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EXHIBIT 4.9.1
SUPPLEMENTAL INDENTURE
--------
between
SUNTRUST BANKS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of ,
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.......................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount............................. 6
SECTION 2.2. Maturity..................................................... 6
SECTION 2.3. Form and Payment............................................. 6
SECTION 2.4. Global Debenture............................................. 7
SECTION 2.5. Interest..................................................... 8
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.............. 12
SECTION 3.2. Optional Redemption by Company............................... 13
SECTION 3.3. No Sinking Fund.............................................. 13
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period......................... 14
SECTION 4.2. Notice of Extension.......................................... 14
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.......................................... 15
SECTION 5.2. Payment Upon Resignation or Removal.......................... 16
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture............................................ 16
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Page
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ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures................................. 16
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends...................................... 17
SECTION 8.2. Covenants as to the Trust.................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.................................... 18
SECTION 9.2. Acknowledgement of Rights.................................... 19
SECTION 9.3. Direction of Proceedings and Waiver
of Defaults by Majority of Holders........................... 19
SECTION 9.4. Debt Trustee Not Responsible for Recitals.................... 20
SECTION 9.5. Governing Law................................................ 21
SECTION 9.6. Separability................................................. 21
SECTION 9.7. Counterparts................................................. 21
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_______ SUPPLEMENTAL INDENTURE, dated as of _________________,
_______ (the "_____ Supplemental Indenture"), between SunTrust Banks, Inc., a
Georgia corporation (the "Company"), and The First National Bank of Chicago, as
trustee (the "Debt Trustee"), under the Indenture dated as of _________, ______
between the Company and the Debt Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Debt Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt Securities
to be known as its ____________, ____________ (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this _____ Supplemental Indenture;
WHEREAS, SunTrust Capital , a Delaware statutory business
trust (the "Trust"), has offered to the public $____________ aggregate
liquidation amount of its ____________ (the "Preferred Securities"),
representing beneficial ownership interests in the assets of the Trust, and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $____________ aggregate
liquidation amount of its Common Securities; and
WHEREAS, the Company has requested that the Debt Trustee
execute and deliver this _____ Supplemental Indenture pursuant to Sections 2.03
and 9.01 of the Indenture and all requirements necessary to make this _____
Supplemental Indenture a valid and binding instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Debt Trustee, the valid and binding
obligations of the Company, have been performed, and the execution and delivery
of this _____ Supplemental Indenture has been duly authorized in all respects:
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NOW THEREFORE, in consideration of the purchase of the Debentures by
the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Debentures and the additional terms,
provisions and conditions thereof, the Company covenants and agrees with the
Debt Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this _____ Supplemental Indenture;
(b) a term defined anywhere in this _____ Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this _____ Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: Business Day; Clearing Agency; Common Securities; Delaware
Trustee; Direct Action; Distribution; Institutional Trustee Account; Preferred
Securities; Preferred Securities Guarantee; Preferred Security Certificate;
Regular Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"3-Month LIBOR" shall have the meaning set forth in Section
2.5(b).
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"Additional Sums" shall have the meaning set forth in Section
2.5(f).
"Calculation Agent" shall have the meaning set forth in
Section 2.5(b).
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced proposed 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 proposed change,
pronouncement, action or decision is announced on or after the date of issuance
of the Preferred Securities under the Declaration, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount
equal to the liquidation amount of the Preferred Securities as "Tier I Capital"
(or the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Company.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Debentures" shall have the meaning set forth in the preamble
of this _____ Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of _________, _____, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Depositary", with respect to the Debentures, means The
Depository Trust Company or such other successor Clearing Agency for the
Preferred Securities.
"Determination Date" shall have the meaning set forth in
Section 2.5(b)(i).
"Dissolution Event" means the liquidation of the Trust
pursuant to the Declaration and the distribu-
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tion of the Debentures held by the Institutional Trustee to the holders of the
Trust Securities issued by the Trust pro rata in accordance with the
Declaration.
"Extension Period" shall have the meaning set forth in Section
4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"Index Maturity" shall have the meaning set forth in Section
2.5(b)(i).
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(e).
"Interest Period" shall have the meaning set forth in Section
2.5(b).
"Interest Rate" shall have the meaning set forth in Section
2.5(b).
"Market Day" shall have the meaning set forth in Section
2.5(b).
"Maturity Date" shall mean __________, ____.
"Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4(a)(ii).
"Optional Redemption" means a redemption pursuant to Section
3.2.
