-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LHip/QXo4VIXtZeuqwD33fO0JjrXmb0TzRSSroSSUDu7OjQ3Q9L4wq1LeprFG5Br nqdQg5egv5fz85ax1H719w== /in/edgar/work/20000612/0000950144-00-007741/0000950144-00-007741.txt : 20000919 0000950144-00-007741.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950144-00-007741 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20000612 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST BANKS INC CENTRAL INDEX KEY: 0000750556 STANDARD INDUSTRIAL CLASSIFICATION: [6021 ] IRS NUMBER: 581575035 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-61583 FILM NUMBER: 653426 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 BUSINESS PHONE: 4045887711 MAIL ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 POS AM 1 0001.txt SUNTRUST BANKS, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 2000 REGISTRATION NO. 333-61583 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ SUNTRUST BANKS, INC. (Exact name of registrant as specified in its charter) ------------------------ GEORGIA 58-1575035 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.)
303 PEACHTREE STREET, N.E. ATLANTA, GEORGIA 30308 (404) 588-7711 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) RAYMOND D. FORTIN, ESQ. SENIOR VICE PRESIDENT SUNTRUST BANKS, INC. 303 PEACHTREE STREET, N.E. ATLANTA, GEORGIA 30308 (404) 588-7165 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------ COPIES REQUESTED TO: MARY A. BERNARD SUSAN J. SUTHERLAND KING & SPALDING SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1185 AVENUE OF THE AMERICAS FOUR TIMES SQUARE NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10036 (212) 556-2100 (212) 735-3000
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] ------------------------ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] ------------------------ CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------ AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) FEE - ------------------------------------------------------------------------------------------------------------------ Debt securities.......................... $400,000,000(1) 100% $400,000,000 $118,000(3)(4) - ------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------
(1) Plus such additional principal amount as may be necessary such that, if debt securities are issued with an original issue discount, the aggregate initial offering price of all debt securities will equal $400,000,000. There remains $300,000,000 of debt securities unsold under this Registration Statement. (2) Estimated pursuant to Rule 457 under the Securities Act of 1933 solely for the purpose of calculating the registration fee. (3) Previously paid. (4) The securities covered by the market making prospectus contained in this registration statement have been previously registered under the Securities Act of 1933 under registration statements on Form S-3 filed by SunTrust Banks, Inc. (File Nos. 333-61583, 333-46093, 333-01719, 333-10159, 333-54493, 33-62162 and 33-30368, and Crestar Financial Corporation (File Nos. 33-50387 and 33-32812). In accordance with Rule 457(a), registration fees previously have been paid with respect thereto. SunTrust Banks, Inc. acquired Crestar Financial Corporation in a merger transaction completed on December 31, 1998. Following the merger, Crestar Financial Corporation was a wholly owned subsidiary of SunTrust Banks, Inc. On December 31, 1999, Crestar Financial Corporation was merged into another wholly owned subsidiary of SunTrust Banks, Inc., which subsidiary survived the merger and changed its name to "SunTrust Bank Holding Company." ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 INTRODUCTORY NOTE This Post Effective Amendment No. 1 to Registration Statement No. 333-61583 contains (1) a form of prospectus relating to debt securities of SunTrust Banks, Inc., which has been updated, among other things, to reflect the SEC's plain english rules, and (2) a form of prospectus that may be used by any broker-dealer subsidiary of SunTrust Banks, Inc. in connection with offers and sales of the previously issued securities described therein in market-making transactions. 3 SUBJECT TO COMPLETION, DATED JUNE 12, 2000 $300,000,000 SUNTRUST BANKS, INC. DEBT SECURITIES ------------------------ We may offer from time to time up to $300,000,000 of debt securities. We will provide the specific terms of these securities in supplements to this prospectus. You should read this prospectus and the accompanying prospectus supplement carefully before you invest. ------------------------ Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The debt securities will be our unsecured obligations, will not be saving accounts, deposits or other obligations of ours or any of our subsidiaries and will not be insured by the Federal Deposit Insurance Corporation, the bank insurance fund or any other governmental agency or instrumentality. ------------------------- The date of this prospectus is June , 2000 4 ABOUT THIS PROSPECTUS This prospectus is a part of a registration statement that we filed with the SEC using a "shelf" registration process. Under this shelf process, we may sell debt securities in one or more offerings up to a total dollar amount of $300,000,000. This prospectus provides you with a general description of the debt securities. Each time we sell debt securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under