price on the Trust Securities shall be made to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on a date to be established as the record date for the distribution
by the Administrators, which date shall be not more than 45 days nor less than
15 days prior to the relevant Redemption Date.
10 Subject to Section 4.03(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Capital Securities. The particular Capital Securities to be redeemed shall
be selected not less than 15 nor more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, on a pro
rata basis or by lot) as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or an integral multiple of $1,000 in excess thereof) of the Liquidation
Amount of Capital Securities of a denomination larger than $1,000; provided
however that redemption must be pro rata on the basis of the Outstanding Capital
Securities held by each Holder unless the Property Trustee advised by Opinion of
Counsel determines that non-pro rata redemption will not cause the Trust to fail
or cease to be classified as a grantor trust for United States Federal income
tax purposes or, if the Trust might fail or cease to be classified as a grantor
trust, will not cause the Trust to be classified as an association taxable as a
corporation for United States Federal income tax purposes. In any such proration
the Property Trustee may make such adjustments so that any Capital Security to
be redeemed shall, after such redemption, be in an authorized denomination,
subject to the last paragraph of Section 5.04(a). The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Capital Securities shall relate, in the
case of any Capital Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Capital Securities that has been or is to
be redeemed.
1A. SECTION . Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable, and Additional
Distributions, if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made, subject to Section 4.02(f), pro rata
among the Common Securities and the Capital Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable, and Additional Distributions, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Capital Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable, and Additional
Distributions, if applicable) on, or the Redemption Price of, Capital Securities
then due and payable.
12 In the case of the occurrence of any Event of Default resulting from any
Debenture Event of Default, the Holder of Common Securities will be deemed to
have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated. Until
any such Event of Default under this Trust Agreement with respect to the Capital
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not the Holder of the Common Securities, and only the Holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
A. SECTION . Payment Procedures. Payments of Distributions (including
Additional Amounts, if applicable, and Additional Distributions, if applicable)
in respect of the Capital Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Capital Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons accounts at such Clearing Agency
on the applicable Distribution Dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
B. SECTION . Tax Returns and Reports. The Administrators shall prepare (or
cause to be prepared), at the Depositor's expense, and file all United States
Federal, state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrators shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder
the appropriate Internal Revenue Service form required to be provided on such
form. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States Federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
C. SECTION . Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums and the written direction of any of the
Administrators, the Property Trustee shall promptly pay, solely out of monies on
deposit pursuant to this Trust Agreement, any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
D. SECTION . Reduction for Payments under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Capital Securities shall
be reduced by the amount of any corresponding payment such Holder (or an Owner
with respect to the Holder's Capital Securities) has directly received pursuant
to Section 6.05 of the Indenture or Section 5.14 of this Trust Agreement.
Notwithstanding any such payments, the Depositor shall remain obligated to pay
the principal of or interest on the Debentures and the Depositor shall be
subrogated to the rights of the Holder (and Owner) of such Capital Securities
with respect to payments on the Capital Securities to the extent of any payments
made by the Depositor to such Holder (and Owner) pursuant to either of such
Sections.
I. ARTICLE
TRUST SECURITIES CERTIFICATES
A. SECTION . Initial Ownership. Upon the creation of the Trust and the
contribution by the Depositor referred to in Section 2.03 and until the issuance
of the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
A. SECTION . The Trust Securities Certificates; Execution and Delivery
Thereof. The Capital Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples thereof, and the Common
Securities Certificates shall be issued in denominations of $1,000 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates shall
be executed on behalf of the Trust by manual signature of at least one
Administrator. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.04, 5.11 and 5.13.
B. SECTION . Execution and Delivery of Trust Securities Certificates. At
the Closing Date, the Administrators, or any of them, shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor, signed by its Chairman of the Board,
any Vice Chairman of the Board, its President, any Vice President, its Treasurer
or any Assistant Treasurer or its Controller, without further corporate action
by the Depositor, in authorized denominations.
C. SECTION . Registration of Transfer and Exchange of Capital
Securities Certificates.
1 The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a register for the purpose of registering
Trust Securities Certificates and transfers and exchanges of Capital Securities
Certificates (the "Securities Register") in which the registrar designated by
the Depositor (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section
5.04(a) in the case of Capital Securities and Section 5.04(b) in the case of
Private Capital Securities and subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of Capital
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. The Securities Registrar shall not be required to register
the transfer or exchange of any Capital Securities (i) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Capital Securities and ending at the close of business on the day
of such mailing or (ii) that have been selected for redemption in whole or in
part, except the unredeemed portion of any Capital Security redeemed in part..
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.08 and
subject to compliance with Section 5.04(a) in the case of Capital Securities and
5.04(b) in the case of Private Capital Securities, the Administrators or any one
of them shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of execution
by such Administrator or Administrators. Subject to Section 5.11, at the option
of a Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Capital Securities
Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrator and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
All Trust Securities shall be dated their date of execution.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 (100 Capital
Securities). Any transfer, sale or other disposition of Capital Securities in a
block having a Liquidation Amount of less than $100,000 shall be deemed to be
void and of no legal effect whatsoever. Any such transferee shall be deemed not
to be the holder of such Capital Securities for any purpose, including but not
limited to the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
a In addition to the restrictions on transfer set forth in Section 5.04(a)
and 5.04(b)(ii), beneficial ownership of every Private Capital Security is
subject to the restrictions on transfer imposed by the Securities Act and rules
and regulations promulgated by the Commission thereunder and each certificate
representing Private Capital Securities shall bear restrictive legends (the
"Securities Act Legends") substantially in the form attached as Exhibit I
hereto, unless such restrictions on transfer shall be terminated in accordance
with paragraph (ii) below. The Holder of each Private Capital Security, by such
Holder's acceptance thereto, agrees to be bound by such restrictions on
transfer.
b The restrictions imposed by the Securities Act and this paragraph (b)(ii)
upon the transferability of any particular Private Capital Security shall cease
and terminate upon delivery by at least one Administrator on behalf of the Trust
to the Property Trustee of an Officers Certificate and Opinion of Counsel
stating that such Private Capital Security has been sold pursuant to an
effective registration statement under the Securities Act, exchanged for a
corresponding Liquidation Amount of Exchange Capital Securities pursuant to an
effective registration statement under the Securities Act, or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Private Capital Security as to which such Administrator has
delivered to the Property Trustee an Officers Certificate and Opinion of Counsel
that such restrictions on transfer shall have expired in accordance with their
terms
or shall have terminated may, upon surrender of such Private Capital Security
for exchange to the Security Registrar or any transfer agent in accordance with
the provisions of this paragraph (b)(ii) be exchanged for a new Capital
Security, of like tenor and aggregate Liquidation Amount, which shall not bear
the Securities Act Legends. The Administrator shall inform the Property Trustee
in writing of the effective date of any registration statement registering the
Private Capital Securities or the Exchange Capital Securities under the
Securities Act. The Property Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
registration statement.
