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EXHIBIT 4.9
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FIRST SUPPLEMENTAL INDENTURE
between
SUNTRUST BANKS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of __________, 1997
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.4. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 8.2. Covenants as to the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.2. Acknowledgement of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . . . . 16
SECTION 9.4. Debt Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.6. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1997
(the "First Supplemental Indenture"), between SunTrust Banks, Inc., a Georgia
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Debt Trustee"), under the Indenture dated as of __________, 1997 between
the Company and the Debt Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Debt Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt Securities
to be known as its Floating Rate Junior Subordinated Deferrable Interest
Debentures, Series A, due __________, 20__ (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof
to be set forth as provided in the Indenture and this First Supplemental
Indenture;
WHEREAS, SunTrust Capital I, a Delaware statutory business
trust (the "Trust"), has offered to the public $__________ aggregate
liquidation amount of its Floating Rate Preferred Securities, Series A (the
"Preferred Securities"), representing beneficial ownership interests in the
assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $__________ aggregate liquidation amount of its Common Securities; and
WHEREAS, the Company has requested that the Debt Trustee
execute and deliver this First Supplemental Indenture pursuant to Sections 2.03
and 9.01 of the Indenture and all requirements necessary to make this First
Supplemental Indenture a valid and binding instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Debt Trustee, the valid and binding
obligations of the Company, have been performed, and the execution and delivery
of this First Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
additional terms, provisions and conditions thereof, the Company covenants and
agrees with the Debt Trustee as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: Business Day; Clearing Agency; Common Securities; Delaware
Trustee; Direct Action; Distribution; Institutional Trustee Account; Preferred
Securities; Preferred Securities Guarantee; Preferred Security Certificate;
Regular Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"3-Month LIBOR" shall have the meaning set forth in Section
2.5(b).
"90 Day Period" shall have the meaning set forth in Section
2.5(f).
"Additional Sums" shall have the meaning set forth in Section
2.5(f).
"Calculation Agent" shall have the meaning set forth in
Section 2.5(b).
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the
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date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstantial risk that the Company will not be entitled to treat
an amount equal to the liquidation amount of the Preferred Securities as "Tier
I Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable to
the Company.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Debentures" shall have the meaning set forth in the preamble
of this First Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of __________, 1997, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Depositary", with respect to the Debentures, means The
Depository Trust Company or such other successor Clearing Agency for the
Preferred Securities.
"Determination Date" shall have the meaning set forth in
Section 2.5(b)(i).
"Dissolution Event" means the liquidation of the Trust
pursuant to the Declaration and the distribution of the Debentures held by the
Institutional Trustee to the holders of the Trust Securities issued by the
Trust pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in
Section 2.4(a)(i).
"Index Maturity" shall have the meaning set forth in Section
2.5(b)(i).
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(e).
"Interest Period" shall have the meaning set forth in Section
2.5(b).
"Interest Rate" shall have the meaning set forth in Section
2.5(b).
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"Like Amount" means (i) with respect to a redemption of the
Trust Securities, Trust Securities having a liquidation amount equal to the
principal amount of Debentures to be paid in accordance with their terms and
(ii) with respect to a distribution of Debentures upon the liquidation of the
Trust, Debentures having a principal amount equal to the liquidation amount of
the Trust Securities of the holder thereof to whom Debentures are distributed.
"Market Day" shall have the meaning set forth in Section 2.5
(b).
"Maturity Date" shall mean __________, 20__.
"Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4(a)(ii).
"Other Guarantees" means all guarantees issued or to be issued
by the Company with respect to capital securities (if any) and issued to other
trusts to be established by the Company (if any), in each case similar to the
Trust.
"Redemption Price" shall mean, with respect to any redemption
of the Debentures pursuant to Article III hereof, an amount in cash equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional Sums, if any, to
the date of such redemption.
"Reference Banks" shall have the meaning set forth in Section
2.5(b)(ii).
"Reuters Screen LIBO Page" shall have the meaning set forth in
Section 2.5(b)(ii).
"Securities Registrar" shall have the meaning set forth in
Section 2.3.
"Tax Event" means the receipt by the Trust of an opinion of
counsel to the Company experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under the Declaration, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date of such opinion, subject to United States Federal income tax with
respect to income received or accrued on
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the Debentures, (ii) interest payable by the Company on the Debentures is not,
or within 90 days of such opinion, will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes or (iii) the
Trust is, or will be within 90 days of the date of the opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"Telerate Page 3750" shall have the meaning set forth in
Section 2.5(b)(i).
