EXHIBIT 4.8
CENTRAL FIDELITY CAPITAL TRUST I
$100,000,000
Floating Rate Capital Trust
Pass-through Securities/sm/
(TruPS/sm/)
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
CENTRAL FIDELITY BANKS, INC.
REGISTRATION AGREEMENT
New York, New York
April 23, 1997
Salomon Brothers Inc
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Central Fidelity Capital Trust I, a Delaware statutory business trust
(the "Trust"), proposes to issue and sell to Salomon Brothers Inc and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (the "Purchasers"), upon the terms set forth in a
purchase agreement dated as of April 16, 1997 (the "Purchase Agreement"),
100,000 of the Trust's floating rate Capital Trust Pass-through Securities,
Liquidation Amount $1,000 per Capital Trust Pass-through Security (the "Capital
Securities"). The Capital Securities will by guaranteed by Central Fidelity
Banks, Inc., a Virginia corporation (the "Company"), as guarantor (the Capital
Securities together with the guarantee by the Company of the payment of
distributions on, and as to payments on or liquidation or redemption of the
Capital Securities to the extent set forth in the Guarantee, the "Pass-through
Securities") (the "Initial Placement"). The proceeds of the sale by the Trust
of the Pass-through Securities and its floating rate Common Securities,
Liquidation Amount $1,000 per Common Security (the "Common Securities"), are to
be invested in the floating rate Junior Subordinated Debt Securities of the
Company having an aggregate principal amount equal to the
2
aggregate Liquidation Amount of the Capital Securities and the Common Securities
(the "Junior Subordinated Debt Securities"). As an inducement to the Purchasers
to enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Trust and the Company agree with you, (i) for your
benefit and (ii) for the benefit of the holders from time to time (each of the
foregoing a "Holder" and together the "Holders") of the Securities (as defined
herein) or the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition
-----------
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, and the rules and regulations
---
of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given such term in Section
------------------------
7(a) hereof.
"Affiliate" of any specified person means any other person which,
---------
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
------------
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
principal office of the Trustee is closed for business.
"Capital Securities" has the meaning set forth in the first paragraph
------------------
to this Agreement.
"Closing Date" has the meaning given such term in the Purchase
------------
Agreement.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning set forth in the first paragraph
-----------------
to this Agreement.
"Company" has the meaning set forth in the first paragraph to this
-------
Agreement.
3
"Declaration" means the Amended and Restated Declaration of Trust
-----------
relating to the Capital Securities, the Common Securities and the Exchange
Capital Securities, dated as of April 23, 1997, among the Company, as Depositor,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as administrative
trustees, the Property Trustee and The Bank of New York (Delaware), a Delaware
corporation, as Delaware trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior
------------------
Subordinated Debt Securities or Exchange Junior Subordinated Debt Securities, as
the case may be, to the holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, and the
------------
rules and regulations of the Commission promulgated thereunder.
"Exchange Capital Securities" means securities of the Trust to be
---------------------------
issued under the Declaration and which are identical in all material respects to
the Capital Securities (except that the distribution rate step-up provisions and
the transfer restrictions will be eliminated).
"Exchange Guarantee" means the guarantee by the Company with respect
------------------
to the Exchange Capital Securities, identical in all material respects to the
Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt securities
--------------------------------------------
of the Company to be issued under the Junior Subordinated Indenture and which
are identical in all material respects to the Junior Subordinated Debt
Securities (except that the interest rate step-up provisions and the transfer
restrictions will be eliminated).
"Exchange Offer Registration Period" means the one year period
----------------------------------
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
-------------------------------------
of the Trust and the Company on an appropriate form under the Act with respect
to the Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus
4
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Pass-through Securities" means the Exchange Capital
--------------------------------
Securities together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall not have
-------------------
occurred prior to the Registered Exchange Offer, (a) the Exchange Pass-through
Securities and (b) if the Company shall elect to include the Junior Subordinated
Debt Securities held by the Property Trustee on behalf of the Trust in the
Registered Exchange Offer pursuant to Section 2(g) hereof, the Exchange Junior
Subordinated Debt Securities or (ii) if a Distribution Event shall have occurred
prior to the Registered Exchange Offer, the Exchange Junior Subordinated Debt
Securities.
