Exhibit 1.1
6.000% Senior Notes due 2017
SUNTRUST BANKS, INC.
Underwriting Agreement
September 5, 2007
SunTrust Robinson Humphrey, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as Representatives of the several
Underwriters named in Schedule I hereto,
c/o SunTrust
Robinson Humphrey, Inc.,
303 Peachtree Street,
Atlanta, GA
30308.
Ladies and Gentlemen:
SunTrust Banks,
Inc., a Georgia corporation (the “
Company
”), proposes, subject to the terms and conditions stated in this underwriting agreement (the “
Agreement
”), to sell to you, the underwriters named in Schedule I (the
“
Underwriters
”) for whom SunTrust Robinson Humphrey, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated shall act as representatives (the “
Representatives
”), $500,000,000 of the Company’s
6.000% Senior Notes due 2017, referred to in Schedule II (the “
Notes
”). The Notes will be issued pursuant to the Senior Indenture between the Company and U.S. Bank National Association (the “
Indenture Trustee,
” and
such Senior Indenture, the “
Indenture
”), to be entered into at or before the Closing Date.
1.
Representations and
Warranties
. (A) The Company represents and warrants to, and agrees with, the Underwriters as follows:
(a) An
“automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “
Act
”) on Form S-3 (File No. 333-137101) in respect of the Notes, has been filed with the Securities
and Exchange Commission (the “
Commission
”) not earlier than three years prior to the date hereof; pursuant to the Act, such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order
suspending the effectiveness of such registration statement or any part thereof has been issued, no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission and no notice of objection of the
Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “
Basic Prospectus
”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Notes filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “
Preliminary Prospectus
”; the various parts of such registration statement, including all exhibits
thereto but excluding any Trustee’s Statement of Eligibility on Form T-1 (each, a “
Form T-1
”), and including any prospectus supplement relating to the Notes that is filed with the Commission and deemed by virtue of Rule 430B to
be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “
Registration Statement
”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in Section 1(A)(c) hereof), is hereinafter called the “
Pricing Prospectus
”; the form of the final prospectus relating to the Notes filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(A)(a) is hereinafter called the “
Prospectus
”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Notes filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as
the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Notes is hereinafter called an “
Issuer Free
Writing Prospectus
”).
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the
“
Trust Indenture Act
”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
,
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that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter expressly for use therein.
(c) For the purposes of this Agreement, the
“
Applicable Time
” is 2:45 P.M. (New York City time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(A)(a), taken together (collectively, the
“
Pricing Disclosure Package
”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free
Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
,
however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein; and no such documents were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b).
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(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects, to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading;
provided
,
however
, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter expressly for use therein.
(f) This
Agreement has been duly authorized, executed and delivered by the Company.
(g) Neither the Company nor any of its
“significant subsidiaries” (as such term is used in Rule 1-02(w) of Regulation S-X under the Securities Act; each a “
Significant Subsidiary
” and collectively, the “
Significant Subsidiaries
”) has sustained
since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any change in the capital stock of the Company or any of its Significant Subsidiaries (other than (i) repurchases of common stock of the Company in an aggregate amount that is less than
1% of the number of outstanding shares of common stock on the date hereof and (ii) issuances or other transfers of capital stock in the ordinary course of business pursuant to the Company’s employee benefit plans), any material increase in
the long-term debt of the Company and its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus; SunTrust Bank is a Significant Subsidiary, and no other subsidiary of the Company is a
Significant Subsidiary.
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Georgia, is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Pricing Prospectus, and has been duly qualified as a foreign
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corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except for such failures to be so qualified or in good standing that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the general
affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (a “
Material Adverse Effect
”); and each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation.
(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(j) The Notes have been duly
authorized, and, when issued, delivered and paid for at the Closing Date as contemplated by the Pricing Prospectus, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; the Indenture has been duly authorized and, at the Closing Date, the Indenture will be duly qualified under the Trust Indenture Act and will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
the Notes and the Indenture will conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and the Prospectus.
(k) The Company has all power and authority (corporate and other) necessary to perform its obligations under the Notes, the Indenture and this Agreement; the execution, delivery and performance of the Notes, the
Indenture and this Agreement, and compliance with the provisions thereof and the consummation of the transactions herein and therein contemplated by the Company will not (i) conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or a material
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adverse effect on the consummation of the transactions contemplated hereby; (ii) result in any violation of the provisions of the Restated Articles of
Incorporation, as amended, or By-laws of the Company or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution, delivery and performance by the Company of the Notes, the
Indenture and this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Notes by the Underwriters.
(l) Neither the Company nor any of its Significant Subsidiaries is in
violation of its organizational documents or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound.
(m) The statements set forth in the
Pricing Prospectus and the Prospectus under the captions “Description of the Notes,” and “Regulatory Considerations” insofar as they are descriptions of contracts, agreements or other legal documents or describe Federal statutes,
rules and regulations, and under the caption “Underwriting,” insofar as they purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects;
the statements set forth in the Pricing Prospectus and the Prospectus under the caption “Certain U. S. Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport to constitute a summary of matters of
U.S. federal income tax law or the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute an accurate summary of the matters set forth therein in all material respects.
(n) Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of the subsidiaries of the Company is a party or of which any property of the Company or any of the subsidiaries of the Company is the subject which is reasonably likely to be adversely determined against the Company or any of the
subsidiaries of the Company and, if determined adversely to the Company or any of the subsidiaries of the Company, would individually or in the aggregate have a Material Adverse Effect; and, to the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
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(o) The Company is not and, after giving effect to the offering and sale of the Notes and
the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act.
(p) (A)(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act (“
Rule
405
”); and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Notes, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act.
(q) Each of the Company and its subsidiaries
own or possess or have obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease or own, as the case may be, and to operate their respective properties and to carry on their
respective businesses as presently conducted, except where the failure to possess or obtain the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(r) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, and have audited the
Company’s internal control over financial reporting and management’s assessment thereof, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(s) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial reporting. Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting, except such changes as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
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(t) The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known
to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
(u) To the Company’s knowledge, the operations of the Company and its subsidiaries are currently in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all United States jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency in the United States (collectively, the “
Money Laundering Laws
”), except where the failure to so comply would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect; and no formal action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee of the
Company or any of its affiliates or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“
OFAC
”); and the Company will not
use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC, it being acknowledged and agreed that the Company intends to use the proceeds of the offering to make payments for currently outstanding debt securities to Cede & Co, Inc., the
registered holder of such debt securities on behalf of The Depository Trust Company.
2.
Purchase and Sale
. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set forth, the Company proposes to issue and sell to the Underwriters named in Schedule I hereto the Notes specified on Schedule II hereto, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule II, the principal amount of Notes set forth opposite such Underwriter’s name in Schedule I.
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3.
Delivery and Payment
. Delivery of and payment for the Notes shall be made at the office, on the
date and at the time specified in Schedule II (such time and date are herein called the “
Time of Delivery
”), which date and time may be postponed by agreement between the Underwriters and the Company (such date and time of delivery
of and payment for the Notes being herein called the “
Closing Date
”). The Notes to be purchased by each Underwriter hereunder will be represented by one or more global certificates representing the Notes that will be deposited with
The Depository Trust Company (“DTC”) or its designated custodian. Delivery of the Notes shall be made by causing DTC to credit the Notes to the account of SunTrust Robinson Humphrey, Inc. at DTC, for the respective accounts of the several
Underwriters at DTC, against payment by the several Underwriters through SunTrust Robinson Humphrey, Inc. of the purchase price thereof to or upon the order of the Company in the manner and type of funds specified in Schedule II.
The Company agrees to have a facsimile copy of the certificates representing the Notes available for checking in New York, New York at the Closing
Location specified in Schedule II, on the business day prior to the Closing Date.
4.
Offering by Underwriters
. It is understood
that the several Underwriters propose to offer the Notes for sale as set forth in the Pricing Disclosure Package and the Prospectus.
5.
Agreements
. (A)
General
. The Company agrees with the several Underwriters as follows:
(a) To prepare the
Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further
amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet,
containing solely a description of the Notes, in a form set forth in Schedule III hereto and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be
filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering and sale of the Notes; to advise you,
promptly after the Company receives notice thereof, of the time when any amendment to the
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Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Notes, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Notes or suspending any such qualification, to promptly use their best efforts to obtain the withdrawal of such order; and in the event of any such issuance of
a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at the Company’s own expense, as may be necessary to permit offers and sales of the
Notes by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement).
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof.
(c) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions as the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Notes,
provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation where it is not now so qualified or to file a general consent to service of process in any jurisdiction
where it is not now so subject.
(d) Prior to noon, New York City time, on the New York business day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes and if
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at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Notes at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act.
(e) To make generally available to its securityholders and to the Underwriters as soon as practicable, but in any event not later than 16
months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) of the Company and its subsidiaries, complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company, Rule 158).
(f) During the period beginning from
the date hereof, and continuing to and including the date 30 days after the date hereof or such earlier time as you may notify the Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise
dispose of, except as provided hereunder, any Notes, or any debt securities of the Company, that are substantially similar to the Notes or any securities that are convertible into or exchangeable for or that represent the right to receive any of the
foregoing, without your prior written consent.
(g) To pay the required Commission filing fees relating to the Notes within
the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(h) The Company covenants and agrees with the several Underwriters that it will pay all expenses incident to the performance of each of
its obligations
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under this Agreement, and will pay or cause to be paid the following: (i) the fees, disbursements and expenses of its counsel and accountants in
connection with the registration of the Notes under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Notes; (iii) all expenses in connection with the
qualification of the Notes for offering and sale under state securities laws, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey (
provided
,
however
, that the aggregate fees and disbursements of counsel in connection with this subsection (iii) and subsection (v) below shall not exceed $30,000 without the prior written consent of the Company, which consent will not be
unreasonably withheld); (iv) the fees charged by securities rating services for rating the Notes; (v) filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the Notes; (vi) all fees and expenses in connection with the listing of the Notes; (vii) the cost of preparing the Notes; (viii) the costs and charges of any
transfer agent or registrar or paying agent; and (ix) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for in this paragraph. It is understood, however, that,
except as provided in this paragraph, and Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Notes by them, the cost of preparing and
distributing any term sheet prepared by any Underwriter, and any advertising expenses connected with any offers they may make.
(B)
Free Writing Prospectuses
.