the heading "Where You Can Find More Information." WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at its public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. Our SEC filings are also available at the office of the New York Stock Exchange. For further information on obtaining copies of our public filings at the New York Stock Exchange, you should call (212) 656-5060. The SEC allows us to "incorporate by reference" into this prospectus the information we file with them, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this prospectus and information that we subsequently file with the SEC will automatically update and supercede information in this prospectus and in our other filings with the SEC. We incorporate by reference the documents listed below, which we have already filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all the debt securities offered by this prospectus: - Annual Report on Form 10-K for the year ended December 31, 1999; - Quarterly Report on Form 10-Q for the quarter ended March 31, 2000; and - Current Report on Form 8-K dated April 11, 2000. 2 5 You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing or calling us at the following address: SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 (404) 658-4879 Attention: Eugene S. Putnam, Jr. Senior Vice President We have also filed a registration statement (No. 333-61583) with the SEC relating to the debt securities. This prospectus is part of the registration statement. You may obtain from the SEC a copy of the registration statement and exhibits that we filed with the SEC when we registered the debt securities. The registration statement may contain additional information that may be important to you. You should rely only on the information contained or incorporated by reference in this prospectus or the applicable prospectus supplement. We have not authorized anyone else to provide you with additional or different information. We may only use this prospectus to sell debt securities if it is accompanied by a prospectus supplement. We are only offering these debt securities in states where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the dates on the front of those documents. FORWARD-LOOKING STATEMENTS This prospectus contains forward-looking statements. We may also make forward-looking statements in reports filed with the SEC that we incorporate by reference in this prospectus. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words "believes," "expects," "anticipates," "plans," "estimates" or similar expressions. These statements are based on beliefs and assumptions of our management, and on information currently available to our management. Forward-looking statements are not guarantees of performance. They involve risks, uncertainties and assumptions. We caution you that a number of important factors could cause actual results to differ materially from those contained in any forward-looking statement. Many of these factors are beyond our ability to control or predict. Such factors include, but are not limited to, the following: - competitive pressures among depository and other financial institutions may increase significantly; - changes in the interest rate environment may reduce margins; - general economic or business conditions may lead to a deterioration in credit quality or a reduced demand for credit; - legislative or regulatory changes, including changes in accounting standards, may adversely affect the business in which we are engaged; 3 6 - changes in the securities markets; and - our competitors may have greater financial resources and develop products that enable them to compete more successfully than we do. We believe these forward-looking statements are reasonable; however, undue reliance should not be placed on any forward-looking statements, which are based on current expectations. Further, forward-looking statements speak only as of the date they are made, and we undertake no obligation to update publicly any of them in light of new information or future events. SUNTRUST BANKS, INC. We are the ninth largest commercial banking organization in the U.S. with assets of approximately $96.0 billion at March 31, 2000. We provide a full line of consumer and commercial banking services to more than 3.7 million customers through over 1,100 full-service banking offices in Alabama, Florida, Georgia, Maryland, Tennessee, Virginia and the District of Columbia. Our primary businesses include traditional deposit and credit services as well as trust and investment services. We also provide, through various subsidiaries, credit cards, mortgage banking, credit-related insurance, discount brokerage and investment banking services. As of March 31, 2000, we had total deposits of $66.3 billion, discretionary trust assets of $88.7 billion and a mortgage servicing portfolio of $39.6 billion. Under the long-standing policy of the Board of Governors of the Federal Reserve System, which we refer to as the Federal Reserve, a bank holding company is expected to act as a source of financial strength for its subsidiary banks and to commit resources to support these banks. As a result of this policy, we may be required to commit resources to our subsidiary banks in circumstances where we might not otherwise do so. Because we are a bank holding company, our rights and the rights of our creditors, including the