<PAGE> 1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MARCH 10, 1998
SunTrust Banks, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Georgia 001-08918 58-1575035
- ------------------------ ------------------------ -------------------
(State of incorporation) (Commission File Number) (IRS Employer
Identification No.)
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 404-588-7711
SunTrust Capital III
SunTrust Capital IV
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware N/A To be applied for
- ------------------------ ------------------------ -------------------
(State of incorporation) (Commission File Number) (IRS Employer
Identification No.)
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 404-588-7711
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<PAGE> 2
ITEM 5. OTHER EVENTS.
SunTrust Banks, Inc. (the "Company"), SunTrust Capital III and SunTrust
Capital IV (the "Trusts" and, together with the Company, the "Registrants") are
filing this Current Report on Form 8-K so as to file with the Securities and
Exchange Commission certain exhibits that are to be incorporated by reference
into their Registration Statement on Form S-3 (Registration Nos. 333-46123,
333-46123-01 and 333-46123-02).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(C) EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C> <C>
4.3.1 -- Form of Amended and Restated Declaration of Trust to be used in connection
with the issuance of Floating Rate Preferred Securities.
4.5.1 -- Form of Floating Rate Preferred Security (included in Exhibit 4.3.1).
4.6.1 -- Form of Floating Rate Subordinated Debt Security (included in Exhibit 4.9.1).
4.9.1 -- Form of Supplemental Indenture be used in connection with the issuance by the
Company of Floating Rate Subordinated Debt Securities.
8.1 -- Form of Tax Opinion of King & Spalding.
</TABLE>
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants have duly caused this Current Report on Form 8-K to be signed on
their behalf by the undersigned, hereunto duly authorized.
Date: March 13, 1998 SUNTRUST BANKS, INC.
By: /s/ Raymond D. Fortin
-------------------------
Raymond D. Fortin
Senior Vice President
Date: March 13, 1998 SUNTRUST CAPITAL III
By: /s/ Raymond D. Fortin
-------------------------
Raymond D. Fortin
Trustee
Date: March 13, 1998 SUNTRUST CAPITAL IV
By: /s/ Raymond D. Fortin
-------------------------
Raymond D. Fortin
Trustee
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<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
No. Exhibit Page
- ------- ------- ------------
<S> <C> <C> <C>
4.3.1 -- Form of Amended and Restated Declaration of Trust to be used in connection
with the issuance of Floating Rate Preferred Securities.
4.5.1 -- Form of Floating Rate Preferred Security (included in Exhibit 4.3.1).
4.6.1 -- Form of Floating Rate Subordinated Debt Security (included in Exhibit 4.9.1).
4.9.1 -- Form of Supplemental Indenture be used in connection with the issuance by the
Company of Floating Rate Subordinated Debt Securities.
8.1 -- Form of Tax Opinion of King & Spalding.
</TABLE>
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<PAGE> 1
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EXHIBIT 4.3.1
AMENDED AND RESTATED DECLARATION
OF TRUST
SUNTRUST CAPITAL ______
Dated as of _______, _______
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<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1 Definitions.....................................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................................................9
SECTION 2.2 Lists of Holders of Securities.................................................................10
SECTION 2.3 Reports by the Institutional Trustee...........................................................10
SECTION 2.4 Periodic Reports to the Institutional Trustee..................................................10
SECTION 2.5 Evidence of Compliance with Conditions Precedent...............................................10
SECTION 2.6 Events of Default; Waiver......................................................................11
SECTION 2.7 Event of Default; Notice.......................................................................13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name...........................................................................................14
SECTION 3.2 Office.........................................................................................14
SECTION 3.3 Issuance of the Trust Securities...............................................................14
SECTION 3.4 Purchase of Debentures.........................................................................14
SECTION 3.5 Purpose........................................................................................15
SECTION 3.6 Authority......................................................................................15
SECTION 3.7 Title to Property of the Trust.................................................................15
SECTION 3.8 Powers and Duties of the Regular Trustees......................................................16
SECTION 3.9 Prohibition of Actions by the Trust and the Trustees...........................................19
SECTION 3.10 Powers and Duties of the Institutional Trustee.................................................20
SECTION 3.11 Certain Duties and Responsibilities of the Institutional Trustee...............................23
SECTION 3.12 Certain Rights of the Institutional Trustee....................................................24
SECTION 3.13 Delaware Trustee...............................................................................26
SECTION 3.14 Execution of Documents.........................................................................26
SECTION 3.15 Not Responsible for Recitals or Issuance of Securities.........................................27
SECTION 3.16 Duration of Trust..............................................................................27
SECTION 3.17 Mergers........................................................................................27
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities........................................................29
SECTION 4.2 Responsibilities of the Sponsor................................................................29
SECTION 4.3 Right to Proceed...............................................................................30
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.............................................................................30
SECTION 5.2 Delaware Trustee...............................................................................30
SECTION 5.3 Institutional Trustee; Eligibility.............................................................31
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
Generally......................................................................................32
SECTION 5.5 Regular Trustees...............................................................................32
SECTION 5.6 [Reserved].....................................................................................32
SECTION 5.7 Appointment, Removal and Resignation of Trustees...............................................32
SECTION 5.8 Vacancies among Trustees.......................................................................34
SECTION 5.9 Effect of Vacancies............................................................................34
SECTION 5.10 Meetings.......................................................................................34
SECTION 5.11 Delegation of Power............................................................................35
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business....................................35
SECTION 5.13 Appointment of Authenticating Agent............................................................36
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions..................................................................................37
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities........................................................38
SECTION 7.2 Execution and Delivery of Securities Certificates..............................................39
SECTION 7.3 Paying Agent...................................................................................39
</TABLE>
ii
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<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust...........................................................................40
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.........................................................................41
SECTION 9.2 Transfer of Certificates.......................................................................41
SECTION 9.3 Deemed Security Holders........................................................................42
SECTION 9.4 Book-Entry Interests...........................................................................43
SECTION 9.5 Notices to Clearing Agency.....................................................................44
SECTION 9.6 Appointment of Successor Clearing Agency.......................................................44
SECTION 9.7 Definitive Preferred Security Certificates.....................................................44
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates..............................................45
SECTION 9.9 Maintenance of Office or Agency................................................................45
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability......................................................................................46
SECTION 10.2 Exculpation....................................................................................46
SECTION 10.3 [Reserved].....................................................................................47
SECTION 10.4 Indemnification................................................................................47
SECTION 10.5 Outside Businesses.............................................................................49
SECTION 10.6 Compensation; Fees.............................................................................50
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year....................................................................................50
SECTION 11.2 Certain Accounting Matters.....................................................................50
SECTION 11.3 Banking........................................................................................51
SECTION 11.4 Withholding....................................................................................51
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.....................................................................................52
</TABLE>
iii
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<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 12.2 Meetings of the Holders; Action by Written Consent.............................................54
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee....................................55
SECTION 13.2 Representations and Warranties of the Delaware Trustee.........................................56
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices........................................................................................57
SECTION 14.2 Governing Law..................................................................................58
SECTION 14.3 Intention of the Parties.......................................................................58
SECTION 14.4 Headings.......................................................................................58
SECTION 14.5 Successors and Assigns.........................................................................58
SECTION 14.6 Partial Enforceability.........................................................................59
SECTION 14.7 Counterparts...................................................................................59
ANNEX I TERMS OF SECURITIES...........................................................................I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE.......................................................A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE..........................................................A2-1
</TABLE>
iv
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CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a)..................................................... 5.3(a)
310(b)..................................................... 5.3(c)
310(c)..................................................... Inapplicable
311(a) and (b)............................................. 5.3(c)
311(c)..................................................... Inapplicable
312(a)..................................................... 2.2(a)
312(b)..................................................... 2.2(b)
313........................................................ 2.3
314(a)..................................................... 2.4
314(b)..................................................... Inapplicable
314(c)..................................................... 2.5
314(d)..................................................... Inapplicable
314(e)..................................................... 3.12(a)
314(f)..................................................... Inapplicable
315(a)..................................................... 3.11(b)
315(b)..................................................... 2.7(a)
315(c)..................................................... 3.11(a)
315(d)..................................................... 3.11(a)
316(a) and (b)............................................. 2.6 and Annex I
316(c)..................................................... 2.6(f)
317(a)..................................................... 3.10(c)
317(b)..................................................... 3.10(i)
</TABLE>
- ---------------
* This Cross-Reference Table does not constitute part of the Declaration
as executed and shall not affect the interpretation of any of its terms
or provi sions.
v
<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SUNTRUST CAPITAL _____
________, _____
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of ______ , ___, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial ownership interests in SunTrust Capital ___ (the "Trust"), a
statutory business trust under the Business Trust Act (as defined herein), to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established the Trust
pursuant to a Declaration of Trust dated, ____ (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on ______, ___, for the principal purposes of issuing and selling the
Securities (as defined herein) and investing the proceeds thereof in certain
Debentures (as defined herein) of the Debenture Issuer (as defined herein);
WHEREAS, as of the date hereof, no Securities have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration.
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act, that the
Original Declaration be amended and restated in its entirety as provided herein
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
Securities, subject to the provisions of this Declaration.
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and
Annexes and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of out standing Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are deter
mined) of all outstanding Securities of the relevant class.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
2
<PAGE> 9
"Base Indenture" means the Indenture dated as of _____, ____,
between the Debenture Issuer and the Debt Trustee.
"Book-Entry Interest" means a beneficial ownership interest in
a Global Certificate registered in the name of a Clearing Agency or a nominee
thereof, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.4.
"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
Institutional Trustee's Corporate Trust Office or the Corporate Trust Office of
the Debt Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Calculation Agent" has the meaning set forth in Section 2(b)
of Annex I hereto.
"Capital Treatment Event" has the meaning set forth in Section
4(d) of Annex I hereto.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the "Date of Delivery" under the
Underwriting Agreement, which is also the date of execution and delivery of
this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to any
corresponding provision of any corresponding provision of any Federal tax
statute enacted after the date of this Declaration, as such specific
3
<PAGE> 10
section or corresponding provision is in effect on the date of application of
the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.1.(a).
"Common Securities Guarantee" means the guarantee agreement to
be dated as of _______ ,____ of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Corporate Trust Office" means (i) when used with respect to
the Institutional Trustee, the principal corporate trust office of an Affiliate
of the Institutional Trustee located in New York, New York which on the date of
this Declaration is c/o First Chicago Trust Company of New York, 14 Wall Street,
8th Floor-Window 2, New York, New York 10005 Attention: Corporate Trust
Administration, and (ii) when used with respect to the Debt Trustee, the
Principal Office of the Debt Trustee as defined in the Base Indenture.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of the Trust or
the Trust's Affiliates; (b) any other director, stockholder, employee,
representative or agent of the Debenture Issuer or any of its Affiliates; and
(c) any Holder of Securities.
"Debenture Issuer" means SunTrust Banks, Inc., a Georgia
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination.
"Debentures" means the series of Debentures to be issued by
the Debenture Issuer under the Indenture and purchased by the Trust, and to be
held by the Institutional Trustee.
"Debt Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
4
<PAGE> 11
"Determination Date" has the meaning set forth in Section
2(b)(i) of Annex I hereto.
"Direct Action" has the meaning set forth in Section 3.10(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" or "Declaration Event of Default" in
respect of the Securities means an Event of Default (as defined in the Base
Indenture) has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Sponsor Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Base Indenture together with the
supplement thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.10(c).
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
5
<PAGE> 12
"Legal Action" has the meaning set forth in Section 3.8(h).
"Liquidation Distribution" has the meaning set forth in
Section 3 of Annex I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that the officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in rendering
the Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Original Declaration" has the meaning set forth in the
preamble hereof.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
6
<PAGE> 13
"Preferred Securities" has the meaning specified in Section
7.1(a).