(a) (i) The Company represents and agrees that, other than the final term
sheet prepared and filed pursuant to Section 5(A)(a) hereof, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act;
(ii) Each Underwriter represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets relating to the Notes containing customary information and conveyed to purchasers of the Notes, it has not made and will not make any offer relating to the Notes that would
constitute a free writing prospectus; and
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(iii) Any such free writing prospectus the use of which requires consent under clauses
(i) and (ii) above and has been consented to by the Company and the Representatives (including the final term sheet prepared and filed pursuant to Section 5(A)(a) hereof) is listed on Schedule II(a).
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where required and legending.
(c) The Company agrees
that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company
will give prompt notice thereof to the Representatives and, if requested by a Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document that will correct such conflict, statement
or omission;
provided
,
however
, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through SunTrust Robinson Humphrey, Inc. expressly for use therein.
6.
Conditions to the Obligations of
the Underwriters
. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall
-13-
have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or
threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion, dated the Closing Date, to
the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors
generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Issuer Trustee, executed, issued and delivered in the manner provided in the Indenture will
constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents
referred to therein, constitute an accurate summary of the matters set forth therein in all material respects;
(v) The
statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain U.S. Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport to constitute summaries of matters of
U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; and
-14-
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing
Date, of Raymond D. Fortin, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of
the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries
and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’
equity or results of operations of the Company and its subsidiaries, taken as a whole and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the Indenture, the issuance and sale of the Notes, and the consummation of the
transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture,
-15-
mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which
the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or
By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of
their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not
be an “investment company,” as such term is defined in the Investment Company Act;
(ix) The Registration
Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained
therein and the Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and
the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
-16-
In addition, although such counsel need not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(i) the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(ii) the
Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading;
(iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
except that, with respect to clauses (i), (ii), (iii) and (iv) above, such counsel need not express a belief
with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to the Statement of Eligibility on Form
T-1.
(d) The Underwriters shall have received from Sullivan & Cromwell LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. Sullivan & Cromwell LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate
or certificates of such entities and as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP delivered pursuant to Section 6(b).
(e) At the Time of Delivery, PricewaterhouseCoopers LLP and Ernst & Young LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto.
-17-
(f) Neither the Company nor any of its Significant Subsidiaries shall have sustained
since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is
in the judgment of SunTrust Robinson Humphrey, Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect
to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the
Applicable Time, the Notes shall have been accorded a rating of not less than “A+” by Standard & Poor’s Ratings Service, not less than “Aa3” by Moody’s Investors Service, Inc. and not less than “A+”
by Fitch Ratings.
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded
the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(j) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or
-18-
economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of SunTrust
Robinson Humphrey, Inc. makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus.
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and
trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of their respective obligations hereunder to be performed at or prior to
such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
7.
Indemnification and Contribution
.
(a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred;
provided
,
however
, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
-19-
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement thereto or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company, as
appropriate, in connection with investigating or defending any such action or claim as such expenses are incurred.
(c)
Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect
-20-
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Notes.
If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
-21-
(e) The obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this
Section 7 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8.
Underwriter Default
. (a) If any Underwriter shall default in its obligation to
purchase the Notes which it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Notes on the terms contained herein. If within thirty six hours after such default by any
Underwriter you do not arrange for the purchase of such Notes, then the Company shall be entitled to a further period of thirty six hours within which to procure another party or other parties satisfactory to you to purchase such Notes on such
terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Notes, or the Company notifies you that it has so arranged for the purchase of such Notes, you or the
Company shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus that in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall
include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by you and the Company as provided in paragraph (a) above, the aggregate principal amount
of such Notes which remains unpurchased does not exceed one eleventh of the aggregate principal amount of all the Notes, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes which
such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Notes which such Underwriter agreed to purchase hereunder) of the Notes of
such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by you and the Company as
provided in paragraph (a) above, the aggregate principal amount of Notes which remains unpurchased exceeds one eleventh of the aggregate principal amount of all the Notes, or if the Company shall not exercise the right described in paragraph
(b) above to require
-22-
non-defaulting Underwriters to purchase Notes of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements in Section 7; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
9.
Expenses on Termination
. If for any reason the Notes are not delivered by or on behalf of the Company as provided herein other than because of
a termination of this Agreement pursuant to Section 8, the Company will reimburse the Underwriters through you for all reasonable out-of-pocket expenses approved in writing by you, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Notes but the Company shall then be under no further liability to any Underwriter except as provided in Sections 5A(j) and 7. If this Agreement
shall be terminated pursuant to Section 8 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Notes, except as provided in Sections 5A(j) and 7 hereof.
10. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s
office in Washington, D.C. is open for business.
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of the controlling persons referred to in Section 7(e) hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 5(A)(j) and 7 hereof shall survive the termination
or cancellation of this Agreement.
12.
Arm’s-Length Terms
. The Company acknowledges and agrees that (i) the purchase and
sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent, fiduciary or advisor the Company (and the Company agrees that it will not claim that the Underwriters owe, or any of them owes, a fiduciary or similar duty to the
Company in connection therewith), and (iii) the Company has consulted its own legal and financial advisors to the extent they deemed appropriate.
13. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
14.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors, heirs,
executors, and administrators, and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder.
-23-
15.
Applicable Law
. This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
16. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
17.
Counterparts; Notices
. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original, which taken together shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by mail, telex or facsimile transmission to the address of SunTrust Robinson Humphrey, Inc., as set forth in Schedule II hereto; and if to the Company shall be sufficient in all respects if delivered or sent by mail,
telex or facsimile transmission to its address set forth in the Registration Statement, Attention: Secretary;
provided
,
however
, that any notice to an Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Underwriters upon request.
18.
Action by Underwriters
. Any action under this Agreement taken by the Underwriters jointly will be binding upon all the
Underwriters. In all dealings under this Agreement, the Representative shall act on behalf of each of the Underwriters and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or on behalf of the Representatives by SunTrust Robinson Humphrey, Inc.
[THE NEXT
PAGE IS THE SIGNATURE PAGE]
-24-
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us
four counterparts hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
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Very truly yours,
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SUNTRUST BANKS, INC.
|
|
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By:
|
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/s/ Kenneth R. Houghton
|
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Name:
|
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Kenneth R. Houghton
|
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Title:
|
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Senior Vice President
|
Accepted as of the date hereof:
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SUNTRUST ROBINSON HUMPHREY, INC.
|
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By:
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/s/ Christopher S. Grumboski
|
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Name:
|
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Christopher S. Grumboski
|
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Title:
|
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Director
|
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MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
|
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By:
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/s/ Jason Braunstein
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Name:
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Jason Braunstein
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Title:
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Director
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as Representatives of the Underwriters
SCHEDULE I
|
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Underwriters
|
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Principal Amount
of Notes to be
Purchased
|
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SunTrust Robinson Humphrey, Inc.
|
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$
|
212,500,000
|
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
212,500,000
|
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Banc of America Securities LLC
|
|
|
12,500,000
|
|
Goldman, Sachs & Co.
|
|
|
12,500,000
|
|
Lehman Brothers Inc.
|
|
|
12,500,000
|
|
Morgan Stanley & Co. Incorporated
|
|
|
12,500,000
|
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Sandler O’Neill & Partners, L.P.
|
|
|
12,500,000
|
|
UBS Securities LLC
|
|
|
12,500,000
|
|
Total
|
|
$
|
500,000,000
|
I-1
SCHEDULE II
6.000% Senior Notes due September 2017
|
|
|
|
|
Issuer:
|
|
SunTrust Banks, Inc. (“SunTrust”).
|
|
|
|
|
Title of Securities:
|
|
SunTrust Banks, Inc. 6.000% Fixed Rate Senior Notes
|
|
|
|
|
Ratings:
|
|
Aa3 / A+ / A+ (Moody’s / S&P / Fitch)
|
|
|
|
|
Issue Size:
|
|
$500,000,000
|
|
|
|
|
Trade Date:
|
|
September 5, 2007
|
|
|
|
|
Time of Delivery:
|
|
September 10, 2007: 10:00 a.m.
|
|
|
|
|
Location of Closing:
|
|
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004
|
|
|
|
|
Address for Notices:
|
|
SunTrust Robinson Humphrey, Inc., 3333 Peachtree Rd, 11th Floor, Atlanta, GA 30318
|
|
|
|
|
Maturity Date:
|
|
September 11, 2017
|
|
|
|
|
Treasury Benchmark:
|
|
4.750% due August 15, 2017
|
|
|
|
|
Treasury Yield:
|
|
4.471 %
|
|
|
|
|
Spread to Treasury:
|
|
+ 153 bps
|
|
|
|
|
Re-offer Yield:
|
|
6.001%
|
|
|
|
|
Coupon:
|
|
6.000%
|
|
|
|
|
Interest Payment Dates:
|
|
September 11 and March 11 of each year, commencing March 11, 2008
|
|
|
|
|
Business Day:
|
|
New York and Atlanta
|
|
|
|
|
Day Count:
|
|
30 / 360
|
|
|
|
|
Redemption:
|
|
The notes will not be subject to redemption at SunTrust’s option or repayment at the option of the holder at any time prior to maturity.
|
1
|
|
|
|
|
|
|
|
Ranking:
|
|
The notes will be senior unsecured indebtedness of SunTrust Banks, Inc. and will be effectively subordinated to secured indebtedness and indebtedness of SunTrust’s
subsidiaries.
|
|
|
|
|
Use of Proceeds:
|
|
Net proceeds will be used for general corporate purposes, which may include repayment of $350 million of debt securities upon maturity in October 2007.
|
|
|
|
|
Denominations:
|
|
Minimum denominations of $5,000 and multiples of $1,000 in excess thereof
|
|
|
|
|
Price to Public:
|
|
99.992 %
|
|
|
|
|
Gross Spread:
|
|
0.45%
|
|
|
|
|
Purchase Price:
|
|
$497,710,000
|
|
|
|
|
Listing:
|
|
None
|
|
|
|
|
CUSIP/ISIN:
|
|
867914 AZ6 / US867914AZ63
|
|
|
|
|
Joint Book-Runners:
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
|
|
Co-Managers:
|
|
Banc of America Securities LLC
|
|
|
|
|
|
|
Goldman, Sachs & Co.
|
|
|
|
|
|
|
Lehman Brothers Inc.
|
|
|
|
|
|
|
Morgan Stanley & Co. Incorporated
|
|
|
|
|
|
|
Sandler O’Neill & Partners, L.P.
|
|
|
|
|
|
|
UBS Securities LLC
|
(a) Free Writing Prospectuses listed pursuant to Section 5(b)(a)(iii)
Final Term Sheet, dated September 5, 2007, prepared and filed pursuant to Section 5(A)(A)
(b) Additional Documents incorporated by Reference
None
2
SCHEDULE III
SUNTRUST BANKS, INC.