holders of any of the debt securities offered by this prospectus, to participate in the distribution and payment of assets of any of our subsidiaries upon the subsidiary's liquidation or recapitalization would be subject to the prior claims of such subsidiary's creditors except to the extent that we may be a creditor with recognized claims against the subsidiary. We are incorporated under the laws of the State of Georgia. Our principal executive offices are located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308. Our general information telephone number is 404-588-7711. USE OF PROCEEDS Unless the applicable prospectus supplement states otherwise, we will use the net proceeds from the sale of any debt securities for general corporate purposes. These purposes may include the following: - repayment of long-term debt; - repayment of short-term debt, including commercial paper; - redemption or repurchase of shares of our outstanding common and preferred stock; 4 7 - investments at the holding company level; - investments in, or extensions of credit to, our banking and other subsidiaries and other banks and financial services companies; and - possible acquisitions. Until we use the net proceeds we may temporarily invest the net proceeds in short-term marketable securities. RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges of our company, which includes our subsidiaries, on a consolidated basis. The ratio of earnings to fixed charges has been computed by dividing: - net income plus all applicable income taxes plus fixed charges, by - fixed charges. Fixed charges represent interest expense, either including or excluding interest on deposits as set forth below, and the portion of net rental expense deemed to be equivalent to interest on long-term debt. Interest expense, other than on deposits, includes interest on long-term debt, federal funds purchased and securities sold under agreements to repurchase, mortgages, commercial paper and other funds borrowed. For 1999, the ratio of earnings to fixed charges has been computed excluding extraordinary gains.
THREE MONTHS ENDED YEAR ENDED DECEMBER 31, MARCH 31, -------------------------------- ------------ 1995 1996 1997 1998 1999 1999 2000 ---- ---- ---- ---- ---- ---- ---- Including interest on deposits.... 1.59 1.58 1.60 1.54 1.60 1.64 1.59 Excluding interest on deposits.... 3.13 3.11 2.76 2.33 2.39 2.52 2.76
CERTAIN REGULATORY CONSIDERATIONS The following discussion sets forth certain of the elements of the comprehensive regulatory framework applicable to bank holding companies and banks and provides certain specific information relevant to our company. Federal and state regulation of financial institutions such as our company is intended primarily for the protection of depositors and the federal deposit insurance funds rather than our shareholders or other creditors. GENERAL As a bank holding company, we are subject to the regulation and supervision of the Federal Reserve. As of December 31, 1999, we had 29 bank subsidiaries that were subject to supervision and regulation by applicable state and federal banking agencies, including the Federal Reserve, the Office of the Comptroller of the Currency, which we refer to as the Comptroller, and the Federal Deposit Insurance Corporation, which we refer to as the FDIC. Effective January 1, 2000, 27 of our bank subsidiaries merged into SunTrust Bank, Atlanta, which changed its name to SunTrust Bank. SunTrust Bank, which we refer to as 5 8 the Bank, is a Georgia state bank which now has branches in Alabama, Florida, Georgia, Maryland, Tennessee, Virginia and the District of Columbia. The Bank is a member of the Federal Reserve System and is regulated by the Federal Reserve and the Georgia Department of Banking and Finance. The Bank is subject to various requirements and restrictions under federal and state law, including requirements to maintain reserves against deposits, restrictions on the types and amounts of loans that may be made and the interest that may be charged thereon, and limitations on the types of investments that may be made and the types of services that may be offered. Various consumer laws and regulations also affect the operations of the Bank. In addition to the impact of regulation, commercial banks are affected significantly by the actions of the Federal Reserve as it attempts to control the money supply and credit availability in order to influence the economy. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, bank holding companies from any state may now acquire banks located in any other state, subject to certain conditions, including concentration limits. In addition, a bank may now establish branches across state lines by merging with a bank in another state (unless applicable state law prohibits such interstate mergers), provided certain conditions are met. Federal law and regulatory policy impose a number of obligations and restrictions on bank holding companies and their depository institution subsidiaries designed to reduce potential loss exposure to the depositors of such depository institutions and to the FDIC insurance fund in the event the depository institution becomes in danger of default or is in default. For example, under a policy of the Federal Reserve with respect to bank holding company operations, a bank holding company is required to serve as a source of financial strength to