"Trust" shall have the meaning set forth in the preamble of
this First Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "Floating Rate Junior Subordinated Deferrable Interest
Debentures, Series A, due __________, 20__", limited in aggregate principal
amount to $__________, which amount shall be as set forth in any written order
of the Company for the authentication and delivery of Debentures pursuant to
Section 2.05 of the Indenture.
SECTION 2.2 Maturity.
The Maturity Date (which shall constitute the Stated Maturity
of the Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal of, premium, if any, and interest on (including Compounded Interest
and Additional Sums, if any) the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Company maintained for such purpose
as set forth in the Indenture; provided, however, that payment of interest with
respect to Debentures (other than a
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Global Debenture) may be made at the option of the Company (i) by check mailed
to the Holder at such address as shall appear in the Security Register or (ii)
by transfer to an account maintained by the Person entitled thereto, provided
that proper transfer instructions have been received in writing by the relevant
record date. The Company selects each of New York, New York and Chicago,
Illinois as a place of payment where the principal of (and premium, if any) and
interest on the Debentures are payable as specified in accordance herewith, and
hereby appoints The First National Bank of Chicago, the Debt Trustee, as
registrar for the Debentures (the "Security Registrar"). Notwithstanding the
foregoing, so long as the Holder of any Debentures is the Institutional
Trustee, the payment of the principal of, premium, if any, and interest
(including Compounded Interest and Additional Sums, if any) on such Debentures
held by the Institutional Trustee will be made at such place and to such
account as may be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Debt Trustee by the Institutional Trustee in exchange
for a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Debt Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees. The Company upon any
such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Debt Trustee for
authentication and delivery in accordance with the Indenture.
Payments on the Debentures issued as a Global Debenture will be made
to the Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Debt Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Debt
Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at
which time such Preferred Security Certificates will be cancelled and
a Debenture, registered in the name of the holder of the
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Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled, will be executed by the
Company and delivered to the Debt Trustee for authentication and
delivery in accordance with the Indenture. Upon the issuance of such
Debentures, Debentures with an equivalent aggregate principal amount
that were presented by the Institutional Trustee to the Debt Trustee
will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the Interest
Rate (as defined below) from __________, 1997 until the principal thereof
becomes due and payable, and on any overdue principal at the Interest Rate and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on the first day of __________, __________, __________ and ___________
of each year commencing on __________ 1, 1997, to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which, in respect of
any Debentures of which the Institutional Trustee is the Holder or in the case
of a Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date (as defined below). Notwithstanding the
foregoing sentence, if the Debentures are no longer in book-entry only form,
except if the Debentures are held by the Institutional Trustee, the record
dates shall be the __________ 15, __________ 15, __________ 15 and __________
15 prior to the applicable Interest Payment Date.
(b) The interest rate in respect of the Debentures
applicable during an Interest Period will be the sum of (i) a floating rate per
annum determined by reference to 3-Month LIBOR, determined as described below,
plus (ii) a margin of __________% (such sum, the "Interest Rate"). "3-Month
LIBOR" means the London, England interbank offered rate for three month U.S.
dollar deposits and with respect to any Interest Period will be calculated by
The First National Bank of Chicago, as calculation agent (the "Calculation
Agent"), as follows:
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(i) On the second Market Day (as defined below) preceding
the commencement of such Interest Period (each, a "Determination
Date"), 3-Month LIBOR will be determined on the basis of the offered
rate for deposits of not less than U.S. $1,000,000 for a period of
three months (the "Index Maturity"), commencing on the second Market
Day immediately preceding the commencement of such Interest Period,
which appears on the display designated as Page 3750 on the Dow ▇▇▇▇▇
Telerate Service (or such other pages as may replace Page 3750 on that
service for the purpose of displaying London, England interbank offered
rates of major banks) ("Telerate Page 3750") as of 11:00 a.m., London,
England time on said Determination Date. If no such offered rate
appears, 3-Month LIBOR with respect to such Interest Period will be
determined as described in (ii) below.