As used in the last paragraph of paragraph (a) of this Section 5.04 and in
paragraphs (i) and (ii) of this paragraph (b), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Private Capital Security.
1 SECTION . Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and there shall be delivered to the Securities Registrar
and the Administrators such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Trust shall execute and
make available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the Trust Property, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
The provisions of this Section 5.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities.
A. SECTION . Persons Deemed Securityholders. The Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever (subject to the record date provisions hereof), and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
B. SECTION . Access to List of Securityholders Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Depositor shall furnish or cause to be furnished to the Property
Trustee, semiannually not more than 5 days after December 1 and June 1 of each
year beginning with June 1997, and at such other times as the Property Trustee
may request in writing within 30 days after receipt by the Depositor of any such
request, a list, in such form as the Property Trustee may reasonably require
containing all information in the possession or control of the Depositor, or any
Paying Agent or any registrar of the Trust Securities other than the Property
Trustee, as to the names and addresses of the Securityholders obtained (in the
case of each list other than the first list) since the date as of which the next
previous list was furnished. Any such list may be dated as of a date not more
than fifteen days prior to the time such information is furnished or caused to
be furnished, and need not include information received after such date. The
rights of Securityholders to communicate with other Securityholders with respect
to their rights under this Trust Agreement or under the Trust Securities, and
the corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrators accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
C. SECTION . Maintenance of Office or Agency for Transfers. The
Administrators shall maintain an office or offices or agency or agencies where
Capital Securities Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Trustees in respect of
the Trust Securities Certificates may be served. The Administrators initially
designate The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attn: Corporate Trustee Administration Department, as their office or
agency for such purposes. The Administrators shall give prompt written notice to
the Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
D. SECTION . Appointment of Paying Agent. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrators.
Any Paying Agent shall have the revocable power to withdraw funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Administrators may revoke such power and remove the Paying Agent if such
Trustees determine in their sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material
respect. The Paying Agent shall initially be the Bank, and any co-paying agent
chosen by the Bank, and acceptable to the Administrators and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days written notice to the Administrators, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrators shall appoint a successor that is acceptable to the Property
Trustee and the Depositor to act as Paying Agent (which shall be a bank or trust
company). The Administrators shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrators to execute and deliver
to the Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.02, 8.04 and 8.06 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
E. SECTION . Ownership of Common Securities by Depositor. At the Closing
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. To the fullest extent permitted by law, other than a
transfer in connection with a consolidation or merger of the Depositor into
another Person, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Article Eleven of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrators shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
1. SECTION . Book-entry Interests. So long as Capital Securities are
eligible for book-entry settlement with the Clearing Agency or unless otherwise
required by law, all Capital Securities that are so eligible may be represented
by one or more fully registered Capital Securities Certificates (each a "Book
Entry Capital Securities Certificate") in global form to be delivered to the
Clearing Agency, by, or on behalf of, the Trust. Such Book Entry Capital
Securities Certificates shall initially be registered on the Securities Register
in the name of Cede & Co., the nominee of DTC. The transfer and exchange of
beneficial interests in any Capital Security held in global form shall be
effected through the Clearing Agency in accordance with this Trust Agreement and
the procedures of the Clearing Agency therefor. No Owner of an interest in a
Private Capital Security held in a Book Entry Capital Securities Certificate
will receive a Definitive Capital Securities Certificate representing such
Owner's interests in such Book Entry Capital Securities Certificate, except as
provided in Section 5.11(c) or Section 5.11(f) below.
2 Private Capital Securities that upon initial issuance are beneficially
owned by QIBs may, at the option of the Trust, be represented by a Book Entry
Capital Securities Certificate (a "144A Global Security"), and Private Capital
Securities that upon initial issuance are beneficially owned by non-U.S. Persons
may, at the option of the Trust, be represented by another Book Entry Capital
Securities Certificate (a "Regulation S Global Security"). Transfers of
interests in the Private Capital Securities between any 144A Global Security and
any Regulation S Global
Security will be made in accordance with the standing instructions and
procedures of the Clearing Agency and its participants and in accordance with
Section 5.11(d)(ii) and (iii), as applicable. The Property Trustee shall make
appropriate endorsements to reflect increases or decreases in the amount of such
Private Capital Securities in global form to reflect any such transfers.
3 So long as the Private Capital Securities are eligible for book-entry
settlement and to the extent Private Capital Securities held by QIBs or non-U.S.
Persons, as the case may be, are held in global form, or unless otherwise
required by law, upon any transfer of a definitive Private Capital Security 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 Capital Security or
Capital Securities being so transferred, subject to Section 5.11(d), the
Property Trustee on behalf of the Trust shall make an endorsement on any 144A
Global Security or any Regulation S Global Security, as the case may be, to
reflect an increase in the number of Private Capital Securities represented by
such Book-Entry Capital Securities Certificate and the Property Trustee on
behalf of the Trust shall cancel such definitive Private Capital Securities in
accordance with the standing instructions and procedures of the Clearing Agency,
the number of Private Capital Securities represented by such Book Entry Capital
Securities Certificate to be increased accordingly; provided that no definitive
Private Capital Security, or portion thereof, in respect of which the Trust or
an Affiliate of the Trust held any beneficial interest shall be included in such
Book Entry Capital Securities Certificate until such definitive Private Capital
Security is freely tradable in accordance with Rule 144(k); provided further
that the Trust shall issue Capital Securities in definitive form upon any
transfer of a beneficial interest in the Capital Security in global form to the
Company or any Affiliate of the Company.