TERM SHEET
6.000% Senior Notes due September 2017
|
|
|
|
|
Issuer:
|
|
SunTrust Banks, Inc. (“SunTrust”).
|
|
|
|
|
Securities:
|
|
Fixed Rate Senior Notes
|
|
|
|
|
Ratings:
|
|
Aa3 / A+ / A+ (Moody’s / S&P / Fitch)
|
|
|
|
|
Issue Size:
|
|
$500,000,000
|
|
|
|
|
Trade Date:
|
|
September 5, 2007
|
|
|
|
|
Settlement Date:
|
|
September 10, 2007
|
|
|
|
|
Maturity Date:
|
|
September 11, 2017
|
|
|
|
|
Treasury Benchmark:
|
|
4.750% due August 15, 2017
|
|
|
|
|
Treasury Yield:
|
|
4.471 %
|
|
|
|
|
Spread to Treasury:
|
|
+ 153 bps
|
|
|
|
|
Re-offer Yield:
|
|
6.001%
|
|
|
|
|
Coupon:
|
|
6.000%
|
|
|
|
|
Interest Payment Dates:
|
|
September 11 and March 11 of each year, commencing March 11, 2008
|
|
|
|
|
Business Day:
|
|
New York and Atlanta
|
|
|
|
|
Day Count:
|
|
30 / 360
|
|
|
|
|
Redemption:
|
|
The notes will not be subject to redemption at SunTrust’s option or repayment at the option of the holder at any time prior to maturity.
|
|
|
|
|
Ranking:
|
|
The notes will be senior unsecured indebtedness of SunTrust Banks, Inc. and will be effectively subordinated to secured indebtedness and indebtedness of SunTrust’s
subsidiaries.
|
3
|
|
|
|
|
|
|
|
Use of Proceeds:
|
|
Net proceeds will be used for general corporate purposes, which may include repayment of $350 million of debt securities upon maturity in October 2007.
|
|
|
|
|
Denominations:
|
|
Minimum denominations of $5,000 and multiples of $1,000 in excess thereof
|
|
|
|
|
Price to Public:
|
|
99.992 %
|
|
|
|
|
Gross Spread:
|
|
0.45%
|
|
|
|
|
Net Proceeds to Issuer:
|
|
$497,710,000, after underwriting commission
|
|
|
|
|
Listing:
|
|
None
|
|
|
|
|
CUSIP/ISIN:
|
|
867914 AZ6 / US867914AZ63
|
|
|
|
|
Joint Book-Runners:
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith Inc.
|
|
|
|
|
Co-Managers:
|
|
Banc of America Securities LLC
|
|
|
|
|
|
|
Goldman, Sachs & Co.
|
|
|
|
|
|
|
Lehman Brothers Inc.
|
|
|
|
|
|
|
Morgan Stanley & Co. Incorporated
|
|
|
|
|
|
|
Sandler O’Neill & Partners, L.P.
|
|
|
|
|
|
|
UBS Securities LLC
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which
this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting SunTrust Robinson
Humphrey, Inc., Attention Corporate Syndicate, 3333 Peachtree Rd, 11th Floor, Atlanta, GA 30318, telephone: 1-800-685-4786; or Merrill Lynch, Pierce, Fenner & Smith Inc. at 1-866-500-5408.
4
ANNEX I
Pursuant to Section 6(f) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that:
(i) They are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder adopted by the Securities and Exchange Commission (the “SEC”) and the Public Company Accounting Oversight Board (United States) (the “PCAOB”);
(ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) audited or examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies of which have been furnished to the Underwriters;
(iii) They have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included in the Company’s Quarterly Report(s) on Form 10-Q covering periods after the latest full fiscal year and incorporated by reference into the Prospectus as indicated in their
reports thereon, copies of which have been furnished to the Underwriters; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules
and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and/or included or incorporated by reference in Item 6 of the Company’s Annual Report
on Form 10-K for the most recent
1
fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal
years which were included or incorporated by reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result
of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company
and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company’s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations, or (ii) any material modifications
should be made to the unaudited consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company’s Quarterly Report(s) on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with generally accepted accounting principles;
(B) any other
unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data
and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the Prospectus but from
which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and
2
balance sheet items included in the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or stockholders’ equity or
other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination or audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not
constituting an examination or audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated
3
by reference) or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
4
Exhibit 4.1
S
ENIOR
I
NDENTURE
SUNTRUST BANKS, INC.
TO
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
Dated as of September 10, 2007
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
Section 1.1
|
|
Definitions
|
|
1
|
|
Section 1.2
|
|
Compliance Certificate and Opinions
|
|
8
|
|
Section 1.3
|
|
Forms of Documents Delivered to Trustee
|
|
8
|
|
Section 1.4
|
|
Acts of Holders
|
|
9
|
|
Section 1.5
|
|
Notices, Etc. to Trustee and Company
|
|
10
|
|
Section 1.6
|
|
Notice to Holders; Waiver
|
|
11
|
|
Section 1.7
|
|
Conflict with Trust Indenture Act
|
|
11
|
|
Section 1.8
|
|
Effect of Headings and Table of Contents
|
|
11
|
|
Section 1.9
|
|
Successors and Assigns
|
|
11
|
|
Section 1.10
|
|
Separability Clause
|
|
11
|
|
Section 1.11
|
|
Benefits of Indenture
|
|
12
|
|
Section 1.12
|
|
Governing Law
|
|
12
|
|
Section 1.13
|
|
Legal Holidays
|
|
12
|
|
|
|
ARTICLE II
|
|
SECURITY FORMS
|
|
|
|
|
|
Section 2.1
|
|
Forms Generally
|
|
12
|
|
Section 2.2
|
|
Form of Face of Security
|
|
13
|
|
Section 2.3
|
|
Form of Reverse of Security
|
|
14
|
|
Section 2.4
|
|
Additional Provisions Required in Global Security
|
|
18
|
|
Section 2.5
|
|
Form of Trustee’s Certificate of Authentication
|
|
18
|
|
|
|
ARTICLE III
|
|
THE SECURITIES
|
|
|
|
|
|
Section 3.1
|
|
Amount Unlimited Issuable in Series
|
|
18
|
|
Section 3.2
|
|
Denominations
|
|
21
|
|
Section 3.3
|
|
Execution, Authentication, Delivery and Dating
|
|
21
|
|
Section 3.4
|
|
Temporary Securities
|
|
22
|
|
Section 3.5
|
|
Registration, Transfer and Exchange
|
|
22
|
|
Section 3.6
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
25
|
|
Section 3.7
|
|
Payment of Interest; Interest Rights Preserved
|
|
25
|
|
Section 3.8
|
|
Persons Deemed Owners
|
|
26
|
|
Section 3.9
|
|
Cancellation
|
|
27
|
|
Section 3.10
|
|
Computation of Interest
|
|
27
|
|
Section 3.11
|
|
Agreed Tax Treatment
|
|
27
|
|
Section 3.12
|
|
CUSIP Numbers
|
|
27
|
|
|
|
ARTICLE IV
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
Section 4.1
|
|
Satisfaction and Discharge of Indenture
|
|
28
|
|
Section 4.2
|
|
Application of Trust Money
|
|
29
|
i
I
NDENTURE
|
|
|
|
|
|
|
ARTICLE V
|
|
REMEDIES
|
|
|
|
|
|
Section 5.1
|
|
Events of Default
|
|
29
|
|
Section 5.2
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
30
|
|
Section 5.3
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
31
|
|
Section 5.4
|
|
Trustee May File Proofs of Claim
|
|
32
|
|
Section 5.5
|
|
Trustee May Enforce Claim Without Possession of Securities
|
|
32
|
|
Section 5.6
|
|
Application of Money Collected
|
|
33
|
|
Section 5.7
|
|
Limitation on Suits
|
|
33
|
|
Section 5.8
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
34
|
|
Section 5.9
|
|
Restoration of Rights and Remedies
|
|
34
|
|
Section 5.10
|
|
Rights and Remedies Cumulative
|
|
34
|
|
Section 5.11
|
|
Delay or Omission Not Waiver
|
|
34
|
|
Section 5.12
|
|
Control by Holders
|
|
34
|
|
Section 5.13
|
|
Waiver of Past Defaults
|
|
35
|
|
Section 5.14
|
|
Undertaking for Costs
|
|
35
|
|
Section 5.15
|
|
Waiver of Usury, Stay or Extension Laws
|
|
35
|
|
|
|
ARTICLE VI
|
|
THE TRUSTEE
|
|
|
|
|
|
Section 6.1
|
|
Certain Duties and Responsibilities
|
|
36
|
|
Section 6.2
|
|
Notice of Defaults
|
|
36
|
|
Section 6.3
|
|
Certain Rights of Trustee
|
|
36
|
|
Section 6.4
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
37
|
|
Section 6.5
|
|
May Hold Securities
|
|
38
|
|
Section 6.6
|
|
Money Held in Trust
|
|
38
|
|
Section 6.7
|
|
Compensation and Reimbursement
|
|
38
|
|
Section 6.8
|
|
Disqualification; Conflicting Interests
|
|
38
|
|
Section 6.9
|
|
Corporate Trustee Required; Eligibility
|
|
39
|
|
Section 6.10
|
|
Resignation and Removal; Appointment of Successor
|
|
39
|
|
Section 6.11
|
|
Acceptance of Appointment by Successor
|
|
40
|
|
Section 6.12
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
41
|
|
Section 6.13
|
|
Preferential Collection of Claims Against Company
|
|
42
|
|
Section 6.14
|
|
Appointment of Authenticating Agent
|
|
42
|
|
|
|
ARTICLE VII
|
|
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
Section 7.1
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
43
|
|
Section 7.2
|
|
Preservation of Information, Communications to Holders
|
|
43
|
|
Section 7.3
|
|
Reports by Trustee
|
|
44
|
|
Section 7.4
|
|
Reports by Company
|
|
44
|
|
|
|
ARTICLE VIII
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
Section 8.1
|
|
Company May Consolidate, Etc., only on Certain Terms
|
|
44
|
|
Section 8.2
|
|
Successor Corporation Substituted
|
|
45
|
ii
I
NDENTURE
|
|
|
|
|
|
|
ARTICLE IX
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
Section 9.1
|
|
Supplemental Indentures Without Consent of Holders
|
|
46
|
|
Section 9.2
|
|
Supplemental Indentures with Consent of Holders
|
|
47
|
|
Section 9.3
|
|
Execution of Supplemental Indentures
|
|
48
|
|
Section 9.4
|
|
Effect of Supplemental Indentures
|
|
48
|
|
Section 9.5
|
|
Conformity with Trust Indenture Act
|
|
48
|
|
Section 9.6
|
|
Reference in Securities to Supplemental Indentures
|
|
48
|
|
|
|
ARTICLE X
|
|
COVENANTS
|
|
|
|
|
|
Section 10.1
|
|
Payment of Principal, Premium and Interest
|
|
48
|
|
Section 10.2
|
|
Maintenance of Office or Agency
|
|
48
|
|
Section 10.3
|
|
Money for Securities Payments to be Held in Trust
|
|
49
|
|
Section 10.4
|
|
Statement as to Compliance
|
|
50
|
|
Section 10.5
|
|
Waiver of Certain Covenants
|
|
50
|
|
Section 10.6
|
|
Sale or Issuance of Capital Stock of Principal Subsidiary Bank
|
|
50
|
|
|
|
ARTICLE XI
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
Section 11.1
|
|
Applicability of this Article
|
|
52
|
|
Section 11.2
|
|
Election to Redeem; Notice to Trustee
|
|
52
|
|
Section 11.3
|
|
Selection of Securities to be Redeemed
|
|
52
|
|
Section 11.4
|
|
Notice of Redemption
|
|
53
|
|
Section 11.5
|
|
Deposit of Redemption Price
|
|
53
|
|
Section 11.6
|
|
Payment of Securities Called for Redemption
|
|
54
|
|
|
|
ARTICLE XII
|
|
SINKING FUNDS
|
|
|
|
|
|
Section 12.1
|
|
Applicability of Article
|
|
54
|
|
Section 12.2
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
54
|
|
Section 12.3
|
|
Redemption of Securities for Sinking Fund
|
|
55
|
|
|
|
ARTICLE XIII
|
|
REPAYMENT AT THE OPTION OF HOLDERS
|
|
|
|
|
|
Section 13.1
|
|
Applicability of Article
|
|
56
|
|
Section 13.2
|
|
Repayment of Securities
|
|
56
|
|
Section 13.3
|
|
Exercise of Option; Notice
|
|
56
|
|
Section 13.4
|
|
Securities Payable on the Repayment Date
|
|
57
|
|
|
|
ARTICLE XIV
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
Section 14.1
|
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
|
|
57
|
iii
I
NDENTURE
|
|
|
|
|
|
|
Section 14.2
|
|
Defeasance and Discharge
|
|
57
|
|
Section 14.3
|
|
Covenant Defeasance
|
|
58
|
|
Section 14.4
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
58
|
|
Section 14.5
|
|
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions
|
|
60
|
|
Section 14.6
|
|
Reinstatement
|
|
60
|
iv
I
NDENTURE
SUNTRUST BANKS, INC.
