1
EXHIBIT 4.4
================================================================================
SUNTRUST BANKS, INC.
------------------------------
------------------------------
INDENTURE
DATED AS OF , 1997
-----------
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
AS DEBT TRUSTEE
------------------------------
SUBORDINATED DEBT SECURITIES
================================================================================
2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of __________, 1997 between SunTrust Banks, Inc. and The First National Bank of
Chicago, as Debt Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10, 6.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01, 4.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03, 3.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
-------------------------------
THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED.
3
Page
TABLE OF CONTENTS*
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Definitive Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Other Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Office of the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------------------------
* This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
i
4
Page
----
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SunTrust Capital Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.02. Business Day Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02 Form of Debt Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.03 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.04 Denomination of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.05. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06. Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. Replacement Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09. Temporary Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . 16
SECTION 3.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.03. Appointments to Fill Vacancies in Debt Trustee's Office . . . . . . . . . . . . . . . . . . . 17
SECTION 3.04. Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05. Certificate to Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.06. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE DEBT TRUSTEE . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.01. Holders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.04. Reports by the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ii
5
Page
----
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.03. Application of Moneys Collected by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.04. Proceedings by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.05. Proceedings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.06. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.07. Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . . . . . 30
SECTION 5.09. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.10. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
CONCERNING THE DEBT TRUSTEE . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.01. Duties and Responsibilities of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03. No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.04. Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.06. Compensation and Expenses of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence . . . . . . . . . . . . . . . . . . 37
SECTION 6.08. Conflicting Interest of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.09. Eligibility of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.10. Resignation or Removal of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.11. Acceptance by Successor Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.12. Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.13. Limitation on Rights of Debt Trustee as a Creditor . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII
CONCERNING THE HOLDERS . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.01. Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.02. Proof of Execution by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . 45
iii
6
Page
----
SECTION 7.05. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.02. Call of Meetings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures . . . . . . . . . . . 52
SECTION 9.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Debt Trustee . . . . . . 53
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . . . . . 53
SECTION 10.01. Company May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.02. Successor Corporation to be Substituted for Company . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.03. Opinion of Counsel to be Given Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . 55
SECTION 11.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee . . . . 55
SECTION 11.03. Paying Agent to Repay Moneys Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . . . . . . 56
iv
7
Page
----
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . . 58
ARTICLE XIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.01. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.02. Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.03. Surrender of Company Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.04. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.06. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.07. Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.08. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.09. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.11. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.12. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.02. Notice of Redemption; Selection of Debt Securities . . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.03. Payment of Debt Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.02. Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 15.04. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 15.05. Debt Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.06. Notice by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.07. Rights of the Debt Trustee; Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 69
SECTION 15.08. Subordination May Not Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
v
8
THIS INDENTURE, dated as of __________, 1997, between SunTrust
Banks, Inc., a Georgia corporation (the "Company"), and The First National Bank
of Chicago, a national banking association, as trustee (the "Debt Trustee"),
WITNESSETH:
In consideration of the premises, and the purchase of the Debt
Securities by the Holders thereof, the Company covenants and agrees with the
Debt Trustee for the equal and proportionate benefit of the respective Holders
from time to time of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture shall have the respective meanings specified in this
Section 1.01. All other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which
are by reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally
executed. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. Headings are used for convenience of
reference only and do not affect interpretation. The singular includes the
plural and vice versa.
"Affiliate" shall have the meaning given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents of the
Debt Trustee which at the time shall be appointed and acting pursuant to
Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar Federal or State law for the relief of debtors.
9
"Board of Directors" shall mean either the Board of Directors
of the Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Debt Trustee.
"Business Day" means a day other than (a) a day on which
banking institutions in New York, New York or Chicago, Illinois are authorized
or required by law or executive order to remain closed or (b) a day on which
the Corporate Trust Office of the Debt Trustee is closed for business.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" shall mean the common beneficial ownership
interests in the assets of the applicable SunTrust Capital Trust.
"Common Stock" shall mean the Common Stock, par value $1.00
per share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean SunTrust Banks, Inc., a Georgia
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a written
request or order signed in the name of the Company by the Chairman, the Chief
Executive Officer, the President, a Vice Chairman, a Vice President, the
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Debt Trustee.
"Corporate Trust Office" means, when used with respect to the
Debt Trustee, the Principal Office of the Debt Trustee.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
2
10
"Debt Security" or "Debt Securities" means any Debt Security
or Debt Securities, as the case may be, authenticated and delivered under this
Indenture.
"Debt Trustee" shall mean the Person identified as "Debt
Trustee" in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person acting as Debt Trustee hereunder. The term "Debt
Trustee" as used with respect to a particular series of the Debt Securities
shall mean the trustee with respect to that series.
"Declaration" shall mean, with respect to a SunTrust Capital
Trust, the Declaration of Trust, as amended, of such SunTrust Capital Trust.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set forth in
Section 2.11.
"Definitive Debt Securities" shall mean those securities
issued in fully registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Debt Securities,
The Depository Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, as designated by the Company.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Federal Reserve" shall mean the Board of Governors of the
Federal Reserve System.
"Global Debt Security" shall mean, with respect to any series
of Debt Securities, a Debt Security executed by the Company and delivered by
the Debt Trustee to the Depositary or pursuant to the Depositary's instruction,
all in accordance with this Indenture, which shall be registered in the name of
the Depositary or its nominee.
3
11
"Holder" shall mean any Person in whose name at the time a
particular Debt Security is registered on the Security Register kept by the
Company or the Debt Trustee for that purpose in accordance with the terms
hereof.
"Indebtedness" shall mean (i) every obligation of the Company
for money borrowed; (ii) every obligation of the Company evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of
the Company; (iv) every obligation of the Company issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Company; (vi) every obligation of the
Company for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
other similar arrangements; and (vii) every obligation of the type referred to
in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Institutional Trustee" shall mean, with respect to a SunTrust
Capital Trust, the trustee acting as such Institutional Trustee under the
Declaration of such SunTrust Capital Trust.
"Interest Payment Date" means, when used with respect to any
series of Debt Securities, the Stated Maturity of an installment of interest on
such Debt Securities.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officer" shall mean any of the Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Financial Officer, the
Secretary or an Assistant Secretary of the Company.
"Officer's Certificate" shall mean a certificate signed by an
Officer and delivered to the Debt Trustee. Each such certificate shall include
the statements provided for in Section 13.06 if and to the extent required by
the provisions thereof.
4
12
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be an employee of the Company, and who shall be reasonably acceptable
to the Debt Trustee. Each such opinion shall include the statements provided
for in Section 13.06 if and to the extent required by the provisions thereof.
"Other Debt Securities" means all junior subordinated debt
securities issued by the Company from time to time under the Indenture.
The term "outstanding" when used with reference to the Debt
Securities, shall mean, subject to the provisions of Section 7.04, as of any
particular time, all Debt Securities authenticated and delivered by the Debt
Trustee or the Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the Debt
Trustee or the Authenticating Agent or delivered to
the Debt Trustee for cancellation or that have
previously been cancelled;
(b) Debt Securities, or portions thereof, for the payment
or prepayment or redemption of which mon- eys in the
necessary amount shall have been deposited in trust
with the Debt Trustee or with any paying agent (other
than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that, if
such Debt Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such
redemption shall have been given as set forth in
Article XIV or provision satisfactory to the Debt
Trustee shall have been made for giving such notice;
and
(c) Debt Securities in lieu of or in substitution for
which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.08 unless proof satisfactory to the Company
and the Debt Trustee is presented that any such Debt
Securities are held by bona fide holders in due
course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
and as that evidenced by such particular
5
13
Debt Security; and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Debt Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debt Security.
"Preferred Securities" shall mean the preferred beneficial
ownership interests in the assets of the applicable SunTrust Capital Trust.
"Principal Office of the Debt Trustee", or other similar term,
shall mean the office or offices of the Debt Trustee, at which at any
particular time its corporate trust business shall be administered, and which
at the date hereof are located at c/o First Chicago Trust Company of New York,
00 Xxxx Xxxxxx, 0xx Xxxxx - Window 0, Xxx Xxxx, Xxx Xxxx 00000.
"Responsible Officer" shall mean any officer of the Debt
Trustee's Corporate Trust Administration department with direct responsibility
for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Security Register" shall mean the list of Holders provided to
the Debt Trustee pursuant to Section 4.01, or any security register maintained
by a security registrar for the Debt Securities appointed by the Company
following the execution of a supplemental indenture providing for transfer
procedures as provided for in Section 2.06(a).
"Senior Indebtedness" shall mean the principal of, premium, if
any, and interest on, all Indebtedness, whether outstanding on the date of
execution of this Indenture or hereafter created, assumed or incurred, except
Indebtedness that by its terms is expressly stated to be not superior in right
of payment to the Debt Securities or to rank pari passu with the Debt
Securities, and any deferrals, renewals or extensions of such Senior
Indebtedness.