(ii) With respect to a Determination Date on which no such
offered rate appears on Telerate Page 3750 as described in (i) above,
3-Month LIBOR shall be the arithmetic mean, expressed as a percentage,
of the offered rates (unless by its terms such display provides for
only a single rate, in which case a single rate shall be used) for
deposits in U.S. dollars for the Index Maturity that appears on the
display designated as "LIBO" on the Reuters Monitor Money Market Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London, England interbank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London, England time, on such date. If, in turn, at least two
such rates are not displayed on the Reuters Screen LIBO Page at such
time (unless, as aforesaid, only a single rate is required), the
Calculation Agent will obtain from each of four reference banks in
London, England selected by the Calculation Agent ("Reference Banks")
such bank's offered quotation (expressed as a percentage per annum) as
of approximately 11:00 a.m., London, England time, on such date for
deposits in U.S. dollars to prime banks in the London, England
interbank market for the Index Maturity. If two or more such
quotations are provided as requested, then 3-Month LIBOR for such date
shall be the arithmetic average of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3-Month
LIBOR for such date will be obtained from the preceding Market Day for
which the Reuters Screen LIBO Page displayed a rate for the Index
Maturity.
(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided
in paragraphs (a) and (b) above, 3-Month LIBOR for such Interest
Period shall be 3-Month LIBOR as determined on the previous
Determination Date.
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The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
The term "Interest Period" means each period beginning on, and
including, May __, 1997, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding
Interest Payment Date.
The Interest Rate for any Interest Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in
this First Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
(c) The Calculation Agent shall, as soon as practicable
after 11:00 a.m., London, England time, on each Determination Date, determine
the Interest Rate and inform the Debt Trustee and the Paying Agent and, if any
Debentures are held by the Institutional Trustee, the Institutional Trustee.
Unless otherwise provided by the Debt Trustee, the Paying Agent will calculate
the amount of interest payable on the Debentures in respect of the following
Interest Period. The amount of interest payable for any Interest Period will
be computed on the basis of the actual number of days in the applicable
Interest Period divided by 360 and rounding the resulting figure to the nearest
cent (with one-half cent or more being rounded upwards). The determination of
the Interest Rate by the Calculation Agent and the amount of interest payable
by Paying Agent will (in the absence of wilful default, bad faith or manifest
error) be final, conclusive and binding on all concerned. None of the Debt
Trustee, the Paying Agent, the Calculation Agent, the Trust or the Company (or
any of their respective officers, directors, agents, beneficiaries, employees
or affiliates) shall have any liability to any person for (i) the selection of
any Reference Bank or (ii) any inability to retain major banks in the London,
England interbank market, in the case of the Calculation Agent, which is caused
by circumstances beyond its reasonable control.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debentures, whether by the Reference Banks (or
any of them) or the Calculation Agent, Debt Trustee or Paying Agent, will (in
the absence of wilful default, bad faith or manifest error) be binding on the
Trust, the Company, the Debt Trustee and all of the holders of the Debentures,
and no liability will (in the
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absence of wilful default, bad faith or manifest error) attach to the
Calculation Agent, Debt Trustee or Paying Agent in connection with the exercise
or non-exercise by any of them of their powers, duties and discretion.
(e) In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a
Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date (each
date on which interest is actually payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while
the Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures
held by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event.
Additional Sums shall be treated as interest for all purposes under the
Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event or Capital Treatment Event Redemption.
If a Tax Event or a Capital Treatment Event has occurred and
is continuing then, notwithstanding Section 3.2(a) but subject to Section
3.2(c), the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders to redeem the Debentures, in whole, but not
in part, for cash within 90 days following the occurrence of such Tax Event or
Capital Treatment Event (or, if the approval of the Federal Reserve Board is
then required for such redemption, on such later date as promptly practicable
after such approval is obtained) (the "90 Day Period"), at the Redemption
Price.
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SECTION 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b), except
as otherwise may be specified in this First Supplemental Indenture or the
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after __________, _____, at the Redemption
Price. If the Debentures are only partially redeemed pursuant to this Section
3.2, the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Security Registrar; provided, that if at the time of redemption
the Debentures are registered as a Global Debenture, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(b) If a partial redemption of the Debentures would
result in the delisting of the Preferred Securities issued by the Trust from
any national securities exchange or interdealer quotation system or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may only redeem
the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1
or Section 3.2 shall be subject to the Company obtaining the prior approval of
the Federal Reserve, if such approval is then required under applicable law,
rules, guidelines or policies of the Federal Reserve.