"Exchanging Dealer" means any Holder (which may include any Purchaser)
-----------------
which is a broker-dealer electing to exchange Securities acquired for its own
account as a result of market-making activities or other trading activities for
Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
----------------
Agreement.
"Guarantee" means the guarantee by the Company with respect to the
---------
Capital Securities and the Common Securities pursuant to the Guarantee Agreement
dated as of April 23, 1997 between the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property Trustee" each
----------------- ----------------- ----------------
mean The Bank of New York, a New York banking corporation.
"Holder" has the meaning set forth in the first paragraph to this
------
Agreement.
"Initial Placement" has the meaning set forth in the first paragraph
-----------------
to this Agreement.
"Junior Subordinated Debt Securities" has the meaning set forth in the
-----------------------------------
first paragraph to this Agreement.
"Junior Subordinated Indenture" means the Junior Subordinated
-----------------------------
Indenture relating to the Junior Subordinated Debt Securities and the Exchange
Junior Subordinated Debt Securities dated as of April 23, 1997 between the
Company and the Indenture Trustee.
5
"Letter of Transmittal" has the meaning given to such term in Section
---------------------
2(c) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
----------------
liquidation amount or of the aggregate principal amount, as applicable, of
Securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
---------------------
bankers and manager or managers that shall administer an underwritten offering.
"Pass-through Securities" has the meaning set forth in the first
-----------------------
paragraph to this Agreement.
"Prospectus" means the prospectus included in any Registration
----------
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including post-
effective amendments.
"Purchase Agreement" has the meaning set forth in the first paragraph
------------------
to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph to this
----------
Agreement.
"Registration Default" has the meaning given to such term in Section
--------------------
7(a) hereof.
"Registered Exchange Offer" means the proposed offer to the Holders to
-------------------------
issue and deliver to such Holders a like liquidation amount or principal amount,
as the case may be, of the Exchange Securities, in exchange for (i) if a
Distribution Event shall not have occurred, (a) the Pass-Through Securities and
(b) if the Company shall elect to include the Junior Subordinated Debt
Securities held by the Property Trustee on behalf of the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, the Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Registration Statement" means any Exchange Offer Registration
----------------------
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities
6
pursuant to the provisions of this Agreement, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Securities" means (i) if a Distribution Event shall not have
----------
occurred, (a) the Pass-through Securities and (b) if the Company shall elect to
include the Junior Subordinated Debt Securities held by the Property Trustee on
behalf of the Trust in the Registered Exchange Offer pursuant to Section 2(g)
hereof, the Junior Subordinated Debt Securities or (ii) if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to Section
------------------
3 hereof.
"Shelf Registration Period" has the meaning given such term in Section
-------------------------
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration statement
----------------------------
of the Trust and the Company pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trust" has the meaning set forth in the first paragraph to this
-----
Agreement.
"Trustee" means the Guarantee Trustee, the Indenture Trustee or the
-------
Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities or Exchange
-----------
Securities, as applicable, in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
------------------------------------------------------------
Exchanging Dealers. (a) The Trust and the Company shall prepare and, not later
-------------------
than 120 days following the Closing Date, shall file with the Commission the
Exchange Offer Registration Statement. The Trust and the Company shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 180 days following the Closing Date.
7
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall use their reasonable best efforts to
promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for Exchange Securities (assuming that such Holder is not an affiliate of the
Trust or the Company within the meaning of the Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the
distribution (within the meaning of the Act) of the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions on transfer under the Act and without material
restrictions on transfer under the securities laws of at least two-thirds of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Trust and
the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal (a "Letter of Transmittal") and related documents;
(ii) use their reasonable best efforts to keep the Registered Exchange
Offer open for not less than 30 days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Trust and the Company shall:
(i) accept for exchange all Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the applicable Trustee for cancelation all Securities
so accepted for exchange; and
8
(iii) cause the applicable Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchasers and the Trust and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired for its own account as a
result of market-making activities or other trading activities. Accordingly,
the Trust and the Company shall:
(i) include information substantially similar to that set forth in
Annex A hereto on the cover of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Registered Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; and
(ii) use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus forming a
part thereof by Exchanging Dealers in connection with sales of Exchange
Securities received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below.