"Stated Maturity" means, when used with respect to any Debt
Security, or any installment of principal thereof or interest thereon, the date
specified in such Debt Security as the fixed date on which principal of such
Debt Security, or such installment of principal or interest, is due and
payable.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting
6
14
stock of which is owned, directly or indirectly, by such Person or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar entity, at
least a majority of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner. For the purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"SunTrust Capital Trust" shall mean each of SunTrust Capital I
and SunTrust Capital II, each a Delaware statutory business trust, or any other
similar trust created for the purpose of issuing Trust Securities in connection
with the issuance of Debt Securities under this Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended from time to time.
"Trust Securities" shall mean the Common Securities and
Preferred Securities of the applicable SunTrust Capital Trust.
"U.S. Government Obligations" shall mean securities that are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case under clauses (i) or (ii) are not callable or prepayable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
7
15
SECTION 1.02. Business Day Certificate.
On the date of execution and delivery of this Indenture (with
respect to the remainder of calendar year 1997) and thereafter, within 15 days
prior to the end of each calendar year while this Indenture remains in effect
(with respect to the succeeding calendar years), the Company shall deliver to
the Debt Trustee an Officer's Certificate specifying the days on which banking
institutions or trust companies in New York, New York or Chicago, Illinois are
authorized or obligated by law or executive order to be closed.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution and as
set forth in an Officer's Certificate of the Company or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02 Form of Debt Trustee's Certificate of
Authentication.
The Debt Trustee's Certificate of Authentication on all Debt
Securities shall be in substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
8
16
The First National Bank of Chicago,
as Debt Trustee
By:
-------------------------------------
Authorized Officer
SECTION 2.03 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of securities of that series from time to time authorized by or pursuant
to a Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Debt Securities of any
series, there shall be established in or pursuant to a Board Resolution of the
Company and set forth in an Officer's Certificate of the Company or established
in one or more indentures supplemental:
(i) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt Securities);
(ii) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant hereto);
(iii) the date of dates on which the principal of and premium, if
any, on the Debt Securities of the series is payable;
(iv) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable or the manner of
determination of such Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(v) the place or places where the principal of, premium, if any,
and any interest on Debt Securities of the series shall be payable;
(vi) the right, if any, to extend the interest payment periods and
the duration of such extension;
9
17
(vii) the price or prices at which, the period or periods within
which, the event or events giving rise to, and the terms and conditions upon
which Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company, pursuant to any sinking fund or otherwise;
(viii) the obligation, if any, of the Company to redeem or purchase
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, and the period or periods within which, and the terms and conditions
upon which, Debt Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(ix) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the series
shall be issuable;
(x) any Events of Default with respect to the Debt Securities of a
particular series, if not set forth herein;
(xi) the form of the Debt Securities of the series including the
form of the Certificate of Authentication of such series;
(xii) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debt Securities of such
series;
(xiii) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Debt Securities and, in such
case, the Depositary for such Global Debt Security or Global Debt Securities,
and whether beneficial owners of interests in any such Global Debt Securities
may exchange such interests for other Debt Securities of such series in the
manner provided in Section 2.07, and the manner and the circumstances under
which and the place or places where any such exchanges may occur if other than
in the manner provided in Section 2.07, and any other terms of the series
relating to the global nature of the Global Debt Securities of such series and
the exchange, registration or transfer thereof and the payment of any
principal, premium, if any, or interest thereon; and
(xiv) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a
10
18
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Debt
Trustee at or prior to the delivery of the Officer's Certificate of the Company
setting forth the terms of the series.
SECTION 2.04 Denomination of Debt Securities.
The Debt Securities of each series shall be issuable as registered
Debt Securities without coupons and in such denominations as shall be specified
as contemplated by Section 2.03. Subject to Section 2.03(ix), the Debt
Securities of such series shall be issuable in the denominations of $1,000 and
any integral multiple thereof. The Debt Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as the officers of the Company executing the same may determine with the
approval of the Debt Trustee as evidenced by the execution and authentication
thereof.
SECTION 2.05. Execution and Authentication.
Two Officers shall sign the Debt Securities for the Company by
manual or facsimile signature. If an Officer whose signature is on a Debt
Security no longer holds that office at the time the Debt Security is
authenticated, the Debt Security shall nevertheless be valid.
A Debt Security shall not be valid until authenticated by the
manual signature of the Debt Trustee. The signature of the Debt Trustee shall
be conclusive evidence that the Debt Security has been authenticated under this
Indenture. The form of Debt Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as set forth in Exhibit A
hereto.
SECTION 2.06. Global Debt Security.
(a) A Global Debt Security with respect to any series 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.
(b) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or the Depositary has
ceased to be a clearing agency registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case
may be, the Company will execute, and the Debt Trustee, upon receipt of a
Company Order, will authenticate and make available for delivery the Definitive
Debt Securities, in authorized denominations, and
11
19
in an aggregate principal amount equal to the principal amount of the Global
Debt Security, in exchange for such Global Debt Security. If there is an Event
of Default, the Depositary shall have the right to exchange the Global Debt
Securities for Definitive Debt Securities. In addition, the Company may at any
time determine that the Debt Securities of any series shall no longer be
represented by a Global Debt Security. In the event of such an Event of
Default or such a determination, the Company shall execute, and subject to
Section 2.06, the Debt Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company and a Company Order, will
authenticate and make available for delivery the Definitive Debt Securities of
such series, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debt Security in exchange for such
Global Debt Security. Upon the exchange of the Global Debt Security for such
Definitive Debt Securities, in authorized denominations, the Global Debt
Security shall be cancelled by the Debt Trustee. Such Definitive Debt
Securities issued in exchange for the Global Debt Security shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Debt Trustee. The Debt Trustee shall deliver such Definitive Debt
Securities to the Depositary for delivery to the Persons in whose names such
Definitive Debt Securities are so registered.
SECTION 2.07. Transfer and Exchange.
To permit registrations of transfers and exchanges, the
Company shall execute and the Debt Trustee shall authenticate Definitive Debt
Securities and Global Debt Securities at the request of the Security Registrar.
All Definitive Debt Securities and Global Debt Securities issued upon any
registration of transfer or exchange of Definitive Debt Securities or Global
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Debt Securities or Global Debt Securities surrendered upon such
registration of transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
The Company shall not be required to (i) issue, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
prepayment or any notice of selection of Debt Securities of such series for
prepayment under Article XIV hereof and ending at the close of business on the
day of such mailing; or (ii) register the transfer of or
12
20
exchange any Debt Security of such series so selected for prepayment in whole
or in part, except the unredeemed portion of any Debt Security being prepaid in
part.
Prior to due presentment for the registration of a transfer of
any Debt Security, the Debt Trustee, the Company and any agent of the Debt
Trustee or the Company may deem and treat the Person in whose name any Debt
Security is registered as the absolute owner of such Debt Security for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Debt Securities, and none of the Debt Trustee, the Company and any agents
of the Debt Trustee or the Company shall be affected by notice to the contrary.
SECTION 2.08. Replacement Debt Securities.
If any mutilated Debt Security is surrendered to the Debt
Trustee, or the Company and the Debt Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security, and there
is delivered to the Company and the Debt Trustee such security or indemnity as
may be required by each of them to save each of them harmless, then the Company
shall issue and the Debt Trustee shall authenticate a replacement Debt Security
if the Debt Trustee's requirements for replacements of Debt Securities are met.
An indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Debt Trustee and the Company to protect the Company,
the Debt Trustee, any agent thereof or any authenticating agent from any loss
that any of them may suffer if a Debt Security is replaced. The Company or the
Debt Trustee may charge for its expenses in replacing a Debt Security.
Every replacement Debt Security is an obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Debt Securities duly issued hereunder.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of Definitive Debt Securities of any
series, the Company may execute, and upon receipt of a Company Order the Debt
Trustee shall authenticate and make available for delivery, temporary Debt
Securities of such series that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the Definitive Debt Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Debt Securities may
determine, as conclusively evidenced by their execution of such Debt
Securities.
13
21
If temporary Debt Securities of any series are issued, the
Company shall cause Definitive Debt Securities to be prepared without
unreasonable delay. The Definitive Debt Securities of such series shall be
printed, lithographed or engraved, or provided by any combination thereof, or
in any other manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the officers executing such
Definitive Debt Securities. After the preparation of Definitive Debt
Securities of such series, the temporary Debt Securities of such series shall
be exchangeable for Definitive Debt Securities upon surrender of such temporary
Debt Securities at the office or agency maintained by the Company for such
purpose pursuant to Section 3.02 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute, and the Debt Trustee shall authenticate and
make available for delivery, in exchange therefor the same aggregate principal
amount of Definitive Debt Securities of such series of authorized
denominations. Until so exchanged, the temporary Debt Securities shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Debt Securities.