SECTION 3.3 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding 20 consecutive
quarterly periods (the "Extension Period"), during which Extension Period no
interest shall be due and payable; provided that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date. To the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1, will bear interest thereon
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at the interest rate then in effect compounded quarterly for each quarterly
period of the Extension Period ("Compounded Interest"). At the end of the
Extension Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Sums and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders in whose names the
Debentures are registered in the Security Register on the record date relating
to the Interest Payment Date on which the Extension Period ends. Before the
termination of any Extension Period, the Company may further defer payments of
interest by further extending such period, provided that such period, together
with all such previous and further extensions within such Extension Period,
shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof.
Compounded Interest shall be treated as interest for all purposes under the
Indenture.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered
Holder at the time the Company selects an Extension Period, the Company shall
give written notice to the Regular Trustees, the Institutional Trustee and the
Debt Trustee of its selection of such Extension Period five Business Days
before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to any national securities exchange or interdealer
quotation system or to holders of the Preferred Securities issued by the Trust,
but in any event at least five Business Days before such record date.
(b) If the Institutional Trustee is not the only Holder at
the time the Company selects an Extension Period, the Company shall give the
Holders and the Debt Trustee written notice of its selection of such Extension
Period at least 10 Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to any national
securities exchange or interdealer quotation system or to the Holders.
(c) The quarterly period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarterly periods permitted in the maximum Extension Period permitted
under Section 4.1.
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ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures and the compensation of the Debt Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses relating to the
organization and operation of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Debt Trustee, unless otherwise
stated, the Company shall pay to the Debt Trustee all amounts accrued under
Section 6.06 of the Indenture to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be,
pursuant to Sections 10.4 and 10.6 of the Declaration, the Company shall pay to
the Delaware Trustee or the Institutional Trustee, as the case may be, all
amounts accrued under said Sections to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
The Debentures and the Debt Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the forms set
forth in Exhibit A hereto.
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17
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________
may, upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Debt Trustee for authentication as provided in
Sections 2.03 and 2.05 of the Indenture.
ARTICLE VIII
COVENANTS
SECTION 8.1 Limitation on Dividends.
The Company will not, and will not permit any subsidiary to,
(i) declare or pay any dividends or distributions on, or prepay, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of, premium, if any, or
interest on or repay, repurchase or redeem any debt securities of the Company
(including Other Debt Securities) that rank pari passu with, or junior in right
of payment to, the Debentures or (iii) make any guarantee payment with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with,
or junior in right of payment to, the Debentures (other than (a) dividends,
distributions, redemptions, purchases or acquisitions made by the Company by
way of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee or
Common Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
reinvestment plan or stock purchase plan of the Company), if at such time (1)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice, or the lapse of time, or both, would
constitute an Event of Default hereunder and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (2) if such Debentures
are held by the Institutional Trustee, the Company shall be in
14
18
default with respect to its payment obligations under the Preferred Securities
Guarantee or Common Securities Guarantee or (3) the Company shall have given
notice of its selection of an Extension Period and shall not have rescinded
such notice or such Extension Period and such Extension Period shall be
continuing.
SECTION 8.2 Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee
of such trust in connection with the issuance of Trust Securities by the Trust,
for so long as such Trust Securities remain outstanding, the Company (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Company, permitted pursuant
to Article X of the Indenture, may succeed to the Company's ownership of such
Common Securities, (ii) will use commercially reasonable efforts to cause the
Trust (a) to remain a grantor trust, except in connection with a distribution
of Debentures to the holders of Trust Securities in liquidation of the Trust,
the redemption of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust and not an
association taxable as a corporation for United States federal income tax
purposes and (iii) will not cause, as sponsor of the Trust, or permit, as
holder of the Common Securities, the dissolution, winding-up or termination of
the Trust, except in connection with a distribution of the Debentures as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Acknowledgement of Rights.
The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee thereof, if the Institutional Trustee of such
Trust fails to enforce its rights under this First Supplemental Indenture or
the Indenture as the Holder of the Debentures held as the assets of SunTrust
Capital I, any holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Institutional Trustee's rights
under this First Supplemental Indenture or the
15
19
Indenture without first instituting any legal proceedings against such
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay principal of, premium, if
any, or interest on the Debentures when due, the Company acknowledges that a
holder of Preferred Securities may institute a Direct Action for enforcement of
payment to such holder of the principal of, premium, if any, or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.