(f) In the event that the Purchasers determine that they are not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of their initial unsold
allotment, at the request of the Purchasers, the Company and the Trust, as
applicable, shall issue and deliver to the Purchasers, in exchange for such
Securities, Exchange Securities equal in liquidation amount or principal amount,
as the case may be, to such Securities (provided that such Exchange Securities
shall include legends with respect to restrictions on
9
transfer), and the Company shall, starting on the date of effectiveness of the
Exchange Offer Registration Statement and ending on the close of business on the
first anniversary following such date, make available as many copies of the
Exchange Offer Registration Statement Prospectus, as amended or supplemented, as
reasonably requested by the Purchasers. The Trust and the Company shall seek to
cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered Exchange
Offer. The Purchasers agree to promptly notify the Company in writing following
the resale of their initial allotment of Securities or Exchange Securities, as
applicable.
(g) Notwithstanding anything in this Agreement to the contrary, if a
Distribution Event shall not have occurred prior to the Registered Exchange
Offer, the Company may offer to, and the Trust shall agree to, exchange the
Junior Subordinated Debt Securities held by the Property Trustee on behalf of
the Trust for an identical principal amount of Exchange Junior Subordinated Debt
Securities as part of the Registered Exchange Offer; provided, however that,
-------- -------
until a Distribution Event shall have occurred, such Exchange Junior
Subordinated Debt Securities shall include appropriate legends with respect to
transfer restrictions.
3. Shelf Registration. If, (i) because of any change in law or in
-------------------
currently prevailing interpretations thereof by the Commission's staff
(including oral interpretations), the Trust and the Company determine upon
advice of their outside counsel that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof, (ii) for any
other reason the Registered Exchange Offer is not consummated within 210 days of
the Closing Date, (iii) as a result of the consummation of the Registered
Exchange Offer, in the opinion of a nationally recognized independent tax
counsel to the Company experienced in such matters to the effect that there is
more than an insubstantial risk that (A) if the Junior Subordinated Debt
Securities are held by or on behalf of the Trust, (x) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to interest accrued or received on the Junior
Subordinated Debt Securities or subject to more than a de minimis amount of
----------
other taxes, duties or other governmental charges as determined by such counsel,
or (y) any portion of interest payable by the Company to the Trust on the Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Company in whole of in part for United
States federal income tax purposes or (B) with respect to
10
Junior Subordinated Debt Securities which are no longer held by or on behalf of
the Trust, any portion of interest payable by the Company on the Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Company in whole or in part for United
States federal income tax purposes, or (iv) in the event that the Purchasers
participate in the Registered Exchange Offer or acquire Exchange Securities
pursuant to Section 2(f) hereof and the Purchasers do not receive freely
tradeable Exchange Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that, for purposes of this
Section 3, (x) the requirement that the Purchasers deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being not
"freely tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the following provisions
shall apply:
(a) The Trust and the Company shall, as promptly as practicable (but
in no event more than 60 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter use their reasonable best
efforts to cause to be declared effective under the Act a Shelf Registration
Statement relating to the offer and sale of the Securities or the Exchange
Securities, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that with respect to Exchange
-------- -------
Securities received by the Purchasers in exchange for Securities constituting
any portion of an unsold allotment, the Trust and the Company may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of their obligations under this paragraph (a) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(b) The Trust and the Company shall use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective in order to
permit the
11
Prospectus forming part thereof to be usable by Holders for a period of (i) two
years or (ii) one year in the event that the Shelf Registration Statement is
requested by the Purchasers pursuant to Section 3(iii), from the Closing Date or
such shorter period that will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
4. Registration Procedures. In connection with any Shelf
------------------------
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to each Purchaser, prior
to the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included
therein and shall use their best efforts to reflect in each such document,
when so filed with the Commission, such comments as you reasonably may
propose.
(b) The Trust and the Company shall take such actions as may be
necessary so that (i) any Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules and
regulations thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (iii)
any Prospectus forming part of any Registration Statement, and any amendment
or supplement to such Prospectus, does not, during the period when delivery
thereof is required, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchasers and, in
the case of a Shelf Registration Statement, the Holders of Securities
covered thereby to the extent specified in (i) below, and, if requested by
you or any such Holder, confirm such advice in writing:
12
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Trust and the Company shall advise the Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Trust and the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to (a) the suspension of the qualification
of the securities included therein for sale in any jurisdiction or (b)
the initiation or threatening of any proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus.