SECTION 2.10. Cancellation.
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Debt Trustee, be delivered to the Debt
Trustee. All Debt Securities so delivered or surrendered directly to the Debt
Trustee for any such purpose shall be promptly cancelled by it. The Company
may at any time, deliver to the Debt Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder that the Company
may have acquired in any manner whatsoever, and all Debt Securities so
delivered shall be promptly cancelled by the Debt Trustee. No Debt Security
shall be authenticated in lieu of or in exchange for any Debt Security
cancelled as provided in this Section, except as expressly permitted by this
Indenture or such Debt Securities. All cancelled Debt Securities or coupons
held by the Debt Trustee shall be disposed of by the Debt Trustee in accordance
with its customary procedures and the Debt Trustee shall deliver a certificate
of such disposition to the Company. The Company may not issue new Debt
Securities to replace Debt Securities that have been prepaid or paid or that
have been delivered to the Debt Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant regular record
14
22
date by virtue of having been such Holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (a) or clause (b)
below:
(a) The Company may make payment of any Defaulted Interest on
Debt Securities of any series to the Persons in whose names such Debt
Securities (or their respective Predecessor Debt Securities) are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Debt Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Debt Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Debt Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Debt Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Debt
Trustee of the notice of the proposed payment. The Debt Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Holder at his or her address as it appears in the Security Register,
not less than 10 days prior to such special record date. Notice of
the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Debt Securities (or
their respective Predecessor Debt Securities) are registered on such
special record date and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on
any Debt Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Debt
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Debt
Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Debt Trustee.
15
23
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Debt Trustee shall use
"CUSIP" numbers in notices of prepayment as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a prepayment and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
prepayment shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Debt Trustee of any change in the CUSIP
numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities that it will duly and punctually pay or cause to be
paid the principal of, premium, if any, and interest on the Debt Securities of
such series at the place, at the respective times and in the manner provided
herein and established with respect to such Debt Securities. Except as may be
provided in a supplemental indenture hereto with respect to any series of Debt
Securities, each installment of interest on such Debt Securities may be paid by
mailing checks for such interest payable to the order of the Holder entitled
thereto as they appear in the Security Register.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any Debt Securities of any series remain
outstanding, the Company will maintain (or cause to be maintained) in New York,
New York an office or agency where the Debt Securities of such series may be
presented for payment, an office or agency where the Debt Securities of such
series may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or
upon the Company in respect of the Debt Securities of such series or of this
Indenture may be served. The Company will give to the Debt Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company
in a notice to the Debt Trustee, any such office or agency for all of the above
purposes shall be the Principal Office of the Debt Trustee. In case the
Company shall fail to maintain any such office or agency in New York, New York,
or shall fail to give
16
24
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Principal Office of the Debt Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside New York, New
York, where the Debt Securities may be presented for payment, registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain any such office or agency in New York, New York, for the purposes
above mentioned. The Company will give to the Debt Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Debt
Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Debt Trustee, will appoint, in the manner provided in Section
6.10, a Debt Trustee, so that there shall at all times be a Debt Trustee
hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Debt Trustee with respect to the Debt
Securities of any series, it will cause such paying
agent to execute and deliver to the Debt Trustee an
instrument in which such agent shall agree with the
Debt Trustee, subject to the provision of this
Section 3.04,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of,
premium, if any, or interest on the Debt
Securities of such series (whether such sums
have been paid to it by the Company or by any
other obligor on the Debt Securities) in
trust for the benefit of the Holders thereof;
and
(2) that it will give the Debt Trustee notice of
any failure by the Company (or by any other
obligor on the Debt Securities of such
series) to make any payment of the principal
of, premium, if any, or interest on the Debt
Securities of such series when the same shall
be due and payable.
17
25
(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal of,
premium, if any, or interest on the Debt Securities
of any series, set aside, segregate and hold in trust
for the benefit of the Holders a sum sufficient to
pay such principal, premium or interest so becoming
due and will notify the Debt Trustee of any failure
to take such action and of any failure by the Company
(or by any other obligor under the Debt Securities)
to make any payment of the principal of, premium, if
any, or interest on the Debt Securities of such
series when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and discharge
with respect to the Debt Securities of any series
hereunder, or for any other reason, pay or cause to
be paid to the Debt Trustee all sums held in trust
for such Debt Securities by the Debt Trustee or any
paying agent hereunder, as required by this Section
3.04, such sums to be held by the Debt Trustee upon
the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust
as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Debt Trustee.
The Company will deliver to the Debt Trustee on or before 120
days after the end of each fiscal year of the Company, so long as Debt
Securities of any series are outstanding hereunder, an Officer's Certificate,
one of the signers of which shall be the principal executive, principal
financial or principal accounting officer of the Company, stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof. For purposes of this
Section 3.05, default shall be determined without regard to any period of grace
or requirement of notice provided for herein.
SECTION 3.06. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Debt Trustee, unless otherwise stated, the
18
26
Company shall pay to the Debt Trustee all amounts accrued and owing to the date
of such termination, removal or resignation.
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE DEBT TRUSTEE
SECTION 4.01. Holders' Lists.
So long as Debt Securities of any series are outstanding
hereunder, the Company covenants and agrees that it will furnish or cause to be
furnished to the Debt Trustee:
(a) on a semi-annual basis on each alternating regular
record date for the Debt Securities of such series a
list, in such form as the Debt Trustee may reasonably
require, of the names and addresses of the Holders as
of such record date; and
(b) at such other times as the Debt Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form
and content as of a date not more than 15 days prior
to the time such list is furnished, except that no
such lists need be furnished so long as the Debt
Trustee is in possession thereof by reason of its
acting as registrar for the Debt Securities.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Debt Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to
the names and addresses of the Holders (1) contained
in the most recent list furnished to it as provided
in Section 4.01 or (2) received by it in the capacity
of registrar for the Debt Securities of such series
(if so acting) hereunder. The Debt Trustee may
destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more Holders (hereinafter referred
to as "applicants") apply in writing to the Debt
Trustee and furnish to the Debt Trustee reasonable
proof that each such applicant has owned a Debt
Security for a period of at least six months
preceding the date of such application, and such
application states that the applicants desire to
communicate with other Holders or with Holders of
19
27
all Debt Securities of such series with respect to
their rights under this Indenture and is accompanied
by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the
Debt Trustee shall within 5 Business Days after the
receipt of such application, at its election, either:
(1) afford such applicants access to the
information preserved at the time by
the Debt Trustee in accordance with
the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the
approximate number of Holders of all
Debt Securities of such series,
whose names and addresses appear in
the information preserved at the
time by the Debt Trustee in
accordance with the provisions of
subsection (a) of this Section 4.02,
and as to the approximate cost of
mailing to such Holders the form of
proxy or other communication, if
any, specified in such application.
If the Debt Trustee shall elect not to afford
such applicants access to such information, the Debt
Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and
address appear in the information preserved at the
time by the Debt Trustee in accordance with the
provisions of subsection (a) of this Section 4.02, a
copy of the form of proxy or other communication
which is specified in such request with reasonable
promptness after a tender to the Debt Trustee of the
material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of
mailing, unless within five Business Days after such
tender, the Debt Trustee shall mail to such
applicants and file with the Commission, together
with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the
Debt Trustee, such mailing would be contrary to the
best interests of the Holders of such series of Debt
Securities or all Debt Securities of such series, as
the case may be, or would be in violation of
applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections
specified in the written statement so filed, shall
20
28
enter an order refusing to sustain any of such
objections or if, after the entry of an order
sustaining one or more of such objections, the
Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained
have been met and shall enter an order so declaring,
the Debt Trustee shall mail copies of such material
to all such Holders with reasonable promptness after
the entry of such order and the renewal of such
tender; otherwise the Debt Trustee shall be relieved
of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder, by receiving and holding Debt
Securities, agrees with the Company and the Debt
Trustee that neither the Company nor the Debt Trustee
nor any paying agent shall be held accountable by
reason of the disclosure of any such information as
to the names and addresses of the Holders in
accordance with the provisions of subsection (b) of
this Section 4.02, regardless of the source from
which such information was derived, and that the Debt
Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03. Reports by the Company.
So long as Debt Securities of any series are outstanding
hereunder:
(a) The Company covenants and agrees to file with the
Debt Trustee, within 15 days after the date on which
the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies
of such portions of any of the foregoing as said
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information,
documents or reports pursuant to either of such
sections, then to provide to the Debt Trustee, such
of the supplementary and periodic information,
documents and reports which would have been required
pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national
securities exchange as may be prescribed from time to
time in such rules and regulations.
21
29
(b) The Company covenants and agrees to file with the
Debt Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to
time by said Commission, such additional information,
documents and reports with respect to compliance by
the Company with the conditions and covenants
provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail
to all Holders, as the names and addresses of such
Holders appear upon the Security Register, within 30
days after the filing thereof with the Debt Trustee,
such summaries of any information, documents and
reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 4.03 as
may be required by rules and regulations prescribed
from time to time by the Commission.