"Preferred Securities Guarantee" means the guarantee agreement
to be dated as of___, __, of the Sponsor in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 4(c)
of Annex I.
"Redemption/Distribution Notice" has the meaning set forth in
Section 4(a) of Annex I.
"Reference Banks" has the meaning set forth in Section
2(b)(ii) of Annex I hereto.
"Regular Trustee" has the meaning set forth in Section 5.1(a).
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, when used with respect to the
Institutional Trustee or the Delaware Trustee, as the case may be, any officer
assigned to the Corporate Trust Office of the Institutional Trustee or the
corporate trust office of the Delaware Trustee, as the case may be, including
any managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Institutional Trustee or the Delaware Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
7
<PAGE> 14
"Reuters Screen LIBO Page" has the meaning set forth in
Section 2(b)(ii) of Annex I hereto.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act
or any successor rule or regulation.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section
9.2.
"Securities Registrar" has the meaning set forth Section 9.2.
"Sponsor" means SunTrust Banks, Inc., a Georgia corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination.
"Sponsor Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b).
"Successor Entity" has the meaning set forth in Section 3.17
(b)
"Successor Institutional Trustee" has the meaning set forth in
Section 3.10(g)(ii).
"Successor Securities" has the meaning set forth in Section
3.17(b).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(d) of Annex
I hereto.
"Telerate Page 3750" has the meaning set forth in Section
2(b)(i) of Annex I hereto.
8
<PAGE> 15
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Underwriting Agreement" means the Underwriting Agreement
dated _____, ___ among the Trust, the Sponsor, [Underwriters], providing for the
offering and sale of the Preferred Securities to the public.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be the
only Trustee that is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
9
<PAGE> 16
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional Trustee. The Institutional Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity) provided that the Institutional
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year (commencing May 15,
1998), the Institutional Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313(a) of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Institutional Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act, such
compliance certificate to be delivered annually on or before 120 days after the
end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by
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an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may be given
in the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding; or
(iii) requires the consent or vote of each holder of
Debentures to be waived under the Indenture, then the Event of Default
under the Declaration may only be waived by each Holder of Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Debentures.
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(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, (A) in accordance with the terms of the Common Securities, direct
the time, method and place of conducting any proceeding for any remedy available
to the Institutional Trustee, or exercising any trust or power conferred upon
the Institutional Trustee, or (B) waive any past Event of Default with respect
to the Common Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided
below in this Section 2.6(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of
the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. In the event that an Event of Default with
respect to the Preferred Securities is waived by the Holders of Preferred
Securities as provided in this Declaration, the Holders of Common Securities
agree that such waiver shall also constitute the waiver of such Event of Default
with respect to the Common Securities for all purposes under this Declaration
without any further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment
of Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in
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Annex I on or after the respective payment dates therefor, or to institute suit
for the enforcement of any such payment on or after such payment dates, shall
not be impaired without the consent of such Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(d) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of the
Institutional Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all such de faults with respect to the
Securities, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or in
the payment of any sinking fund installment established for the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities; and provided further, that in the case of any default
of the character specified in Section 5.01(c) of the Base Indenture, no such
notice to Holders shall be required to be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) so long as the Institutional Trustee is a Paying Agent, a
default under Sections 5.01(a) and 5.01(b) of the Base Indenture; or
(ii) any default as to which the Institutional Trustee shall
have received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the
Declaration shall have actual knowledge.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "SunTrust Capital ___," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
SunTrust Banks, Inc., 303 Peachtree Street, N.E., Atlanta, Georgia, 30308-3201.
On ten Business Days written notice to the Holders, the Regular Trustees may
designate another principal office. The initial registered agent for the Trust
is the Delaware Trustee, the address of which is as set forth in Section
14.1(b). At any time, the Regular Trustees may designate another registered
agent and/or principal office.
SECTION 3.3 Issuance of the Trust Securities.
On _______, _____, the Sponsor, on behalf of the Trust and
pursuant to the Original Declaration, executed and delivered the Underwriting
Agreement. On the Closing Date, the Regular Trustees, on behalf of the Trust,
shall execute and deliver (i) to the underwriters named in the Underwriting
Agreement, one or more Global Certificate(s), registered in the name of the
nominee of the initial Clearing Agency as specified in Section 9.4, representing
___________ Preferred Securities having an aggregate liquidation amount of
$________, against receipt of the aggregate purchase price for such Preferred
Securities of $________ and (ii) to the Sponsor, a certificate representing
____________ Common Securities, registered in the name of the Sponsor, having an
aggregate liquidation amount of $______, against receipt of the aggregate
purchase price of such Common Securities of $________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date, the Regular Trustees, on behalf of the
Trust, shall purchase from the Sponsor with the proceeds received by the Trust
from the sale of the Securities on such date pursuant to Section 3.5,
Debentures, registered in the name of the Institutional Trustee and having an
aggregate principal amount equal to $_________, and, in satisfaction of the
purchase price for such Debentures, the Regular Trustees, on behalf of the
Trust, shall deliver or cause to be delivered to the Sponsor the sum of
$____________.
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SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Preferred Securities and use the proceeds from such sale to
acquire the Debentures issued under the Indenture having an aggregate
liquidation amount of the Preferred Securities so issued and sold; (b) to enter
into such agreements and arrangements as may be necessary in connection with the
sale of Preferred Securities to the initial purchasers thereof (including the
Underwriting Agreement) and to take all actions and exercise such discretion as
may be necessary or desirable in connection therewith and to file such
registration statements or make such other filings under the Securities Act, the
Exchange Act or State securities or "Blue Sky" laws as may be necessary or
desirable in connection therewith and the issuance of the Preferred Securities;
(c) to issue and sell Common Securities to the Debenture Issuer for cash and use
the proceeds of such sale to purchase as trust assets an equal aggregate
principal amount of Debentures issued under the Indenture; and (d) except as
otherwise limited herein, to engage in only those other activities necessary, or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States Federal income tax purposes as a grantor
trust.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the
Debentures and the Institutional Trustee Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
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SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust and shall cause the Trust to engage in the
following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Preferred
Securities, but if and only if the Sponsor has so instructed
the Regular Trustees to make such filing;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act, but if and only if the Sponsor has so
instructed the Regular Trustees to make such filing;
(v) execute and enter into the Underwriting
Agreement providing for the sale of the Preferred Securities;
and
(vi) to execute and file any agreement, certificate
or other document which such Regular Trustee deems necessary
or appropriate in connection with the issuance and sale of the
Preferred Securities;
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(c) to acquire as trust assets the Debentures with the
proceeds of the sale of the Preferred Securities and the Common
Securities; provided, however, that the Regular Trustees shall cause
legal title to the Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders of the Preferred
Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the
sale of Preferred Securities to the initial purchasers thereof and the
consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the
consummation thereof;
(e) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Tax Event or a Capital Treatment
Event; provided that the Regular Trustees shall consult with the
Sponsor and the Institutional Trustee before taking or refraining to
take any action in relation to any such Tax Event or Capital Treatment
Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and exchanges,
and to issue relevant notices to the Holders of Preferred Securities
and Holders of Common Securities as to such actions and applicable
record dates;
(g) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the
Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section 3.10(e),
the Institutional Trustee has the exclusive power to bring such Legal
Action;
(i) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Institutional Trustee, which certificate
may be executed by any Regular Trustee;
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(l) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(m) if duly appointed pursuant to the provisions herein, to
act as registrar, transfer agent or Paying Agent for the Securities;
(n) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its
election to defer payments of interest on the Debentures by extending
the interest payment period under the Indenture;
(o) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing;
(p) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business
trust under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Preferred Securities or to
enable the Trust to effect the purposes for which the Trust was
created;
(q) to take any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities
of the Trust as set out in this Section 3.8, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States Federal income tax purposes as a grantor trust and not
as an association taxable as a corporation or a partnership;
and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness of
the Debenture Issuer for United States Federal income tax
purposes,
provided that such action does not adversely affect the interests of
Holders; and
(r) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular
Trustees, on behalf of the Trust.
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The Regular Trustees must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.5, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.5.
Subject to this Section 3.8, the Regular Trustees shall have
none of the powers or the authority of the Institutional Trustee set forth in
Section 3.10.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.8 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
SECTION 3.9 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust to not, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Institutional Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or Annex I,
(A) direct the time, method and place of exercising any trust or power conferred
upon the Debt Trustee with respect to the Debentures, (B) waive any past default
that is waivable under the Indenture, (C)
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exercise any right to rescind or annul any declaration that the principal of all
the Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion of a
nationally recognized independent counsel experienced in such matters to the
effect that such modification will not cause more than an insubstantial risk
that for United States Federal income tax purposes the Trust will not be
classified as a grantor trust.
SECTION 3.10 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Institutional Trustee in trust for the benefit
of the Trust and the Holders of the Securities. The right, title and interest of
the Institutional Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Institutional Trustee in accordance
with Section 5.7. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Debentures have been executed
and delivered.
(b) The Institutional Trustee shall not transfer its right,
title and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of and
under the exclusive control of the Institutional Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Institutional
Trustee, deposit or cause to be deposited such funds into the
Institutional Trustee Account and make or cause to be made payments to
the Holders of the Preferred Securities and Holders of the Common
Securities from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account shall be held
uninvested until disbursed in accordance with this Declaration. The
Institutional Trustee Account shall be maintained with The First
National Bank of Chicago in its trust department so long as The First
National Bank of Chicago is a Paying Agent; if The First National Bank
of Chicago is not a Paying Agent, the Institutional Trustee Account
will be maintained at the Institutional Trustee or at its direction.
The Institution al Trustee shall not be liable to any Person for the
acts or omissions of The First National Bank of Chicago in connection
with the administration of the Institutional Trustee Account, unless
such acts or omissions were taken or made at the express instructions
of the Institutional Trustee. The Sponsor shall cause The First
National Bank of Chicago to (i) promptly advise the Institutional
Trustee of all deposits and withdrawals from the Institutional Trustee
Account and of any failure by The First National Bank of Chicago to
receive from the Debenture Issuer any payments on the
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Debentures when due, (ii) provide the Institutional Trustee with
monthly reports as to the activity in the Institutional Trustee Account
and (iii) permit the Institutional Trustee to have access to The First
National Bank of Chicago's records with respect to the Institutional
Trustee Account upon reasonable request therefor;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature;
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as shall be necessary or appropriate to
effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain special events (as may be defined in the
terms of the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances pursuant to the
terms of the Securities; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the Institutional
Trustee, subject to Section 2.6, shall, for the benefit of the Holders
of the Securities, enforce its rights as holder of the Debentures under
the Indenture, subject to the rights of the Holders of the Preferred
Securities pursuant to the terms of this Declaration, the Business
Trust Act and the Trust Indenture Act.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action that
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional Trustee has knowledge or the Institutional
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act and if such Institutional Trustee shall have failed to take such Legal
Action after a written request from a Holder of the Preferred Securities, then
such Holder of the Preferred Securities may take such Legal Action, to the same
extent as if such Holders of Preferred Securities held a principal amount of
Debentures equal to the liquidation amount of such Preferred Securities, without
first proceeding against the Institutional Trustee or the Trust; provided,
however, that if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities held by such Holder (a "Direct Action") on or after the respective
due date specified in the Debentures. In connection with such Direct Action, the
rights of the
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Holders of the Common Securities will be subrogated to the rights of such Holder
of Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Institutional Trustee for the benefit of the Holders of
the Securities, will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Institutional
Trustee or its agents or their creditors.
(g) The Institutional Trustee shall continue to serve as a
Trustee until:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a successor Institutional Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7 (a
"Successor Institutional Trustee").
(h) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(i) The Institutional Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Institutional Trustee, after
consultation with the Regular Trustees, at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Institutional
Trustee, subject to Section 317(b) of the Trust Indenture Act.