its subsidiary depository institutions and commit resources to support such institutions in circumstances where it might not do so absent this policy. In addition, the "cross-guarantee" provisions of federal law require insured depository institutions under common control to reimburse the FDIC for any loss suffered or reasonably anticipated as a result of the default of a commonly controlled insured depository institution or for any assistance provided by the FDIC to a commonly controlled insured depository institution in danger of default. In the event of the insolvency or receivership of the Bank, the claims of depositors and general creditors of the Bank are entitled to a priority of payment over any of our claims or claims of our creditors, including any claims based on any debt the Bank owes to us. Various regulatory bodies regulate and supervise our nonbanking subsidiaries. For example, SunTrust Equitable Securities Corporation is a broker-dealer and investment adviser registered with the SEC and a member of the New York Stock Exchange, Inc. and the National Association of Securities Dealers, Inc., which we refer to as the NASD. SunTrust Securities, Inc. and Crestar Securities Corporation are also broker-dealers registered with the SEC and members of the NASD. Trusco Capital Management, Inc. and Crestar Asset Management Company are investment advisers registered with the SEC. We also have one limited purpose national bank subsidiary, SunTrust BankCard, N.A., which is regulated by the Comptroller. On November 12, 1999, financial modernization legislation known as the Gramm-Leach-Bliley Act, which we refer to as the Act, was signed into law. The Act creates a new type of financial services company called a financial holding company. A bank holding company that elects to become a financial holding company may engage in expanded debt securities activities and insurance sales and underwriting activities, and may also acquire 6 9 debt securities firms and insurance companies, subject in each case to certain conditions. Securities firms and insurance companies may also choose to establish or become financial holding companies and thereby acquire banks, subject to certain conditions. We became a financial holding company under the Act in March 2000. In order to maintain our status as a financial holding company, we must maintain our capital levels, examination ratings, and Community Reinvestment Act examination ratings at levels higher than those required of a bank holding company that has not elected to become a financial holding company. In addition to the Act, there have been a number of legislative and regulatory proposals that would have an impact on the operation of bank/financial holding companies and their bank and nonbank subsidiaries. It is impossible to predict whether or in what form these proposals may be adopted in the future and, if adopted, what their effect will be on us. PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS There are various legal and regulatory limits on the extent to which the Bank may pay dividends or otherwise supply funds to us. In addition, federal and state bank regulatory agencies also have the authority to prevent a bank or bank holding company from paying a dividend or engaging in any other activity that, in the opinion of the agency, would constitute an unsafe or unsound practice. FDIC regulations require that management report annually on its responsibility for preparing its institution's financial statements, and establishing and maintaining an internal control structure and procedures for financial reporting and compliance with designated laws and regulations concerning safety and soundness. The principal source of our cash revenues is dividends from our subsidiaries, including the Bank. Federal and Georgia law limit the payment of these dividends to a certain extent. The Federal Reserve Bank or the Comptroller, as the case may be, must approve any dividend if the total of all dividends declared by any state member bank of the Federal Reserve or any national bank in any calendar year exceeds the bank's net income for that year combined with its retained net income for the preceding two years, less any required transfers to surplus or a fund for the retirement of any preferred stock. In addition, a dividend may not be paid in excess of a bank's undivided profits. The relevant federal and state bank regulatory agencies also have authority to prohibit a bank holding company, or a state or national bank from engaging in what, in the opinion of such regulatory body, constitutes an unsafe or unsound practice in conducting its business. Such regulatory agencies could deem the payment of dividends, depending upon the financial condition of the subsidiary, to constitute such an unsafe or unsound practice. Under Georgia law (which would apply to any payment of dividends by the Bank to us), the prior approval of the Georgia Department of Banking and Finance is required before any cash dividends may be paid by a state bank if: (1) total classified assets at the most recent examination of such bank exceed 80% of the Tier 1 capital plus the allowance for loan losses of such bank; (2) the aggregate amount of dividends declared or anticipated to be declared in the calendar year exceeds 50% of the net profits, after taxes but before dividends, for the previous calendar year; or (3) the ratio of Tier 1 capital to adjusted total assets is less than 6%. 