4 Prior to such time as the restrictions on transfer of Private Capital
Securities imposed by the Securities Act and the rules and regulations
promulgated by the Commission thereunder shall be terminated as provided in
Section 5.04(b)(ii),
a any transfer of a definitive Private Capital Security shall be registered
upon the Securities Register only upon receipt by the Property Trustee of such
Private Capital Security accompanied by a duly completed and executed
certificate of transfer in the form attached to Exhibit B 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 Securities Act, upon receipt by the Property Trustee of a
written certificate in the form of Exhibit F (or other certifications, legal
opinions or other information as the Depositor may reasonably request to confirm
that such transfer is exempt from the registration requirements of the
Securities Act);
b any transfer in accordance with Rule 904 of Regulation S of a beneficial
interest in a Rule 144A Global Security shall be reflected by an increase in the
Regulation S Global Security and a corresponding decrease in the Rule 144A
Global Security (in accordance with Section 5.11(b)) only upon receipt by the
Trustee of a written certificate in the form of Exhibit G (or such other
certifications, legal opinions or other
information as the Depositor may reasonably require to confirm that such
transfer is being made pursuant to Rule 904); and
c any transfer pursuant to Rule 144A under the Securities Act of a
beneficial interest in a Regulation S Global Security shall be reflected by an
increase in the Rule 144A Global Security and a corresponding decrease in the
Regulation S Global Security (in accordance with Section 5.11(b)) only upon
receipt by the Property Trustee of a written certificate in the form of Exhibit
H (or such other certifications, legal opinions or other information as the
Depositor may reasonably require to confirm that such transfer is being made
pursuant to Rule 144A).
5 Any Book Entry Capital Securities Certificate may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Trust Agreement as may be required by
the Clearing Agency, by any national securities exchange or by the National
Association of Securities Dealers, Inc. in order for the Private Capital
Securities to be tradeable on the PORTAL Market or as may be required for the
Private Capital Securities 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 Capital Securities 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 Capital Securities
are subject.
6 Notwithstanding any other provisions of this Trust Agreement (other than
the provisions set forth in this Section 5.11(f)), a Private Capital Security in
global form may not be exchanged in whole or in part for Private Capital
Securities registered, and no transfer of a Private Capital Security in global
form may be registered, in the name of any person other than the Clearing Agency
or a nominee thereof unless (i) such Clearing Agency (A) has notified the
Property Trustee and the Depositor that it is unwilling or unable to continue as
Clearing Agency for such global Private Capital Security or (B) has ceased to be
a clearing agency registered as such under the Exchange Act and no successor
Clearing Agency has been appointed by the Depositor within 90 days after its
receipt of such notice or its becoming aware of such cessation of registration,
(ii) the Depositor in its sole discretion elects to cause the issuance of the
Private Capital Securities in certificated form, or (iii) 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 Trust Agreement,
with respect to such global Private Capital Security. Following exchange of a
global Private Capital Security, or a portion thereof, for a definitive Private
Capital Security, no such definitive Private Capital Security, or portion
thereof, shall be included in any Book Entry Capital Securities Certificate
except pursuant to Section 5.11(c).
7 Unless and until Definitive Capital Securities Certificates have been
issued to Owners pursuant to Section 5.13:
a the provisions of this Section 5.11(g) shall be in full
force and effect;
b the Securities Registrar and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Capital Securities Certificates (including the
payment of the Liquidation Amount of and Distributions on the Capital Securities
evidenced by Book-Entry Capital Securities and the giving of instructions or
directions to Owners of Capital Securities evidenced by Book-Entry Capital
Securities) as the sole Holder of Capital Securities evidenced by Book-Entry
Capital Securities and shall have no obligations to the Owners thereof;
c to the extent that the provisions of this Section 5.11 conflict with any
other provisions of this Trust Agreement, the provisions of this Section 5.11
shall control; and
d the rights of the Owners of the Book-Entry Capital Securities
Certificates shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital Securities
Certificates are issued pursuant to this Section 5.11 or Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Capital Securities to such
Clearing Agency Participants.
8 Private Capital Securities initially purchased by Institutional
Accredited Investors will be issued only in certificated form.
9 A single Common Securities Certificate representing the Common Securities
shall be issued to the Depositor in the form of a definitive Common Securities
Certificate.
F. SECTION . Notices to Clearing Agency. To the extent that a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Capital Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
G. SECTION . Procedures for Issuance of Definitive Capital Securities
Certificates. Upon surrender to the Securities Registrar of the typewritten
Capital Securities Certificate or Certificates representing the Book Entry
Capital Securities Certificates by the Clearing Agency upon occurrence of any of
the events described in Section 5.11(f), accompanied by registration
instructions, the Administrators, or any one of them, shall execute and the
Securities Registrar shall register the Definitive Capital Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Capital Securities Certificates as Securityholders. The Definitive
Capital Securities Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Administrators, as evidenced by the execution thereof by the Administrators or
any one of them.
1. SECTION . Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights. When
issued and delivered to Securityholders against payment of the purchase price
therefor, the Capital Securities will be fully paid and nonassessable undivided
beneficial interests in the Trust Property. The Holders of the Capital
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
2 For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
a the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
1 all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debentures,
2 the principal of (and premium, if any, on) any Debentures which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
3 all sums paid or advanced by the Debenture Trustee under the Indenture
and the reasonable compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents and counsel and all
amounts payable to the Debenture Trustee under Section 7.06 of the Indenture;
and
b all Debenture Events of Default, other than the non-payment of the
principal of the Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Article Six of the Indenture.
The holders of a majority in aggregate liquidation preference of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Book-Entry Capital Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.14(b).
1 For so long as any Capital Securities remain Outstanding, to the fullest
extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in Section 6.01(a) or
6.01(b) of the Indenture, any Holder of Capital Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Article
Six of the Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Capital Securities of such Holder (a "Direct Action").