(j) The Institutional Trustee shall give prompt written notice
to the Holders of the Securities of any notice received by it from the Debenture
Issuer of its election to defer payments of interest on the Debentures by
extending the interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Institutional Trustee
shall have none of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 3.8.
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The Institutional Trustee must exercise the powers set forth
in this Section 3.10 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.5, and the Institutional Trustee
shall not take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.5.
SECTION 3.11 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and in the Securities and no implied covenants shall
be read into this Declaration against the Institutional Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Institutional Trustee has
actual knowledge, the Institutional Trustee shall exercise such of the rights
and powers vested in it by this Declaration, 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.
(b) No provision of this Declaration shall be construed to
relieve the Institutional Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional
Trustee shall be determined solely by the express provisions
of this Declaration and in the Securities and the
Institutional Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Declaration and in the Securities, and no
implied covenants or obligations shall be read into this
Declaration or the Securities against the Institutional
Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Institutional
Trustee and conforming to the re quirements of this
Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Declaration;
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(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the Institutional
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Institutional 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 of not less than a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional 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 it shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Institutional
Trustee against such risk or liability is not reasonably assured to it;
and
(v) the Institutional Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Debentures
and the Institutional Trustee Account shall be to deal with such
property in a similar manner as the Institutional Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Institutional Trustee under
this Declaration and the Trust Indenture Act.
SECTION 3.12 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.11:
(i) the Institutional Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officer's Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
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and, if the Trust is excluded from the definition of Investment Company
solely by means of Rule 3a-5, subject to the requirements of Rule 3a-5,
request and conclusively rely upon an Officer's Certificate, which,
upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Institutional Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the
scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees. The Institutional
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(v) the Institutional Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder, unless such
Holder shall have provided to the Institutional Trustee security and
indemnity, reasonably satisfactory to the Institutional Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Institutional Trustee provided, that, nothing
contained in this Section 3.12(a)(v) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Declaration;
(vi) the Institutional 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,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(vii) the Institutional Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and the
Institutional Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it in good
faith with due care by it hereunder;
(viii) any action taken by the Institutional Trustee or its
agents hereunder shall bind the Trust and the Holders, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third
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party shall be required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustee's or its agent's
taking such action; and
(ix) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Institutional Trustee (i) may request
instructions from the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the
Institutional Trustee under the terms of the Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in or accordance with such instructions.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.13 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Trustees (except as required under the Business Trust
Act) described in this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
SECTION 3.14 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise provided herein, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to this Declaration.
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SECTION 3.15 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.16 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence for fifty-five (55) years from the
Closing Date.
SECTION 3.17 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.17(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees and without
the consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its property and assets substantially
as an entirety, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of
the Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) to the extent the Preferred Securities are listed on any
national securities exchange or with another organization for listing
or quotation, the Preferred Securities or any Successor Securities
shall be so listed, or any Successor Securities will be listed
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upon notification of issuance, on any national securities exchange or
with another organization on which the Preferred Securities are then so
listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with
respect to any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that of
the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the new entity); and
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease
neither the Trust nor the Successor Entity will be required to
register as an Investment Company;
(C) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease the
Trust (or the Successor Entity) will continue to be classified
as a grantor trust for United States Federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.17(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate,
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amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the Successor Entity to be classified as other than a grantor trust
for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date, the Sponsor will purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) at the sole discretion of the Sponsor, to prepare for
filing by the Trust with the Commission a registration statement on
Form S-3 in relation to the Preferred Securities, including any
amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States;
(c) at the sole discretion of the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Preferred
Securities; and
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto, if the Sponsor in its sole discretion
determines that such a filing is necessary or appropriate; and
(e) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities.
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SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to
institute a Direct Action as set forth in Section 3.10(e) hereto.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased only by, and Trustees may be
approved, removed or replaced only by, the vote of the Holders of a
majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; provided,
however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee, in the case of a
natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware; (2) there shall
be at least one Trustee who is an employee or officer of, or is
affiliated with the Sponsor (a "Regular Trustee"); and (3) one Trustee
shall be the Institutional Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided that, if the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.13 shall have no application.
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The initial Delaware Trustee shall be First Chicago Delaware
Inc.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee that shall act as
Institutional Trustee, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) 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 Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under 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 supervising or examining
authority referred to above, then for the purposes of this Section
5.3(a)(ii), 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.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The First
National Bank of Chicago.
(f) Any action taken by Holders of Common Securities pursuant
to this Article V shall be taken at a meeting of Holders of Common Securities
convened for such purpose or by written consent as provided in Section 12.2.
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(g) No amendment may be made to this Article V that would
change any right with respect to the number, existence or appointment and
removal of Trustees, except with the consent of each Holder of Common
Securities.
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Raymond D. Fortin,
Donald T. Heroman and Kenneth R. Houghton.
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one of such Regular
Trustees.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.8; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.8.
SECTION 5.6 [Reserved].
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time except during an event of default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
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(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.7(a) until a Successor
Institutional Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional Trustee and
delivered to the Regular Trustees, the Sponsor and the Institutional Trustee
being removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.7(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until
his or her successor shall have been appointed or until his or her death,
removal or resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, how ever, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered
to the Trust, the Sponsor and the resigning Institutional
Trustee; or
(B) if the Trust is excluded from the definition of
an Investment Company solely by reason of Rule 3a-5, until the
assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
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(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee resigning
or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
(f) The Sponsor shall provide notice to the Institutional
Trustee of any registration or removal of a Regular Trustee.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee, or any one of them, shall not operate to annul the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 5.7,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees may be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meeting of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less
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than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Regular Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a Regular
Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action
of the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting by the unanimous written consent of the Regular Trustees.
Notwithstanding the foregoing, any action which may be taken at a meeting of the
Regular Trustees (or a committee thereof) may be taken pursuant to a unanimous
written consent of the Regular Trustees (or committee thereof), the execution of
such consent to be deemed a waiver by such Regular Trustee of any prior notice
required in connection with such action. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
3.8, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing (including, without
limitation, the Registration Statement); and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be
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otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
SECTION 5.13 Appointment of Authenticating Agent.
The Institutional Trustee may appoint an Authenticating Agent or
Agents, which may include any Affiliate of the Sponsor, with respect to the
Securities which shall be authorized to act on behalf of the Institutional
Trustee to authenticate the Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 9.2, and Securities so authenticated shall be entitled to the benefits
of this Declaration and shall be valid and obligatory for all purposes as if
authenticated by the Institutional Trustee hereunder. Wherever reference is made
in this Declaration to the authentication and delivery of the Securities by the
Institutional Trustee or the Institutional Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Institutional Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Sponsor and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, or of any State or Territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
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,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Institutional Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Institutional Trustee and to the Sponsor. The
Institutional Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Sponsor. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Institutional Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Sponsor and shall give notice
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of such appointment in the manner provided in Section 14.1 to all holders of
Securities. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Sponsor agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Institutional Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities referred to in the
within-mentioned Declaration.
Dated:
-------------------------
As Institutional Trustee
By:
-------------------------
As Authenticating Agent
By:
-------------------------
Authorized Officer
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein),
redemption payments and liquidation distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the preferences set forth in their respective terms. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Sums (as defined in the
Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available for that purpose, to make or cause to be made a distribution (a
"Distribution") of the Payment Amount to Holders.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue
one class of preferred securities representing, in fully registered form,
beneficial ownership interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Preferred Securities") and one class of common
securities representing beneficial ownership interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Common Securities.")
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not affect the
validity of any certificate. In case any Regular Trustee of the Trust who shall
have signed (either by manual or facsimile signature) any of the Securities
shall cease to be such Regular Trustee before the Certificates so signed shall
be delivered by the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to be such Regular
Trustee; and any Certificate may be signed on behalf of the Trust by such
persons who, at the actual date of execution of such Security, shall be the
Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
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SECTION 7.2 Execution and Delivery of Securities Certificates.
At the time of delivery of the Securities, the Regular
Trustees shall cause Certificates to be authenticated by the Institutional
Trustee on behalf of the Trust and delivered to or upon the written order of the
Trust, signed by two Regular Trustees without further corporate action by the
Sponsor, in authorized denominations.
A Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Institutional Trustee. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Declaration. The Institutional Trustee's certificates of
authentication shall be substantially in the form set forth in Exhibits A-1 and
A-2.
SECTION 7.3 Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Institutional Trustee Account and shall report the amounts of such Distributions
to the Institutional Trustee and the Regular Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Institutional Trustee
Account for the purpose of making the Distributions referred to above. The
Institutional Trustee may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent shall initially be The First National Bank of
Chicago, and any co-paying agent chosen by The First National Bank of Chicago,
and reasonably acceptable to the Regular Trustees. Any Person acting as Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Regular Trustees and the Institutional Trustee. In the event that The
First National Bank of Chicago shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Institutional Trustee shall appoint a successor that is reasonably acceptable to
the Regular Trustees to act as Paying Agent (which shall be a bank or trust
company). Such successor Paying Agent or any additional Paying Agent shall
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to such
Holders, will give the Institutional Trustee notice of any default by the Trust
(or any other obligor on the Securities) in the making of any payment on the
Securities and will, at any time during the continuance of any such default,
upon the written request of the Institutional Trustee, forthwith pay to the
Institutional Trustee all sums so held in trust by such Paying Agent. The Paying
Agent shall return all unclaimed funds to the Institutional Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Institutional Trustee. The provisions of Sections 3.10, 3.11
and 10.4 herein shall also apply to The First National Bank of Chicago in its
role as Paying Agent, for so long as The First National Bank of Chicago shall
act as Paying Agent and, to the extent applicable, to any other Paying Agent
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appointed hereunder. Any reference in this Declaration to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) _______________, 2053;
(ii) upon the bankruptcy of the Sponsor;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the filing of a certificate of
cancellation with respect to the Trust after having obtained the
consent of a majority in liquidation amount of the Securities affected
thereby voting together as a single class to file such certificate of
cancellation or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the liquidation of the Trust in accordance with
the terms of the Securities and the distribution of all of the
Debentures endorsed thereon in exchange for all of the Securities; or
(v) upon the entry of a decree of judicial dissolution of
the Holder of the Common Securities, the Sponsor or the Trust;
(vi) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the
Securities; or
(vii) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware and the Trust
shall terminate.
(c) The provisions of Section 3.10 and Article X shall survive
the dissolution of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, the Debenture Issuer and any
Affiliate may only transfer Common Securities to an Affiliate; provided that any
such transfer shall be subject to the condition that the transferor shall have
obtained (1) either a ruling from the Internal Revenue Service or an unqualified
written opinion addressed to the Trust and delivered to the Trustees of a
nationally recognized independent tax counsel experienced in such matters to the
effect that such transfer will not (i) cause the Trust to be treated as issuing
a class of interests in the Trust differing from the class of interests
represented by the Common Securities originally issued to the Debenture Issuer,
(ii) result in the Trust's acquiring or disposing of, or being deemed to have
acquired or disposed of, an asset, or (iii) result in or cause the Trust to be
treated as anything other than a grantor trust for United States Federal income
tax purposes and (2) an unqualified written opinion addressed to the Trust and
delivered to the Trustees of a nationally recognized independent counsel
experienced in such matters that such transfer will not cause the Trust to be an
Investment Company or controlled by an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Institutional Trustee shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 9.9, a register or registers
for the purpose of registering Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Institutional Trustee (the "Securities Registrar")
with the reasonable consent of the Regular Trustees, subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
9.1(c) in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates, which will be
effected without charge to the Holders as herein provided. The First National
Bank of Chicago shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
9.9, the Regular Trustees or
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any one of them shall execute, and the Institutional Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a like
aggregate liquidation amount dated the date of such authentication.