(d) The Trust and the Company shall use their best efforts to obtain
the withdrawal of any order suspending the effectiveness or use of any
Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
13
(f) The Trust and the Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Trust and the Company consent to the
use of the Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) above by each of the
selling Holders of Securities in connection with the offering and sale of
the Securities covered by the Prospectus or any amendment or supplement
thereto during the Shelf Registration Period.
(g) The Trust and the Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Trust and the Company shall, during the Exchange Offer
Registration Period, deliver as promptly as practicable to each Exchanging
Dealer without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery by
such Exchanging Dealer in connection with a sale of Exchange Securities
received by it pursuant to the Registered Exchange Offer; and the Trust and
the Company consent to the use of the Prospectus or any amendment or
supplement thereto as to which no notice has been given pursuant to
paragraph 4(c)(2) above by any such Exchanging Dealer, as aforesaid during
the Exchange Offer Registration Period.
(i) Prior to the Registered Exchange Offer or the effectiveness of a
Registration Statement with respect to any other offering of Securities,
the Trust and the Company shall, if required by applicable law, register or
qualify or cooperate with the Holders of Securities included therein and
their respective counsel in connection with the registration or
qualification of such Securities for offer and sale under the securities or
blue sky laws of such jurisdictions in the United States as any such
Holders reasonably request in
14
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such United States jurisdictions of the
securities covered by such Registration Statement; provided, however, that
-------- --------
neither the Trust nor the Company will be required to qualify generally to
do business in any jurisdiction where it is not then so qualified, to take
any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject, to
consent to the service of process under the laws of any such state or to
make any change to its articles of incorporation or bylaws, or the
Declaration, as applicable.
(j) Unless the applicable securities shall be in book-entry only
form, the Trust and the Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
4(c)(1)(ii) or 4(c)(2)(iii) above, the Trust and the Company shall prepare
as soon as possible a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or file
any other required document so that, as thereafter delivered to purchasers
of the securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except, in each case, for an
untrue statement of a material fact or omission of a material fact made in
reliance on and in conformity with written information furnished to the
Company or the Trust by or on behalf of the Holders specifically for use
therein).
(l) The Trust and the Company shall use their best efforts to cause
The Depository Trust Company ("DTC") on the first business day following
the effective date of any Shelf Registration Statement hereunder or as soon
as possible thereafter to remove (i) from any existing CUSIP number
assigned to the Pass-through Securities or Junior Subordinated Debt
Securities, as the case may be, any designation indicating that such
securities are "restricted
15
securities", which efforts shall include delivery to DTC of a letter
executed by the Trust and the Company substantially in the form of Annex E
hereto and (ii) any other stop or restriction on DTC's system with respect
to such securities. In the event the Trust and the Company are unable to
cause DTC to take the actions described in the immediately preceding
sentence, the Company shall take such actions as Salomon Brothers Inc may
reasonably request to provide, as soon as practicable, a CUSIP number for
the Pass-through Securities or Junior Subordinated Debt Securities, as the
case may be, registered under such Registration Statement and to cause such
CUSIP number to be assigned to such securities (or to the maximum aggregate
principal amount of such securities to which such number may be assigned).
Upon compliance with the foregoing requirements of this Section 4(l), the
Trust and the Company shall provide the applicable Trustee with printed
certificates for such securities, in a form eligible for deposit with DTC.
(m) The Trust and the Company shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to the Trust's security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the Junior Subordinated
Indenture, the Declaration and the Guarantee to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Trust and the Company such information regarding such Holder and the
distribution of such securities by such Holder as the Trust and the Company
may from time to time reasonably require for inclusion in such Registration
Statement, and Securities of a Holder which does not provide information
necessary for inclusion in such Registration Statement within a reasonable
time after receiving such request may be omitted from any Shelf
Registration Statement.
(p) The Trust and the Company shall, if reasonably requested, and in
no event more than three times, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
16
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of
the matters to be incorporated in such Prospectus supplement or post-
effective amendment.
(q) In the case of any Shelf Registration Statement, the Trust and
the Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the Securities or the
Exchange Securities, as the case may be, as the Holders of at least a
majority in aggregate principal amount or liquidation amount, as
applicable, of outstanding Securities that have not been registered shall
reasonably request in writing and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 (or such other provisions and procedures acceptable to
the Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6; provided that the
--------
Company and the Trust shall not be required to enter into any such
agreement more than once with respect to the Securities or the Exchange
Securities and may delay entering into such agreement until the
consummation of any underwritten public offering which the Company shall
have undertaken; and provided, further that such delay shall in no event be
-------- -------
for more than 75 days from the date such written notice is received by the
Company.