Except as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of
Capital Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
The holders of a majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to such Capital Securities; provided, however, that, the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee being advised by Opinion of Counsel determines that the action
so directed may not lawfully be taken, or if the Property Trustee in good faith
shall determine that the proceedings so directed would be illegal or involve it
in personal liability or be unduly prejudicial to the rights of Holders of
Capital Securities not parties to such direction, and provided further that
nothing in the Trust Agreement shall impair the right of the Property Trustee to
take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction by such Securityholders.
I. ARTICLE
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
1. SECTION . Limitations on Voting Rights. Except as provided in this
Section, in Sections 5.14, 8.10 and 10.02 and in the Indenture and as otherwise
required by law, no Holder of Capital Securities shall have any right to vote or
in any manner otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
2 So long as any Debentures are held by the Property Trustee, the Trustees
shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures, (ii) waive
any past default which is waivable under the Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures shall
be due and payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Debentures, where the consent of Debentureholders shall
be required, without, in each case, obtaining the prior approval of the Holders
of at least a majority in Liquidation Amount of all Outstanding Capital
Securities, provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
Subject to Section 8.03, the Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received from the Debenture Trustee
with respect to the Debentures. In addition to obtaining the foregoing approvals
of the Holders of the Capital Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of
Counsel to the effect that such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States Federal
income tax purposes.
3 If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the Capital
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Capital Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a majority in Liquidation Amount of the
Outstanding Capital Securities, except as otherwise provided in Section
10.02(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Trust to fail or cease to be classified as a grantor trust
for United States Federal income tax purposes.
A. SECTION . Notice of Meetings. Notice of all meetings of the Capital
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.08 to each Capital
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
B. SECTION . Meetings of Capital Securityholders. No annual meeting of
Securityholders is required to be held. The Administrators, however, shall call
a meeting of Capital Securityholders to vote on any matter upon the written
request of the Capital Securityholders of record of 25% of the Capital
Securities (based upon their Liquidation Amount) and the Administrators or the
Property Trustee may, at any time in their discretion, call a meeting of Capital
Securityholders to vote on any matters as to which Capital Securityholders are
entitled to vote.
Capital Securityholders of record of 50% of the Outstanding Capital
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Capital Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding more than a
majority of the Capital Securities (based upon their Liquidation Amount) held by
the Capital Securityholders of record present, either in person or by proxy, at
such meeting shall constitute the action of the Capital Securityholders, unless
this Trust Agreement requires a greater number of affirmative votes.
A. SECTION . Voting Rights. Securityholders shall be entitled to one
vote for each $1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
B. SECTION . Proxies, Etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrators, or with such other officer or agent of the Trust as the
Administrators may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
C. SECTION . Securityholder Action by Written Consent. Any action which may
be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express provision
of this Trust Agreement) shall consent to the action in writing.
D. SECTION . Record Date for Voting and Other Purposes. For the purposes of
determining the Securityholders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrators may from time to time fix a date, not more than 90 days prior to
the date of any meeting of Securityholders or the payment of a Distribution or
other action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
E. SECTION . Acts of Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrator.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.02) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Capital Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrators or among such Securityholders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article 6, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
A. SECTION . Inspection of Records. Upon reasonable notice to the
Administrators and the Property Trustee, the records of the Trust shall be open
to inspection by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a Securityholder.
I. ARTICLE
REPRESENTATIONS AND WARRANTIES
A. SECTION . Representations and Warranties of the Bank, the Property
Trustee and the Delaware Trustee. The initial Property Trustee and the initial
Delaware Trustee, each severally on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
1 the Property Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York; 2 the Property
Trustee has full corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Trust Agreement; 3 the Delaware Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing with its principal place
of business in the State of Delaware; 4 the Delaware Trustee has full corporate
power, authority and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement; 5 this Trust
Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the valid and legally binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors rights and to general
equity principles; 6 the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee or (ii) violate any law,
governmental rule or regulation of the State of New York or the State of
Delaware, as the case may be, governing the banking or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee; and 7 neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing State of New York or
State of Delaware law governing the banking or trust powers of the Property
Trustee or the Delaware Trustee, as the case may be.
Any successor Property Trustee and Delaware Trustee shall make similar
representations and warranties as contained in this Section 7.01 for the benefit
of the Depositor and the Securityholders.
A. SECTION . Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the
Securityholders that:
1 the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
2 there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
I. ARTICLE
THE TRUSTEES
A. SECTION . Corporate Property Trustee Required; Eligibility of
Trustees.
1 There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section
8.01(a), the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
2 There shall at all times be one or more Administrators hereunder with
respect to the Trust Securities. Each Administrator shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. No person shall be eligible
to act as an Administrator hereunder unless such person is an officer of the
Depositor.
3 There shall at all times be a Delaware Trustee with respect to the Trust
Securities. The Delaware Trustee shall either be (i) a natural person who is at
least 21 years of age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
B. SECTION . Certain Duties and Responsibilities.
1 The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act, and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. In the absence of bad faith on its part, the Property
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Property Trustee and conforming to the requirements of this
Trust Agreement. Whether or not therein expressly so provided, every provision
of this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or the Delaware Trustee from liability for its own gross
negligence or willful misconduct. To the extent that, at law or in equity, an
Administrator or the Delaware Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust, any other Trustee or to the
Securityholders, such Administrator or the Delaware Trustee shall not be liable
to the Trust, any other Trustee or to any Securityholder for such Administrator
s or the Delaware Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrator or the Delaware Trustee
otherwise existing at law or in equity, are agreed by the Depositor, the
Trustees and the Securityholders to replace such other duties and liabilities of
the Administrators and the Delaware Trustee.
2 All payments made by the Property Trustee or a Paying Agent in respect of
the Trust Securities shall be made only from the revenue and proceeds from the
Trust Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This 8.02(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
3 No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
a the Property Trustee shall not be liable for any error of judgment made
in good faith by an authorized officer of the Property Trustee, unless it shall
be proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
b the Property Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a majority in Liquidation Amount of the Trust
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement;
c the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
e the Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Depositor; and money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.01 and except to the extent otherwise required by law; and
5 the Property Trustee shall not be responsible for monitoring the
compliance by the Administrators or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrators or the Depositor.