"Other Guarantees" means all guarantees issued or to be issued
by the Company with respect to capital securities (if any) and issued to other
trusts to be established by the Company (if any), in each case similar to the
Trust.
"Redemption Price" shall mean, with respect to any redemption
of the Debentures pursuant to Article III hereof, an amount in cash equal to
100% of the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
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"Reference Banks" shall have the meaning set forth in Section
2.5(b)(ii).
"Reuters Screen LIBO Page" shall have the meaning set forth in
Section 2.5(b)(ii).
"Security Registrar" shall have the meaning set forth in
Section 2.3.
"Tax Event" means the receipt by the Trust of an opinion of
counsel to the Company experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed 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 proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstan-tial risk that (i) 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 income received or accrued on the Debentures, (ii) interest
payable by the Company on the Debentures is not, or within 90 days of such
opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes or (iii) the Trust is, or will be within 90
days of the date of the opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Telerate Page 3750" shall have the meaning set forth in
Section 2.5(b)(i).
"Trust" shall have the meaning set forth in the preamble of
this _____ Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "_____________________________, ______ ", limited in aggregate
principal amount to $__________ which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Debentures
pursuant to Section 2.05 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date (which shall constitute the Stated Maturity
of the Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons. Principal
of, premium, if any, and interest on (including Compounded Interest and
Additional Sums, if any) the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures bearing identical terms and provisions at
the office or agency of the Company maintained for such purpose as set forth in
the Indenture; provided, however, that payment of interest with respect to
Debentures (other than a Global Debenture) may be made at the option of the
Company (i) by check mailed to the Holder at such address as shall appear in the
Security Register or (ii) by transfer to an account maintained by the Person
entitled thereto, provided that proper transfer instructions have been received
in writing by the relevant record date. The Company selects each of New York,
New York and Chicago, Illinois as a place of payment where the principal of (and
premium, if any) and interest on the Debentures are payable as specified in
accordance herewith, and hereby appoints The First Na-
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tional Bank of Chicago, the Debt Trustee, as registrar for the Debentures (the
"Security Registrar"). Notwithstanding the foregoing, so long as the Holder of
any Debentures is the Institutional Trustee, the payment of the principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on such Debentures held by the Institutional Trustee will be made
at such place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Debt Trustee by the Institutional Trustee in exchange
for a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Debt Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Debt Trustee for
authentication and delivery in accordance with the Indenture. Payments
on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Debt Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Debt
Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which
time
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such Preferred Security Certificates will be cancelled and a Debenture,
registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company and delivered to
the Debt Trustee for authentication and delivery in accordance with the
Indenture. Upon the issuance of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Debt Trustee will be deemed to have been
cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the Interest Rate (as
defined below) from _______, _____ until the principal thereof becomes due and
payable, and on any overdue principal at the Interest Rate and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Interest Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on the
____ day of _____, ______, _______ and ______ of each year commencing on
_______, _____, to the Person in whose name such Debenture or any predecessor
Debenture is registered, at the close of business on the regular record date for
such interest installment, which, in respect of any Debentures of which the
Institutional Trustee is the Holder or in the case of a Global Debenture, shall
be the close of business on the Business Day next preceding that Interest
Payment Date (as defined below). Notwithstanding the foregoing sentence, if the
Debentures are no longer in book-entry only form, except if the Debentures are
held by the Institutional Trustee, the record dates shall be the ______,
_______, _______ and ______ prior to the applicable Interest Payment Date.
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[(b) The interest rate in respect of the Debentures applicable
during an Interest Period will be the sum of (i) a floating rate per annum
determined by reference to 3-Month LIBOR, determined as described below, plus
(ii) a margin of .___% (such sum, the "Interest Rate"). "3-Month LIBOR" means
the London, England inter-bank offered rate for three month U.S. dollar deposits
and with respect to any Interest Period will be calculated by The First National
Bank of Chicago, as calculation agent (the "Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Interest Period (each, a "Determination Date"),
3-Month LIBOR will be determined on the basis of the offered rate for
deposits of not less than U.S. $1,000,000 for a period of three months
(the "Index Maturity"), commencing on the second Market Day immediately
preceding the commencement of such Interest Period, which appears on
the display designated as Page 3750 on the Dow ▇▇▇▇▇ Telerate Service
(or such other pages as may replace Page 3750 on that service for the
purpose of displaying London, England interbank offered rates of major
banks) ("Telerate Page 3750") as of 11:00 a.m., London, England time on
said Determination Date. If no such offered rate appears, 3-Month LIBOR
with respect to such Interest Period will be determined as described in
(ii) below.
