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EXHIBIT 4.9.2
_______ 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............................................ 7
SECTION 2.2. Maturity.................................................................... 8
SECTION 2.3. Form and Payment............................................................ 8
SECTION 2.4. Global Debenture............................................................ 9
SECTION 2.5. Interest.................................................................... 10
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption........................................................ 12
SECTION 3.2. Capital Treatment Event of Redemption....................................... 12
SECTION 3.3. Optional Redemption by Company.............................................. 12
SECTION 3.4. No Sinking Fund............................................................. 14
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period........................................ 14
SECTION 4.2. Notice of Extension......................................................... 15
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. Acknowledgment 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,
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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;
(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):
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"Additional Sums" shall have the meaning set forth in Section 2.5(e).
"Adjusted Treasury Rate" means, with respect to any redemption date, the
sum of (i) the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date calculated on
the third Business Day preceding the redemption date plus (ii) if such
redemption date occurs on or prior to _____, _____, _____%, and, if such
redemption date occurs after _____, _____ but prior to _____, _____, _____%.
"Capital Treatment Event" means the reasonable determination by the Company
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 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.
"Capital Treatment Event Redemption Price" means 100% of the principal
amount of the Debentures being redeemed plus accrued and unpaid interest
thereon, including Compounded Interest, if any, to the redemption date.
"Comparable Treasury Issue" means, with respect to any redemption date, the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Debentures from the redemption
date through _____, _____ that would be utilized, at the time of selection in
accordance with
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customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Debentures from the
redemption date through _____, _____ . If no United States Treasury security has
a maturity which is within a period from three months before to three months
after _____, _____, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Adjusted
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the most recent
weekly statistical release (or any successor release) published by the Federal
Reserve Board and designated "H.15 (519)" or (ii) if such release (or any
successor release) is not published or does not contain such prices during the
week preceding such Business Day, (a) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Debt Trustee
obtains fewer than three such Reference Treasury Quotations, the average of all
such Quotations.
"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.
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"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.
"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(e).
"Interest Period" means each period beginning on, and including, ______,
1998, 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.
["Make-Whole Amount" shall mean an amount equal to the greater of (i) 100%
of the principal amount of the Debentures being redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal, premium and
interest thereon through _____, _____ discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate.]
"Maturity Date" shall mean _____, _____.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a)(ii).
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"Optional Redemption" means a redemption pursuant to Section 3.3.
"Optional Redemption Price" has the meaning set forth in Section 3.3(a).
"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.
"Quotation Agent" means __________ and its respective successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Debenture
Issuer shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debt Trustee after consultation
with the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Debt Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debt Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
"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 that is 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
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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 insubstantial
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 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 (iii) 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.
"Tax Event Redemption Price" means, with respect to a redemption following
a Tax Event, (i) if a redemption occurs prior to _____, _____, a price equal to
the [Make-Whole Amount] plus accrued and unpaid interest, including Compounded
Interest and Additional Sums, if any, to the redemption date and (ii) if a
redemption occurs on or after _____, ______, the applicable Optional Redemption
Price plus accrued and unpaid interest, including Compounded Interest and
Additional Sums, if any, to the redemption date.
"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
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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 National 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.
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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
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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 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 semi-annually, payable
(subject to the provisions of Article IV) semi-annually 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.
(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 determination of the amount of interest payable by
Paying Agent will (in the absence of wilful default, bad faith or manifest
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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 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 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").
(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.
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(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 Tax Event 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 Capital
Treatment Event Redemption Price.
SECTION 3.3. Optional Redemption by Company.
(a) Subject to the prior approval of the Board of Governors of the Federal
Reserve System, if such approval is then required under applicable law, rules,
guidelines or policies, the
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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 following redemption prices (expressed as a percentage of
the principal amount of the Subordinated Debentures being redeemed) plus accrued
and unpaid interest thereon, including Compounded Interest, if any, to the
redemption date (in any such case, an "Optional Redemption Price"), if redeemed
during the 12-month period commencing on _____ of the years set forth below:
Redemption
Period Price
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_____ _____%
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ and thereafter _____
(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.
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SECTION 3.4. 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 10
consecutive semi-annual 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 semi-annually for each semi-annual 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 period, provided that such period, together with all such
previous and further extensions within such Extension Period, shall not exceed
10 consecutive semi-annual 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
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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 semi-annual 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 10
semi-annual 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
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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 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 deliv-
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ered 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 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
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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.
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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 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: __________________________________
Xxxx X. Xxxxxxxxxxx
Vice President
Attest:
By: _____________________________
Name:
Title:
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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 ___________, __________, or from the
most recent interest payment date to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth herein) in arrears
on the _____ day of ________ and December 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 semi-annually. 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 installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered
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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 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.
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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.
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
e 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 Tax
Event Redemption Price or Capital Treatment Event Redemption Price, as the case
may be, 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 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 Optional
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.
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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 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
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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 10
consecutive semi-annual 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 10 consecutive semi-annual 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.
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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 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
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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, 00 Xxxx Xxxxxx, 0xx
Xxxxx Window 0, 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.
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.
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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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