C. SECTION . Certain Notices. Within 90 days after the occurrence of any
Event of Default actually known to an officer of the Property Trustee assigned
to its Corporate Trust Office, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of such Event of
Default to the Securityholders, the Administrators and the Depositor, unless
such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor s
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, an Administrator shall transmit, in the manner and to
the extent provided in Section 10.08, notice of such exercise to the
Securityholders and the Property Trustee, unless such exercise shall have been
revoked.
A. SECTION . Certain Rights of Property Trustee. Subject to the
provisions of Section 8.02:
1 the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
2 if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
3 any direction or act of the Depositor or the Administrators
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers Certificate;
4 whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrators;
5 the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
6 the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of the Trust or interpretation of
this Trust Agreement from any court of competent jurisdiction;
7 the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement
at the request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
8 the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
9 the Property Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
10 whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
11 except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement; and
(l) the Property Trustee shall not be charged with knowledge of an Event of
Default unless an officer of the Property Trustee assigned to its Corporate
Trust Office obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from the Depositor, any other Trustee or
Securityholders holding a majority or more of Capital Securities (based upon
Liquidation Amount).
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
A. SECTION . Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
B. SECTION . May Hold Securities. Any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13 and
except as provided in the definition of the term "Outstanding" in Article 1, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
C. SECTION . Compensation; Indemnity; Fees.
1 The Depositor agrees:
a to pay to the Trustees from time to time reasonable compensation for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
b except as otherwise expressly provided herein, to reimburse the Trustees
upon request for all reasonable expenses, disbursements and advances incurred or
made by the Trustees in accordance with any provision of this Trust Agreement
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
c to the fullest extent permitted by applicable law, to indemnify and hold
harmless (w) each Trustee, (x) any Affiliate of any Trustee, (y) any officer,
director, shareholder, employee, representative or agent of any Trustee, and (z)
any employee or agent of the Trust or its Affiliates, (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred without
gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
d to the fullest extent permitted by applicable law, to advance expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding which shall be advanced, from time to time,
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Depositor of (x) a written affirmation by or on behalf of
the Indemnified Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.07 and (y) an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.07 shall survive the termination of this
Trust Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.07.
The Depositor and any Trustee (in the case of the Property Trustee, subject
to Section 8.08 hereof) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
A. SECTION . Conflicting Interests. If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
B. SECTION . Co-trustees and Separate Trustee. At any time or times, for
the purpose of conforming to the legal requirements of the Trust Indenture Act
or of any jurisdiction in which any part of the Trust Property may at the time
be located, the Depositor and the Administrators, except in such instances as
set forth in the following sentence, by agreed action of the majority of such
Administrators, shall have power to appoint, and upon the written request of the
Administrators, the Depositor shall for such purpose join with the
Administrators in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, that, if a Debenture Event of Default shall have
occurred and be continuing the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney-in-fact therefor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
1 The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
2 The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
3 The Property Trustee at any time, by an instrument in writing executed by
it, with the written concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this Section, and,
in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal, provided, that, if a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee may execute any such instruments or
agreements on behalf of the Depositor as its agent and attorney-in-fact
therefor. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
4 No co-trustee or separate trustee hereunder shall be personally liable by
reason of any act or omission of the Property Trustee or any other trustee
hereunder.
5 The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
6 Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
B. SECTION . Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders and
the Depositor. Upon giving such notice, a successor Relevant Trustee shall be
appointed in accordance with the second succeeding paragraph. If a successor is
not so appointed within a reasonable time not to exceed thirty days from the
date of the Relevant Trustee's notice of resignation, or if for any reason the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within thirty days after giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, a court of competent jurisdiction in the State of Delaware to
appoint a successor.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Trustee may be removed for cause at any time by the Holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the Outstanding Capital
Securities. In no event will the holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrators, which voting
rights are vested exclusively in the Depositor, as holder of the Common
Securities. After removal by the Holders of a majority in Liquidation Amount of
the Capital Securities, the successor to the Relevant Trustee may be appointed
in accordance with the next paragraph. If a successor is not so appointed within
a reasonable time not to exceed thirty days from the date of the Relevant
Trustee's removal, or if for any reason the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within thirty days of such removal, the Relevant Trustee may
petition, at the expense of the Trust, a court of competent jurisdiction in the
State of Delaware to appoint a successor.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrator shall resign, be removed or become incapable of acting as
Administrator, the Common Securityholder by Act of the Common Securityholder
delivered to the Administrator shall promptly appoint a successor Administrator
or Administrators and such successor Administrator or Administrators shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Securityholder or
the Capital Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrator or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrators if there are at
least two of them or (b) otherwise by the Depositor (with the successor in each
case being a Person who satisfies the eligibility requirement for Administrators
or Delaware Trustee, as the case may be, set forth in Section 8.01).
A. SECTION . Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust. Upon the execution
and delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and each
such successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
A. SECTION . Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
B. SECTION . Property Trustee May File Proofs of Claims. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Trust or any other obligor upon the Trust Securities
or the property of the Trust or of such other obligor or their creditors, the
Property Trustee (irrespective of whether any Distributions or other amounts due
on the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distribution
or such other amounts) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
1 to file and prove a claim for the whole amount of any Distributions and
other amounts owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
2 to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or composition affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
A. SECTION . Reports by Property Trustee.
1 Not later than November 15 of each year commencing with November 15,
1997, the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.08, and to the Depositor, a brief report dated as of the
immediately preceding September 15 concerning the Property Trustee and its
actions under this Trust Agreement if and as may be required pursuant to Section
313(a) of the Trust Indenture Act.
2 In addition the Property Trustee shall transmit to Securityholders such
other reports concerning the Property Trustee and its actions under this Trust
Agreement as would be required pursuant to the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act at the times and
in the manner provided pursuant thereto.
3 A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with any interdealer quotation system
or self-regulatory organization upon which the Trust Securities are designated
for trading, with the Commission and with the Depositor.