SECTION 9.3 Direction of Proceedings and Waiver of Defaults by
Majority of Holders.
The Holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Debt Trustee, or exercising any trust or power conferred on the Debt
Trustee; provided, however, that (subject to the provisions of Section 6.01 of
the Indenture) the Debt Trustee shall have the right to decline to follow any
such direction if the Debt Trustee shall determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or if the Debt Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debt Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the Debt Trustee in
personal liability. Prior to any declaration accelerating the maturity of the
Debt Securities, the Holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding may on behalf of the Holders of all of
the Debt Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debt Securities (unless such default has been
cured and a sum sufficient to pay all matured installments of principal,
premium, if any, and interest due otherwise than by acceleration has been
deposited with the Debt Trustee) or (b) in respect of covenants or provisions
hereof which cannot be modified or amended without the consent of the Holder of
each Debenture affected; provided, however, that if the Debt Securities are
held by the Institutional Trustee, such waiver or modification to such waiver
shall not be effective until the holders of a majority in aggregate liquidation
amount of Trust Securities shall have consented to such waiver or modification
to such waiver; provided further, that if the consent of the Holder of each
outstanding Debenture is required, such waiver shall not be effective until
each holder
16
20
of the Trust Securities shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this First Supplemental Indenture and the Indenture and the
Company, the Debt Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by Section 5.08 of the Indenture, said default or Event of Default
shall for all purposes of the Debt Securities and the Indenture be deemed to
have been cured and to be not continuing.
SECTION 9.4 Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Debt Trustee, and the Debt Trustee assumes no responsibility for the
correctness thereof. The Debt Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 9.5 Governing Law.
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 9.6 Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 9.7 Counterparts.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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21
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
SUNTRUST BANKS, INC.
By
--------------------------------------
Name:
Title:
Attest:
By:
-----------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Debt Trustee
By
--------------------------------------
Name:
Title:
Attest:
By:
-----------------
Name:
Title:
22
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
A-1
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No. CUSIP No.
---------- ----------
SUNTRUST BANKS, INC.
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A
DUE
----------
SUNTRUST BANKS, INC., a Georgia corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to SunTrust Capital I,
or registered assigns, the principal sum of $ __________ on __________ and to
pay interest on said principal sum from __________, 1997, or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on the
first day of __________, __________, __________ and __________ of each year
commencing __________ 1, 1997, at the Interest Rate (as defined in the
Indenture (as defined below)) until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, at the Interest
Rate and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the Interest Rate compounded quarterly. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which interest is
actually payable, an "Interest Payment Date"). The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Debt Securities, as defined in said
Indenture) is registered at the close of business on the regular record date
for such interest installment, which shall be, except if the Debentures are
held by the Institutional Trustee, the close of business on the __________ 15,
__________ 15, __________ 15 and __________ 15 prior to the applicable Interest
Payment Date. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Debt Securities) is registered at the
close of business on a special record date to be fixed by the Debt Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special record date, or
may
A-2
24
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation system on
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on this Debenture shall be payable at the office or agency of the
Debt Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made, at the option of the Company, by check mailed to the registered Holder at
such address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than ten days prior to the
date of payment. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of,
premium, if any, and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Debt Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debt Trustee his
or her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Debt Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER
OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
A-3
25
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
SUNTRUST BANKS, INC.