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
|
|
|
|
|
TRUST INDENTURE ACT SECTION
|
|
INDENTURE SECTION
|
|
§ 310(a)(1), (2) and (5)
|
|
6.9
|
|
(a)(3)
|
|
Not Applicable
|
|
(a)(4)
|
|
Not Applicable
|
|
(b)
|
|
6.8
|
|
|
|
6.10
|
|
(c)
|
|
Not Applicable
|
|
§ 311(a)
|
|
6.13
|
|
(b)
|
|
6.13
|
|
§ 312(a)
|
|
7.1
|
|
|
|
7.2(a)
|
|
(b)
|
|
7.2(b)
|
|
(c)
|
|
7.2(c)
|
|
§ 313(a)
|
|
7.3(a)
|
|
|
|
7.3(b)
|
|
(b)
|
|
7.3(b)
|
|
(c)
|
|
7.3(a), 7.3(b)
|
|
(d)
|
|
7.3(c)
|
|
§ 314(a)(1), (2) and (3)
|
|
7.4
|
|
(a)(4)
|
|
10.4
|
|
(b)
|
|
Not Applicable
|
|
(c)(1)
|
|
1.2
|
|
(c)(2)
|
|
1.2
|
|
(c)(3)
|
|
Not Applicable
|
|
(d)
|
|
Not Applicable
|
|
(e)
|
|
1.2
|
|
(f)
|
|
Not Applicable
|
|
§ 315(a)
|
|
6.1
|
|
(b)
|
|
6.2
|
|
(c)
|
|
6.1
|
|
(d)
|
|
6.1
|
|
(e)
|
|
5.14
|
|
§ 316(a)
|
|
1.1
|
|
(a)(1)(A)
|
|
5.12
|
|
(a)(1)(B)
|
|
5.13
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
5.8
|
|
(c)
|
|
1.4(f)
|
|
§ 317(a)(1)
|
|
5.3
|
|
(a)(2)
|
|
5.4
|
|
(b)
|
|
10.3
|
|
§ 318(a)
|
|
1.7
|
v
I
NDENTURE
|
Note:
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
|
vi
I
NDENTURE
S
ENIOR
I
NDENTURE
, dated as of September 10,
2007, between
S
UN
T
RUST
B
ANKS
, I
NC
.
, a Georgia corporation (hereinafter called the “
Company
”), having its principal office at 303 Peachtree Street, N.E., Atlanta, GA
30308, and
U.S. B
ANK
N
ATIONAL
A
SSOCIATION
, a national banking association, as Trustee (hereinafter called the “
Trustee
”).
R
ECITALS
OF
THE
C
OMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured senior debt
securities in series (hereinafter called the “
Securities
”) of substantially the tenor hereinafter provided, and to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered.
All things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company,
the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done.
N
OW
THEREFORE
,
THIS
I
NDENTURE
WITNESSETH
:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1
Definitions.
For all purposes of
this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in
this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all
other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting principles that are generally accepted at the date or time of such computation;
provided
that when two or more principles are so generally accepted, it
shall mean that set of principles consistent with those in use by the Company;
(4) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) unless the context otherwise requires, any reference to an “Article,” a “Section” or a “Subsection”
refers to an Article, Section or Subsection, as the case may be, of this Indenture.
I
NDENTURE
“
Act
” when used with respect to any Holder has the meaning specified in
Section 1.4(a).
“
Additional Interest
” means the interest, if any, that shall accrue on any interest on the
Securities of any series the payment of which has not been made on the applicable Interest Payment Date and that shall accrue at the rate
per annum
specified or determined as specified in such Security.
“
Additional Taxes
” means the sum of any additional taxes, duties, assessments or governmental charges of whatever nature, other than
withholding taxes, imposed by the United States, or any other taxing authority.
“
Affiliate
” of any specified Person means
any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“
Authenticating Agent
” means any Person authorized by the Trustee pursuant to
Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“
Board of Directors
”
means either the board of directors of the Company or any committee of that board duly authorized to act hereunder.
“
Board
Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or such committee of the Board of Directors or officers of the Company to
which authority to act on behalf of the Board of Directors has been delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” means any day other than a Saturday, Sunday, or any other day on which banking institutions and trust companies in New
York, New York or Atlanta, Georgia, are permitted or required by any applicable law to close.
“
Capital Stock
” of any
Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) the equity of such Person, including any Preferred Stock, but excluding any debt
securities convertible into such equity.
“
Commission
” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on
such date.
“
Company
” means the Person named as the “Company” in the first paragraph of this instrument until a
successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“
Company Request
” and “
Company Order
” mean, respectively, the written request or order signed in the name of the
Company by the Chairman of the Board of Directors, the Chairman of the Executive Committee of the Board of Directors, a Vice Chairman of the Board of Directors, the Chief
2
I
NDENTURE
Executive Officer, the President, the Chief Operating Officer, a Vice Chairman or a Vice President, the Treasurer, an Assistant Treasurer, the Secretary, an
Assistant Secretary or the Comptroller of the Company, and delivered to the Trustee.
“
Corporate Trust Office
” means the
principal office of the Trustee at which at any particular time its corporate trust business shall be administered.
“
corporation
” includes a corporation, association, company, joint-stock company or business trust.
“
Debt
” means with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent, (i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); (v) every capital lease obligation of such Person; (vi) all Other Financial Obligations of such Person; and (vii) every obligation of
the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable, directly or indirectly, as obligor or
otherwise.
“
Defaulted Interest
” has the meaning specified in Section 3.7.
“
Depositary
” means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Company pursuant to Section 3.1 with respect to such series (or any successor thereto).
“
Discount Security
” means any security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
“
Dollar
” means the currency of the United States of America that, as at the time of payment, is legal
tender for the payment of public and private debts.
“
DTC
” means The Depository Trust Company.
“
Event of Default
” unless otherwise specified in a supplemental indenture creating a series of Securities has the meaning specified in
Article V.
“
Exchange Act
” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case
as amended from time to time.
“
Federal Reserve
” means the Board of Governors of the Federal Reserve System, as from time
to time constituted, or if at any time after the execution of this Indenture the Federal Reserve is not existing and performing the duties now assigned to it, then the bodies performing such duties at such time, or the Federal Reserve Bank of
Atlanta, or any successor Federal reserve bank having primary jurisdiction over the Company.
3
I
NDENTURE
“
Global Security
” means a Security evidencing all or part of a series of Securities,
issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee.
“
Government
Obligations
” means securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
“
Holder
” means a Person in whose name a Security is registered in the Securities Register.
“
Indenture
” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of each particular series of Securities established as contemplated by Section 3.1.
“
Interest Payment Date
” means as to each series of Securities the Stated Maturity of an installment of interest on such Securities.
“
Lead Bank
” means SunTrust Bank, and its successors (whether by consolidation, merger, conversion, transfer of
substantially all of its assets and business or otherwise).
“
Maturity
” when used with respect to any Security means the
date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the
Holder or otherwise.
“
Notice of Default
” means a written notice of the kind specified in Section 6.2.
“
Officers’ Certificate
” means a certificate signed by the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer, the President or a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“
Opinion of Counsel
” means a written opinion of counsel, who may be counsel for or an employee of the Company or an Affiliate of the
Company, and who shall be reasonably acceptable to the Trustee.
“
Original Issue Date
” means the date of issuance
specified as such in each Security.
4
I
NDENTURE
“
Other Financial Obligations
” means, with respect to a Person, all obligations of such
Person to make payment pursuant to the terms of financial instruments, such as (i) securities contracts and foreign currency exchange contracts, (ii) derivative instruments, such as swap agreements (including interest rate and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts, and (iii) in the case of both
(i) and (ii) above, similar financial instruments.