B. SECTION . Reports to the Property Trustee. The Depositor and the
Administrators on behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, such compliance certificate
to be delivered annually on or before September 15 of each year beginning in
1997.
C. SECTION . Evidence of Compliance with Conditions Precedent. Each of the
Depositor and the Administrators on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of the matters set
forth in Section 314 (c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers Certificate.
D. SECTION . Number of Trustees.
1 The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrators. The Property Trustee and the
Delaware Trustee may be the same Person.
2 If a Trustee ceases to hold office for any reason and the number of
Administrators is not reduced pursuant to Section 8.17(a), or if the number of
Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with the provisions of Section 8.10 relating to appointment of a successor
Trustee upon resignation of a Trustee.
3 The death, resignation, retirement, removal, bankruptcy, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Administrators
shall occur, until such vacancy is filled by the appointment of an Administrator
in accordance with Section 8.10, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
E. SECTION . Delegation of Power.
1 Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.07(a) or
making any other governmental filing; and
2 The Administrators shall have power to delegate from time to time to such
of their number or to the Depositor the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement, as set forth herein.
I. ARTICLE
TERMINATION, LIQUIDATION AND MERGER
A. SECTION . Termination upon Expiration Date. Unless earlier terminated,
the Trust shall automatically terminate on December 1, 2027 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.04.
B. SECTION . Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
1 the commencement by the Depositor of a voluntary case under Chapter 7 or
Chapter 11 of the federal Bankruptcy Code or any other similar state or federal
law now or hereafter in effect, or the consent by the Depositor to the entry of
a decree or order for relief in an involuntary case under any such law, or the
consent by Crestar Bank, a Virginia banking corporation ("Crestar Bank") to the
appointment of a liquidating agent or committee, conservator or receiver under
Title 6.1 Sections 100-110 or Sections 110.1-110.13 of the Code of Virginia or
12 U.S.C. ss 1821 (other than a conservator appointed as a result of
circumstances described in 12 U.S.C. ss 1821(c)(5)(D), (E) or (M)) or other
similar state or federal law now or hereafter in effect;
2 the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Depositor in an involuntary
case under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days, or the
appointment of a liquidating agent or committee, conservator or receiver for
Crestar Bank under Title 6.1 Sections 100-10 or Sections 110.1-110.13 of the
Code of Virginia or 12 U.S.C. ss 1821 (other than a conservator appointed as a
result of circumstances described in 12 U.S.C. ss 1821(c)(5)(D), (E) or (M)) or
other similar state or federal law now or hereafter in effect, and the
continuance of any such appointment unstayed and in effect for a period of 90
days.
3 the dissolution or liquidation of the Depositor;
4 the written direction to the Property Trustee from the
Depositor upon the occurrence of a Tax Event, Investment Company Event or
Capital Treatment Event to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, distribute
Debentures to Securityholders in exchange for the Capital Securities, subject to
the Depositor having received an Opinion of Counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities.
5 the redemption of all of the Capital Securities in
connection with the redemption of all the Debentures; and
6 the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
C. SECTION . Termination. The respective obligations and responsibilities
of the Trustees and the Trust created and continued hereby shall terminate upon
the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts required to be distributed hereunder upon the final payment
of the Trust Securities; (b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrators, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
D. SECTION . Liquidation.
1 If an Early Termination Event specified in clause (a), (b), (c), (d) or
(f) of Section 9.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.04(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
15 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
a state the Liquidation Date;
b state that from and after the Liquidation Date, the Trust Securities will
no longer be deemed to be Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
c provide such information with respect to the mechanics by which Holders
may exchange Trust Securities Certificates for Debentures, or if Section 9.04(d)
applies receive a Liquidation Distribution, as the Administrators or the
Property Trustee shall deem appropriate.
2 Except where Section 9.02(c) or 9.04(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days nor less than 15 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
3 Except where Section 9.02(c) or 9.04(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Property Trustee or their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York Stock Exchange
or on such other exchange, interdealer quotation system or self-regulatory
organization as the Capital Securities are then listed, including PORTAL, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
the Like Amount of Debentures upon surrender of Trust Securities Certificates.
4 In the event that, notwithstanding the other provisions of this Section
9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The Holder of
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Capital Securities, except that, if a Debenture Event
of Default has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities.
E. SECTION . Mergers, Consolidations, Amalgamations or Replacements of the
Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Article 9.
At the request of the Depositor, with the consent of the Administrators and
without the consent of the Holders of the Capital Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Capital
Securities or (b) substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Capital
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the Successor Securities
are listed or traded, or any successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed or traded, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an opinion of counsel from independent counsel to the
Trust experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the 1940 Act and (viii)
the Depositor owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an
entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
I. ARTICLE
MISCELLANEOUS PROVISIONS
A. SECTION . Limitation of Rights of Securityholders to Terminate Trust.
Subject to Section 9.02, the death, incapacity, dissolution, liquidation,
termination or bankruptcy of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
B. SECTION . Amendment.
1 This Trust Agreement may be amended from time to time by the Property
Trustee, the Delaware Trustee, the Administrators and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders; or
(iii) to provide the Property Trustee with the authority to execute on behalf of
the Administrators Definitive Capital Securities Certificates.
2 Except as provided in Section 10.02(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or
the Trust's exemption from status of an investment company under the 1940
Act.
3 In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.03 or 6.06 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with 6.03 or 6.06 hereof), this
paragraph (c) of this Section 10.02 may not be amended.
4 Notwithstanding any other provisions of this Trust Agreement, no Trustee
shall enter into or consent to any amendment to this Trust Agreement which would
cause the Trust to fail or cease to qualify for the exemption from status of an
investment company under the 1940 Act or fail or cease to be classified as a
grantor trust for United States Federal income tax purposes.
5 Notwithstanding anything in this Trust Agreement to the contrary, without
the consent of the Depositor, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor.
6 In the event that any amendment to this Trust Agreement is made, the
Administrators shall promptly provide to the Depositor a copy of such amendment.