The Preferred Securities Certificates shall be dated the date
of their authentication.
The Securities Registrar shall not be required to register the
transfer of (i) any Preferred Securities beginning at the opening of business 15
days before the day of mailing of a notice of redemption and ending at the close
of business on the day of such mailing or (ii) any Preferred Securities selected
for redemption except the unredeemed portion of any Preferred Security being
redeemed in part. At the option of a Holder, Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate liquidation amount upon
surrender of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 9.9.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Securities Registrar
duly executed by the Holder or his or her attorney duly authorized in writing.
Each Preferred Securities Certificate surrendered for registration of transfer
or exchange shall be cancelled and subsequently disposed of by the Institutional
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange Preferred Securities Certificates.
The provisions of Sections 3.10, 3.11 and 10.4 herein shall
also apply to The First National Bank of Chicago in its role as Securities
Registrar, for so long as The First National Bank of Chicago shall act as
Securities Registrar.
SECTION 9.3 Deemed Security Holders.
The Trustees and the Securities Registrar may treat the Person
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving Distributions and for
all other purposes whatsoever and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person, whether or
not the Trust, the Trustees or the Securities Registrar shall have actual or
other notice thereof.
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SECTION 9.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, or its custodian, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.7. Unless and until definitive,
fully registered Preferred Security Certificates (the "Definitive Preferred
Security Certificates") have been issued to the Preferred Security Beneficial
Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust, the Trustees, the Securities Registrar and the
Paying Agent shall be entitled to deal with the Clearing Agency for all
purposes of this Declaration (including the payment of Distributions on
the Global Certificates and receiving approvals, votes or consents
hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants and the Clearing Agency shall receive and
transmit payments of Distributions on the Global Certificates to such
Clearing Agency Participants. DTC will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency
Participants; provided, that solely for the purposes of determining
whether the Holders of the requisite amount of Preferred Securities
have voted on any matter provided for in this Declaration, so long as
Definitive Preferred Security Certificates have not been issued, the
Trustees may conclusively rely on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the
Trustees by the Clearing Agency setting forth the Preferred Security
Beneficial Owners' votes or assigning the right to vote on any matter
to any other Persons either in whole or in part.
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SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency and, with respect to any Preferred
Security Certificate registered in the name of a Clearing Agency or the nominee
of a Clearing Agency, the Trustees shall, except as set forth herein, have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services or is
no longer able to properly discharge its functions as securities
depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance or after the Regular Trustees become aware of such
inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book-entry system through the Clearing Agency
with respect to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect to
such Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Certificates to be delivered to Preferred
Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust, or any agents
thereof shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in
relying on, said instructions of
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the Clearing Agency. The Definitive Preferred Security Certificates
shall be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Preferred Securities may be listed, or to
conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Institutional Trustee or the Securities Registrar or if the
Institutional Trustee or the Securities Registrar shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Institutional Trustee, the
Securities Registrar and the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute,
and upon any Regular Trustee's request, the Institutional Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees, Institutional Trustee or Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 9.9 Maintenance of Office or Agency.
The Institutional Trustee shall designate, with the consent of
the Regular Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Securities may be served.
The Corporate Trust Office of The First National Bank of Chicago is initially
designated the office for such purpose. The Regular Trustees or the
Institutional Trustee shall give prompt written notice to the Sponsor and to the
Holders of any change in the location of the Securities Register or any such
office or agency.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts
and obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care by or on
behalf of the Trust, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence
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and amount of assets from which Distributions to Holders of Securities might
properly be paid.
SECTION 10.3 [Reserved].
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Sponsor Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Sponsor
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Sponsor
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Sponsor Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
contemplated action or suit by or in the right of the Trust to procure
a judgment in its favor by reason of the fact that he is or was a
Sponsor Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Sponsor Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Sponsor Indemnified
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Person is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority
vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Holder of the Common Securities.
(iv) Expenses (including attorneys' fees and expenses)
incurred by a Sponsor Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be
paid by the Debenture Issuer in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Sponsor Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made (i)
by the Regular Trustees by a majority vote of a quorum of disinterested
Regular Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Sponsor Indemnified Person acted in
bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Sponsor Indemnified Person believed or
had reasonable cause to believe his or her conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Holder of the Common Securities
reasonably determine that such person deliberately breached his or her
duty to the Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Debenture Issuer or Preferred Security Holders of the
Trust or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Debenture Issuer and each Sponsor
Indemnified Person who serves in such capacity at any time while this
Section 10.4(a) is in effect. Any repeal or modification of this
Section 10.4(a) shall not affect any rights or obligations then
existing.
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(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Sponsor
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his or her
status as such, whether or not the Debenture Issuer would have the
power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a Sponsor Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
(b) The Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Institutional Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and the Delaware
Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, damage, claim or expense including
taxes (other than taxes based on the income of such Fiduciary Indemnified
Person) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration or the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration or the resignation or removal of the
Institutional Trustee or the Delaware Trustee, as the case may be.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
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and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. None of the Covered Persons,
the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be
obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Institutional Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Institutional Trustee may engage or be interested
in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
SECTION 10.6 Compensation; Fees.
The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their respective negligence or
bad faith.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted
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accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States Federal income tax purposes. The books
and records of the Trust, together with a copy of this Declaration and a
certified copy of the Certificate of Trust, or any amendment thereto, shall at
all times be maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States Federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States Federal
income tax return, on a Form 1041 or such other form required by United States
Federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any State or local
taxing authority, such returns to be filed as soon as practicable after the end
of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall be
made directly to the Institutional Trustee Account and no other funds of the
Trust shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust, the Regular Trustees and the Paying Agent shall
comply with all withholding requirements under United States Federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Regular Trustees
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the
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Holder to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended only by a
written instrument approved and executed by the Regular Trustees (or, if there
are more than two Regular Trustees a majority of the Regular Trustees); and
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, also by the
Institutional Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the Delaware
Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless the Institutional Trustee shall have first
received:
(A) an Officer's Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States Federal income
taxation as a grantor trust;
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(B) reduce or otherwise adversely affect the powers
of the Institutional Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(c) at such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities and;
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration, which shall not be
inconsistent with other provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority, which amendment does
not have a material adverse effect on the rights, preferences or
privileges of the Holders; and
(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the
Trust will be classified for United States federal income tax purposes
as a grantor trust at all times that any Securities are
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outstanding or to ensure that the Trust will not be required to
register as an investment company under the Investment Company Act.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more notices in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Security Certificates held by the Holders of Securities exercising the right to
call a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to each Trustee
and all the Holders of Securities having a right to vote thereat at
least seven days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or the rules
of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a
meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if
a consent in writing setting forth the action so taken is signed by the
Holders of Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall
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be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity
of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
or trading, otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking
association with trust powers and authority under the laws of the
United States to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the Institutional
Trustee. The Declaration has been duly executed and delivered by the
Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
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affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with or
constitute a breach of the charter or by-laws of the Institutional
Trustee;
(d) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required
for the execution, delivery or performance by the Institutional
Trustee, of this Declaration; and
(e) it satisfies the qualifications set forth in Section 5.3.
SECTION 13.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
corporate power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Declaration;
(b) the Delaware Trustee has authorized the performance of its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) no consent, approval or authorization of, or registration
with or notice to, any Delaware banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration;
(d) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware; and
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(e) it satisfies the qualifications set forth in Section 5.2.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
faxed or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Trust may give notice of to the Holders of the Securities and the
Institutional Trustee):
SunTrust Capital ____________
c/o SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give
notice of to the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
Attention: Michael J. Majchrzak
Fax: (302) 407-1708
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or such other
address as the Institutional Trustee may give notice of to the Holders
of the Securities):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Fax: (312) 407-1708
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(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice to the Trust):
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (302) 724-3749
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Institutional Trustee or the
Delaware Trustee shall also be sent to the Trust. All such notices shall be
deemed to have been given when received in person, faxed with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust and
not as an association taxable as a corporation or partnership. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and
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agreements in this Declaration by the Sponsor and the Trustees shall bind and
inure to the benefit of their respective successors and assigns, whether or not
so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
-------------------------------------------
Raymond D. Fortin, as Regular Trustee
--------------------------------------------
Donald T. Heroman, as Regular Trustee
--------------------------------------------
Kenneth R. Houghton, as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
-----------------------------------------
Name:
Title:
SUNTRUST BANKS, INC.,
as Sponsor
By:
-----------------------------------------
Raymond D. Fortin
Senior Vice President
<PAGE> 67
ANNEX I
TERMS OF
FLOATING RATE PREFERRED SECURITIES
FLOATING RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of _________, _______ (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
____________ dollars ($__________________) and a liquidation amount with respect
to the assets of the Trust of $1,000 per preferred security, are hereby
designated for the purposes of identification only as "______________ " (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Preferred Securities may be listed.
(b) Common Securities. Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
_____________ dollars ($______________) and a liquidation amount with respect to
the assets of the Trust of $1,000 per common security, are hereby designated for
the purposes of identification only as "_______________" (the "Common
Securities"). The Common Security Certificates evidencing the Common Securities
shall be substantially in the form of Exhibit A-2 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. Distributions.
(a) Each Security will be entitled to receive cumulative cash
distributions payable at the Distribution Rate (as defined herein) as in effect
from time to time applied to the stated liquidation amount of $1,000 per
Security. Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the Distribution Rate (to the extent permitted
by applicable law). The term "Distributions" as used herein includes such cash
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distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor.
(b) The Distribution Rate in respect of the Securities will be
a floating rate per annum determined by reference to 3-Month LIBOR, determined
as described below, plus a margin of _______%; "3-Month LIBOR" means the London,
England interbank offered rate for three month U.S. dollar deposits and with
respect to any Distribution Period (as defined below) will be calculated by The
First National Bank of Chicago, as calculation agent (the "Calculation Agent"),
as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Distribution 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 Distribution Period,
which appears on the display designated as Page 3750 on the Dow Jones
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 Distribution 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 which 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.
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(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided
in paragraphs (i) and (ii) above, 3-Month LIBOR for such Distribution
Period shall be 3-Month LIBOR as determined on the previous
Determination Date.
The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
"Distribution Period" means each period beginning on, and
including, , ____, and ending on, but excluding, the first Distribution Date (as
defined below), and each successive period beginning on, and including, a
Distribution Date and ending on, but excluding, the next succeeding
Distribution Date.
The Distribution Rate for any Distribution 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
herein will be rounded, if necessary, to the nearest one ten-thousandth of a
percentage point with five hundred-thousandths of a percentage point being
rounded upwards (e.g., 6.87655% (or .0687655) would be rounded to 6.8766% (or
.068766)), and all U.S. dollar amounts used in or resulting 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
Distribution Rate and inform the Debt Trustee, the Institutional Trustee and the
Paying Agent. Unless otherwise provided by the Institutional Trustee, the Paying
Agent will calculate the amount of distributions payable in respect of the
following Distribution Period (the "Distribution Amount"). The Distribution
Amount shall be calculated by applying the Distribution Rate to the liquidation
amount of each Security outstanding at the commencement of the Distribution
Period, multiplying each such amount by the actual number of days in the
Distribution Period concerned (which actual number of days shall include the
first day but exclude the last day of such Distribution 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 Distribution Rate by the
Calculation Agent and the Distribution Amount by the Paying Agent will (in the
absence of willful default, bad faith or manifest error) be final, conclusive
and binding on all concerned. None of the Institutional Trustee, the Paying
Agent, the Calculation Agent, the Trust or the Sponsor (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.
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Upon the request of a holder of a Security, the Calculation
Agent will provide the Distribution Rate then in effect and, if determined, the
Distribution Rate for the next Distribution Period with respect to the
Securities.