(ii) With respect to a Determination Date on which no such
offered rate appears on Telerate Page 3750 as described in (i) above,
3-Month LIBOR shall be the arithmetic mean, expressed as a percentage,
of the offered rates (unless by its terms such display provides for
only a single rate, in which case a single rate shall be used) for
deposits in U.S. dollars for the Index Maturity that appears on the
display designated as "LIBO" on the Reuters Monitor Money Market Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London, England inter-bank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London, England time, on such date. If, in turn, at least two
such rates are not displayed on the Reuters Screen LIBO Page at such
time (unless, as aforesaid, only a single rate
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is required), the Calculation Agent will obtain from each of four
reference banks in London, England selected by the Calculation Agent
("Reference Banks") such bank's offered quotation (expressed as a
percentage per annum) as of approximately 11:00 a.m., London, England
time, on such date for deposits in U.S. dollars to prime banks in the
London, England interbank market for the Index Maturity. If two or more
such quotations are provided as requested, then 3-Month LIBOR for such
date shall be the arithmetic average of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3-Month
LIBOR for such date will be obtained from the preceding Market Day for
which the Reuters Screen LIBO Page displayed a rate for the Index
Maturity.
(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided
in paragraphs (a) and (b) above, 3-Month LIBOR for such Interest Period
shall be 3-Month LIBOR as determined on the previous Determination
Date.]
The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
The term "Interest Period" means each period beginning on, and
including, _____, ____, and ending on, but excluding, the first Interest Payment
Date, and each successive period beginning on, and including, an Interest
Payment Date and ending on, but excluding, the next succeeding Interest Payment
Date.
The Interest Rate for any Interest Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in
this _____ Supplemental Indenture will be rounded, if necessary, to the nearest
one ten-thousandth of a percentage point with five hundred-thousandths of a
percentage point being rounded upwards (e.g., 6.87655% (or .0687655) would be
rounded to 6.8766% (or .068766)), and all U.S. dollar amounts used in or
resulting
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from such calculations will be rounded to the nearest cent (with one-half cent
or more being rounded upwards).
(c) The Calculation Agent shall, as soon as practicable after
11:00 a.m., London, England time, on each Determination Date, determine the
Interest Rate and inform the Debt Trustee and the Paying Agent and, if any
Debentures are held by the Institutional Trustee, the Institutional Trustee.
Unless otherwise provided by the Debt Trustee, the Paying Agent will calculate
the amount of interest payable on the Debentures in respect of the following
Interest Period. The amount of interest payable for any Interest Period will be
computed on the basis of the actual number of days in the applicable Interest
Period divided by 360 and rounding the resulting figure to the nearest cent
(with one-half cent or more being rounded upwards). The determination of the
Interest Rate by the Calculation Agent and the amount of interest payable by
Paying Agent will (in the absence of wilful default, bad faith or manifest
error) be final, conclusive and binding on all concerned. None of the Debt
Trustee, the Paying Agent, the Calculation Agent, the Trust or the Company (or
any of their respective officers, directors, agents, beneficiaries, employees or
affiliates) shall have any liability to any person for (i) the selection of any
Reference Bank or (ii) any inability to retain major banks in the London,
England interbank market, in the case of the Calculation Agent, which is caused
by circumstances beyond its reasonable control.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made or
obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debentures, whether by the Reference Banks (or
any of them) or the Calculation Agent, Debt Trustee or Paying Agent, will (in
the absence of wilful default, bad faith or manifest error) be binding on the
Trust, the Company, the Debt Trustee and all of the holders of the Debentures,
and no liability will (in the absence of wilful default, bad faith or manifest
error) attach to the Calculation Agent, Debt Trustee or Paying Agent in
connection with the exercise or non-exercise by any of them of their powers,
duties and discretion.
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(e) In the event that any date on which interest is payable on
the Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day, except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date (each date on which interest is
actually payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event.
Additional Sums shall be treated as interest for all purposes under the
Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.