7 Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
C. SECTION . Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
D. SECTION . Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES), PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY
TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
A. SECTION . Payments Due on Non-business Day. If the date fixed for
any payment on any Trust Security shall be a day that is not a Business
Day, then such payment need not be made on such date but may be made on the
next succeeding day that is a Business Day (except as otherwise provided in
Section 4.02(d)), with the same force and effect as though made on the date
fixed for such payment, and no interest shall accrue thereon for the period
after such date.
B. SECTION . Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eleven of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
C. SECTION . Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
D. SECTION . Reports, Notices and Demands. Any report, notice, demand or
other communication which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to Crestar Financial Corporation, 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer, facsimile no.: (804)
782-7155 (until another address is designated by notice to the Trustees). Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrators shall be
given in writing addressed (until another address is designated by notice to the
other parties hereto) as follows: (a) with respect to the Trust, to Crestar
Capital Trust I, c/o Crestar Financial Corporation, X.X. Xxx 00000, 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000; (b) with respect to the Property
Trustee, to The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Corporate Trustee Administration Department; (c) with respect
to the Delaware Trustee, to Chase Manhattan Bank Delaware, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trustee Administration
Department; and (d) with respect to the Administrators, to them at the address
above for notices to the Depositor, marked "Attention: Administrators of Crestar
Capital Trust I." Such notice, demand or other communication to or upon the
Trust, the Property Trustee or the Delaware Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust,
the Property Trustee or the
Delaware Trustee, as the case may be.
A. SECTION . Agreement Not to Petition. Each of the Trustees and the
Depositor agree for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustees or the
Trust may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
B. SECTION . Trust Indenture Act; Conflict with Trust Indenture Act.
1 This Trust Agreement is intended to be in conformity with the provisions
of the Trust Indenture Act that would be required to be part of this Trust
Agreement were this Trust Agreement to be qualified under the Trust Indenture
Act and shall, to the extent applicable, be governed by such provisions.
2 The Property Trustee shall be the only Trustee which is a trustee for the
purposes of the Trust Indenture Act.
3 If any provision hereof limits, qualifies or conflicts with the duties
imposed under Sections 310 through 317 of the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act, such duties shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
4 The application of the Trust Indenture Act to this Trust Agreement shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
C. SECTION . Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
A. SECTION . Counterparts. This Trust Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Trust
Agreement of Crestar Capital Trust I as of the date first above written.
CRESTAR FINANCIAL CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK DELAWARE, as Delaware
Trustee
By:
Name:
Title:
Xxxxxx X. Xxxxxx, Xx.
as Administrator
Xxxxxx X. Xxxxxxxx
as Administrator
Xxxx Xxxxx
as Administrator
EXHIBIT A
CERTIFICATE OF TRUST
OF
Crestar Capital Trust I
THIS CERTIFICATE OF TRUST of Crestar Capital Trust I (the "Trust"), dated
December 19, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (ss) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
Crestar Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Chase Manhattan Bank Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Chase Manhattan Bank Delaware, as Trustee
By:
Name:
Title:
EXHIBIT B
FORM OF CAPITAL SECURITY CERTIFICATE
[IF THE CAPITAL SECURITY IS TO BE A BOOK-ENTRY CAPITAL SECURITIES
CERTIFICATE, INSERT This Capital Security is a Book-Entry Capital Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of The Depository Trust Company (the "Depository")
or a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the Depository
or its nominee only in the limited circumstances described in the Trust
Agreement and no transfer of this Capital Security (other than a transfer of
this Capital Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Capital Security is presented by an authorized representative
of The Depository Trust Company ("DTC") (55 Xxxxx Xxxxxx, Xxx Xxxx) to Crestar
Capital Trust I or its agent for registration of transfer, exchange or payment,
and any Capital Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[IF THE CAPITAL SECURITY IS TO BE A PRIVATE CAPITAL SECURITY, INSERT
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE
CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (iii) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, (iv) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (v)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.]
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION
OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER, ANY
SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES
FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON
SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH CAPITAL SECURITIES.
Certificate Number
Number of Capital Securities
[Up To]*
CUSIP NO.
Certificate Evidencing Capital Securities
of
CRESTAR CAPITAL TRUST I
8.16% Capital Securities,
(liquidation amount $1,000 per Capital Security)
Crestar Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of [ ( ) Capital Securities
of the Trust]**[the number of Capital Securities of the Trust specified in
Schedule I hereto]* representing an undivided beneficial interest in the assets
of the Trust and designated the Crestar Capital Trust I 8.16% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.04 of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of December 31, 1996, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Capital Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Crestar Financial Corporation, a Virginia corporation,
and The Chase Manhattan Bank, as guarantee trustee, dated as of December 31,
1996 (the "Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
---------
* Insert in Book-Entry Capital Securities Certificates.
**Insert in Definitive Capital Securities Certificates.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this _______________, ____.
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
[IF CAPITAL SECURITY IS AN EXCHANGE CAPITAL SECURITY, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
___________________ (Insert assignee's social security or tax
identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature(s):
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.]
[IF CAPITAL SECURITY IS A PRIVATE DEFINITIVE CAPITAL SECURITY, INSERT -
[FORM OF ASSIGNMENT]
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 security and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Trust, with full
power of substitution in the premises.
In connection with any transfer of the within security 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 Trust Agreement, the undersigned confirms that
such security is being transferred:
To Crestar Financial Corporation or a subsidiary thereof; or
Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
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 security
is not being transferred to an "affiliate" of the Trust as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
The transferee is an Affiliate of the Trust.
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.
SCHEDULE I
[IF CAPITAL SECURITY IS A BOOK-ENTRY CAPITAL SECURITIES CERTIFICATE, INSERT
-
The initial number of Capital Securities evidenced by this Book-Entry Capital
Securities Certificate is ____________.