“
Outstanding
” means, when used in reference to any
Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Securities;
(iii) Securities, except solely to the extent provided in Sections 14.2 or 14.3, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Article XIV; and
(iv) Securities in substitution for or in
lieu of which other Securities have been authenticated and delivered or that have been paid pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however
, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (A) the principal amount of a Discount Security that shall be deemed to be Outstanding shall be the amount
of the principal thereof that would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.2, (B) if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.1, (C) the principal amount of a Security denominated in
one or more foreign currencies or currency units that shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.1, of the principal amount of such
Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities that a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor. Upon the written request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company, or any other obligor on the
Securities or any Affiliate of the Company or such obligor, and, subject to the provisions of Section 6.1, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
5
I
NDENTURE
“
Paying Agent
” means the Trustee or any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“
Person
” means a legal person,
including any individual, corporation, estate, partnership, joint venture, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature.
“
Place of Payment
” means, with respect to the Securities of any series, the place or places where the principal of (and premium, if
any) and interest on the Securities of such series are payable pursuant to Section 3.1.
“
Predecessor Security
” of
any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“
Preferred Stock
” means, as applied to the Capital Stock of any corporation, Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
“
Principal Subsidiary Bank
” means any Subsidiary Bank, the consolidated assets of which constitute 50% or more of the consolidated
assets of the Company.
“
Redemption Date
,” when used with respect to any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.
“
Redemption Price
,” when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“
Regular Record Date
” for the
interest payable on any Interest Payment Date with respect to the Securities of a series means, unless otherwise provided pursuant to Section 3.1 with respect to Securities of a series, the date that is the last day of the month immediately
preceding the month in which such Interest Payment Date falls (whether or not a Business Day).
“
Repayment Date,
” when
used with respect to any Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed for such repayment pursuant to this Indenture.
“
Repayment Price
,” when used with respect to any Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which it is to be repaid pursuant to this Indenture.
“
Responsible Officer
” means, when used with respect to the Trustee, any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice president, assistant treasurer, assistant secretary, any financial services officer or any other officer of the Trustee
6
I
NDENTURE
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.
“
Securities
” or “
Security
” means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture.
“
Securities Act
” means the Securities Act of 1933 (or any successor statute), as it may be amended from time to time.
“
Securities Register
” and “
Securities Registrar
” have the respective meanings specified in Section 3.5.
“
Special Record Date
” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 3.7.
“
Stated Maturity
” when used with respect to any Security or any installment of principal thereof or
interest thereon means the date specified pursuant to the terms of such Security as the date on which the principal of such Security or such installment of interest is due and payable, in the case of such principal, as such date may be shortened or
extended as provided pursuant to the terms of such Security and this Indenture.
“
Subsidiary
” means a corporation more
than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For purposes of this definition, “voting stock”
means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“
Subsidiary Bank
” means any Subsidiary of the Company which is a bank or trust company organized and doing business under any state or
federal law.
“
Trustee
” means the Person named as the “Trustee” in the first paragraph of this instrument until
a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder and, if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
Trust Indenture Act
” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbb), as amended and as in effect on the date as of this Indenture, except as provided in Section 9.5.
“
Vice President
” when used with respect to the Company means any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title “vice president.”
“
Voting Stock
” of a Person means all
classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof.
“
Wholly-owned Subsidiary
” means a Subsidiary all the Capital Stock of which (other than directors’
qualifying shares and shares held by other Persons to the extent such shares are required by applicable law to be held by a Person other than the Company or a Subsidiary) is owned by the Company or one or more Wholly-owned Subsidiaries.
7
I
NDENTURE
Section 1.2
Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 10.4) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each
such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.3
Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
8
I
NDENTURE
Section 1.4
Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders 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 herein otherwise expressly provided, such action shall become effective when such instrument or instruments is or
are delivered to the Trustee, and, where it is hereby expressly required, to the Company. 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 Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) 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 the certificate of any 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 Person acting in other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be
proved in any other manner that the Trustee deems sufficient.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every 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 Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series,
provided
that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record date,
provided
that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date (as hereinafter in this
Section provided) by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in
Section 1.6.
9
I
NDENTURE
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in
Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on
such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date,
provided
that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a
new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
With respect to any
record date set pursuant to this Section, the party hereto that sets such record dates may designate any day as the “
Expiration Date
” and from time to time may change the Expiration Date to any earlier or later day,
provided
that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180
th
day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180
th
day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such 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 principal amount.
Section 1.5
Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.1) hereunder if in writing and mailed, first class,
10
I
NDENTURE
postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.6
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to
other Holders. In case, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the relevant Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.7
Conflict
with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.8
Effect of Headings and
Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 1.9
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
11
I
NDENTURE
Section 1.11
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder
and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12
Governing
Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.13
Legal Holidays.
In
any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other
than a provision of any Security that specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business
Day at such Place of Payment (and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case may be, until such next succeeding 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 the Interest Payment Date, Redemption Date or Repayment Date or at
the Stated Maturity).
ARTICLE II
SECURITY FORMS
Section 2.1
Forms Generally.
The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 with respect to the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such Securities.
12
I
NDENTURE
Section 2.2
Form of Face of Security.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A DEPOSITORY INSTITUTION AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
SUNTRUST BANKS, INC.
(TITLE OF SECURITY)
SUNTRUST BANKS, INC., a corporation organized and existing under the laws of Georgia (hereinafter
called the “
Company
”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of Dollars
[
If the
Security is a Global Security, then insert, if applicable
— , or such other principal amount as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture,
]
on ,
(the “
Stated Maturity Date
”). The Company further promises to pay interest on said principal sum from , or from the most recent interest payment date (each such date, an “
Interest Payment Date
”) on which interest
has been paid or duly provided for,
[
monthly
] [
quarterly
] [
semi-annually
]
in arrears on
[
Insert applicable Interest Payment Dates
]
of each year, commencing , , at the rate of %
per annum
[
If applicable, describe method for calculating floating rate
]
,
[
If applicable, insert —
plus Additional Interest, if any,
]
until the principal hereof is paid or duly provided for or made available
for payment
[
If applicable, insert —
and on any overdue principal 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 rate of
%
per annum
, compounded
[
monthly
] [
quarterly
] [
semi-annually
]]
. In the event that any date on which interest is payable on this Security is not a Business Day, then a payment of the interest 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 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 the date the payment was originally payable. A “
Business Day
” shall mean any day other than a Saturday, Sunday, or any other day on which
banking institutions and trust companies in New York, New York or Atlanta, Georgia, are permitted or required by any applicable law to close. 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 Security (or one or more Predecessor Securities is registered at the close of business on the Regular Record Date for such interest installment, which shall be the
[
Insert definition of Regular Record Dates
]
. Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
[(If the
Security is not to bear interest prior to Maturity, insert:) The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration,
13
I
NDENTURE
upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or
premium shall be payable on demand.] [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of
% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts
[
If applicable, insert —
;
provided, however,
that at
the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled thereto as specified in the Securities Register in writing not less than ten days before the date of the interest payment
]
.
[
If applicable, briefly describe the right of Holders to elect repayment.
]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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SUNTRUST BANKS, INC.
|
|
|
|
|
By:
|
|
|
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|
[
PRESIDENT OR VICE PRESIDENT
]
|
Attest:
[
SECRETARY OR ASSISTANT SECRETARY
]
Section 2.3
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the “
Securities
”), issued and to be issued in
one or more series under an Indenture, dated as of •, 2007 (herein called the “
Indenture
”), between the Company and U.S. Bank National Association, as Trustee (herein called the “
Trustee
”, which term includes
any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.
[
If applicable, insert
— By the terms of the Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest, rank and in any other respect provided in the Indenture.
]
14
I
NDENTURE
All terms used in this Security that are defined in the Indenture.
[(If applicable, insert:) The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, [(if applicable,
insert:) (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [(if applicable, insert:) on or after ,
20
], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [(if applicable, insert:) on or before
,
%, and if redeemed] during the 12-month period beginning
of the years indicated,
|
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|
Year
|
|
Redemption Price
|
|
Year
|
|
Redemption Price
|
and thereafter at a Redemption Price equal to
% of the principal amount, together
in the case of any such redemption [(if applicable, insert:) (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[(If applicable, insert:) The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth
in the table below, and (2) at any time [(if applicable, insert:) on or after ], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
|
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Year
|
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Redemption Price For Redemption
Through Operation of the Sinking Fund
|
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Redemption Price For Redemption
Otherwise Than Through Operation of the
Sinking Fund
|
and thereafter at a Redemption Price equal to
% of the principal amount, together
in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
15
I
NDENTURE
[(If applicable, insert:) Notwithstanding the foregoing, the Company may not, prior to , redeem any
Securities of this series as contemplated by [(if applicable, insert:) Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than % per annum.]
[(If applicable, insert:) The sinking fund for this series provides for the redemption on in each year beginning with the year
and ending with the year
of [(if applicable, insert:) not less than $ (“mandatory sinking fund”) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [(if applicable, insert:)
mandatory] sinking fund payments may be credited against subsequent [(if applicable, insert:) mandatory] sinking fund payments otherwise required to be made [(if applicable, insert:) , in the inverse order in which they become due].]
[In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company and of the Holders of the Securities, with the consent of the Holders of
not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
[(If applicable, insert:) The
Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions
set forth in the Indenture.]
[
If the security is not a Discount Security
, insert — As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of this series may declare the principal amount of all the Securities of this series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders).
]
[
If the security is a Discount Security
, insert — As provided in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than such portion of the principal amount as may be specified in the terms of
this series may declare an amount of principal and accrued but unpaid interest of the Securities of this series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders). Such amount shall be
equal to
[
Insert formula for determining the amount
]
. Upon any such declaration, such
16
I
NDENTURE
amount of the principal of and the accrued interest (including any Additional Interest) on all the Securities of this series shall become immediately due and
payable. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company’s obligations in respect of the payment of the principal of and interest, if any, on this Security shall terminate.
]
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided
in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company
maintained under Section 10.2 of the Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without coupons in minimum denominations of $1,000 and any integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of such series of a different authorized
denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Security agree that for U.S. federal, state and local tax purposes it is intended that this Security constitute indebtedness.
The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.