(d) Delivery of such reports, information and documents
to the Debt Trustee is for informational purposes
only and the Debt Trustee's receipt of such shall not
constitute constructive notice of any information
contained therein or determinable from information
contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the
Debt Trustee is entitled to rely exclusively on
Officer's Certificates).
SECTION 4.04. Reports by the Debt Trustee.
So long as Debt Securities of any series are outstanding
hereunder:
(a) The Debt Trustee shall transmit to Holders such
reports concerning the Debt Trustee and its ac- tions
under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Debt
Trustee shall, within sixty days after each December
31, commencing December 31, 1997, deliver to Holders
a brief report, dated as of such December 31, which
complies with the provisions of Section 313(a) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Debt
22
30
Trustee with each stock exchange, if any, upon which
the Debt Securities are listed, with the Commission
and with the Company. The Company will promptly
notify the Debt Trustee when the Debt Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder with respect to Debt Securities of a
particular series (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular series or specifically deleted or modified in a
supplemental indenture (or Board Resolution) under which such series of Debt
Securities is issued or in the form of Debt Securities for such series:
(a) default in the payment of any interest on the Debt
Securities of that series or any Other Debt
Securities when due, and continuance of such default
for a period of 30 days; provided, however
, that a valid extension of an interest payment
period by the Company in accordance with the terms
hereof shall not constitute a default in the payment
of interest for this purpose; or
(b) default in the payment of any principal of or
premium, if any, on the Debt Securities of that
series or any Other Debt Securities when due whether
at maturity, upon prepayment, by declaration of
acceleration of maturity or otherwise; or
(c) default in the performance, or breach, of any
covenant or warranty of the Company with respect to
that series contained in such Debt Securities or
otherwise established with respect to that series of
Debt Securities pursuant to Section 2.01 or contained
in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with and
other than a covenant or warranty set forth in terms
of any particular series of Debt Securities
established or contem-
23
31
plated in this Indenture), and continuance of such
default or breach for a period of 90 days after there
has been given, by registered or certified mail, to
the Company by the Debt Trustee or to the Company and
the Debt Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Debt
Securities a written notice specifying such default
or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the
Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or
for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case
under any such law, or shall consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the
Company or of any substantial part of its property,
or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its
debts as they become due.
If an Event of Default with respect to Debt Securities of a
particular series at the time outstanding occurs and is continuing, then in
every such case the Debt Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding may declare the principal amount of all Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Debt Trustee if given by the Holders of the outstanding Debt
Securities of such series), and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the Debt Securities of a
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the
24
32
moneys due shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Debt Trustee a sum sufficient to
pay (A) all matured installments of interest upon all the Debt Securities of
that series and the principal of and premium, if any, on any and all Debt
Securities of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
specified in the Debt Securities of such series to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover compensation due
to the Debt Trustee and each predecessor Debt Trustee, their respective agents,
attorneys and counsel, pursuant to Section 6.06, and (ii) any and all Events of
Default under this Indenture, other than the non-payment of the principal of
the Debt Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the Holders of a
majority in aggregate principal amount of the Debt Securities of that series
then outstanding, by written notice to the Company and to the Debt Trustee, may
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Debt Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Debt Trustee, then and in every
such case the Company, the Debt Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Debt Trustee and the Holders shall
continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default;
Suit Therefor.
The Company covenants that (a) in case default shall be made
in the payment of any installment of interest upon any of the Debt Securities
of a series as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the Debt
Securities of a series as and when the same shall have become due and payable,
whether at maturity of the Debt Securities of such series or upon prepayment or
by declaration or otherwise, then, upon demand of the Debt Trustee, the Company
will pay to the Debt Trustee, for the benefit of the Holders, the whole amount
that then shall have become due and payable on all
25
33
such Debt Securities of such series for principal of, premium, if any, or
interest or both, as the case may be, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities of such series are
held by the Trust or a trustee of such trust, without duplication of any other
amounts paid by the Trust or a trustee in respect thereof) upon the overdue
installments of interest at the rate borne by the Debt Securities of such
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including a reasonable compensation
to the Debt Trustee, its agents, attorneys and counsel, and any other amount
due to the Debt Trustee pursuant to Section 6.06.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Debt Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on the Debt Securities of such series and collect in the
manner provided by law out of the property of the Company or any other obligor
on the Debt Securities of such series, wherever situated, the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Debt
Securities of any series under Xxxxx 00, Xxxxxx Xxxxxx Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities of such series, or to the creditors or property of the Company
or such other obligor, the Debt Trustee, irrespective of whether the principal
of the Debt Securities of a series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Debt
Trustee shall have made any demand pursuant to the provisions of this Section
5.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debt Securities of
such series and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Debt Trustee (including any claim for amounts due to
the Debt Trustee pursuant to 6.06) and of the Holders allowed in such judicial
proceedings relative to the Company or any other obligor on the Debt
Securities, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and
26
34
regulations, to vote on behalf of the Holders in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders to
make such payments to the Debt Trustee, and, in the event that the Debt Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Debt Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Debt Trustee, each predecessor Debt Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the Debt
Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to authorize the
Debt Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Debt Securities of any series or the rights of any Holder or to
authorize the Debt Trustee to vote in respect of the claim of any Holder in any
such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities of any series, may be prosecuted
and enforced by the Debt Trustee without the possession of any of the Debt
Securities of such series, or the production thereof on any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Debt Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Debt Securities of such series.
In any proceedings brought by the Debt Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Debt Trustee shall be a party) the Debt Trustee shall be held to
represent all the Holders, and it shall not be necessary to make any Holders
parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Debt
Trustee.
Any moneys collected by the Debt Trustee shall be applied in
the following order, at the date or dates fixed by the Debt Trustee for the
distribution of such moneys, upon presentation of the Debt Securities of the
series in respect of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
27
35
First: To the payment of costs and expenses of collection
applicable to the Debt Securities of such series and all other amounts due to
the Debt Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XV;
Third: In case the principal of the outstanding Debt
Securities of such series in respect of which moneys have been collected shall
not have become due and be unpaid, to the payment of the amounts then due and
unpaid upon Debt Securities of such series for principal of, premium, if any,
and interest on the Debt Securities of such series, in respect of which or for
the benefit of which money has been collected, ratably, without preference of
priority of any kind, according to the amounts due on the Debt Securities of
such series for principal, premium, if any, and interest, respectively; and
Fourth: To the Person or Persons entitled thereto.
SECTION 5.04. Proceedings by Holders.
No Holder of Debt Securities of any series shall have any
right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such Holder previously shall have
given to the Debt Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided, (ii) the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of such
series then outstanding shall have made written request upon the Debt Trustee
to institute such action, suit or proceeding in its own name as Debt Trustee
hereunder and shall have offered to the Debt Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby, (iii) the Debt Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action, suit or proceeding, and (iv) no direction inconsistent with such
written request has been given to the Debt Trustee during such 60-day period by
the Holders of a majority in principal amount of the outstanding Debt
Securities of such series, it being understood and intended, and being
expressly covenanted by the taker and Holder of every Debt Security of such
series with every other taker and Holder and the Debt Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture,
28
36
except in the manner herein provided and for the equal, ratable and common
benefit of all Holders.
Notwithstanding any other provisions in this Indenture,
however, the right of any Holder to receive payment of the principal of,
premium, if any, and interest on such Debt Security of such series, on or after
the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.05. Proceedings by Debt Trustee.
In case an Event of Default occurs with respect to Debt
Securities of any series and is continuing, the Debt Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Debt Trustee shall
deem most effectual to protect and enforce any of such rights, either by suit
in equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Debt
Trustee by this Indenture or by law.
SECTION 5.06. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Debt Securities of any series or the property of the Company or of such
other obligor or their creditors, the Debt Trustee (irrespective of whether the
principal of any such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Debt
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect
of such Debt Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Debt
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Debt Trustee, its agents
and counsel and any other amounts due the Debt Trustee under Section
6.06) and of the Holders allowed in such judicial proceeding, and
29
37
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Debt Trustee, and in the event that the Debt Trustee
shall consent to the making of such payments directly to the Holders of such
Debt Securities, to pay to the Debt Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Debt
Trustee, its agents and counsel, and any other amounts due the Debt Trustee
under Section 6.06.
Nothing herein contained shall be deemed to authorize the Debt
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities of any series or the rights of any Holder thereof, or to
authorize the Debt Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.07. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Debt
Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the
Debt Trustee or the Holders, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Debt Securities of any
series, and no delay or omission of the Debt Trustee or of any Holder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Debt Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Debt Trustee or
by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of
Defaults by Majority of Holders.