(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 Distributions on the Securities, whether by the Reference Banks
(or any of them) or the Calculation Agent, Institutional Trustee or Paying
Agent, will (in the absence of willful default, bad faith or manifest error) be
binding on the Trust, the Sponsor, the Trustees and all of the holders of the
Preferred Securities, and no liability will (in the absence of willful default,
bad faith or manifest error) attach to the Calculation Agent, Institutional
Trustee or Paying Agent in connection with the exercise or non-exercise by any
of them of their powers, duties and discretion.
(e) Distributions on the Securities will be cumulative, will
accrue from _________, ___________, and will be payable quarterly in arrears, on
the ____________day of ______, ________, ________ and ________ of each year,
commencing on _______, _______ except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer payments of interest
by extending the interest payment period at any time and from time to time on
the Debentures for a period not exceeding 20 consecutive quarterly periods (each
an "Extension Period"), during which Extension Period no interest shall be due
and payable on the Debentures, provided that no Extension Period shall end on a
day other than an interest payment date for the Debentures or shall extend
beyond the date of maturity of the Debentures. As a consequence of any
Extension Period, Distributions will also be deferred. During any Extension
Period, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Distribution Rate compounded
quarterly during any such Extension Period. At the end of the Extension Period,
all accrued and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period together
with all such previous and further extensions within such Extension Period may
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 amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
(f) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the
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interest payment dates on the Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in respect
of the Preferred Securities will be made as described under the heading
"Description of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company" in the Prospectus Supplement dated ________,
___________ to the Prospectus dated _______, __________ (together, the
"Prospectus"), of the Trust included in the Registration Statement on Form S-3
of the Sponsor, the Trust and certain other business trusts. The relevant record
dates for the Common Securities shall be the same record date as for the
Preferred Securities when the Preferred Securities are not in book-entry only
form. If the Preferred Securities shall not continue to remain in book-entry
only form, the relevant record dates for the Preferred Securities shall be
________, _________, ________ or ________, as the case may be. Payments in
respect of Preferred Securities held in certificated form will be made by check
mailed to the Holder entitled thereto. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution 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 Distributions are actually
payable, a "Distribution Date").
(g) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of liabilities of creditors an amount
equal to the aggregate of the stated liquidation amount of $1,000 per Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Distribution Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
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If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer, in accordance with the Indenture, or pursuant to a Tax Event or Capital
Treatment Event as described below), the proceeds from such repayment or
redemption shall simultaneously be applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed at a redemption price of $1,000 per Security
plus an amount equal to accrued and unpaid Distributions thereon at the date of
the redemption, payable in cash (the "Redemption Price"). Holders will be given
not less than 30 nor more than 60 days notice of such redemption.
(b) In the case of an optional redemption, if fewer than all
the outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the Preferred Securities to
be redeemed will be as described in Section 4(f)(ii) below.
(c) Subject to the prior approval of the Federal Reserve Board
if such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve Board, the Regular Trustees at any time shall
have the right to dissolve the Trust and, after satisfaction of the claims of
creditors, cause the Debentures held by the Institutional Trustee, having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, and having the same
record date for payment as the Securities, to be distributed to the Holders of
the Securities in liquidation of such Holders' interests in the trust on a Pro
Rata basis.
(d) If, at any time, a Tax Event or Capital Treatment Event
(both as defined below) shall occur and be continuing, the Debenture Issuer
shall have the right at any time, upon not less than 30 nor more than 60 days
notice, to redeem the Debentures in whole or in part for cash within 90 days
following the occurrence of such Tax Event or Capital Treatment Event, as the
case may be, (or, if the approval of the Federal Reserve Board is then required
for such redemption, on such later date as promptly as practicable after such
approval is obtained), and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so redeemed shall be redeemed by the Trust at the Redemption Price on
a Pro Rata basis.
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A "Tax Event" means the receipt by the Trust of an opinion of
counsel to the Sponsor experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Debentures, (ii) interest payable
by the Sponsor on the Debentures is not, or within 90 days of such opinion, will
not be, deductible by the Sponsor, 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.
A "Capital Treatment Event" means the reasonable determination
by the Sponsor that, as a result of the occurrence of any amendment to, or
change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which proposed change,
pronouncement, action or decision is announced on or after the date of issuance
of the Preferred Securities under the Declaration, there is more than an
insubstantial risk that the Sponsor 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 Board, as then in effect and applicable to the Sponsor.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depository") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Preferred Securities, will receive a registered
global certificate or certificates representing the Debentures to be delivered
upon such distribution and any certificates representing Securities, except for
certificates representing Preferred Securities held by the Depository or its
nominee (or any successor Clearing Agency or its nominee), will be deemed to
represent beneficial interests in the Debentures having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on such Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissue.
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(e) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(f) The procedure with respect to redemptions and
distributions of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which,
in the case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/ Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder
shall affect the validity of the redemption or exchange proceedings
with respect to any other Holder.
(ii) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are
to be redeemed, the identification and the total liquidation
amount of the particular Securities to be redeemed; and
(e) that on the redemption date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that Distributions thereon will cease to accrue
on and after said date.
(iii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities registered in the
name of and held of record by the Depository or its nominee (or any
successor Clearing Agency or its nominee) or any nominee, the
distribution of the
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proceeds of such redemption will be made to each Clearing Agency
Participant (or Person on whose behalf such nominee holds such
securities) in accordance with the procedures applied by such agency or
nominee.
(iv) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are to be redeemed as set out in this Section 4 (which
notice will be irrevocable), then (A) while the Preferred Securities
are in book-entry only form, with respect to the Preferred Securities,
by 12:00 noon, New York, New York time, on the redemption date,
provided that by 10 a.m. New York, New York time, on that date the
Debenture Issuer has paid the Institutional Trustee or other holder of
the Institutional Trustee Account a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
the Institutional Trustee or the Paying Agent will deposit irrevocably
with the Depository or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities, and (B) with respect to
Preferred Securities issued in definitive form and Common Securities,
provided that the Debenture Issuer has paid the Institutional Trustee
or the holder of the Institutional Trustee Account a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee or the Paying Agent will pay the
relevant Redemption Price to the Holders of such Securities by check
mailed to the address of the relevant Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then on and after the redemption
date, Distributions will cease to accrue on the Securities so called
for redemption and all rights of Holders of such Securities so called
for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price. Neither the Regular Trustees nor the Trust shall
be required to register or cause to be registered the transfer of (i)
any Securities beginning on the opening of business 15 days before the
day of mailing of a notice of redemption and ending at the close of
business on the day of such mailing or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being redeemed
in part. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed
for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by
the Institutional Trustee or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption date to the actual
date
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of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the
Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in respect of the
Preferred Securities, the Depository or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security Certificates have been
issued, to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws and banking
laws), provided the acquirer is not the Holder of the Common Securities
or the obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private
agreement.
(vii) Upon presentation of any Security redeemed in part only,
the Regular Trustee on behalf of the Trust shall execute and the
Institutional Trustee shall authenticate and deliver to the Holder
thereof a new Security in aggregate liquidation amount equal to the
unredeemed portion of the Security so presented and having the same
original issue date, stated maturity and terms.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this paragraph
and Section 2.6(a), the Holders of a majority in aggregate liquidation amount of
the Preferred Securities, voting separately as a class may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture to holders of the Debentures, including 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 with respect to the Debentures, (ii) waive any past default and
its consequences that is waivable under Section 5.08 of the Base Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent of the holders of the Debentures would be required, provided, however,
that, where a consent under the Indenture would require the consent or act of
the Holders of greater than a majority of the Holders in principal amount of
Debentures affected thereby, (a "Super Majority"), the Institutional
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Trustee may give such consent or take such action only at the written direction
of the Holders of at least the proportion in liquidation amount of the Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the Institutional Trustee
or the Debt Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Preferred
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the rights of the holders of the Common Securities Holder will be
subrogated to the rights of such holder of Preferred Securities to the extent of
any payment made by the Issuer to such holder of Preferred Securities in such
Direct Action. Except as provided in the preceding sentences, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures. Any amount payable pursuant to the
Declaration to any Holder of a Preferred Security shall be reduced by the amount
of any corresponding payment such Holder has directly received pursuant to such
Direct Action.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
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Notwithstanding that Holders of Preferred Securities are
entitled to give, make or take requests, demands, authorizations, directions,
notices, consents, waivers or other actions under any of the circumstances
described in this Declaration, any of the Preferred Securities that are owned by
the Sponsor or any Affiliate of the Sponsor shall not be entitled to give, make
or take any such action and shall, for purposes of such action, be treated as if
they were not outstanding, except that (a) in determining whether any Trustee
shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that a Responsible Officer
of such Trustee actually knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding Securities
are owned by the Sponsor or any Affiliate.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration to be
given, made or taken by Holders of Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.10) conclusive in favor of the Trustees,
if made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Preferred Security shall bind
every future Holder of the same Preferred Security and the Holder of every
Preferred Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance thereon, whether or
not notation of such action is made upon such Preferred Security.
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Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Preferred Security may
do so with regard to all or any part of the liquidation amount of such Preferred
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Holders of Preferred
Securities and Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee hereunder,
then the determination of such matter by the Institutional Trustee shall be
conclusive with respect to such matter.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c), 7(a) and (b),
or as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after
the Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second
to last sentence of this paragraph, the Holders of a Majority in liquidation
amount of the Common Securities, voting separately as a class, may direct the
time, method and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing 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
with respect to the Debentures, (ii) waive any past default and its consequences
that is waivable under Section 5.08 of the Base Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable, or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent of the holders
of the Debentures would be required, provided that, where a consent or action
under the Indenture would require the consent or act of the Holders of a Super
Majority, the Institutional Trustee may give such consent or take such action
only at the written direction of the Holders of at least the proportion in
liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method and
place of conducting any remedy available to the Institutional
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Trustee or the Debt Trustee as set forth above, the Institutional Trustee shall
not take any action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Institutional Trustee has
obtained an opinion of nationally recognized independent tax counsel experienced
in such matters to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust on
account of such action. If the Institutional Trustee fails to enforce its rights
under the Declaration, any Holder of Common Securities may institute a legal
proceeding directly against any Person to enforce the Institutional Trustee's
rights under the Declaration, without first instituting a legal proceeding
against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration to be
given, made or taken by Holders of Common Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders or in person or by an agent duly appointed in writing, and except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.10) conclusive in favor of the Trustees,
if made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or
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her authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Common Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Common Security shall bind
every future Holder of the same Common Security and the Holder of every Common
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon Common Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Common Security may do
so with regard to all or any part of the liquidation amount of such Common
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Holders of Common
Securities and the Trustees or among such Holders or Trustees with respect to
the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or Trustee
hereunder, then the determination of such matter by the Institutional Trustee
shall be conclusive with respect to such matter.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any amendment that would
adversely affect the rights, privileges or preferences of any Holder of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of Securities, voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, affected thereby;
provided, however, that if any amendment or proposal referred to in clause (i)
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
I-15
<PAGE> 82
(b) In the event the consent of the Institutional Trustee as
the holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of a Super Majority, the Institutional Trustee may
give such consent only at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding. In any such
proration the Trust may make such adjustments as may be appropriate in order
that only Securities in authorized denominations shall be redeemed.
9. Ranking.
The Preferred Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common Securities
except that, if an Event of Default under the Declaration occurs and is
continuing the rights of Holders of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Preferred
Securities.
I-16
<PAGE> 83
10. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
I-17
<PAGE> 84
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Book-Entry Security within the
meaning of the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security 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 Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security 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.](1)
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT ACCOUNT OR
OTHER OBLIGATION OF A BANK OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY
OTHER GOVERNMENTAL AGENCY.
- ----------------------
(1) Insert in Global Certificates only.