17
I
NDENTURE
Section 2.4
Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1 for the Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
T
HIS
S
ECURITY
IS
A
G
LOBAL
S
ECURITY
WITHIN
THE
MEANING
OF
THE
I
NDENTURE
HEREINAFTER
REFERRED
TO
AND
IS
REGISTERED
IN
THE
NAME
OF
A
D
EPOSITARY
OR
A
NOMINEE
THEREOF
. T
HIS
S
ECURITY
MAY
NOT
BE
EXCHANGED
IN
WHOLE
OR
IN
PART
FOR
S
ECURITY
REGISTERED
,
AND
NO
TRANSFER
OF
THIS
S
ECURITY
IN
WHOLE
OR
IN
PART
MAY
BE
REGISTERED
,
IN
THE
NAME
OF
ANY
PERSON
OTHER
THAN
SUCH
D
EPOSITARY
OR
A
NOMINEE
THEREOF
,
EXCEPT
IN
THE
LIMITED
CIRCUMSTANCES
DESCRIBED
IN
THE
I
NDENTURE
.
U
NLESS
THIS
C
ERTIFICATE
IS
PRESENTED
BY
AN
A
UTHORIZED
REPRESENTATIVE
OF
T
HE
D
EPOSITORY
T
RUST
C
OMPANY
,
A
N
EW
Y
ORK
C
ORPORATION
(“DTC”),
TO
THE
I
SSUER
OR
ITS
AGENT
FOR
REGISTRATION
OR
TRANSFER
,
EXCHANGE
OR
PAYMENT
,
AND
ANY
C
ERTIFICATE
ISSUED
IS
REGISTERED
IN
THE
NAME
OF
C
EDE
& C
O
.
OR
IN
SUCH
OTHER
NAME
AS
IS
REQUESTED
BY
AN
AUTHORIZED
REPRESENTATIVE
OF
DTC (
AND
ANY
PAYMENT
IS
MADE
TO
C
EDE
& C
O
.
OR
TO
SUCH
OTHER
ENTITY
AS
IS
REQUESTED
BY
AN
AUTHORIZED
REPRESENTATIVE
OF
DTC),
ANY
TRANSFER
,
PLEDGE
OR
OTHER
USE
HEREOF
FOR
VALUE
OR
OTHERWISE
BY
OR
TO
ANY
PERSON
IS
WRONGFUL
INASMUCH
AS
THE
REGISTERED
OWNER
, C
EDE
& C
O
.,
HAS
AN
INTEREST
HEREIN
.
Section 2.5
Form of Trustee’s Certificate of
Authentication.
The Trustee’s certificate of authentication shall be substantially in the following form:
This is one of the Securities referred to in the within mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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Not in its individual capacity but solely
as
Trustee
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By:
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AUTHORIZED OFFICER
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ARTICLE III
THE SECURITIES
Section 3.1
Amount Unlimited Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be established in or pursuant to a Board
Resolution, and, subject to Section 3.3, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of such series, which shall distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.6 or 13.3 and except for any Securities
that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
provided, however
, that the authorized aggregate principal amount of such series may be increased above such amount by a Board
Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the
method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall bear interest, the rate or
rates and extent to which Additional Interest, if any, shall be payable in respect of any Securities of such series, or the method or methods by which such rate or rates may be determined, whether payment of interest will be contingent in any
respect and/or the interest rate reset, the date or dates from which such interest or Additional Interest shall accrue, the Interest Payment Dates on which such interest shall be payable, and the Regular Record Date for the interest payable on any
Security on any Interest Payment Date, or the method by which any of the foregoing shall be determined;
(e) if applicable, the remarketing
or extension features of the Securities of the series;
(f) the place or places where the principal of (and premium, if any) and interest
on the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices and demands to or upon the Company in respect
of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if any, the price or prices
at which and the terms and conditions upon which the Securities of such series may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation or the right, if any, of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall be issuable, if other than
denominations of $1,000 and any integral multiple of $1,000 in excess thereof;
(j) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and premium, if any) and interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining
the equivalent thereof in Dollars for purposes of the definition of Outstanding;
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(k) the additions, modifications or deletions, if any, in the Events of Default or covenants of the
Company set forth herein with respect to the Securities of such series;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof;
(m) any
index or indices used to determine the amount of payments of principal of and premium, if any, on the Securities of such series or the manner in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall initially be issuable in the form of a temporary Global Security representing all
or such portion of the Securities of such series and provisions for the exchange of such temporary Global Security for definitive Securities of such series;
(o) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the
form of any legend or legends that shall be borne by any such Global Security and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of such series;
(q) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;
(r)
the applicability, if any of Sections 14.2 and/or 14.3 to the Securities of or within the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article XIV;
(s) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto.
If any of
the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
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Section 3.2
Denominations.
The Securities of each series shall be in registered form without coupons and shall be issuable in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.1.
Section 3.3
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President or one of its Vice Presidents and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have
been established by or pursuant to Board Resolution as permitted by Section 3.1, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
If such form or terms have been so
established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual signature of one of its authorized officers, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 3.9, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 3.4
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary
Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency of the Company designated for that purpose without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations having the same Original Issue Date and Stated Maturity and having the same terms as such
temporary Securities. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.5
Registration, Transfer and Exchange.
The Company shall cause to be kept at each office or agency maintained for registrations of transfers and exchanges in a Place of Payment pursuant to Section 10.2 with respect to the Securities of each series a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. Each such register is herein sometimes referred to as the “S
ecurities
Register
.” The Company shall designate one Person to maintain the Securities Register for the Securities of each series on a consolidated basis, and such Person is referred to herein, with respect to such series, as the “
Securities
Registrar
.” The Company appoints the Trustee as Securities Registrar unless otherwise specified with respect to any particular series in accordance with Section 3.1. Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with respect to the Securities of one or more series shall be maintained, and the Company may designate itself the Securities Registrar with respect to one or more of such series.
The Company may revoke any designation of a Securities Registrar theretofore made by it. The Securities Register shall be open for inspection by the Trustee and the Company at all reasonable times.
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Upon surrender for registration of transfer of any Security at the office or agency of the Company
designated for that purpose the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity and having the same terms.
At the option of the Holder,
Securities may be exchanged for other Securities of the same series of any authorized denominations, of a like aggregate principal amount, of the same Original Issue Date and Stated Maturity and having the same terms, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled
to receive.
All Securities issued upon any transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Every
Security presented or surrendered for transfer or exchange shall (if so required by the Company or the Securities Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a
Holder for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global Security and no successor Depositary has been appointed within 90 days of this notice or (ii) has ceased to be a clearing agency registered under the Exchange Act
at a time when the Depositary is required to be so registered to act as depositary and no successor Depositary has been appointed within 90 days after the Company has learned that the Depositary has ceased to be so registered, (B) there shall
have occurred and be continuing an Event of Default with respect to such Global Security, (C) the Company in its sole discretion determines that such Global Security will be so exchangeable or transferable or (D) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.1.
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(3) Subject to Clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6, 11.6 or 13.3 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
(5) Neither any members of, or participants
in, the Depositary nor any other Persons on whose behalf such members or participants may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, and the
Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent, any Securities Registrar, any authenticating agent or any other agent of the Company or any agent of the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in the form of a Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company, the Trustee, any Paying Agent, any
Securities Registrar and any other agent of the Company and any agent of the Trustee shall be entitled to deal with any depositary (including any Depositary), and any nominee thereof, that is the holder of any such Global Security for all purposes
of this Indenture relating to such Global Security (including the payment of principal, premium, if any, and interest, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such
Global Security) as the sole holder of such Global Security and shall have no obligations to the beneficial owners thereof. None of the Company, the Trustee, any Paying Agent, any Securities Registrar or any other agent of the Company or any agent
of the Trustee shall have any responsibility or liability for any acts or omissions of any such depositary with respect to such Global Note, for the records of any such depositary, including records in respect of beneficial ownership interests in
respect of any such Global Security, for any transactions between such depositary and any members or participants in the Depositary or other participant in such depositary or between or among any such depositary, any such member or participant in
the Depositary or other participant and/or any holder or owner of a beneficial interest in such Global Security or for any transfers of beneficial interests in any such Global Security. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary,
members or participants of the Depositary and any other Person on whose behalf a member or participant of the Depositary may act, the operation of customary practices of such Persons governing the exercise of the rights of a beneficial holder of any
Global Security.
Neither the Company nor the Trustee shall be required, pursuant to the provisions of this Section, (a) to issue,
register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of selection for redemption of Securities pursuant to Article XI and ending at the close of
business on the day of mailing of notice of redemption or (b) to transfer or exchange any Security so selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, any portion thereof not to be
redeemed.
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Section 3.6
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same issue and series of like tenor and principal amount, having the same Original Issue Date and Stated Maturity, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security,
and (ii) such security or indemnity as may be required by them to save each of them and any agent of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same issue and series of like tenor and principal amount, having the same Original Issue Date and
Stated Maturity as such destroyed, lost or stolen Security, and bearing a number not contemporaneously outstanding.
In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company and the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7
Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series that is payable, and is punctually paid or duly provided for, on any Interest Payment Date, shall be
paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest in respect of Securities of such series, except that, unless otherwise
provided in the Securities of such series, interest payable on the Stated Maturity of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series that is issued
between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.1 with respect to the related series of Securities.
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Any interest on any Security that is payable, but is not timely paid or duly provided for, on any
Interest Payment Date for Securities of such series (herein called “
Defaulted Interest
”), shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series in respect of which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest that shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid, to each Holder of a Security of such series at the address of such Holder as it appears in the Securities Register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of which interest is in default may be listed and, upon such notice as may be required by such exchange (or by the Trustee if the Securities are not listed), if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
Section 3.8
Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.7) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
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No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have
any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as
between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security.
Section 3.9
Cancellation.
All Securities
surrendered for payment, redemption, repayment, transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities
surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities shall be destroyed by the Trustee and the Trustee shall deliver to the Company a certificate of such destruction.
Section 3.10
Computation of Interest.
Except as otherwise specified as contemplated by
Section 3.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11
Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, such Security agree to treat for U.S. federal, state and local tax purposes such Security as indebtedness of the Company
and to treat for U.S. federal income tax purposes stated interest on the Security as ordinary interest income that is includible in gross income to such Holder or other Person at the time the interest is paid or accrued in accordance with its
regular method of tax accounting.
Section 3.12
CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee or its designee shall use “CUSIP” numbers in notices of redemption or other related
material as a convenience to Holders;
provided
that any such notice or other related material may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of
redemption or other related material and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1
Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this Section) and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities that have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year of the date of deposit, or
(iii) are to be called for redemption within one year by the Trustee in the name, and at the expense, of the Company,
and the
Company, in the case of Clause (B)(i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the currency or currencies in which the Securities of such
series are payable sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest (including any Additional Interest) to the date
of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 shall survive.