Subject to the provisions of any supplemental indenture
hereto, the Holders of a majority in aggregate principal amount of the Debt
Securities of any series 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
30
38
Section 6.01) 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 of Debt Securities of such series
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 Debt Securities of any series, the
Holders of a majority in aggregate principal amount of the Debt Securities of
such series at the time outstanding may on behalf of the Holders of all of the
Debt Securities of such series 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 of such series (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 Debt Security affected. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Debt Trustee and the Holders of Debt Securities of such
series 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 this Section 5.08,
said default or Event of Default shall for all purposes of such series of Debt
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.09. Notice of Defaults.
(a) The Debt Trustee, within 90 days after the occurrence of
a Default with respect to a series of Debt Securities known to the Debt
Trustee, shall mail to all Holders, as the names and addresses of such Holders
appear upon the Security Register, notice of all Defaults known to the Debt
Trustee, unless such Default shall have been cured before the giving of such
notice (the term "Default" for the purpose of this Section 5.09 being hereby
defined to be any of the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.01, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.01); and provided that, except in the case of default in the payment
of the principal of, premium, if any, or interest on any series of Debt
Securities, the Debt Trustee shall be pro-
31
39
tected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Debt Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders thereof; and provided further,
that in the case of any default of the character specified in Section 5.01(c),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof.
(b) Within five Business Days after the occurrence of any
Event of Default known to the Debt Trustee, the Debt Trustee shall transmit
notice of such Event of Default to all Holders of the affected series of Debt
Securities as their names and addresses appear on the Security Register, unless
such Event of Default shall have been cured or waived.
SECTION 5.10. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder by his or
her acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Debt Trustee for any action
taken or omitted by it as Debt Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.10 shall not apply to any suit
instituted by the Debt Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal
amount of any series of Debt Securities outstanding, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of, premium,
if any, or interest on any such Debt Security against the Company on or after
the same shall have become due and payable.
ARTICLE VI
CONCERNING THE DEBT TRUSTEE
SECTION 6.01. Duties and Responsibilities of Debt
Trustee.
With respect to the Holders of Debt Securities of any series
issued hereunder, the Debt Trustee, prior to the occurrence of an Event of
Default with respect to such series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in
32
40
this Indenture. In case any such Event of Default has occurred (which has not
been cured or waived), the Debt Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve
the Debt Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to any series of Debt Securities and after
the curing or waiving of all Events of Default with
respect to such series which may have occurred,
(1) the duties and obligations of the Debt
Trustee shall be determined solely by the
express provisions of this Indenture, and the
Debt Trustee shall not be liable except for
the performance of such duties and
obligations as are specifically set forth in
this Indenture; and
(2) in the absence of bad faith on the part of
the Debt Trustee, the Debt Trustee may con-
clusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Debt Trustee and conforming to the
requirements of this Indenture; but, in the
case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Debt Trustee, the Debt Trustee shall be under
a duty to examine the same to determine
whether or not they conform to the
requirements of this Indenture;
(b) the Debt Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Responsible Officers, unless it shall be proved
that the Debt Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Debt Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders
pursuant to Section 5.08, relating to the time,
method and place of conducting any pro-
33
41
ceeding for any remedy available to the Debt Trustee,
or exercising any trust or power conferred upon the
Debt Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Debt Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Debt Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, note,
debenture or other paper or document believed by it
to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein may be sufficiently
evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be
evidenced to the Debt Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary
of the Company;
(c) the Debt Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall
be full and complete authorization and protection in
respect of any action taken or suffered omitted by it
hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Debt Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders of any series of Debt Securities,
pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Debt Trustee
reasonable and sufficient security or indemnity
against the costs, expenses and
34
42
liabilities which may be incurred therein or thereby;
(e) the Debt Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by
it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
nothing contained herein shall, however, relieve the
Debt Trustee of the obligation, upon the occurrence
of an Event of Default (that has not been cured or
waived), to exercise such of the rights and powers
vested in it by this Indenture, and to use the same
degree of care and skill in their exercise, as a
prudent person would exercise or use under the
circumstances in the conduct of his or her own
affairs;
(f) the Debt Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount
of any outstanding series of Debt Securities;
provided, however, that if the payment within a
reasonable time to the Debt Trustee of the costs,
expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the
opinion of the Debt Trustee, not rea- sonably assured
to the Debt Trustee by the security afforded to it by
the terms of this Indenture, the Debt Trustee may
require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) the Debt Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Debt
Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or
attorney appointed by it with due care;
(h) the Debt Trustee shall not be charged with knowledge
of any Default or Event of Default with respect to a
series of Debt Securities unless (1) such default is
a default under Sections 5.01(a) and 5.01(b) of this
Indenture, (2) a Responsible Officer shall have
actual knowledge of such Default or Event of Default
or (3) written notice of such Default or Event of
Default shall have been given to the Debt Trustee by
the Company or any
35
43
other obligor on the Debt Securities or by any
Holder; and
(i) the Debt Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith,
without negligence or wilful misconduct and believed
by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in any series of Debt
Securities (except in the certificate of authentication of the Debt Trustee or
the Authenticating Agent) shall be taken as the statements of the Company, and
the Debt Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Debt Trustee and the Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of any
series of Debt Securities. The Debt Trustee and the Authenticating Agent shall
not be accountable for the use or application by the Company of any Debt
Securities or the proceeds of any Debt Securities authenticated and delivered
by the Debt Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Debt Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May Own
Debt Securities.
The Debt Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any registrar for any series of Debt Securities,
in its individual or any other capacity, may become the owner or pledgee of
such Debt Securities with the same rights it would have if it were not Debt
Trustee, Authenticating Agent, paying agent, transfer agent or registrar for
any such Debt Securities.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Debt Trustee or any paying agent with respect to any series of
Debt Securities shall, until used or applied as herein provided, be held in
trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Debt Trustee and
any paying agent shall be under no liability with respect to any series of Debt
Securities for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company. So long as no Event of Default
with respect to any series of Debt Securities shall have occurred and be
continuing, all interest allowed on any such moneys relating to such series of
Debt
36
44
Securities shall be paid from time to time upon the written order of the
Company, signed by the Chairman of the Board of Directors, the President or a
Vice President or the Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Debt Trustee.
The Company, as issuer of Debt Securities under this
Indenture, covenants and agrees to pay to the Debt Trustee from time to time,
and the Debt Trustee shall be entitled to, such compensation as shall be agreed
to in writing between the Company and the Debt Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and the Company will pay or reimburse the Debt Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Debt Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify each of the
Debt Trustee or any predecessor Debt Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any and all
loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Debt Trustee) incurred without negligence or bad
faith on the part of the Debt Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 6.06 to compensate and
indemnify the Debt Trustee and to pay or reimburse the Debt Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debt Securities of any series upon all property and funds held or
collected by the Debt Trustee as such, except funds held in trust for the
benefit of the Holders of particular Debt Securities of any series.
When the Debt Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or Section
5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation
or removal of the Debt Trustee and the defeasance or other termination of this
Indenture.
37
45
SECTION 6.07. Officer's Certificate and Opinion of Counsel
as Evidence.
Upon any application or request by the Company to the Debt
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Debt Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need by furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Officer's
Certificate required by Section 3.05) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 6.08. Conflicting Interest of Debt Trustee.
If the Debt Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Debt Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Debt Trustee.
The Debt Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission authorized under
38
46
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000) and subject to
supervision or examination by Federal, State, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 6.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Debt Trustee.
In case at any time the Debt Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, the Debt
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10. Resignation or Removal of Debt Trustee.
(a) The Debt Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with
respect to one or more or all series of Debt
Securities by giving written notice of such
resignation to the Company and by mailing notice
thereof to the Holders of the affected series of Debt
Securities at their addresses as they shall appear on
the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the
applicable series by written instrument, in
duplicate, one copy of which instrument shall be
delivered to the resigning Debt Trustee and one copy
to the successor trustee. If no successor trustee
shall have been so appointed and shall have accepted
such appointment within 60 days after the mailing of
such notice of resignation to the affected Holders,
the resigning Debt Trustee may petition any court of
competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona
fide holder of a Debt Security of any affected series
for at least six months may, subject to the
provisions of Section 5.10, on behalf of himself and
all others similarly situated, petition any such
court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a
successor trustee.
39
47
(b) In case at any time any of the following shall occur:
(1) the Debt Trustee shall fail to comply with
the provisions of Section 6.08 after written
request therefor by the Company or by any
Holder who has been a bona fide holder of a
Debt Security of any affected series for at
least six months, or
(2) the Debt Trustee shall cease to be eligible
in accordance with the provisions of Section
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Holder, or
(3) the Debt Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Debt Trustee
or of its property shall be appointed, or any
public officer shall take charge or control
of the Debt Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the
Debt Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the Debt Trustee so
removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.10, any Holder
who has been a bona fide holder of a Debt Security of
any affected series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Debt Trustee and the appointment of a
successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and
prescribe, remove the Debt Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Debt Securities of any series at the
time outstanding may at any time remove the Debt
Trustee with respect to that series and nominate a
successor trustee, which shall be deemed appointed as
successor trustee unless within 10 days after such
nomination the Company objects thereto, or if no
successor trustee shall have been so appointed and
shall have accepted appointment within 30 days after
such removal, in which case the Debt Trustee
40
48
so removed or any Holder of a Debt Security of such
series, upon the terms and conditions and otherwise
as in subsection (a) of this Section 6.10 provided,
may petition any court of competent jurisdiction for
an appointment of a successor trustee.