(r) In the case of any Shelf Registration Statement, the Trust and
the Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, subject to their
acceptance of the provisions of this Section 4(r), any underwriter
participating in any distribution pursuant to such Registration Statement,
and any attorney, accountant or other agent retained by the Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Trust or the Company and its
subsidiaries as shall reasonably be required in connection with the
discharge of their due diligence obligations; (ii) cause the Company's
officers, directors and employees and any relevant trustee to supply all
relevant information reasonably requested by the Holders or any such
underwriter, attorney,
17
accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations; provided, however,
-------- -------
that in the case of clauses (i) and (ii) above, any information that is
designated in writing by the Trust or the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders and any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality; and provided further, however, that the
-------- ------- -------
foregoing inspection and information gathering shall be coordinated on
behalf of the Holders and the other parties entitled thereto by one counsel
designated by and on behalf of such Holders and other parties and
reasonably acceptable to the Company and the Trust; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten
offerings and covering such matters as are customarily covered in
representations and warranties requested in primary underwritten offerings;
(iv) obtain opinions of counsel to the Trust and the Company (who may be
general counsel of the Company) and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with such exceptions as are
customarily covered or taken in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the matters to be covered by
such counsel shall include, without limitation, as of the date of the
opinions and as of the effective date of the Registration Statement or most
recent post-effective amendment thereto, as the case may be, a statement by
such counsel regarding the absence from such Registration Statement and the
final Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading); (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company
18
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Trust and the Company. The foregoing actions
set forth in clauses (iii) and (v) of this Section 4(r) shall be performed
at (A) the effectiveness of such Registration Statement and each post-
effective amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, if
requested by the Purchasers, the Trust and the Company shall (i) make
reasonably available for inspection by the Purchasers, and any attorney,
accountant or other agent retained by the Purchasers, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries or the Trust as shall reasonably be
required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees and
any relevant trustee to supply all relevant information reasonably
requested by the Purchasers or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that, in the case of clauses
-------- -------
(i) and (ii) above, any information that is designated in writing by the
Company or the Trust, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Purchasers
and any such attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii) make
such representations and warranties to the Purchasers, in form, substance
and scope as are customarily made by
19
issuers to underwriters in primary underwritten offerings and covering such
matters; (iv) obtain opinions of counsel to the Trust and the Company (who
may be the general counsel of the Company) and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Purchasers and their counsel), addressed to the
Purchasers, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by the Purchasers or their counsel (it being agreed
that the matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective date of
the Registration Statement or most recent post-effective amendment thereto,
as the case may be, a statement by such counsel regarding the absence from
such Registration Statement and the final Prospectus included therein, as
then amended or supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to the Purchasers, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if requested by the
Purchasers or their counsel in lieu of a "cold comfort" letter, an agreed-
upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by the Purchasers or their counsel; and (vi)
deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Purchasers, including those to evidence
compliance with Section 4(k) and with conditions customarily contained in
underwriting agreements. The foregoing actions set forth in clauses (iii)
and (v) of this Section 4(s) shall be performed, if requested by the
Purchasers, at the closing of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
20
5. Registration Expenses. The Trust and the Company shall bear all
----------------------
expenses incurred in connection with the performance of their obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders
and reasonably acceptable to the Company to act as counsel for the Holders
in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Purchasers for the reasonable
fees and disbursements of one firm or counsel reasonably acceptable to the
Company acting as counsel to the Purchasers.
6. Indemnification and Contribution. (a) In connection with any
---------------------------------
Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including any Purchaser and,
with respect to any Prospectus delivery as contemplated in Section 4(h)
hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
--------
however, that (i) the Company will not be liable in any case to the extent
-------
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Trust and the Company by or on behalf
of any such Holder specifically for inclusion therein and (ii) such
indemnity with respect to any preliminary Prospectus relating to a Shelf
Registration Statement shall
21
not inure to the benefit of any Holder or Purchaser (or the directors,
officers, employees and agents of such Holder or Purchaser and any person
controlling such Holder or Purchaser) from whom the person asserting any
such loss, claim, damage or liability purchased the securities that are the
subject thereof, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the
Purchasers or such Holder, if such is required by law, at or prior to the
written confirmation of the sale of such securities to such person and if
the final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability. This indemnity
agreement will be in addition to any liability which the Trust and the
Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses (as
defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement and each person
who controls such underwriters on substantially the same basis as that of
the indemnification of the Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any underwriter and required
by Section 4(q) hereof, enter into an underwriting agreement reflecting
such agreement.