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Section 4.2
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by the Trustee, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for the payment of which such money or obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
Section 5.1
Events of Default.
“
Event of Default
,” wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series, including any Additional Interest in respect thereof, when it
becomes due, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal
of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company with respect to that series contained in such Securities or otherwise established with respect to that series of Securities pursuant to Section 3.1 or contained in this Indenture (other than a covenant or
warranty a default in the performance of which or the breach of which is specifically dealt with elsewhere in this Section or which expressly has been included in this Indenture solely for the benefit of Securities of a series other than such
series) and such default or breach has not been cured or waived within 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal
amount (or, if the Securities of that series are Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of the Outstanding Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5)
the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial
part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or
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(6) a court or other governmental agency or body having jurisdiction in the premises
shall enter a decree or order for the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the
Lead Bank or all or substantially all of the property of the Lead Bank, and such decree or order shall have remained in force undischarged or unstayed for a period of 90 days; or
(7) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) the Lead Bank shall consent to the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the Lead Bank or all or substantially all of the property of the Lead Bank; or
(9) any other Event of Default provided with respect to Securities of that series.
Section 5.2
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.1(5) or 5.1(7)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount
(or specified portion thereof) of and the accrued interest (including any Additional Interest) on all the Securities of such series shall become immediately due and payable. If an Event of Default specified in Section 5.1(5) or 5.1(7) and with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if the Securities of that series are Discount Securities, such portion of the principal amount of such Securities as
may be specified by the terms of that series) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue installments of interest (including any Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that has become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (and premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous obligations (and premium, if any) and interest (including any Additional Interest); and, in addition thereto, all amounts owing the Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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Section 5.4
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal (and premium, if any) or interest (including any Additional Interest)) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest (including any Additional Interest)
owing and unpaid in respect to the Securities and to file such other papers or documents as may be necessary or advisable and to take any and all actions as are authorized under the Trust Indenture Act in order to have the claims of the Holders and
any predecessor to the Trustee under Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the
Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in accordance with Section 5.6, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to
it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding;
provided, however
, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.5
Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of all the amounts owing the Trustee and any predecessor Trustee under Section 6.7, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
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Section 5.6
Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal (or premium, if any) or interest (including any Additional Interest), upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all
amounts due the Trustee and any predecessor Trustee;
SECOND: To the payment of the amounts then due and unpaid upon such series of
Securities for principal (and premium, if any) and interest (including any Additional Interest), in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such series of Securities for principal (and premium, if any) and interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7
Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more
of such Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
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Section 5.8
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7) interest (including any Additional Interest) on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.9
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or such
Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10
Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11
Delay or Omission Not Waiver.
No
delay or omission of the Trustee or any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or the Holders, as the case may be.
Section 5.12
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and
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(3) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction or would involve the
Trustee in personal liability.
Section 5.13
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest, if any) on any Security of such series, or
(2) in respect of a provision
hereof that under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such series.
Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 5.14
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest (including any Additional Interest) on any Security on or after the respective Stated Maturities expressed in such Security.
Section 5.15
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
Section 6.1
Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2
Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the Trustee of the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Securities Register, notice of such default, unless such default shall have been cured or
waived;
provided, however
, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest (including any Additional Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests
of the Holders of Securities of such series. For the purpose of this Section, the term “default” means any event that is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.3
Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, Security or other paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel 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 reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it
in compliance with such request or direction;
(f) the 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, indenture, security or other paper or document, but the Trustee in its discretion may make such inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of
its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(i) in the exercise of the rights and
powers vested in it by this Indenture, the Trustee shall use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. No provision of this
Indenture shall be construed to relieve the Trustee from liability with respect to matters that are within the authority of the Trustee under this Indenture for its own negligent action, negligent failure to act or willful misconduct, except that:
(i) the Trustee shall not be liable for any error or judgment made in good faith by an authorized officer of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(ii) the 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 Company or the Holders of at least a majority in aggregate principal amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy available to the Trustee under this Indenture.
Section 6.4
Not Responsible
for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
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Section 6.5
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
Section 6.6
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.7
Compensation and Reimbursement.
The Company agrees
(1) to
pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, claim, action, suit, cost or expense of any kind and nature whatsoever incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or the performance
of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under the Bankruptcy Reform Act of 1978 or any successor statute.
Section 6.8
Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by
such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series if all such series rank equally at the time of issuance.
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Section 6.9
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or
more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and shall be:
(a) 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 exercise corporate trust powers and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series
issued hereunder.
Section 6.10
Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a Board Resolution, may remove the Trustee
with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least
six months may, subject to Section 5.14, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11
Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder
of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an instrument in writing or an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such instrument in writing or supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such instrument in writing or supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
Section 6.12
Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided
such corporation shall be 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. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication
shall have the full force that it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have.
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Section 6.13
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
Section 6.14
Appointment
of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities
that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company 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 Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent that shall be
acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.6 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.
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If an appointment with respect to one or more series is made pursuant to this Section, the Securities of
such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
Dated:
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U.S. BANK NATIONAL ASSOCIATION,
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not in its individual capacity but solely
as
Trustee
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By:
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AS AUTHENTICATING AGENT
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By:
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AUTHORIZED OFFICER
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ARTICLE VII
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1
Company to Furnish
Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) monthly, quarterly or semi-annually, as the case may be, not more than 15 days after each Regular Record Date in each year, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding
from any such list names and addresses received by the Trustee in its capacity as Securities Registrar.
Section 7.2
Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as Securities Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the Trust Indenture Act.
Section 7.3
Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later than 60 days after September 30 in each calendar year, commencing with the first September 30 after the first issuance of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any securities exchange.
Section 7.4
Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, copies of such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act;
provided
that
any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same are filed with the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1
Company May Consolidate, Etc., only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as
an entirety shall be organized and existing under the laws of the United States of America or any State or the District of Columbia and shall expressly assume, by an indenture
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supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest (including any Additional Interest) on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and any such supplemental indenture comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee, subject to Section 6.1, may rely upon such Officers’ Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section.
Section 8.2
Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other Person, or any conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; and in the event of any such conveyance, transfer or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to
the Trustee for authentication pursuant to such provisions and any Securities that such successor Person thereafter shall cause to be signed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities
so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be
made in the Securities thereafter to be issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or to surrender any right or power herein
conferred upon the Company; or
(3) to establish the form or terms of Securities of any series as permitted by
Section 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred
upon the Company; or
(5) to add any additional Events of Default for the benefit of the Holders of all or any series of
Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(6) add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities,
provided
that any such addition, change or elimination (a) shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or
(b) shall not apply to any Outstanding Securities; or
(7) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture,
provided
that such action pursuant to this
clause (7) shall not adversely affect the interest of the Holders of Securities of any series in any material respect; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b);
(9) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or
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(10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 4.1, 14.2 and 14.3; provided in each case that any such action shall not adversely affect the interests of the Holders of Securities of
such series and any related coupons or any other series of Securities in any material respect.
Section 9.2
Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture;
provided, however
,
that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of interest (including any Additional Interest) on, any Security, or reduce the principal amount thereof or the rate of interest thereon or reduce any premium payable
upon the redemption thereof, or reduce the amount of principal of a Discount Security or any other Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the place of
payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of
this Section, Section 5.13 or Section 10.5, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
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Section 9.3
Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.4
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5
Conformity with
Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
Section 9.6
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required
by the Company, bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of such
Securities and this Indenture.
Section 10.2
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities, an office or agency where Securities of that series may be presented or
surrendered for payment and an office or agency where Securities of that series may be surrendered for transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be
served. The Company initially appoints the Trustee, acting through its Corporate Trust Office, as its agent for said purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If
at any time the Company shall fail to maintain such office or
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agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations;
provided, however,
that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such office or agency.
Section 10.3
Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to 10:00 a.m. New York City
time on each due date of the principal of or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal and premium (if any) or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1)
hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities
of that series) in the making of any payment of principal of (and premium, if any) or interest; and
(3) at any time during
the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Security of that series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid on Company Request to
the Company, or (if then held by the Company) shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however,
that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4
Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of each calendar year of the Company ending after the date
hereof, an Officers’ Certificate covering the preceding calendar year, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. For the purpose of this Section, compliance shall
be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.
Section 10.5
Waiver of
Certain Covenants.
The Company may omit in any particular instance to comply with any covenant or condition provided pursuant to
Section 3.1, 9.1(3) or 9.1(4) with respect to the Securities of any series, if before or after the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company in respect of any such covenant or condition shall remain in full force and effect. If the Securities of a series have not been registered under the Securities Act, the Holders of at
least a majority in principal amount of such series, by Act of such Holders, may waive compliance by the Company with the Trust Indenture Act with respect to such series unless such compliance is otherwise required by the Trust Indenture Act.
Section 10.6
Sale or Issuance of Capital Stock of Principal Subsidiary Bank.
Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.1 and subject to the provisions
of Article VIII, the Company shall not, directly or indirectly:
(1) sell, assign, pledge, transfer or otherwise dispose of,
or permit to be issued, any shares of Capital Stock of a Principal Subsidiary Bank or any securities convertible into or rights to subscribe to such Capital Stock, unless, after giving effect to (i) such sale, pledge, assignment,
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transfer, disposition or issuance, and (ii) the conversion of such securities into, or exercise of such rights with respect to, such Capital Stock, the
Company will own, directly or indirectly, at least 80% of the outstanding shares of Capital Stock of each class of Capital Stock of such Principal Subsidiary Bank; or
(2) pay any dividend in Capital Stock of a Principal Subsidiary Bank or make any other distribution in Capital Stock of a Principal
Subsidiary Bank, unless the Principal Subsidiary Bank to which the transaction relates, after obtaining any necessary regulatory approvals, unconditionally guarantees payment of the principal and any premium and interest on the Securities;
provided, however, the foregoing shall not prohibit any of the following:
(i) any dispositions made by the Company or any Principal Subsidiary Bank of the Company (A) acting in a fiduciary capacity for any
Person other than the Company or any Principal Subsidiary Bank of the Company or (B) to the Company or any Wholly-owned Subsidiary;
(ii) the merger or consolidation of a Principal Subsidiary Bank with and into another Principal Subsidiary Bank;
(iii) the sale, assignment, pledge, transfer or other dispositions of shares of Voting Stock of a Principal Subsidiary Bank made by the Company or any Subsidiary of the Company if:
(A) the sale, assignment, pledge, transfer or other disposition is made, in the minimum amount required by law, to any Person for the
purpose of the qualification of such Person to serve as a director; or
(B) the sale, assignment, pledge, transfer or other
disposition is made in compliance with an order of a court or regulatory authority of competent jurisdiction or as a condition imposed by any such court or regulatory authority to the acquisition by the Company or any Principal Subsidiary Bank of
the Company, directly or indirectly, of any other Person; or
(C) the sale, assignment, pledge, transfer or other
disposition of Voting Stock or any other securities convertible into or rights to subscribe to Voting Stock of a Principal Subsidiary Bank, so long as:
(a) any such transaction is made for fair market value as determined by the Board of Directors or the board of directors of the Principal Subsidiary Bank of the Company disposing of such Voting Stock or other
securities or rights, and
(b) after giving effect to such transaction and to any potential dilution, the Company and its
Wholly-owned Subsidiaries will own, directly or indirectly, at least 80% of the Voting Stock of such Principal Subsidiary Bank;
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(iv) any Principal Subsidiary Bank from selling additional shares of Voting Stock to its
shareholders at any price, so long as immediately after such sale, the Company owns, directly or indirectly, at least as great a percentage of the Voting Stock of such Principal Subsidiary Bank as the Company owned prior to such sale of additional
shares; or
(v) a pledge made or a lien created to secure loans or other extensions of credit by a Principal Subsidiary Bank
subject to Section 23A of the Federal Reserve Act.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1
Applicability of this Article.