Changes to Number of Capital Securities
Evidenced by Book-Entry Capital Securities Certificate
Date Number of Capital Remaining Capital Notation
Securities by which this Securities Represented Made by
Book-Entry Capital by this Book-Entry
Securities Certificate Is Capital Securities
To Be Reduced or Certificate
Increased, and Reason
for Reduction or
Increase
EXHIBIT C
[INSERT DTC LETTER OF REPRESENTATIONS]
EXHIBIT D
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number C-1 Number of Common Securities 6,200
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
CRESTAR CAPITAL TRUST I
(liquidation amount $1,000 per Common Security)
Crestar Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Crestar Financial
Corporation (the "Holder") is the registered owner of Six Thousand Two Hundred
(6,200) Common Securities of the Trust representing beneficial interests of the
Trust and designated the Common Securities (liquidation amount $1,000 per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of December 31, 1996, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this 31st day of December, 1996.
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
EXHIBIT E
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of December 31, 1996, between Crestar Financial
Corporation, a Virginia corporation ("Crestar Financial"), and Crestar Capital
Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its 8.16% Common Securities (the
"Common Securities") to, and receive 8.16% Junior Subordinated Deferrable
Interest Debentures due December 15, 2026 (the "Debentures") from, Crestar
Financial, and to issue and sell 8.16% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of December 31, 1996, as the same may be amended from time to time (the
"Trust Agreement");
WHEREAS, Crestar Financial will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase Crestar Financial hereby agrees shall benefit
Crestar Financial and which purchase Crestar Financial acknowledges will be made
in reliance upon the execution and delivery of this Agreement, Crestar Financial
and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Crestar Financial Corporation.
Subject to the terms and conditions hereof, Crestar Financial hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Capital Securities or other similar interests in the Trust the
amounts due such holders pursuant to the terms of the Capital Securities or such
other similar interests, as the case may be. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Capital Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Capital Securities or any Beneficiary must restore payment of any sums
paid under the Capital Securities, under any Obligation, under the Capital
Securities Guarantee Agreement dated the date hereof by Crestar Financial and
The Chase Manhattan Bank, as guarantee trustee or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
Crestar Financial hereby waives notice of acceptance of this Agreement and
of any Obligation to which it applies or may apply, and Crestar Financial hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Crestar Financial
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Crestar Financial with respect to the happening of any of the
foregoing.
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Crestar
Financial, and Crestar Financial waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against Crestar Financial.
SECTION 1.6. Subrogation.
Crestar Financial shall be subrogated to all rights (if any) of the Trust
in respect of any amounts paid to the Beneficiaries by Crestar Financial under
this Agreement; provided, however, that Crestar Financial shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Crestar
Financial and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Capital Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Capital Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Crestar Capital Trust I
c/o Crestar Financial Corporation
X.X. Xxx 00000
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Facsimile No.: (000) 000-0000
Crestar Financial Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Facsimile No.: (000) 000-0000
SECTION 2.4. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York (without regard
to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By:
Name:
Title:
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
EXHIBIT F
FORM OF TRANSFER CERTIFICATE
FOR INSTITUTIONAL ACCREDITED INVESTORS
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee Administration Department
Re: Crestar Capital Trust I (the "Trust") 8.16% Capital Securities (the
"Capital Securities")
Ladies and Gentlemen:
We represent, warrant and agree with you as follows with regard to the
Capital Securities purchased by us and described in the confidential Offering
Memorandum dated December 20, 1996 (the "Offering Memorandum").
I 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
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.
II We are acquiring the Capital Securities 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 Liquidation Amount for each such account. We acknowledge and
agree that the Capital Securities purchased by us will be issued in certificated
form bearing a legend to the effect of paragraph 5 and may not be exchanged for
Capital Securities 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
Capital Security purchased by us until such times such Capital Security is
transferred in compliance with the provisions of paragraph 3.
III We understand that the Capital Securities have not been registered
under the Securities Act and we agree that the Capital Securities purchased by
us may be reoffered, resold, pledged or otherwise transferred only:
1 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;
2 in an offshore transaction complying with Rule 903 or 904
of Regulation S under the Securities Act;
3 to an institutional accredited investor (who delivers a
letter in the form hereof) in a transaction exempt from the
registration requirements of Securities Act;
4 pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available); or
5 pursuant to an effective registration statement under the
Securities Act; and
B in accordance with all applicable securities laws of the
United States and other jurisdictions.
IV 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
Capital Securities, we, and any accounts for which we are acting are able to
bear the economic risk of purchasing such Capital Securities and we have
received a copy of the Offering Memorandum.
V We acknowledge that the Capital Securities will bear a legend to the
following effect unless the Property Trustee determines otherwise consistently
with applicable law:
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING
THE CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (ii) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (iii) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (iv) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (v) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
I We acknowledge that Crestar Financial Corporation, the Trust, the
Property Trustee, 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.
II If we are acquiring any Capital Securities 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, the Trust and the Purchasers (the "Purchasers") named in Schedule I to
the Purchase Agreement dated December 20, 1996 among the Trust, Crestar
Financial and the Purchasers are entitled to rely upon this letter and
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.)
EXHIBIT G
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 Trustee Administration Department
Re: Crestar Capital Trust I
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 31, 1996 (the "Trust Agreement"), between Crestar Financial
Corporation, The Chase Manhattan Bank, as Property Trustee, and Chase Manhattan
Bank Delaware, as Delaware Trustee, and the Administrators named therein.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a 144A Global Security (CUSIP No. 00000XXX0) and held with the
Clearing Agency in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Private Capital Securities 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 Capital Securities was not made to a person
in the United States;
(A) either:
A 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
B 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;
(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 Capital Securities.
You, the Trust and the Initial 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 Trust Agreement 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.)
EXHIBIT H
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 Trustee Administration Department
Re: Crestar Capital Trust I
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 31, 1996 (the "Trust Agreement"), between Crestar Financial
Corporation, The Chase Manhattan Bank, as Property Trustee, and Chase Manhattan
Bank Delaware, as Delaware Trustee, and the Administrators named therein.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a Regulation S Global Security (CUSIP No. X00000XX0) and held
with the Clearing Agency indirectly in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Capital Securities 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 (i) the
Transferor's interest in the Private Capital Securities is being transferred in
accordance with the transfer restrictions set forth in the Trust Agreement; 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 Trust and the Initial 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 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.)
EXHIBIT I
SECURITIES ACT LEGENDS
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE CAPITAL SECURITIES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (iii) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (iv) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (v) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