(b) Each Underwriter or Holder of securities covered by a
Registration Statement (including the Purchasers and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) shall be required to severally agree to indemnify and hold harmless
(i) the Trust and the Company, (ii) each of the Company's directors, (iii)
each of the Company's officers or any trustee who signs such Registration
Statement and (iv) each person who controls the Company or the Trust within
the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Underwriter or Holder,
but only with reference to written information relating to such Underwriter
or Holder furnished to the Trust or the Company by or on behalf of such
Underwriter or Holder specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any such Underwriter or Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
22
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above or
paragraph (d) below unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than obligations provided under this Section 6. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel) (it
being understood that the indemnifying party shall not be liable for the
fees, costs and expenses of more than one separate counsel (and, to the
extent necessary, one local counsel in each jurisdiction)), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such
23
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Trust and the Company
shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchasers shall be deemed to be
equal to the total purchase discounts, commissions or compensation as set
forth on the cover page of the Final Memorandum, and benefits received by
any other Holders shall be deemed to be equal to the excess, if any, of the
value to such Holder of receiving Securities or Exchange Securities, as
applicable, registered under the Act over the value to such Holder of
holding Securities not registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of
24
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person who controls a Holder within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company or the Trust within the meaning of
either the Act or the Exchange Act, each officer of the Company and each trustee
of the Trust who shall have signed the Registration Statement and each director
of the Company and each trustee of the Trust shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or the Trust or any of the officers, directors, trustees or controlling
persons referred to in Section 6 hereof, and will survive the sale by a Holder
of securities covered by a Registration Statement.
7. Special Interest and Additional Distributions Under Certain
-----------------------------------------------------------
Circumstances. (a) Special Interest ("Special Interest") shall become payable
--------------
in respect of the Junior Subordinated Debt Securities (including in respect of
amounts accruing during any Extension Period (as defined in the Junior
Subordinated Indenture)), and corresponding additional distributions (the
"Additional Distributions") shall become payable on the Capital Securities as
follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) if an Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 120th day following the Closing Date, unless
such failure to file is permitted pursuant to Section 3 hereof and the
Shelf Registration Statement is filed on or prior to such 120th day;
(ii) if the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Closing Date, unless
such Exchange Offer Registration Statement is not required to be declared
effective pursuant to Section 3 hereof;
25
(iii) if the Registered Exchange Offer is not consummated on or prior
to the 210th day following the Closing Date, unless a Registered Exchange
Offer is not required to be consummated pursuant to Section 3 hereof and
the Shelf Registration Statement has been declared effective on or prior to
such 210th day; or
(iv) if, after the 210th day following the Closing Date and after the
Shelf Registration Statement is declared effective (if a Shelf Registration
Statement is required to be filed pursuant to Section 3 hereof), such Shelf
Registration Statement ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of this Section
7).
Special Interest and Additional Distributions shall accrue on the
Junior Subordinated Debt Securities and the Capital Securities, respectively,
over and above the interest rate or distribution rate, as the case may be, set
forth in the title to the Junior Subordinated Debt Securities and the Capital
Securities, respectively, following the occurrence of each Registration Default
set forth in clauses (i), (ii), (iii) and (iv) above from and including the next
day following each such Registration Default, in each case at a rate equal to
0.25% per annum of the principal amount or liquidation amount, as applicable,
(to be increased to 0.50% if and when the Shelf Registration Statement is no
longer effective for 60 days or more), without prejudice to any other claim that
any Holder may have for any failure by the Company to obtain or maintain
continuous effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement in accordance with the terms of this Registration
Agreement; provided, however, that the aggregate amount of Special Interest and
-------- -------
Additional Distributions, respectively, payable pursuant this Section 7(a) will
in no event exceed 0.50% per annum of the principal amount or liquidation
amount, as applicable. The Special Interest and the Additional Distributions
attributable to each Registration Default shall cease to accrue from the date
such Registration Default is cured, and the interest rate and the distribution
rate payable on the Junior Subordinated Debt Securities and the Capital
Securities, respectively, will each be reduced to the rate set forth in the
titles to such Junior Subordinated Debt Securities and Capital Securities.