If a Tax Event or a Capital Treatment Event has occurred and
is continuing then, notwithstanding Section 3.2(a) but subject to Section
3.2(c), the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders to redeem the Debentures, in whole, but not
in part, for cash within 90 days following the occurrence of such Tax Event or
Capital Treatment Event (or, if the approval of the Board of Governors of the
Federal Reserve System is then required for such
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redemption, on such later date as promptly practicable after such approval is
obtained) at the Redemption Price.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b), except as
otherwise may be specified in this _____ Supplemental Indenture or the
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after _________, _____ at the Redemption
Price (an "Optional Redemption"). If the Debentures are only partially redeemed
pursuant to this Section 3.2, the Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Security Registrar; provided, that if at
the time of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities issued by the Trust from any national
securities exchange or interdealer quotation system or other organization on
which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and may only redeem the Debentures
in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest on the Debentures by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarterly periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that no
Extension Period shall end on a date other than an Interest Payment Date or
extend beyond the Maturity Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the interest rate then in effect compounded quarterly for each quarterly
period of the Extension Period ("Compounded Interest"). At the end of the
Extension Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Sumsand Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders in whose names the
Debentures are registered in the Security Register on the record date relating
to the Interest Payment Date on which the Extension Period ends. Before the
termination of any Extension Period, the Company may further defer payments of
interest by further extending such period, provided that such period, together
with all such previous and further extensions within such Extension Period,
shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof.
Compounded Interest shall be treated as interest for all purposes under the
Indenture.
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SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder
at the time the Company selects an Extension Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the Debt
Trustee of its selection of such Extension Period five Business Days before the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to any national securities exchange or interdealer quotation system or
to holders of the Preferred Securities issued by the Trust, but in any event at
least five Business Days before such record date.
(b) If the Institutional Trustee is not the only Holder at the
time the Company selects an Extension Period, the Company shall give the Holders
and the Debt Trustee written notice of its selection of such Extension Period at
least 10 Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to any national securities
exchange or interdealer quotation system or to the Holders.
(c) The quarterly period in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarterly periods permitted in the maximum Extension Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Debentures and the
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compensation of the Debt Trustee in accordance with the provisions of Section
6.6;
(b) pay all costs and expenses relating to the organization
and operation of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this _____ Supplemental Indenture or the
Indenture or the removal or resignation of the Debt Trustee, unless otherwise
stated, the Company shall pay to the Debt Trustee all amounts accrued under
Section 6.06 of the Indenture to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be,
pursuant to Sections 10.4 and 10.6 of the Declaration, the Company shall pay to
the Delaware Trustee or the Institutional Trustee, as the case may be, all
amounts accrued under said Sections to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
The Debentures and the Debt Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the forms set
forth in Exhibit A hereto.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $_____________
may, upon execution of this _____ Supplemental Indenture, be executed by the
Company and delivered to the Debt Trustee for authentication as provided in
Sections 2.03 and 2.05 of the Indenture.
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ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends.
The Company will not, and will not permit any subsidiary to,
(i) declare or pay any dividends or distributions on, or prepay, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of, premium, if any, or
interest on or repay, repurchase or redeem any debt securities of the Company
(including Other Debt Securities) that rank pari passu with, or junior in right
of payment to, the Debentures or (iii) make any guarantee payment with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company(including Other Guarantees) if such guarantee ranks pari passu with, or
junior in right of payment to, the Debentures (other than (a) dividends,
distributions, redemptions, purchases or acquisitions made by the Company by way
of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee or
Common Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
reinvestment plan or stock purchase plan of the Company), if at such time (1)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice, or the lapse of time, or both, would
constitute an Event of Default hereunder and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (2) if such Debentures are held
by the Institutional Trustee, the Company shall be in default with respect to
its payment obligations under the
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Preferred Securities Guarantee or Common Securities Guarantee or (3) the Company
shall have given notice of its selection of an Extension Period and shall not
have rescinded such notice or such Extension Period and such Extension Period
shall be continuing.
SECTION 8.2. Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee
of such trust in connection with the issuance of Trust Securities by the Trust,
for so long as such Trust Securities remain outstanding, the Company (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Company, permitted pursuant
to Article X of the Indenture, may succeed to the Company's ownership of such
Common Securities, (ii) will use commercially reasonable efforts to cause the
Trust (a) to remain a grantor trust, except in connection with a distribution of
Debentures to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes and (iii)
will not cause, as sponsor of the Trust, or permit, as holder of the Common
Securities, the dissolution, winding-up or termination of the Trust, except in
connection with a distribution of the Debentures as provided in the Declaration
and in connection with certain mergers, consolidations or amalgamations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this _____ Supplemental
Indenture, is in all respects ratified and confirmed, and this _____
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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SECTION 9.2. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee thereof, if the Institutional Trustee of such
Trust fails to enforce its rights under this _____ Supplemental Indenture or the
Indenture as the Holder of the Debentures held as the assets of SunTrust Capital
, any holder of Preferred Securities may institute legal proceedings directly
against the Company to enforce such Institutional Trustee's rights under this
_______ Supplemental Indenture or the Indenture without first instituting any
legal proceedings against such Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Company to
pay principal of, premium, if any, or interest on the Debentures when due, the
Company acknowledges that a holder of Preferred Securities may institute a
Direct Action for enforcement of payment to such holder of the principal of,
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Debentures.