A1-1
<PAGE> 85
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
SUNTRUST CAPITAL _____
Floating Rate Preferred Securities
(liquidation amount $1,000 per Preferred Security)
SUNTRUST CAPITAL ________, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of ______________
(____________) preferred securities of the Trust representing beneficial
ownership interests in the assets of the Trust designated the
"__________________" (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of __________, __________, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
A1-2
<PAGE> 86
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this _____ day of __________, _____.
SUNTRUST CAPITAL
By:
----------------------------
Name:
Regular Trustee
CERTIFICATE OF AUTHENTICATION
This certificate represents the Preferred Securities referred
to in the within mentioned Declaration.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
-------------------
Authorized Officer
A1-3
<PAGE> 87
[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
Distributions at the Distribution Rate applied to the stated liquidation amount
of $1,000 per Preferred Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Distribution Rate
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds available therefor. The Distribution
Amount payable for each Distribution Period will be calculated as provided in
the Declaration.
Except as otherwise described below, distributions on the
Preferred Securities will be cumulative, will accrue from _________, _______ and
will be payable quarterly in arrears, on the ______ day of ______, ______,
______ and ______ of each year, commencing on , to the Holders thereof as they
appear on the books and records of the Trust on the relevant record dates. While
the Preferred Securities remain in book-entry only form, the relevant record
dates shall be one Business Day prior to the relevant payment dates. If the
Preferred Securities shall not continue to remain in book-entry only form, the
relevant record dates for the Preferred Securities shall be ______, ______,
______ or ______, as the case may be. The Debenture Issuer has the right under
the Indenture to defer payments of interest on the Debentures by extending the
interest payment period at any time and from time to time for a period not
exceeding 20 consecutive quarterly periods (each an "Extension Period"),
provided that no Extension Period shall end on a day other than an interest
payment date for the Debentures or shall extend beyond the date of the maturity
of the Debentures. As a consequence of any Extension Period, Distributions will
also be deferred. During any Extension Period, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Distribution Rate compounded quarterly during any such Extension
Period. At the end of the Extension Period, all accrued and unpaid Distributions
(but only to the extent payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor) will be payable to the Holders of the Securities in whose
names the Securities are registered in the Security Register on the record date
relating to the Distribution Date on which the Extension Period ends. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
that such Extension Period together with all such previous and further
extensions within such Extension Period may 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 amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
Subject to the prior approval of the Federal Reserve Board if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve Board, the Regular Trustees shall have the right
at any time to dissolve and liquidate the Trust and
A1-4
<PAGE> 88
cause the Debentures to be distributed to the holders of the Securities in
liquidation of the Trust.
The Preferred Securities shall be redeemable as provided in
the Declaration.
A1-5
<PAGE> 89
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- -----------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
___________________________________________________________ agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
-----------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**:
--------------------------
- ----------------------
** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 90
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
THIS SECURITY IS NOT A SAVINGS ACCOUNT DEPOSIT OR OTHER OBLIGATION OF A BANK OR
A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
SUNTRUST CAPITAL _______-
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
SUNTRUST CAPITAL _______, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
SunTrust Banks, Inc. (the "Holder") is the registered owner of _________( )
common securities of the Trust representing beneficial ownership interests in
the assets of the Trust designated the Floating Rate Common Securities, Series
(liquidation amount $1,000 per Common Security) (the "Common Securities"). The
Common Securities are not transferable. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of _______, _______, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Sponsor at its principal place of business.
A2-1
<PAGE> 91
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of ______, ___.
SUNTRUST CAPITAL
By:
--------------------------------
Name:
Regular Trustee
CERTIFICATE OF AUTHENTICATION
This certificate represents the Common Securities referred to
in the within-mentioned Declaration.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
---------------------------------
Authorized Officer
A2-2
<PAGE> 92
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
Distributions at the Distribution Rate applied to the stated liquidation amount
of $1,000 per Common Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Distribution Rate
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds available therefor. The Distribution
Amount payable for each Distribution Period will be calculated as provided in
the Declaration.
Except as otherwise described below, distributions on the
Common Securities will be cumulative, will accrue from __________, ________ and
will be payable quarterly in arrears, on the ______ day of ______, ______,
______ and ______ of each year, commencing on ______, , to Holders of record on
______, ______, ______ or ______, as the case may be. The Debenture Issuer has
the right under the Indenture to defer payments of interest on the Debentures by
extending the interest payment period at any time and from time to time for a
period not exceeding 20 consecutive quarterly periods (each an "Extension
Period"), provided that no Extension Period shall end on a day other than an
interest payment date for the Debentures or shall extend beyond the date of the
maturity of the Debentures. As a consequence of any Extension Period,
Distributions will also be deferred. During any Extension Period, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Distribution Rate compounded quarterly
during any such Extension Period. At the end of the Extension Period, all
accrued and unpaid Distributions (but only to the extent payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period together
with all such previous and further extensions within such Extension Period may
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 amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve Board if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve Board, the Regular Trustees shall have the right
at any time to dissolve and liquidate the Trust and cause the Debentures to be
distributed to the holders of the Securities in liquidation of the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE> 1
EXHIBIT 4.9.1
SUPPLEMENTAL INDENTURE
--------
between
SUNTRUST BANKS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of ,
----------- ------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.......................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount............................. 6
SECTION 2.2. Maturity..................................................... 6
SECTION 2.3. Form and Payment............................................. 6
SECTION 2.4. Global Debenture............................................. 7
SECTION 2.5. Interest..................................................... 8
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.............. 12
SECTION 3.2. Optional Redemption by Company............................... 13
SECTION 3.3. No Sinking Fund.............................................. 13
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period......................... 14
SECTION 4.2. Notice of Extension.......................................... 14
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.......................................... 15
SECTION 5.2. Payment Upon Resignation or Removal.......................... 16
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture............................................ 16
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures................................. 16
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends...................................... 17
SECTION 8.2. Covenants as to the Trust.................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.................................... 18
SECTION 9.2. Acknowledgement of Rights.................................... 19
SECTION 9.3. Direction of Proceedings and Waiver
of Defaults by Majority of Holders........................... 19
SECTION 9.4. Debt Trustee Not Responsible for Recitals.................... 20
SECTION 9.5. Governing Law................................................ 21
SECTION 9.6. Separability................................................. 21
SECTION 9.7. Counterparts................................................. 21
</TABLE>
ii
<PAGE> 4
_______ SUPPLEMENTAL INDENTURE, dated as of _________________,
_______ (the "_____ Supplemental Indenture"), between SunTrust Banks, Inc., a
Georgia corporation (the "Company"), and The First National Bank of Chicago, as
trustee (the "Debt Trustee"), under the Indenture dated as of _________, ______
between the Company and the Debt Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Debt Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt Securities
to be known as its ____________, ____________ (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this _____ Supplemental Indenture;
WHEREAS, SunTrust Capital , a Delaware statutory business
trust (the "Trust"), has offered to the public $____________ aggregate
liquidation amount of its ____________ (the "Preferred Securities"),
representing beneficial ownership interests in the assets of the Trust, and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $____________ aggregate
liquidation amount of its Common Securities; and
WHEREAS, the Company has requested that the Debt Trustee
execute and deliver this _____ Supplemental Indenture pursuant to Sections 2.03
and 9.01 of the Indenture and all requirements necessary to make this _____
Supplemental Indenture a valid and binding instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Debt Trustee, the valid and binding
obligations of the Company, have been performed, and the execution and delivery
of this _____ Supplemental Indenture has been duly authorized in all respects:
<PAGE> 5
NOW THEREFORE, in consideration of the purchase of the Debentures by
the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Debentures and the additional terms,
provisions and conditions thereof, the Company covenants and agrees with the
Debt Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this _____ Supplemental Indenture;
(b) a term defined anywhere in this _____ Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this _____ Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: Business Day; Clearing Agency; Common Securities; Delaware
Trustee; Direct Action; Distribution; Institutional Trustee Account; Preferred
Securities; Preferred Securities Guarantee; Preferred Security Certificate;
Regular Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"3-Month LIBOR" shall have the meaning set forth in Section
2.5(b).
2
<PAGE> 6
"Additional Sums" shall have the meaning set forth in Section
2.5(f).
"Calculation Agent" shall have the meaning set forth in
Section 2.5(b).
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which proposed change,
pronouncement, action or decision is announced on or after the date of issuance
of the Preferred Securities under the Declaration, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount
equal to the liquidation amount of the Preferred Securities as "Tier I Capital"
(or the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Company.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Debentures" shall have the meaning set forth in the preamble
of this _____ Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of _________, _____, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Depositary", with respect to the Debentures, means The
Depository Trust Company or such other successor Clearing Agency for the
Preferred Securities.
"Determination Date" shall have the meaning set forth in
Section 2.5(b)(i).
"Dissolution Event" means the liquidation of the Trust
pursuant to the Declaration and the distribu-
3
<PAGE> 7
tion of the Debentures held by the Institutional Trustee to the holders of the
Trust Securities issued by the Trust pro rata in accordance with the
Declaration.
"Extension Period" shall have the meaning set forth in Section
4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"Index Maturity" shall have the meaning set forth in Section
2.5(b)(i).
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(e).
"Interest Period" shall have the meaning set forth in Section
2.5(b).
"Interest Rate" shall have the meaning set forth in Section
2.5(b).
"Market Day" shall have the meaning set forth in Section
2.5(b).
"Maturity Date" shall mean __________, ____.
"Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4(a)(ii).
"Optional Redemption" means a redemption pursuant to Section
3.2.
"Other Guarantees" means all guarantees issued or to be issued
by the Company with respect to capital securities (if any) and issued to other
trusts to be established by the Company (if any), in each case similar to the
Trust.
"Redemption Price" shall mean, with respect to any redemption
of the Debentures pursuant to Article III hereof, an amount in cash equal to
100% of the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
4
<PAGE> 8
"Reference Banks" shall have the meaning set forth in Section
2.5(b)(ii).
"Reuters Screen LIBO Page" shall have the meaning set forth in
Section 2.5(b)(ii).
"Security Registrar" shall have the meaning set forth in
Section 2.3.
"Tax Event" means the receipt by the Trust of an opinion of
counsel to the Company experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstan-tial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Company on the Debentures is not, or within 90 days of such
opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes or (iii) the Trust is, or will be within 90
days of the date of the opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Telerate Page 3750" shall have the meaning set forth in
Section 2.5(b)(i).