(d) Any resignation or removal of the Debt Trustee and
appointment of a successor trustee pursuant to any of
the provisions of this Section 6.10 shall become
effective only upon the acceptance of such
appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11. Acceptance by Successor Debt Trustee.
Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring trustee
thereunder. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6.11, the Company shall mail notice of the succession
of such trustee hereunder to the Holders of the affected series of Debt
Securities at their addresses as they shall appear on the Security Register.
If the Company fails to mail such notice within 10 days after the acceptance of
appoint-
41
49
ment by the successor trustee, the successor trustee shall cause such notice to
be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Debt Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Debt Trustee shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Debt Trustee, shall be the successor of the
Debt Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case, at the time such successor to the Debt Trustee shall
succeed to the trusts created by this Indenture, Debt Securities of any series
shall have been authenticated but not delivered, any such successor to the Debt
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Debt Securities so authenticated; and in case at that time any
Debt Securities of any series shall not have been authenticated, any successor
to the Debt Trustee may authenticate such Debt Securities either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which such Debt
Securities or this Indenture elsewhere provides that the certificate of
authentication of the Debt Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Debt
Trustee or authenticate Debt Securities in the name of any predecessor Debt
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.13. Limitation on Rights of Debt Trustee as a
Creditor.
The Debt Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Debt Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
required thereby.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents with respect to
a series of Debt Securities appointed by the Debt Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the
authentication and delivery of Debt Securities of any such series issued upon
exchange or transfer thereof as fully to all intents and purposes
42
50
as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver such Debt Securities; provided, that the Debt Trustee
shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of Debt
Securities of any such series. Any such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States or of any State or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by Federal, State, territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14 without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Debt Trustee and to the Company. The Debt
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Debt Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating Agent eligible
under this Section 6.14, shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all Holders as the names
and addresses of such Holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein.
43
51
The Company, as borrower, agrees to pay to any Authenticating
Agent from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the directions of the Debt Trustee.
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.
Whenever in this Indenture it is provided that the Holders of
a specified percentage in aggregate principal amount of the Debt Securities of
any series may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Holders in
person or by agent or proxy appointed in writing, or (b) by the record of such
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article VIII, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of such
Holders.
If the Company shall solicit from the Holders of Debt
Securities of any series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, as evidenced
by an Officer's Certificate, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding Debt
Securities of any series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Debt Securities of any such series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Holders of Debt Securities of any
such series on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
44
52
SECTION 7.02. Proof of Execution by Holders.
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Holder or his or her agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Debt Trustee or in such manner as shall
be satisfactory to the Debt Trustee. The ownership of Debt Securities shall be
proved by the Security Register or by a certificate of the Security Registrar.
The Debt Trustee may require such additional proof of any matter referred to in
this Section as it shall deem necessary.
The record of any Holders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Debt Security of any series, the Company, the Debt Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any registrar for the Debt
Securities of any such series may deem the person in whose name such Debt
Security shall be registered upon the Security Register to be, and may treat
him as, the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to any applicable
provisions of any supplement hereto) interest on such Debt Security and for all
other purposes; and neither the Company nor the Debt Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any
registrar for the Debt Securities of any such series shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his or her order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the Holders of the requisite aggregate
principal amount of Debt Securities of any series have concurred in any
direction, consent or waiver under this Indenture, Debt Securities of such
series which are owned by the Company or any other obligor on the Debt
Securities of such series or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Debt Securities shall be disregarded and deemed not to
be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debt Trustee shall be protected in relying
on
45
53
any such direction, consent or waiver, only Debt Securities which a Responsible
Officer of the Debt Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 7.04 if the
pledgee shall establish to the satisfaction of the Debt Trustee the pledgee's
right to vote such Debt Securities and that the pledgee is not the Company or
any such other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any such other obligor. In the case of a dispute as to such right, any
decision by the Debt Trustee taken upon the advice of counsel shall be full
protection to the Debt Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Debt Trustee, as provided in Section 7.01, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action, any
Holder (or Holder of any Debt Security issued in whole or in part in exchange
or substitution therefor), subject to Section 7.01, of a Debt Security the
serial number of which is shown by the evidence to be included in the group of
Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Debt Trustee at its principal office and upon
proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Debt Security (or so far as concerns the principal amount
represented by any exchanged or substituted Debt Security). Except as
aforesaid any such action taken by any Holder shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security,
and of any Debt Security issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Holders of Debt Securities of any series may be
called at any time and from time to time pursuant to the provisions of this
Article VIII for any of the following purposes:
46
54
(a) to give any notice to the Company or to the Debt
Trustee, or to give any directions to the Debt
Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Debt
Securities of such series pursuant to any of the
provisions of Article V;
(b) to remove the Debt Trustee with respect to such
series and nominate a successor trustee pursuant to
the provisions of Article VI;
(c) to consent to the execution of an indenture or
indentures supplemental hereto with respect to such
series pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or
on behalf of the Holders of Debt Securities of such
series of any specified aggregate principal amount of
such Debt Securities under any other provision of
this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Debt Trustee.
The Debt Trustee may at any time call a meeting of Holders of
Debt Securities of any series to take any action specified in Section 8.01, to
be held at such time and at such place in New York, New York, as the Debt
Trustee shall determine. Notice of every meeting of such Holders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to such Holders at their
addresses as they shall appear on the Security Register. Such notice shall be
mailed not less than 20 nor more than 60 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of
the Board of Directors, or the Holders of at least 10% in aggregate principal
amount of the Debt Securities of any particular series then outstanding, shall
have requested the Debt Trustee to call a meeting of Holders of Debt Securities
of such series, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Debt Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Holders may determine the time and the place in New
York, New York for such meeting and may call such meeting to take any action
authorized in Section 8.01, by mailing notice thereof as provided in Section
8.02.
47
55
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of any series
of Debt Securities a Person shall (a) be a Holder of one or more Debt
Securities of such series or (b) a Person appointed by an instrument in writing
as proxy by any such Holder. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Debt
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Debt Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders, in regard to proof of the holding of Debt Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Debt Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 8.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Holder or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Debt Securities of the affected series held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Debt Security challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Debt Securities of the
affected series held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting
of Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may
be adjourned from time to time by a majority of those present, and the meeting
may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of such Holders or of their representa-
48
56
tives by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 8.02. The record shall show the
serial numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Debt Trustee to be preserved
by the Debt Trustee, the latter to have attached thereto the ballots voted at
the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Debt Trustee may from time to time and at
any time amend this Indenture, without the consent of the Holders of Debt
Securities of any affected series then outstanding, for one or more of the
following purposes:
(a) to evidence the succession of another Person to the
Company, or successive successions, and the
assumption by the successor Person of the covenants,
agreements and obligations of the Company pursuant to
Article X hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the
protection of the Holders of the Debt Securities of
such series as the Board of Directors and the Debt
Trustee shall consider to be for the protection of
such Holders, and to make the occurrence, or the
occurrence and continuance, of a default in any of
such additional covenants, restrictions or conditions
a default or an Event of Default with respect to such
series of Debt Securities permit-
49
57
ting the enforcement of all or any of the remedies
provided in this Indenture as herein set forth;
provided, however, that in respect of any such
additional covenant, restriction or condition such
amendment may provide for a particular period of
grace after default (which period may be shorter or
longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available
to the Debt Trustee upon such default;
(c) to provide for the issuance under this Indenture of
Debt Securities of any series in coupon form
(including Debt Securities registrable as to
principal only) and to provide for exchangeability of
such Debt Securities with the Debt Securities of such
series issued hereunder in fully registered form and
to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental
indenture which may be defective or inconsistent with
any other provision contained herein or in any
supplemental indenture, or to make such other
provisions in regard to matters or questions arising
under this Indenture; provided that any such action
shall not materially adversely affect the interests
of the Holders of Debt Securities of such series;
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to such series of Debt Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions and all other
matters required pursuant to this Indenture or
otherwise necessary, desirable or appropriate in
connection with the issuance of such series of Debt
Securities; provided that any such action shall not
materially adversely affect the interests of the
Holders of such series of Debt Securities;
(g) to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
(h) to make any change that does not adversely affect the
rights of any such Holder in any material respect.