SECTION 9.3. Direction of Proceedings and Waiver
of Defaults by Majority of Holders.
The Holders of a majority in aggregate principal amount of the
Debt 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
Debt Trustee, or exercising any trust or power conferred on the Debt Trustee;
provided, however, that (subject to the provisions of Section 6.01 of the
Indenture) the Debt Trustee shall have the right to decline to follow any such
direction if the Debt Trustee shall determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction or if
the Debt Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debt Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
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Debt Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Debt Securities, the Holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding may on behalf of
the Holders of all of the Debt Securities waive any past default or Event of
Default and its consequences except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debt Securities (unless such
default has been cured and a sum sufficient to pay all matured installments of
principal, premium, if any, and interest due otherwise than by acceleration has
been deposited with the Debt Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
Holder of each Debenture affected; provided, however, that if the Debt
Securities are held by the Institutional Trustee, such waiver or modification to
such waiver shall not be effective until the holders of a majority in aggregate
liquidation amount of Trust Securities shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the Holder
of each outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities shall have consented to such waiver.
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this _____ Supplemental Indenture and the Indenture and the
Company, the Debt Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted by
Section 5.08 of the Indenture, said default or Event of Default shall for all
purposes of the Debt Securities and the Indenture be deemed to have been cured
and to be not continuing.
SECTION 9.4. Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Debt Trustee, and the Debt Trustee assumes no responsibility for the
correctness thereof. The Debt Trustee makes no representation as to the validity
or sufficiency of this _____ Supplemental Indenture.
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SECTION 9.5. Governing Law.
This _____ Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 9.6. Separability.
In case any one or more of the provisions contained in this
_____ Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
_____ Supplemental Indenture or of the Debentures, but this _____ Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.7. Counterparts.
This _____ Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this _____
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
SUNTRUST BANKS, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Debt Trustee
By:
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
Attest:
By:
------------------------
Name:
Title:
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26
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
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No. CUSIP No.
--------------- --------------
SUNTRUST BANKS, INC.
-------------------
SUNTRUST BANKS, INC., a Georgia corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to SunTrust Capital
__________, or registered assigns, the principal sum of $________ on __________,
and to pay interest on said principal sum from ___________, _________, or from
the most recent interest payment date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
the day of ____________, _________, and of each year commencing ____________,
_______, at the Interest Rate (as defined in the Indenture (as defined below))
until the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, at the Interest Rate and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Interest Rate compounded
quarterly. The amount of interest payable on any Interest Payment Date (as
defined below) shall be calculated as provided in the Indenture. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day, except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date (each date on which interest is actually payable, an "Interest
Payment Date"). The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Debenture (or one or more Predecessor
Debt Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be, except if the Debentures are held by the Institutional Trustee, the close of
business on the , _____________, _______________ and ___________ prior to the
applicable Interest Payment Date. Any such interest install-
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ment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Debt
Securities) is registered at the close of business on a special record date to
be fixed by the Debt Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange or interdealer
quotation system on which the Debentures may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
The principal of, premium, if any, and interest (including Compounded Interest
and Additional Sums, if any) on this Debenture shall be payable at the office or
agency of the Debt Trustee maintained for that purpose in any coin or currency
of the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made, at the option of the Company, by check mailed to the registered
Holder at such address as shall appear in the Security Register or by wire
transfer to an account designated by a Holder in writing not less than ten days
prior to the date of payment. Notwithstanding the foregoing, so long as the
Holder of this Debenture is the Institutional Trustee, the payment of the
principal of, premium, if any, and interest on this Debenture will be made at
such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debt Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the
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Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder or creditor upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Debt Trustee.
THIS DEBENTURE IS NOT A SAVINGS ACCOUNT DEPOSIT OR OTHER
OBLIGATION OF BANK OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
SUNTRUST BANKS, INC.