"Trust" shall have the meaning set forth in the preamble of
this _____ Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
5
<PAGE> 9
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "_____________________________, ______ ", limited in aggregate
principal amount to $__________ which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Debentures
pursuant to Section 2.05 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date (which shall constitute the Stated Maturity
of the Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons. Principal
of, premium, if any, and interest on (including Compounded Interest and
Additional Sums, if any) the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures bearing identical terms and provisions at
the office or agency of the Company maintained for such purpose as set forth in
the Indenture; provided, however, that payment of interest with respect to
Debentures (other than a Global Debenture) may be made at the option of the
Company (i) by check mailed to the Holder at such address as shall appear in the
Security Register or (ii) by transfer to an account maintained by the Person
entitled thereto, provided that proper transfer instructions have been received
in writing by the relevant record date. The Company selects each of New York,
New York and Chicago, Illinois as a place of payment where the principal of (and
premium, if any) and interest on the Debentures are payable as specified in
accordance herewith, and hereby appoints The First Na-
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<PAGE> 10
tional Bank of Chicago, the Debt Trustee, as registrar for the Debentures (the
"Security Registrar"). Notwithstanding the foregoing, so long as the Holder of
any Debentures is the Institutional Trustee, the payment of the principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on such Debentures held by the Institutional Trustee will be made
at such place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Debt Trustee by the Institutional Trustee in exchange
for a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Debt Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Debt Trustee for
authentication and delivery in accordance with the Indenture. Payments
on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Debt Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Debt
Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which
time
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<PAGE> 11
such Preferred Security Certificates will be cancelled and a Debenture,
registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company and delivered to
the Debt Trustee for authentication and delivery in accordance with the
Indenture. Upon the issuance of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Debt Trustee will be deemed to have been
cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the Interest Rate (as
defined below) from _______, _____ until the principal thereof becomes due and
payable, and on any overdue principal at the Interest Rate and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Interest Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on the
____ day of _____, ______, _______ and ______ of each year commencing on
_______, _____, to the Person in whose name such Debenture or any predecessor
Debenture is registered, at the close of business on the regular record date for
such interest installment, which, in respect of any Debentures of which the
Institutional Trustee is the Holder or in the case of a Global Debenture, shall
be the close of business on the Business Day next preceding that Interest
Payment Date (as defined below). Notwithstanding the foregoing sentence, if the
Debentures are no longer in book-entry only form, except if the Debentures are
held by the Institutional Trustee, the record dates shall be the ______,
_______, _______ and ______ prior to the applicable Interest Payment Date.
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<PAGE> 12
[(b) The interest rate in respect of the Debentures applicable
during an Interest Period will be the sum of (i) a floating rate per annum
determined by reference to 3-Month LIBOR, determined as described below, plus
(ii) a margin of .___% (such sum, the "Interest Rate"). "3-Month LIBOR" means
the London, England inter-bank offered rate for three month U.S. dollar deposits
and with respect to any Interest Period will be calculated by The First National
Bank of Chicago, as calculation agent (the "Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Interest Period (each, a "Determination Date"),
3-Month LIBOR will be determined on the basis of the offered rate for
deposits of not less than U.S. $1,000,000 for a period of three months
(the "Index Maturity"), commencing on the second Market Day immediately
preceding the commencement of such Interest Period, which appears on
the display designated as Page 3750 on the Dow Jones Telerate Service
(or such other pages as may replace Page 3750 on that service for the
purpose of displaying London, England interbank offered rates of major
banks) ("Telerate Page 3750") as of 11:00 a.m., London, England time on
said Determination Date. If no such offered rate appears, 3-Month LIBOR
with respect to such Interest Period will be determined as described in
(ii) below.
(ii) With respect to a Determination Date on which no such
offered rate appears on Telerate Page 3750 as described in (i) above,
3-Month LIBOR shall be the arithmetic mean, expressed as a percentage,
of the offered rates (unless by its terms such display provides for
only a single rate, in which case a single rate shall be used) for
deposits in U.S. dollars for the Index Maturity that appears on the
display designated as "LIBO" on the Reuters Monitor Money Market Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London, England inter-bank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London, England time, on such date. If, in turn, at least two
such rates are not displayed on the Reuters Screen LIBO Page at such
time (unless, as aforesaid, only a single rate
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<PAGE> 13
is required), the Calculation Agent will obtain from each of four
reference banks in London, England selected by the Calculation Agent
("Reference Banks") such bank's offered quotation (expressed as a
percentage per annum) as of approximately 11:00 a.m., London, England
time, on such date for deposits in U.S. dollars to prime banks in the
London, England interbank market for the Index Maturity. If two or more
such quotations are provided as requested, then 3-Month LIBOR for such
date shall be the arithmetic average of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3-Month
LIBOR for such date will be obtained from the preceding Market Day for
which the Reuters Screen LIBO Page displayed a rate for the Index
Maturity.
(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided
in paragraphs (a) and (b) above, 3-Month LIBOR for such Interest Period
shall be 3-Month LIBOR as determined on the previous Determination
Date.]
The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
The term "Interest Period" means each period beginning on, and
including, _____, ____, and ending on, but excluding, the first Interest Payment
Date, and each successive period beginning on, and including, an Interest
Payment Date and ending on, but excluding, the next succeeding Interest Payment
Date.
The Interest Rate for any Interest Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in
this _____ Supplemental Indenture will be rounded, if necessary, to the nearest
one ten-thousandth of a percentage point with five hundred-thousandths of a
percentage point being rounded upwards (e.g., 6.87655% (or .0687655) would be
rounded to 6.8766% (or .068766)), and all U.S. dollar amounts used in or
resulting
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<PAGE> 14
from such calculations will be rounded to the nearest cent (with one-half cent
or more being rounded upwards).
(c) The Calculation Agent shall, as soon as practicable after
11:00 a.m., London, England time, on each Determination Date, determine the
Interest Rate and inform the Debt Trustee and the Paying Agent and, if any
Debentures are held by the Institutional Trustee, the Institutional Trustee.
Unless otherwise provided by the Debt Trustee, the Paying Agent will calculate
the amount of interest payable on the Debentures in respect of the following
Interest Period. The amount of interest payable for any Interest Period will be
computed on the basis of the actual number of days in the applicable Interest
Period divided by 360 and rounding the resulting figure to the nearest cent
(with one-half cent or more being rounded upwards). The determination of the
Interest Rate by the Calculation Agent and the amount of interest payable by
Paying Agent will (in the absence of wilful default, bad faith or manifest
error) be final, conclusive and binding on all concerned. None of the Debt
Trustee, the Paying Agent, the Calculation Agent, the Trust or the Company (or
any of their respective officers, directors, agents, beneficiaries, employees or
affiliates) shall have any liability to any person for (i) the selection of any
Reference Bank or (ii) any inability to retain major banks in the London,
England interbank market, in the case of the Calculation Agent, which is caused
by circumstances beyond its reasonable control.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made or
obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debentures, whether by the Reference Banks (or
any of them) or the Calculation Agent, Debt Trustee or Paying Agent, will (in
the absence of wilful default, bad faith or manifest error) be binding on the
Trust, the Company, the Debt Trustee and all of the holders of the Debentures,
and no liability will (in the absence of wilful default, bad faith or manifest
error) attach to the Calculation Agent, Debt Trustee or Paying Agent in
connection with the exercise or non-exercise by any of them of their powers,
duties and discretion.
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<PAGE> 15
(e) In the event that any date on which interest is payable on
the Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day, except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date (each date on which interest is
actually payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event.
Additional Sums shall be treated as interest for all purposes under the
Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.
If a Tax Event or a Capital Treatment Event has occurred and
is continuing then, notwithstanding Section 3.2(a) but subject to Section
3.2(c), the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders to redeem the Debentures, in whole, but not
in part, for cash within 90 days following the occurrence of such Tax Event or
Capital Treatment Event (or, if the approval of the Board of Governors of the
Federal Reserve System is then required for such
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<PAGE> 16
redemption, on such later date as promptly practicable after such approval is
obtained) at the Redemption Price.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b), except as
otherwise may be specified in this _____ Supplemental Indenture or the
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after _________, _____ at the Redemption
Price (an "Optional Redemption"). If the Debentures are only partially redeemed
pursuant to this Section 3.2, the Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Security Registrar; provided, that if at
the time of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures beneficially held by each Holder of Debentures to be
redeemed.
(b) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities issued by the Trust from any national
securities exchange or interdealer quotation system or other organization on
which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and may only redeem the Debentures
in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
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<PAGE> 17
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest on the Debentures by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarterly periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that no
Extension Period shall end on a date other than an Interest Payment Date or
extend beyond the Maturity Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the interest rate then in effect compounded quarterly for each quarterly
period of the Extension Period ("Compounded Interest"). At the end of the
Extension Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Sumsand Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders in whose names the
Debentures are registered in the Security Register on the record date relating
to the Interest Payment Date on which the Extension Period ends. Before the
termination of any Extension Period, the Company may further defer payments of
interest by further extending such period, provided that such period, together
with all such previous and further extensions within such Extension Period,
shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof.
Compounded Interest shall be treated as interest for all purposes under the
Indenture.
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<PAGE> 18
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder
at the time the Company selects an Extension Period, the Company shall give
written notice to the Regular Trustees, the Institutional Trustee and the Debt
Trustee of its selection of such Extension Period five Business Days before the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions are
payable, to any national securities exchange or interdealer quotation system or
to holders of the Preferred Securities issued by the Trust, but in any event at
least five Business Days before such record date.
(b) If the Institutional Trustee is not the only Holder at the
time the Company selects an Extension Period, the Company shall give the Holders
and the Debt Trustee written notice of its selection of such Extension Period at
least 10 Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to any national securities
exchange or interdealer quotation system or to the Holders.
(c) The quarterly period in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarterly periods permitted in the maximum Extension Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Debentures and the
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<PAGE> 19
compensation of the Debt Trustee in accordance with the provisions of Section
6.6;
(b) pay all costs and expenses relating to the organization
and operation of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this _____ Supplemental Indenture or the
Indenture or the removal or resignation of the Debt Trustee, unless otherwise
stated, the Company shall pay to the Debt Trustee all amounts accrued under
Section 6.06 of the Indenture to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be,
pursuant to Sections 10.4 and 10.6 of the Declaration, the Company shall pay to
the Delaware Trustee or the Institutional Trustee, as the case may be, all
amounts accrued under said Sections to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
The Debentures and the Debt Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the forms set
forth in Exhibit A hereto.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $_____________
may, upon execution of this _____ Supplemental Indenture, be executed by the
Company and delivered to the Debt Trustee for authentication as provided in
Sections 2.03 and 2.05 of the Indenture.
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ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends.
The Company will not, and will not permit any subsidiary to,
(i) declare or pay any dividends or distributions on, or prepay, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of, premium, if any, or
interest on or repay, repurchase or redeem any debt securities of the Company
(including Other Debt Securities) that rank pari passu with, or junior in right
of payment to, the Debentures or (iii) make any guarantee payment with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company(including Other Guarantees) if such guarantee ranks pari passu with, or
junior in right of payment to, the Debentures (other than (a) dividends,
distributions, redemptions, purchases or acquisitions made by the Company by way
of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee or
Common Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
reinvestment plan or stock purchase plan of the Company), if at such time (1)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice, or the lapse of time, or both, would
constitute an Event of Default hereunder and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (2) if such Debentures are held
by the Institutional Trustee, the Company shall be in default with respect to
its payment obligations under the
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Preferred Securities Guarantee or Common Securities Guarantee or (3) the Company
shall have given notice of its selection of an Extension Period and shall not
have rescinded such notice or such Extension Period and such Extension Period
shall be continuing.
SECTION 8.2. Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee
of such trust in connection with the issuance of Trust Securities by the Trust,
for so long as such Trust Securities remain outstanding, the Company (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Company, permitted pursuant
to Article X of the Indenture, may succeed to the Company's ownership of such
Common Securities, (ii) will use commercially reasonable efforts to cause the
Trust (a) to remain a grantor trust, except in connection with a distribution of
Debentures to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes and (iii)
will not cause, as sponsor of the Trust, or permit, as holder of the Common
Securities, the dissolution, winding-up or termination of the Trust, except in
connection with a distribution of the Debentures as provided in the Declaration
and in connection with certain mergers, consolidations or amalgamations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this _____ Supplemental
Indenture, is in all respects ratified and confirmed, and this _____
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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SECTION 9.2. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee thereof, if the Institutional Trustee of such
Trust fails to enforce its rights under this _____ Supplemental Indenture or the
Indenture as the Holder of the Debentures held as the assets of SunTrust Capital
, any holder of Preferred Securities may institute legal proceedings directly
against the Company to enforce such Institutional Trustee's rights under this
_______ Supplemental Indenture or the Indenture without first instituting any
legal proceedings against such Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Company to
pay principal of, premium, if any, or interest on the Debentures when due, the
Company acknowledges that a holder of Preferred Securities may institute a
Direct Action for enforcement of payment to such holder of the principal of,
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Debentures.
SECTION 9.3. Direction of Proceedings and Waiver
of Defaults by Majority of Holders.
The Holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Debt Trustee, or exercising any trust or power conferred on the Debt Trustee;
provided, however, that (subject to the provisions of Section 6.01 of the
Indenture) the Debt Trustee shall have the right to decline to follow any such
direction if the Debt Trustee shall determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction or if
the Debt Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debt Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
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<PAGE> 23
Debt Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Debt Securities, the Holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding may on behalf of
the Holders of all of the Debt Securities waive any past default or Event of
Default and its consequences except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debt Securities (unless such
default has been cured and a sum sufficient to pay all matured installments of
principal, premium, if any, and interest due otherwise than by acceleration has
been deposited with the Debt Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
Holder of each Debenture affected; provided, however, that if the Debt
Securities are held by the Institutional Trustee, such waiver or modification to
such waiver shall not be effective until the holders of a majority in aggregate
liquidation amount of Trust Securities shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the Holder
of each outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities shall have consented to such waiver.
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this _____ Supplemental Indenture and the Indenture and the
Company, the Debt Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted by
Section 5.08 of the Indenture, said default or Event of Default shall for all
purposes of the Debt Securities and the Indenture be deemed to have been cured
and to be not continuing.
SECTION 9.4. Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Debt Trustee, and the Debt Trustee assumes no responsibility for the
correctness thereof. The Debt Trustee makes no representation as to the validity
or sufficiency of this _____ Supplemental Indenture.
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SECTION 9.5. Governing Law.
This _____ Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 9.6. Separability.
In case any one or more of the provisions contained in this
_____ Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
_____ Supplemental Indenture or of the Debentures, but this _____ Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.7. Counterparts.
This _____ Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this _____
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
SUNTRUST BANKS, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Debt Trustee
By:
-----------------------------
John R. Prendiville
Vice President
Attest:
By:
------------------------
Name:
Title:
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EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
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<PAGE> 27
No. CUSIP No.
--------------- --------------
SUNTRUST BANKS, INC.
-------------------
SUNTRUST BANKS, INC., a Georgia corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to SunTrust Capital
__________, or registered assigns, the principal sum of $________ on __________,
and to pay interest on said principal sum from ___________, _________, or from
the most recent interest payment date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
the day of ____________, _________, and of each year commencing ____________,
_______, at the Interest Rate (as defined in the Indenture (as defined below))
until the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, at the Interest Rate and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Interest Rate compounded
quarterly. The amount of interest payable on any Interest Payment Date (as
defined below) shall be calculated as provided in the Indenture. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day, except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date (each date on which interest is actually payable, an "Interest
Payment Date"). The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Debenture (or one or more Predecessor
Debt Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be, except if the Debentures are held by the Institutional Trustee, the close of
business on the , _____________, _______________ and ___________ prior to the
applicable Interest Payment Date. Any such interest install-
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<PAGE> 28
ment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Debt
Securities) is registered at the close of business on a special record date to
be fixed by the Debt Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange or interdealer
quotation system on which the Debentures may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
The principal of, premium, if any, and interest (including Compounded Interest
and Additional Sums, if any) on this Debenture shall be payable at the office or
agency of the Debt Trustee maintained for that purpose in any coin or currency
of the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made, at the option of the Company, by check mailed to the registered
Holder at such address as shall appear in the Security Register or by wire
transfer to an account designated by a Holder in writing not less than ten days
prior to the date of payment. Notwithstanding the foregoing, so long as the
Holder of this Debenture is the Institutional Trustee, the payment of the
principal of, premium, if any, and interest on this Debenture will be made at
such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debt Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the
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<PAGE> 29
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder or creditor upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Debt Trustee.
THIS DEBENTURE IS NOT A SAVINGS ACCOUNT DEPOSIT OR OTHER
OBLIGATION OF BANK OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
SUNTRUST BANKS, INC.
By:
---------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
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<PAGE> 30
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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<PAGE> 31
(FORM OF REVERSE OF DEBENTURE)
This Debt Security is one of a duly authorized series of debt
securities of the Company (herein sometimes referred to as the "Debentures"),
all issued or to be issued in one or more series under and pursuant to an
Indenture, dated as of __________, ________, duly executed and delivered between
the Company and The First National Bank of Chicago, as Debt Trustee (the "Debt
Trustee"), as supplemented by the _____ Supplemental Indenture, dated as of
__________, ________, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Debt
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, Debt Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This Debenture is one of the series designated on the face hereof and
is limited in aggregate principal amount as specified in said _____ Supplemental
Indenture
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Redemption Price within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") is then
required, on such later date as promptly as practicable after such approval is
obtained). In addition, the Company shall have the right to redeem this
Debenture, in whole or in part, from time to time on or after ___________,
______, at the Redemption Price (an "Optional Redemption"). The "Redemption
Price" means an amount in cash equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest and Additional Sums, if any, to the date of such redemption. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice. If the Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Debentures will be re-
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<PAGE> 32
deemed pro rata or by lot or by any other method utilized by the Security
Registrar; provided that if, at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the principal
amount of such Debentures beneficially held by each Debentureholder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by
the Company shall be subject to the prior approval of the Federal Reserve, if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Debt Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities;
provided, however, that no such supplemental indenture shall without the consent
of the Holders of the outstanding Debentures affected thereby (i) change the
Maturity Date, or reduce the rate or extend the time of payment of interest
(except as contemplated by Section 2.5 of the _____ Supplemental Indenture), or
reduce the principal amount thereof, or reduce any amount payable on prepayment
thereof, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that in which any Debenture (or
premium, if any, thereon) or the interest thereon is payable according to its
terms, or impair
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<PAGE> 33
or affect the right of any Holder to institute suit for payment thereof; or (ii)
reduce the percentage in principal amount of the outstanding Debentures, the
Holders of which are required to consent to any such amendment to the
Supplemental Indenture; provided, however, that if the Debentures are held by
the Institutional Trustee of the Trust, such amendment shall not be effective
until the holders of a majority in liquidation amount of Trust Securities shall
have consented to such amendment; provided, further, that if the consent of the
Holder of each outstanding Debenture is required, such amendment shall not be
effective until each holder of the Trust Securities shall have consented to such
amendment. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of any
series affected thereby, on behalf of all of the Holders of the Debt Securities
of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of, premium, if any, or interest on any of the Debt
Securities of such series. Any such consent or waiver by the registered Holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the time and place and at the rate and
in the money herein prescribed.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest on this Debenture by
extending the interest payment period of Debenture for a period not exceeding to
20 consecutive quarterly periods (an "Extension Period") during which Extension
Period no
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<PAGE> 34
interest shall be due and payable; provided that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date. Before the termination of any Extension Period, the Company may further
defer payments of interest by further extending such period, provided that such
period, together with all such previous and further extensions within such
Extension Period, shall not exceed 20 consecutive quarterly periods or extend
beyond the Maturity Date. Upon the termination of any Extension Period and the
payment of all accrued and unpaid interest and including any Additional Sums and
Compounded Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
The Company will not (i) declare or pay any dividends or
distributions on, or prepay, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest on or repay, repurchase or redeem any
debt securities of the Company (including Other Debt Securities) that rank pari
passu with, or junior in right of payment to, the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company(including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Debentures
(other than (a) dividends, distributions, redemptions, purchases or acquisitions
made by the Company by way of issuance of its capital stock (or options,
warrants or other rights to subscribe therefor), (b) any declaration of a
dividend in connection with the implementation of a shareholder's rights plan,
or the issuance of stock under any such plan in the future, or the prepayment or
repurchase of any such rights pursuant thereto, (c) payments under the Preferred
Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
rein-
A-9
<PAGE> 35
vestment plan or stock purchase plan of the Company), if at such time (1) there
shall have occurred any event of which the Company has actual knowledge that (a)
with the giving of notice, or the lapse of time, or both would constitute an
Event of Default and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (2) if such Debentures are held by the Institutional
Trustee, the Company shall be in default with respect to its payment obligations
under the Preferred Securities Guarantee or Common Securities Guarantee or (3)
the Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such Extension
Period shall be continuing.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve, the Company will have the right at any time to liquidate
the Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Debt
Trustee in New York, New York, c/o First Chicago Trust Company of New York, 14
Wall Street, 8th Floor-Window 2, New York, New York 10005 accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the registered Holder hereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Debentures of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Debt Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the owner
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<PAGE> 36
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to Section 2.5 of the _____
Supplemental Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Debt Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
A-11
<PAGE> 1
EXHIBIT 8.1
March __, 1998
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Ladies and Gentlemen:
We have acted as special tax counsel to SunTrust Banks, Inc.
("SunTrust") and to SunTrust Capital III (the "Trust") in connection with the
proposed offering by the Trust of its Floating Rate Preferred Securities, Series
A (the "Preferred Securities") as described in that certain Prospectus dated
February 11, 1998, which is included in the Registration Statement on Form S-3
filed with the Securities and Exchange Commission in connection with the
offering of such Preferred Securities (the "Registration Statement"), and that
certain Prospectus Supplement dated March __, 1998 (the "Prospectus
Supplement"). In connection therewith, you have requested our opinions with
respect to the status of the Subordinated Debentures and the Trust for United
States federal income tax purposes and the accuracy of the discussion included
in the Prospectus Supplement under the heading "United States Federal Income
Taxation." All capitalized terms used herein without definition shall have the
same meaning as in the Prospectus Supplement.
FACTS AND ASSUMPTIONS RELIED UPON
In rendering the opinions expressed herein, we have examined such
documents as we have deemed appropriate, including (but not limited to) the
Registration Statement, the Prospectus Supplement and all exhibits thereto. In
our examination of documents, we have assumed, with your consent, that all
documents submitted to us are authentic originals or, if submitted as
photocopies or telecopies, that they faithfully reproduce the originals thereof,
that all such documents have been or will be duly executed to the extent
required, that all representations and statements set forth in such documents
are true and correct, and that all obligations imposed by any such document on
the parties thereto are enforceable, and have been or will be performed or
satisfied, in accordance with their terms.
<PAGE> 2
SunTrust Banks, Inc.
March __, 1998
Page 2
OPINIONS
Based upon and subject to the foregoing, we are of the following
opinions:
(1) The Subordinated Debentures will be treated as indebtedness of
SunTrust for United States federal income tax purposes.
(2) The Trust will be classified as a grantor trust and will not be
treated as an association taxable as a corporation for United States federal
income tax purposes. As a result, each beneficial owner of Preferred Securities
(a "Securityholder") will be required to include in its gross income its pro
rata share of the interest income, including original issue discount, paid or
accrued with respect to the Subordinated Debentures, whether or not cash is
actually distributed to the Securityholder.
(3) The discussion contained in that portion of the Prospectus
Supplement under the caption "United States Federal Income Taxation"
constitutes, in all material respects, a fair and accurate summary of the
principal United States federal income tax consequences of the purchase,
ownership, and disposition of Preferred Securities under current law.
The opinions expressed herein are based on the Internal Revenue Code of
1986, as amended, the United States Treasury Regulations promulgated thereunder,
current administrative positions of the United States Internal Revenue Service,
and existing judicial decisions, any of which could be changed at any time,
possibly on a retroactive basis. Any such change could adversely affect the
opinions rendered herein and the tax consequences to the Trust and to the
holders of Preferred Securities. In addition, our opinions cannot be relied upon
if any of the facts contained in the documents that we have examined, or if any
of the assumptions that we have made, is, or later becomes, inaccurate.
Finally, our opinions are limited to the tax matters specifically
covered thereby, and we have not been asked to address, nor have we addressed,
any other tax consequences relating to the Trust, Subordinated Debentures or
Preferred Securities. This opinion is given as of the date hereof, and we assume
no obligation to update this opinion to reflect any fact or circumstance that
may hereafter come to our attention or any change in any law or regulation that
may hereafter occur.
<PAGE> 3
SunTrust Banks, Inc.
March __, 1998
Page 3
We hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus Supplement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
KING & SPALDING
