Exhibit 4.9.2
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_____ SUPPLEMENTAL INDENTURE
BETWEEN
SUNTRUST BANKS, INC.
AND
BANK ONE, N.A.
DATED AS OF __________ _____
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.........................................................................1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1. Designation and Principal Amount............................................................4
Section 2.2. Maturity....................................................................................4
Section 2.3. Form and Payment............................................................................4
Section 2.4. Global Debenture............................................................................5
Section 2.5. Interest....................................................................................6
ARTICLE III
REDEMPTION OF THE DEBENTURES
Section 3.1. Tax Event Redemption........................................................................7
Section 3.2. Capital Treatment Event of Redemption.......................................................7
Section 3.3. Investment Company Event of Redemption......................................................7
Section 3.4. Optional Redemption by Company..............................................................8
Section 3.5. No Sinking Fund.............................................................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period........................................................8
Section 4.2. Notice of Extension.........................................................................9
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses.........................................................................9
Section 5.2. Payment Upon Resignation or Removal........................................................10
ARTICLE VI
FORM OF DEBENTURE
Section 6.1. Form of Debenture..........................................................................10
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
Section 7.1. Original Issue of Debentures...............................................................10
ARTICLE VIII
COVENANTS
Section 8.1. Limitation on Dividends....................................................................10
Section 8.2. Covenants as to the Trust..................................................................11
ARTICLE IX
MISCELLANEOUS
Section 9.1. Ratification of Indenture..................................................................11
Section 9.2. Acknowledgment of Rights...................................................................11
Section 9.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders.....................12
Section 9.4. Debt Trustee Not Responsible for Recitals..................................................13
Section 9.5. Governing Law..............................................................................13
Section 9.6. Separability...............................................................................13
Section 9.7. Counterparts...............................................................................13
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_____ SUPPLEMENTAL INDENTURE, dated as of ____________________ (the
"_____ SUPPLEMENTAL INDENTURE"), between SunTrust Banks, Inc., a Georgia
corporation (the "COMPANY"), and Bank One, N.A., as trustee (the "DEBT
TRUSTEE"), under the Indenture dated as of November __, 2001 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, in the Debentures; 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:
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;
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(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; Federal Reserve Board; Preferred Securities;
Preferred Securities Guarantee; Preferred Security Certificate; Property
Account, Regular Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"ADDITIONAL SUMS" shall have the meaning set forth in Section
2.5(e).
"CAPITAL TREATMENT EVENT" means the reasonable determination
by the Company that, as a result of (i) any amendment to, or change
(including any announced proposed change) in, the laws or regulations
of the United States or any political subdivision thereof or therein or
other governmental agency or regulatory authority, or (ii) any official
administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which, in case of
either clause (i) or (ii), is effective or is announced on or after
______________________, 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 1 Capital" (or
the then equivalent thereof) under the risk-based capital adequacy
guidelines of the Federal Reserve Board, 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.
"DISSOLUTION EVENT" means the liquidation of the Trust
pursuant to the Declaration and the distribution 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.
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"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).
"INTEREST PAYMENT DATE" shall have the meaning set forth in
Section 2.5(d).
"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.
"INVESTMENT COMPANY" means an investment company as defined in
the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means that the Trust shall have
received an opinion of counsel experienced in practice under the
Investment Company Act which states that, as a result of the occurrence
of an amendment to, or change (including any announced proposed change)
in, the laws or regulations of the United States or any political
subdivision thereof or therein or any other governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an
Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective
on or after ____________________.
"MATURITY DATE" shall mean ____________________.
"NON BOOK-ENTRY PREFERRED SECURITIES" shall have the meaning
set forth in Section 2.4(a)(ii).
"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.
"PAYING AGENT" shall mean the Debt Trustee or any Person
authorized by the Debt Trustee to calculate the amount of interest
payable on the Debentures in respect of each Interest Period.
"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 of Debentures to be redeemed plus
any accrued and unpaid interest thereon, including Compounded Interest
and Additional Sums, if any, to the date of such redemption.
"SECURITY REGISTRAR" shall have the meaning set forth in
Section 2.3.
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"TAX EVENT" means the receipt by the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of
(i) any amendment to, or change (including any announced proposed
change) in, the laws or regulations of the United States or any
political subdivision or taxing authority thereof or therein, or (ii)
any official administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which
amendment, change, pronouncement, action or decision is effective or is
announced or occurs on or after ____________________, there is, in case
of either clause (i) or (ii), more than an insubstantial risk that (A)
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 Debentures, (B) interest payable by the
Company on the Debentures 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 (C) the Trust is, or
will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental
charges.
"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.
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;
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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 Bank One, N.A., 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 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.
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(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 a rate of ____% per annum
from _____________ until the principal thereof becomes due and payable, and on
any overdue principal at a rate of ____% per annum and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at a rate of ____% per annum, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on the __
day if __________, __________, __________ 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
close of business on the _______, ________, _________ and ___________
immediately preceding the relevant Interest Payment Date, whether or not a
Business Day.