By:
-------------------------------------
Name:
Title:
Attest:
By:
----------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Debt Trustee
By:
----------------------------------------
Authorized Officer
Dated:
-------------------------------------
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(FORM OF REVERSE OF DEBENTURE)
This Debt Security is one of a duly authorized series of debt
securities of the Company (herein sometimes referred to as the "Debentures"),
all issued or to be issued in one or more series under and pursuant to an
Indenture, dated as of __________, 1997, duly executed and delivered between
the Company and The First National Bank of Chicago, as Debt Trustee (the "Debt
Trustee"), as supplemented by the First Supplemental Indenture, dated as of
__________, 1997, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Debt Trustee, the Company and the Holders of the Debentures. By the terms of
the Indenture, Debt Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture. This Debenture is one of the series designated on the face
hereof and is limited in aggregate principal amount as specified in said First
Supplemental Indenture
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain
conditions set forth in the Indenture, to redeem this Debenture in whole, but
not in part, at the Redemption Price within 90 days following the occurrence of
such Tax Event or Capital Treatment Event (or, if the prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve") is
then required, on such later date as promptly as practicable after such
approval is obtained). In addition, the Company shall have the right to redeem
this Debenture, in whole or in part, at any time on or after __________ 1,
2007, at the Redemption Price (any of the foregoing redemptions an "Optional
Redemption"). The "Redemption Price" means an amount in cash equal to 100% of
the principal amount together with any accrued and unpaid interest thereon,
including Additional Sums and Compounded Interest, if any, to the date of such
redemption. Any redemption pursuant to this paragraph will be made upon not
less than 30 days nor more than 60 days notice. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Security Registrar; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures beneficially held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion
A-5
27
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Notwithstanding the foregoing, any redemption of Debentures by
the Company shall be subject to the prior approval of the Federal Reserve, if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and
the Debt Trustee, with the consent of the Holders of not less than a majority
in aggregate principal amount of the outstanding Debt Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities;
provided, however, that no such supplemental indenture shall without the
consent of the Holders of the outstanding Debentures affected thereby (i)
change the Maturity Date, or reduce the rate or extend the time of payment of
interest (except as contemplated by Section 2.5 of the First Supplemental
Indenture) on any Debenture, 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 in which any
Debenture (or premium, if any, thereon) or the interest thereon is payable or
impair or affect the right of any Holder to institute suit for payment thereof;
or (ii) reduce the percentage in principal amount of the outstanding
Debentures, the Holders of which are required to consent to any such amendment
to the First Supplemental Indenture; provided, however, that if the Debentures
are held by the Trust, such amendment shall not be effective until the holders
of a majority in liquidation amount of Trust Securities shall have consented to
such amendment; provided, further, that if the consent of the Holder of each
outstanding Debenture is required, such amendment shall not be effective until
each holder of the Trust Securities shall have consented to such amendment.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of any series
affected thereby, on behalf of all of the Holders of the Debt Securities of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of,
A-6
28
premium, if any, or interest on any of the Debt Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the time and place and at the rate
and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarterly periods
(an "Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the
Interest Rate to the extent that payment of such interest is enforceable under
applicable law); provided that no Extension Period may end on a day other than
an Interest Payment Date or last beyond the Maturity Date of the Debentures.
Before the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such Extension Period together with
all such further extensions thereof shall not exceed 20 consecutive quarterly
periods or extend beyond the Maturity Date of the Debentures. Upon the
termination of any such Extension Period and the payment of all accrued and
unpaid interest and any additional amounts then due, the Company may commence a
new Extension Period, subject to the foregoing requirements.
The Company will not (i) declare or pay any dividends or
distributions on, or prepay, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest on or repay, repurchase or redeem
any debt securities of the Company (including Other Debt Securities) that rank
pari passu with, or junior in right of payment to, the Debentures or (iii) make
any guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company (including Other Guarantees) if
such guarantee ranks pari passu with or junior in right of payment to the
Debentures (other than (a) dividends, distributions, redemptions, purchases or
acquisitions made by the Company by way of issuance of its capital stock (or
options, warrants or other rights to subscribe
▇-▇
▇▇
▇▇▇▇▇▇▇▇), (▇) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the prepayment or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee, (d)
the purchase of fractional interests in shares resulting from a
reclassification of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, (f) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees and (g) obligations under any dividend reinvestment plan
or stock purchase plan of the Company), if at such time (1) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice, or the lapse of time, or both would constitute an Event of
Default and (b) in respect of which the Company shall not have taken reasonable
steps to cure, (2) if such Debentures are held by the Institutional Trustee,
the Company shall be in default with respect to its payment obligations under
the Preferred Securities Guarantee or Common Securities Guarantee or (3) the
Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such
Extension Period shall be continuing.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules,3 guidelines or policies
of the Federal Reserve, the Company will have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders
of the Trust Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Debt
Trustee in New York, New York, c/o First Chicago Trust Company of New York, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ - Window 2, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the registered Holder
hereof or his or her attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
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Prior to due presentment for registration of transfer of this
Debenture, the Company, the Debt Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to Section 2.5 of the First
Supplemental Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Debt Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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