50
58
The Debt Trustee is hereby authorized to join with the Company
in the execution of any supplemental indenture to effect such amendment, to
make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Debt Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the Debt
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions
of this Section 9.01 may be executed by the Company and the Debt Trustee
without the consent of the Holders of Debt Securities of the series affected at
the time outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Holders.
With the consent (evidenced as provided in Section 7.01) of
the Holders of a majority in aggregate principal amount of the Debt Securities
of all series at the time outstanding affected by such amendment (voting as one
class), the Company, when authorized by a Board Resolution, and the Debt
Trustee may from time to time and at any time amend this Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of any such series; provided, however, that no such
amendment shall, without the consent of the Holders of each Debt Security of
each series then outstanding and affected thereby (i) change the Maturity Date
of any such Debt Security, or reduce the rate or extend the time of payment of
interest thereon (except as contemplated by Article XVI), 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 provided in such Debt Securities, or impair or
affect the right of any Holder thereof to institute suit for payment thereof,
or (ii) reduce the aforesaid percentage of Debt Securities of any series, the
Holders of which are required to consent to any such amendment to this
Indenture, provided, however, that if any series of Debt Securities are held by
an Institutional Trustee of a SunTrust Capital Trust, such amendment shall not
be effective until the holders of a majority in liquidation amount of Trust
Securities of such SunTrust Capital Trust shall have consented to such
amendment; provided, further, that if the consent of the Holders of each
outstanding Debt Security of any series is required, such amendment shall not
be effective until each holder of the Trust Securities of such SunTrust Capital
Trust owning such Debt Securities shall have consented to such amendment.
51
59
Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture effecting
such amendment, and upon the filing with the Debt Trustee of evidence of the
consent of the affected Holders as aforesaid, the Debt Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Debt Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Debt Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Promptly after the execution by the Company and the Debt
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Debt Trustee shall transmit by mail, first class postage prepaid,
a notice, prepared by the Company, setting forth in general terms the substance
of such supplemental indenture, to the Holders of the affected series of Debt
Securities as their names and addresses appear upon the Security Register. Any
failure of the Debt Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of Holders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article IX shall comply with the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Debt Trustee,
the Company and the Holders of Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture affecting such series
pursuant to the provisions of this Article IX may bear a notation in form
approved by the Debt Trustee as to any
52
60
matter provided for in such supplemental indenture. If the Company or the Debt
Trustee shall so determine, new Debt Securities of such series so modified as
to conform, in the opinion of the Debt Trustee and the Board of Directors, to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Debt Trustee
or the Authenticating Agent and delivered in exchange for the Debt Securities
of such series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished to Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in any Debt Securities
of any series shall prevent (i) any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company, as the
case may be), or successive consolidations or mergers in which the Company or
its successor or successors, as the case may be, shall be a party or parties,
or (ii) prevent any sale, conveyance, transfer or lease of the property of the
Company, or its successor or successors as the case may be, as an entirety, or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company, or its successor or successors, as the case may be)
authorized to acquire and operate the same; provided, that (a) the Company is
the surviving Person, or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) upon any such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal
of, premium, if any and interest on the Debt Securities of each series then
outstanding according to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act
53
61
as then in effect) satisfactory in form to the Debt Trustee executed and
delivered to the Debt Trustee by the Person formed by such consolidation, or
into which the Company shall have been merged, or by the Person which shall
have acquired such property, as the case may be, and (c) after giving effect to
such consolidation, merger, sale, conveyance, transfer or lease, no Default or
Event of Default with respect to any series of Debt Securities shall have
occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted for
Company.
In case of any such consolidation, merger, conveyance or
transfer and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Debt Trustee and satisfactory in form
to the Debt Trustee, of the obligation of due and punctual payment of the
principal of, premium, if any, and interest on all of the Debt Securities and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the Company thereupon shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. Such successor Person thereupon may
cause to be signed, and may issue either in its own name or in the name of
SunTrust Banks, Inc., any or all of the Debt Securities of any series issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Debt Trustee or the Authenticating Agent; and, upon the order
of such successor Person instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Debt Trustee or
the Authenticating Agent shall authenticate and deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company to the Debt Trustee or the Authenticating Agent for authentication, and
any Debt Securities which such successor Person thereafter shall cause to be
signed and delivered to the Debt Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Opinion of Counsel and/or an Officer's Certificate as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or lease, and any
54
62
assumption, permitted or required by the terms of this Article X complies with
the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Debt Trustee for
cancellation all Debt Securities of any series theretofore authenticated (other
than any Debt Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced as provided in Section 2.08) and
not theretofore cancelled, or (b) all the Debt Securities of any series
outstanding hereunder not theretofore cancelled or delivered to the Debt
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
prepayment within one year under arrangements satisfactory to the Debt Trustee
for the giving of notice of prepayment, and the Company shall deposit with the
Debt Trustee, in trust, an amount in cash or U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof sufficient to pay on
the Maturity Date or upon prepayment all of the Debt Securities of such series
(other than any such Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced as provided in Section 2.08) not
theretofore cancelled or delivered to the Debt Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to the
Maturity Date or prepayment date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of, premium, if any, or
interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 11.04, or (2) paid to any State or to
the District of Columbia pursuant to its unclaimed property or similar laws,
and if in either case the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Indenture shall cease to be of
further effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01,
3.02, 3.05, 6.06, 6.10 and 11.04 hereof, which shall survive until such Debt
Securities shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04
shall survive, and the Debt Trustee, on demand of the Company accompanied by
any Officer's Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture; the Company, however, hereby agrees to
reimburse the Debt Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Debt Trustee in connection with this Indenture or the
Debt Securities.
55
63
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Debt
Trustee.
Subject to the provisions of Section 11.04, all moneys and
U.S. Government Obligations deposited with the Debt Trustee pursuant to
Sections 11.01 or 11.05 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company if
acting as its own paying agent), to the Holders of the particular series of
Debt Securities for the payment of which such moneys or U.S. Government
Obligations have been deposited with the Debt Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Debt Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.01 or 11.05 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Debt
Securities of the affected series.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all
moneys then held by any paying agent of the Debt Securities of any series
(other than the Debt Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Debt Trustee, and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debt Trustee or any
paying agent for payment of the principal of, premium, if any, or interest on
any Debt Securities of any series and not applied but remaining unclaimed by
the Holders thereof for two years after the date upon which the principal of,
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Debt Trustee
or such paying agent on written demand; and the Holder of any such Debt
Securities shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect and all liability of the Debt Trustee or such
paying agent with respect to such moneys shall thereupon cease.
56
64
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as
defined below) from its obligations with respect to any series of Debt
Securities on the 91st day after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Debt Trustee or the
Defeasance Agent (as defined below) as trust funds in
trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
the Debt Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations, maturing
as to principal and interest at such times and in
such amounts as will insure the availability of cash,
or (iii) a combination of (i) and (ii), sufficient,
in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Debt Trustee and the
Defeasance Agent, if any, to pay and discharge each
installment of principal of, premium, if any, and
interest on the outstanding Debt Securities of such
series on the dates such installments of principal,
premium or interest are due;
(2) if the Debt Securities of such series are then listed
on any national securities exchange, the Company
shall have delivered to the Debt Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to
the effect that the exercise of the option under this
Section 11.05 would not cause such Debt Securities to
be delisted from such exchange;
(3) no Default or Event of Default with respect to the
Debt Securities of such series shall have occurred
and be continuing on the date of such deposit; and
(4) the Company shall have delivered to the Debt Trustee
and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income,
gain or loss for United States Federal income tax
purposes as a result of the exercise of the option
under this Section 11.05 and will be subject to
United States Federal income tax on the same amount
and in the same manner and at the same
57
65
times as would have been the case if such option had
not been exercised.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Debt Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of the
Debt Securities of such series to receive, from the trust fund described in
clause (1) above, payment of the principal of, premium, if any, and interest on
such Debt Securities when such payments are due; (B) the Company's obligations
with respect to such Debt Securities under Sections 2.07, 2.08, 5.02 and 11.04;
and (C) the rights, powers, trusts, duties and immunities of the Debt Trustee
hereunder.