By:
---------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Debt Trustee
By:
-------------------------
Authorized Officer
Dated:
----------------------
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(FORM OF REVERSE OF DEBENTURE)
This Debt Security is one of a duly authorized series of debt
securities of the Company (herein sometimes referred to as the "Debentures"),
all issued or to be issued in one or more series under and pursuant to an
Indenture, dated as of __________, ________, duly executed and delivered between
the Company and The First National Bank of Chicago, as Debt Trustee (the "Debt
Trustee"), as supplemented by the _____ Supplemental Indenture, dated as of
__________, ________, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Debt
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, Debt Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This Debenture is one of the series designated on the face hereof and
is limited in aggregate principal amount as specified in said _____ Supplemental
Indenture
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Redemption Price within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") is then
required, on such later date as promptly as practicable after such approval is
obtained). In addition, the Company shall have the right to redeem this
Debenture, in whole or in part, from time to time on or after ___________,
______, at the Redemption Price (an "Optional Redemption"). The "Redemption
Price" means an amount in cash equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest and Additional Sums, if any, to the date of such redemption. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice. If the Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Debentures will be re-
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deemed pro rata or by lot or by any other method utilized by the Security
Registrar; provided that if, at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the principal
amount of such Debentures beneficially held by each Debentureholder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by
the Company shall be subject to the prior approval of the Federal Reserve, if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Debt Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities;
provided, however, that no such supplemental indenture shall without the consent
of the Holders of the outstanding Debentures affected thereby (i) change the
Maturity Date, or reduce the rate or extend the time of payment of interest
(except as contemplated by Section 2.5 of the _____ Supplemental Indenture), or
reduce the principal amount thereof, or reduce any amount payable on prepayment
thereof, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that in which any Debenture (or
premium, if any, thereon) or the interest thereon is payable according to its
terms, or impair
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33
or affect the right of any Holder to institute suit for payment thereof; or (ii)
reduce the percentage in principal amount of the outstanding Debentures, the
Holders of which are required to consent to any such amendment to the
Supplemental Indenture; provided, however, that if the Debentures are held by
the Institutional Trustee of the Trust, such amendment shall not be effective
until the holders of a majority in liquidation amount of Trust Securities shall
have consented to such amendment; provided, further, that if the consent of the
Holder of each outstanding Debenture is required, such amendment shall not be
effective until each holder of the Trust Securities shall have consented to such
amendment. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of any
series affected thereby, on behalf of all of the Holders of the Debt Securities
of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of, premium, if any, or interest on any of the Debt
Securities of such series. Any such consent or waiver by the registered Holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the time and place and at the rate and
in the money herein prescribed.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest on this Debenture by
extending the interest payment period of Debenture for a period not exceeding to
20 consecutive quarterly periods (an "Extension Period") during which Extension
Period no
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interest shall be due and payable; provided that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date. Before the termination of any Extension Period, the Company may further
defer payments of interest by further extending such period, provided that such
period, together with all such previous and further extensions within such
Extension Period, shall not exceed 20 consecutive quarterly periods or extend
beyond the Maturity Date. Upon the termination of any Extension Period and the
payment of all accrued and unpaid interest and including any Additional Sums and
Compounded Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
The Company will not (i) declare or pay any dividends or
distributions on, or prepay, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest on or repay, repurchase or redeem any
debt securities of the Company (including Other Debt Securities) that rank pari
passu with, or junior in right of payment to, the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company(including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Debentures
(other than (a) dividends, distributions, redemptions, purchases or acquisitions
made by the Company by way of issuance of its capital stock (or options,
warrants or other rights to subscribe therefor), (b) any declaration of a
dividend in connection with the implementation of a shareholder's rights plan,
or the issuance of stock under any such plan in the future, or the prepayment or
repurchase of any such rights pursuant thereto, (c) payments under the Preferred
Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
rein-
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35
vestment plan or stock purchase plan of the Company), if at such time (1) there
shall have occurred any event of which the Company has actual knowledge that (a)
with the giving of notice, or the lapse of time, or both would constitute an
Event of Default and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (2) if such Debentures are held by the Institutional
Trustee, the Company shall be in default with respect to its payment obligations
under the Preferred Securities Guarantee or Common Securities Guarantee or (3)
the Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such Extension
Period shall be continuing.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve, the Company will have the right at any time to liquidate
the Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Debt
Trustee in New York, New York, c/o First Chicago Trust Company of New York, 14
Wall Street, 8th Floor-Window 2, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the registered Holder hereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Debentures of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Debt Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the owner
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hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to Section 2.5 of the _____
Supplemental Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Debt Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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