(b) A Registration Default referred to in Section 7(a)(iv) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default
26
has occurred solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events or
developments with respect to the Trust or the Company that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Trust and the Company are proceeding promptly and in
good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events.
(c) Any amounts of Special Interest and Additional Distributions due
pursuant to the foregoing paragraphs will be payable in cash on the 15th day of
January, April, July and October of each year to the holders of record at the
close of business on the Business Day next preceding each such date. In the
event that any date on which Special Interest and Additional Interest is payable
is not a Business Day, payment of the Special Interest and Additional Interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any Special Interest and Additional Interest or other payments
in respect to any such delay) with the same force and effect as if made on the
date such payment was originally payable.
8. Miscellaneous.
--------------
(a) No Inconsistent Agreements. Each of the Trust and the Company has
--------------------------
not, as of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to the Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Holders of at least a majority of the
then outstanding aggregate liquidation amount or principal amount, as the
case may be, of Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of Exchange Securities);
provided, however, that, with respect to any matter that affects the rights
-------- -------
of any Purchaser hereunder, the
27
Trust and the Company shall obtain the written consent of the Purchasers.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Majority Holders,
determined on the basis of securities being sold rather than registered under
such Registration Statement.
(c) Notices. All notices and other communications provided for or
--------
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this
Section 8(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to Salomon Brothers Inc;
(2) if to you, initially at the address set forth in the Purchase
Agreement; and
(3) if to the Company or the Trust, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Purchasers, the Trust or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
-----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
28
(e) Counterparts. This Agreement may be executed in any number of
-------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
---------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
-------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Trust or the Company, etc. Whenever the
-------------------------------------------------
consent or approval of Holders of a specified percentage of liquidation amount
or principal amount, as the case may be, of Securities or Exchange Securities is
required hereunder, Securities or Exchange Securities, as applicable, held by
the Trust or the Company or their respective Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) Underwritten Offerings.
-----------------------
(i) If any of the Securities or Exchange Securities covered by the
Shelf Registration are to be sold pursuant to an underwritten offering, the
Managing Underwriter or Managing Underwriters thereof shall be designated
by the Holders of at least a majority in aggregate principal amount or
liquidation amount, as applicable, to be included in such offering,
provided that such designated Managing Underwriter(s) is or are reasonably
acceptable to the Company.
29
(ii) Each Holder of Securities or Exchange Securities hereby agrees
with each other such Holder that no such Holder may participate in any
underwritten offering hereunder unless such Holder agrees to sell such
Holder's Securities or Exchange Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements.
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and you.
Very truly yours,
CENTRAL FIDELITY CAPITAL TRUST I
by: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Executive Corporate
Vice President
CENTRAL FIDELITY BANKS, INC.
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Corporate
Vice President
Accepted in New York, New York
April 23, 1997
SALOMON BROTHERS INC
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
by: SALOMON BROTHERS INC
on behalf of the Initial Purchasers
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ANNEX A
Annex A
-------
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Company have agreed
that, ending on the close of business on the first anniversary following the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Annex B
-------
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
Plan of Distribution
--------------------
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such broker-
dealer as a result of market-making activities or other trading activities. The
Trust and the Company have agreed that, starting on the Expiration Date and
ending on the close of business on the first anniversary following the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from any sale
of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Trust and the
Company will promptly send
2
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Trust and the Company have agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the holders of
the Securities) other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:_________________________________________________________________
Address:______________________________________________________________
______________________________________________________________
Rider B
-------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Central Fidelity Capital Trust I
Central Fidelity Banks, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Floating Rate Capital Trust Pass-through Securities/sm/
(TruPS/sm/) (the "Securities") of Central Fidelity Capital Trust
I, fully and unconditionally guaranteed by Central Fidelity
Banks, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities Act
of 1933 with regard to all of the Securities referenced above. Accordingly,
there is no longer any restriction as to whom such Securities may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. The undersigned understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
CENTRAL FIDELITY CAPITAL TRUST I,
by:
-----------------------------
Authorized Officer
CENTRAL FIDELITY BANKS, INC.,
by:
-----------------------------
Authorized Officer