Redemption of Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of Security and this Article;
provided, however
, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such
form of Security shall govern. Except as otherwise set forth in the form of Security for such series, each Security of such series shall be subject to partial redemption only in the amount of $1,000 or integral multiples thereof.
Section 11.2
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of any of the Securities of any particular series and having the same
terms, the Company shall, not less than 30 nor more than 60 days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such date and of the principal amount of Securities of that
series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate and
an Opinion of Counsel evidencing compliance with such restriction.
Section 11.3
Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and that may provide for the selection for redemption of
a portion of the principal amount of any Security of such series,
provided
that the unredeemed portion of the principal amount of any Security shall be in a denomination (which shall not be less than the minimum authorized denomination) for
such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for partial redemption and the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in
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the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed.
If the Company shall so direct, Securities registered in the name of the Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 11.4
Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not later than the thirtieth day, and not earlier than the sixtieth day, prior to the Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price provided pursuant to the Indenture together with a
statement that it is an estimate and that the actual Redemption Price will be calculated on a specified day prior to the Redemption Date;
(c) if less than all Outstanding Securities of such particular series and having the same terms are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and payable
upon each such Security or portion thereof, and that interest thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and
(f)
that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company and shall not be irrevocable. The notice if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
Section 11.5
Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in the notice of redemption given as provided in Section 11.4, the
Company will deposit with the Trustee or with one or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company will segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and any accrued interest (including Additional Interest) on, all the Securities that are to be redeemed on that date.
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Section 11.6
Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places stated in such notice at the applicable Redemption Price. On presentation and surrender of such Securities at a Place of Payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date;
provided, however
, that,
unless otherwise specified as contemplated by Section 3.1, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant record dates according to their terms and the provisions of Section 3.7.
Upon
presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Original Issue Date, Stated Maturity and terms. If a Global Security is so surrendered, such new Security (subject to
Section 3.5) will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal of and premium, if any, on such Security shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
ARTICLE XII
SINKING FUNDS
Section 12.1
Applicability of Article.
The
provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any sinking fund payment in excess of such minimum amount that is permitted to be made by the terms of such Securities of any series is herein referred to as an “optional sinking fund payment.” If provided
for by the terms of any Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption (or purchase by tender or
otherwise) of Securities of any series as provided for by the terms of such Securities.
Section 12.2
Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash,
the Company may at its option, at any time no more than 16 months and no less than 45 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series (together with the unmatured coupons,
if any, appertaining thereto) theretofore purchased or otherwise acquired by the Company, except Securities of such series that have been redeemed through the application of mandatory or optional sinking fund payments pursuant to the terms of the
Securities of such series, accompanied by a Company Order instructing the Trustee to credit such
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obligations and stating that the Securities of such series were originally issued by the Company by way of bona fide sale or other negotiation for value;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price for such Securities, as specified in
the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash in the currency in which the Securities of such series are payable (except as provided pursuant to Section 3.1) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 12.2 and will also deliver to the Trustee any Securities to be so delivered. Such Officers’ Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash
payment or payments therein referred to, if any, on or before the succeeding sinking fund payment date. In the case of the failure of the Company to deliver such Officers’ Certificate (or, as required by this Indenture, the Securities and
coupons, if any, specified in such Officers’ Certificate), the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the
Securities of such series subject to a mandatory sinking fund payment without the right to deliver or credit securities as provided in Section 12.2 and without the right to make the optional sinking fund payment with respect to such series at
such time.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund
payments made with respect to the Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to
the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying Agent, segregated and held in trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities of
such series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal
of the Securities of such series at Maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.6. On or before each
sinking fund payment date, the Company shall pay to the Trustee (or, if the Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 10.3) in cash a sum in the currency in which Securities
of such series are payable (except as provided pursuant to Section 3.1) equal to the principal, premium, if any, and any interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
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Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund moneys or
mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than
an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee (or the Company,
if the Company is then acting as its own Paying Agent) shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company) for that purpose in accordance with the terms of this Article.
Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Securities and coupons, if any, of such series;
provided, however
, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be
applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1
Applicability of Article.
Securities of any series that are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and (except as otherwise specified pursuant to Section 3.1 for Securities of
such series) in accordance with this Article.
Section 13.2
Repayment of Securities.
Each Security that is subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable
Repayment Price together with interest accrued to such Repayment Date as specified pursuant to Section 3.1.
Section 13.3
Exercise of Option;
Notice.
Each Holder desiring to exercise such Holder’s option for repayment shall, as conditions to such repayment, surrender the
Security to be repaid in whole or in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not less than 30 nor more than 45 days prior to the Repayment Date. Such notice,
which shall be irrevocable, shall specify the principal amount of such Security to be repaid, which shall be equal to the minimum authorized denomination for such Security or an integral multiple thereof, and shall identify the Security to be repaid
and, in the case of a partial repayment of the Security, shall specify the denomination or denominations of the Security or Securities of the same series to be issued to the Holder for the portion of the principal of the Security surrendered that is
not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver without service charge to the Holder of any
Security so surrendered a new Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal amount equal to any portion of the principal of the Security so surrendered that is
not to be repaid.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the
repayment of Securities shall relate, in the case of any Security repaid or to be repaid only in part, to the portion of the principal of such Security that has been or is to be repaid.
Section 13.4
Securities Payable on the Repayment Date.
Notice of exercise of the option of
repayment having been given and the Securities so to be repaid having been surrendered as aforesaid, such Securities shall, unless purchased in accordance with this Section, on the Repayment Date become due and payable at the price therein specified
and from and after the Repayment Date such Securities shall cease to bear interest and shall be paid on the Repayment Date, unless the Company shall default in the payment of such price in which case the Company shall continue to be obligated for
the principal amount of such Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Securities from time to time until payment in full of such principal amount.
ARTICLE XIV
DEFEASANCE AND
COVENANT DEFEASANCE
Section 14.1
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.1 provision is made for either or both of (a) defeasance of the Securities of a series under Section 14.2 or
(b) covenant defeasance of the Securities of a series under Section 14.3, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article XIV, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 14.2 (if applicable) or Section 14.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in this Article XIV.
Section 14.2
Defeasance and Discharge.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any coupons appertaining thereto on and after the date the conditions set forth in Section 14.4 are satisfied (hereinafter,
“defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 14.5 and the other Sections of this Indenture referred to in clauses (A) and (B) below, and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining thereto to receive, solely from the trust fund
described in Section 14.4 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities and any coupons appertaining thereto
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when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article. Subject to compliance with this Article XIV, the Company may exercise its option under this Section notwithstanding the prior exercise of its option
under Section 14.3 with respect to such Securities and any coupons appertaining thereto.
Section 14.3
Covenant Defeasance.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be
released from its obligations under Section 8.1 and Sections 10.4 to 10.6, inclusive, and, if specified pursuant to Section 3.1, its obligations under any other covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section 14.4 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not
“Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Section 8.1 and Sections 10.4 to 10.6, inclusive, or such other covenant, but
shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such
other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 5.1(4) or
5.1(9) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 14.4
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 14.2 or Section 14.3 to any Outstanding Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of this Article XIV applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities and any coupons appertaining thereto, (1) an amount in such currency, currencies or currency unit in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity,
or (2) if Securities of such series are not subject to early repayment at the option of the Holders, Government Obligations applicable to such Securities and coupons appertaining thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities and any coupons appertaining thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and any
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coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and any coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any coupons
appertaining thereto; provided, that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Company may give
to the Trustee, in accordance with Section 11.2 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article XI hereof,
which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a breach or default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound (and shall
not cause the Trustee to have a conflicting interest pursuant to Section 310(b) of the Trust Indenture Act with respect to any Security of the Company).
(c) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 5.1(5) and 5.1(7) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 14.2, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 14.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance under Section 14.2 or the covenant defeasance under Section 14.3 (as the case
may be) have been complied with and an Opinion of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise of the Company’s option under Section 14.2 or
Section 14.3 (as the case may be) registration is not required under the Investment Company Act of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the Trustee for such trust funds or
(ii) all necessary registrations under said Act have been effected.
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(g) After the 91st day following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.
(h) Notwithstanding any
other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to
Section 3.1.
Section 14.5
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 14.5, the “Trustee”) pursuant to Section 14.4 in respect of any Outstanding
Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 14.4 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 14.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Article.
Section 14.6
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or the Government
Obligations, as the case may be, in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture, such Securities and any coupons appertaining thereto from which the Company has been discharged or released pursuant to Section 14.2 or 14.3 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money or Government Obligations, as the case may be, held in trust pursuant to Section 14.5 with respect to such
Securities and any coupons appertaining thereto in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities or coupons to receive such payment from the money or Government Obligations, as the case may be, so held in trust.
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* * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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N
W
ITNESS
W
HEREOF
, the parties hereto
have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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S
UN
T
RUST
B
ANKS
, I
NC
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By:
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/s/ Kenneth R. Houghton
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Attest:
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By:
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/s/ Raymond D. Fortin
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U.S. B
ANK
N
ATIONAL
A
SSOCIATION
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Individually and as Trustee
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By:
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/s/ Gary Dougherty
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Name:
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Gary Dougherty
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Title:
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Vice President
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Attest:
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By:
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/s/ Andrew M. Sinasky
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I
NDENTURE