(b) Unless otherwise provided by the Debt Trustee, the Paying
Agent will calculate the amount of interest payable on the Debentures in respect
of each Interest Period. The amount of interest payable for any Interest Period
will be computed on the basis of a 360-day year consisting of twelve 30-day
months and rounding the resulting figure to the nearest cent (with one-half cent
or more being rounded upwards). The amount of interest payable for any partial
Interest Period will be computed on the basis of the actual number of days
elapsed during any such 30-day month. The determination of the amount of
interest payable by Paying Agent will (in the absence of willful default, bad
faith or manifest error) be final, conclusive and binding on all concerned.
(c) 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 Debt Trustee or Paying Agent, will
(in the absence of willful 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 willful default, bad faith
or manifest error) attach to the Debt Trustee or Paying Agent in connection with
the exercise or non-exercise by any of them of their powers, duties and
discretion.
(d) 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").
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(e) 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.
(f) All percentages resulting from any calculations referred to in
this _____ Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. TAX EVENT REDEMPTION.
Subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies,
if at any time a Tax Event shall occur and be continuing, the Company shall have
the right upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures, in whole, but not in part, for cash within 90 days following the
occurrence of such Tax Event (or, if the approval of the Federal Reserve Board
is then required for such redemption, on such later date as promptly practicable
after such approval is obtained) at the Redemption Price.
SECTION 3.2. CAPITAL TREATMENT EVENT OF REDEMPTION.
Subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies,
if at any time a Capital Treatment Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more 60 days' notice, to
redeem the Debentures, in whole, but not in part, for cash within 90 days
following the occurrence of such Capital Treatment Event (or, if the approval of
the Federal Reserve Board is then required for such redemption, on such later
date as promptly as practicable after such approval is obtained) at the
Redemption Price.
SECTION 3.3. INVESTMENT COMPANY EVENT OF REDEMPTION.
Subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies,
if at any time a Investment Company Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more 60 days' notice, to
redeem the Debentures, in whole, but not in part, for cash within 90 days
following the occurrence of such Investment Company Event (or, if the approval
of the
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Federal Reserve Board is then required for such redemption, on such later date
as promptly as practicable after such approval is obtained) at the Redemption
Price.
SECTION 3.4. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the prior approval of the Federal Reserve Board, if
such approval is then required under applicable law, rules, guidelines or
policies, the Company shall have the right to redeem the Debentures, in whole or
in part, from time to time, on or after ______________________, upon not less
than 30 nor more than 60 days' notice at the Redemption Price.
(b) If the Debentures are only partially redeemed pursuant to this
Section 3.3, 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.
(c) 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.
SECTION 3.5. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
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 a rate of
____% per annum 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 Sums and 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
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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.
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 Trust Securities and the compensation of the
Debt Trustee in accordance with the provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses relating to the organization,
operation and dissolution of the Trust.
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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.
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 redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Company's capital
stock, (ii) make any payment of principal of, or 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
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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 with the giving of notice, or the lapse of
time, or both, would constitute an Event of Default (as defined in the
Indenture) and 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.
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.
SECTION 9.2. ACKNOWLEDGMENT 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
12
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
Debentures 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 Debt Trustee in
personal liability. Prior to any declaration accelerating the maturity of the
Debentures, the Holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may on behalf of the Holders of all of the
Debentures 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 Debentures (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 Debentures 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
Debentures and the Indenture be deemed to have been cured and to be not
continuing.
13
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.
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.
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:
BANK ONE, N.A., AS DEBT TRUSTEE
By:
-------------------------------------
Name:
Title:
Attest:
By:
-----------------------------------------
Name:
Title:
S-1
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 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY 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 __ day of _______, _______, _______, and
_______ 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 ______________________ of each year commencing
_________________, at a rate of ____% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if any,
at a rate of ____% per annum and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at a rate of ____% per annum 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, if the
Debentures are not in book-entry only form, except if the Debentures are held by
the Institutional Trustee, the close of business on the __________, ___________,
___________, and ______________ immediately preceding the relevant Interest
Payment Date, whether or not a Business Day. In the case of a Global Debenture
or any Debentures of which the Institutional Trustee is the Holder, such regular
record date shall be the close of business on the Business Day next preceding
the applicable Interest Payment Date. Any such interest installment 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
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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 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
ANY 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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
SUNTRUST BANKS, INC.
By:
------------------------------------
Name:
Title:
Attest:
By:
----------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One, N.A.,
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 Bank One, N.A., 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, Investment Company
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, Investment Company Event or Capital Treatment
Event (or, if the prior approval of the Federal Reserve Board 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. 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 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
the principal amount of such Debentures beneficially held by each Debenture
holder 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 Board, if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve Board.
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
A-5
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 4.1 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 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 this Debenture for a period not exceeding 20
consecutive quarterly periods (an "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. 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.
A-6
The Company will not, and will not permit any Subsidiary to (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make
a liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal of, or 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 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 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 Board if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve Board, 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, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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.
A-7
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 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 $_______ 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.
A-8