"Defeasance Agent" means another financial institution which
is eligible to act as Debt Trustee hereunder and which assumes all of the
obligations of the Debt Trustee necessary to enable the Debt Trustee to act
hereunder. In the event such a Defeasance Agent is appointed pursuant to this
Section, the following conditions shall apply:
(1) The Debt Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's rights
and responsibilities;
(2) The Defeasance Agent shall provide verification to
the Debt Trustee acknowledging receipt of sufficient
money and/or U. S. Government Obligations to meet the
applicable conditions set forth in this Section
11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of, premium, if
any, or interest on any Debt Security of any series, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture, or in any
Debt Security of any series, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
58
66
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person to the Company, either directly or through
the Company or any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations of the
Company, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, shareholders, officers or directors,
as such of the Company or any successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities of any series or coupons, or implied therefrom; and that
any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities of any series or coupons, or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of such Debt Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to the Debt Trustee
may surrender any of the powers
59
67
reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Debt Trustee or by the
Holders on the Company may be given or served by being deposited postage
prepaid by first class mail, registered or certified mail, overnight courier
service or conformed telecopy addressed (until another address is filed by the
Company with the Debt Trustee for the purpose) to the Company at 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx, 00000-0000, Attention: Treasurer. Any notice,
direction, request or demand by any Holder to or upon the Debt Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of the Debt Trustee, The First National Bank of
Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000-0000,
Attention: Corporate Trust Administration (unless another address is provided
by the Debt Trustee to the Company for such purpose). Any notice or
communication to a Holder shall be mailed by first class mail to his or her
address shown on the Security Register.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the Debt
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Debt Trustee an Officer's Certificate stating that
in the opinion of the signers all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Debt Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (except certificates delivered pursuant
to Section 3.05) shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
60
68
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of,
premium, if any, or interest on the Debt Securities will not be a Business Day,
the payment of such principal of, premium, if any, or interest on the Debt
Securities need not be made on such date but may be made on the next succeeding
Business Day, with the same force and effect as if made on the date of payment
and no interest shall accrue for the period from and after such date, except
that if such next succeeding Business Day falls in the next succeeding calendar
year, then 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.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This 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.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities 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 Indenture or of
the Debt Securities, but this Indenture and the Debt Securities shall be
construed as if
61
69
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of
its respective rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES
SECTION 14.01. Applicability of Article.
Debt Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and,
except as otherwise specified as contemplated by Section 2.03 for Debt
Securities of any series, in accordance with this Article.
SECTION 14.02. Notice of Redemption; Selection of Debt
Securities.
In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of the Debt Securities of any
series in accordance with their terms, it shall fix a date for redemption and
shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the Holders of Debt Securities of
such series to be so redeemed as a whole or in part at their last addresses as
the same appear on the Security Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security of any series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number
of the Debt Securities of such series to be redeemed, the date fixed for
redemption, the redemption price at which the Debt Securities of such series
are to be redeemed (or the method by
62
70
which such redemption price is to be calculated), the place or places of
payment that payment will be made upon presentation and surrender of the Debt
Securities of such series, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debt Securities of a series are to be redeemed,
the notice of redemption shall specify the numbers of the Debt Securities of
such series to be redeemed. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of such series in principal amount equal to the
portion thereof that has not been redeemed will be issued.
By 10:00 a.m. New York, New York time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Debt Trustee or with one or more paying agents an
amount of money sufficient to redeem on the redemption date all the Debt
Securities so called for redemption at the appropriate Redemption Price,
together with accrued interest to the date fixed for redemption.
The Company will give the Debt Trustee notice not less than 45
days prior to the redemption date (unless a shorter notice is acceptable to the
Trustee) as to the aggregate principal amount of Debt Securities to be redeemed
and the Debt Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof be
redeemed.
SECTION 14.03. Payment of Debt Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02, the Debt Securities or portions of Debt Securities of any series with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
Redemption Price, together with interest accrued to the date fixed for
redemption (subject to the rights of Holders at the close of business on a
regular record date in respect of an Interest Payment Date occurring on or
prior to the redemption date), and on and after said date (unless the Company
shall default in the payment of such Debt Securities at the Redemption Price,
together with interest accrued to said date) interest on such Debt Securities
or portions of Debt Securities so called for redemption shall cease to accrue.
On presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be
63
71
redeemed by the Company at the applicable Redemption Price, together with
interest accrued thereon to the date fixed for redemption (subject to the
rights of Holders on the close of business on a regular record date in respect
of an Interest Payment Date occurring on or prior to the redemption date).
Upon presentation of any Debt Security of a series redeemed in
part only, the Company shall execute and the Debt Trustee shall authenticate
and make available for delivery to the Holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of such series of authorized
denominations, in principal amount equal to the portion of the Debt Security so
presented that has not been redeemed.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Debt
Securities issued hereunder likewise covenants and agrees, that the Debt
Securities shall be issued subject to the provisions of this Article XV; and
each Holder, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if
any, and interest on all Debt Securities issued hereunder shall, to the extent
and in the manner hereinafter set forth, be subordinated and junior in right of
payment to all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence
of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case,
no payment shall be made by the Company with respect to the principal
(including redemption payments) of, premium, if any, or interest on the Debt
Securities of any series or any other amounts which may be due on such Debt
Securities pursuant to the terms hereof or otherwise).
In the event of the acceleration of the maturity of the Debt
Securities of any series, then no payment shall be made by
64
72
the Company with respect to the principal (including redemption payments) of,
premium, if any, or interest on such Debt Securities (including any other
amounts which may be due on such Debt Securities pursuant to the terms hereof
or otherwise) until the holders of all Senior Indebtedness outstanding at the
time of such acceleration shall receive payment in full of such Senior
Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment
shall be received by the Debt Trustee when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Debt Trustee in writing within 90 days
of such payment of the amounts then due and owing on such Senior Indebtedness,
and only the amounts specified in such notice to the Debt Trustee shall be paid
to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Indebtedness of the Company shall
first be paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account of the
principal of, premium, if any, or interest on such Debt Securities of any
series (including any other amounts which may be due on such Debt Securities
pursuant to the terms hereof or otherwise); and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, which the Holders or the Debt Trustee would be
entitled to receive from the Company, except for the provisions of this Article
XV, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders or by the Debt Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such
65
73
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Debt Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character prohibited by
the foregoing, whether in cash, property or securities, shall be received by
the Debt Trustee before all Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of such Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Debt Securities of any series to the payment of
Senior Indebtedness that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the sale, conveyance, transfer or lease of
its property as an entirety, or substantially as an entirety, to another Person
upon the terms and conditions provided for in Article X of this Indenture shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 15.03 if such other Person shall, as a part of such
consolidation, merger, sale, conveyance, transfer or lease, comply with the
conditions stated in Article X of this Indenture. Nothing in Section 15.02 or
in this Section 15.03 shall apply to claims of, or payments to, the Debt
Trustee under or pursuant to Section 6.06 of this Indenture.
66
74
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of Debt Securities of any series shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of, premium, if
any, and interest on the Debt Securities of such series shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to
which the Holders or the Debt Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions
of this Article XV to or for the benefit of the holders of such Senior
Indebtedness by Holders or the Debt Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the
Holders, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XV
are and are intended solely for the purposes of defining the relative rights of
the Holders, on the one hand, and the holders of such Senior Indebtedness on
the other hand.
Nothing contained in this Article XV or elsewhere in this
Indenture or in the Debt Securities of any series is intended to or shall (i)
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the Holders of Debt Securities of any series,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of Debt Securities of any series the principal of, premium, if any,
and interest on such Debt Securities as and when the same shall become due and
payable in accordance with their terms, or (ii) affect the relative rights of
such Holders and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Debt Trustee or any such Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Debt Trustee, subject to the provisions of
Article VI of this Indenture, and the Holders of Debt Securities of any series
shall be entitled to conclusively rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation
67
75
trustee, agent or other Person making such payment or distribution, delivered
to the Debt Trustee or to such Holders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.05. Debt Trustee to Effectuate Subordination.
Each Holder by such Holder's acceptance thereof authorizes and
directs the Debt Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Debt Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Debt Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Debt Trustee in
respect of the Debt Securities of any series pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture, the Debt Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Debt Trustee in respect of the Debt Securities
of any series pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Debt Trustee shall have received written notice
thereof from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and before the receipt of any such written notice, the
Debt Trustee, subject to the provisions of Article VI of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Debt Trustee shall not have received the notice provided
for in this Section 15.06 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Debt Security), then, anything herein contained to the
contrary notwithstanding, the Debt Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Debt Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled to conclusively rely on a
68
76
written notice delivered to it by a Person representing himself to be a holder
of Senior Indebtedness of the Company (or a trustee on behalf of such holder),
as the case may be, to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or holders.
In the event that the Debt Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution pursuant
to this Article XV, the Debt Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Debt Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XV, and, if such
evidence is not furnished, the Debt Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Debt Trustee and the Holders shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Debt Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.07. Rights of the Debt Trustee; Holders of
Senior Indebtedness.
The Debt Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Debt
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Debt Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debt Trustee. The
69
77
Debt Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Debt Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Holders, the Company or any
other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or
payments to, the Debt Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company, as the case may be, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company,
as the case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Debt Trustee or
the Holders of Debt Securities of any series, without incurring responsibility
to such Holders and without impairing or releasing the subordination provided
in this Article XV or the obligations hereunder of such Holders to the holders
of such Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case may be, and
any other Person.
70
78
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
SUNTRUST BANKS, INC.
By:
-------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Debt Trustee
By:
-------------------------------------
Name:
Title:
71