7 10 Retained earnings of our banking subsidiaries available for payment of cash dividends under all applicable regulations without obtaining governmental approval totaled approximately $634.2 million as of March 31, 2000. In addition, the Bank is subject to limitations under Sections 23A and 23B of the Federal Reserve Act with respect to extensions of credit to, investments in, and certain other transactions with us and our other subsidiaries. Furthermore, such loans and extensions of credit, as well as certain other transactions, are also subject to various collateral requirements. CAPITAL ADEQUACY The Federal Reserve has adopted minimum risk-based and leverage capital guidelines for bank holding companies. The minimum required risk-based capital ratio of qualifying total capital to risk-weighted assets (including certain off-balance-sheet items, such as standby letters of credit) is 8%, of which 4% must consist of Tier 1 capital. As of December 31, 1999, our total risk-based capital ratio was 11.3%, including 7.5% of Tier 1 capital. The minimum required leverage capital ratio (Tier 1 capital to average total assets) is 3% for bank holding companies that meet certain specified criteria, including that they have the highest regulatory rating. As of December 31, 1999, our leverage capital ratio was 7.17%. Higher risk-based and leverage ratios may apply under certain circumstances. The Bank is subject to similar risk-based and leverage capital requirements adopted by the federal banking agencies. Failure to meet capital requirements can subject a bank to a variety of enforcement remedies, including additional substantial restrictions on its operations and activities, termination of deposit insurance by the FDIC, and under certain conditions the appointment of a receiver or conservator. The federal banking agencies have broad powers under current federal law to take prompt corrective action to resolve problems of insured depository institutions. The extent of these powers depends on whether the institutions in question are "well capitalized," "adequately capitalized," "undercapitalized," "significantly undercapitalized" or "critically undercapitalized," as these terms are defined under regulations issued by each of the federal banking agencies. Under certain circumstances, an institution may be downgraded to a category lower than that warranted by its capital levels and subjected to the supervisory restrictions applicable to institutions in the lower capital category. A depository institution is generally prohibited from making capital distributions (including paying dividends) or paying management fees to a holding company if the institution would thereafter be undercapitalized. An undercapitalized depository institution is subject to restrictions in a number of areas, including asset growth, acquisitions, branching, new lines of business, and borrowing from the Federal Reserve. In addition, an undercapitalized depository institution is required to submit a capital restoration plan. A depository institution's holding company must guarantee the capital plan up to an amount equal to the lesser of 5% of the depository institution's assets at the time it becomes undercapitalized or the amount needed to restore the capital of the institution to the levels required for the institution to be classified as adequately capitalized at the time the institution fails to comply with the plan and any such guarantee would be entitled to a priority of payment in bankruptcy. A depository 8 11 institution is treated as if it is significantly undercapitalized if it fails to submit a capital plan that is based on realistic assumptions and is likely to succeed in restoring the depository institution's capital. Significantly undercapitalized depository institutions may be subject to a number of additional significant requirements and restrictions, including requirements to sell sufficient voting stock to become adequately capitalized, to replace or improve management, to reduce total assets, to cease acceptance of correspondent bank deposits, to restrict senior executive compensation and to limit transactions with affiliates. Critically undercapitalized depository institutions are further subject to restrictions on paying principal or interest on subordinated debt, making investments, expanding, acquiring or selling assets, extending credit for highly-leveraged transactions, paying excessive compensation, amending their charters or bylaws and making any material changes in accounting methods. In general, a receiver or conservator must be appointed for a depository institution within 90 days after the institution is deemed to be critically undercapitalized. DESCRIPTION OF THE DEBT SECURITIES As used in this prospectus, debt securities means the debentures, notes, bonds and other evidences of indebtedness that we may issue from time to time. The debt securities will either be senior debt securities or subordinated debt securities. The debt securities will be issued under one or more separate indentures between us and a trustee. Senior debt securities will be issued under a "Senior Indenture" and subordinated debt securities will be issued under a "Subordinated Indenture". We sometimes refer to the Senior Indenture and the Subordinated Indenture in this prospectus collectively as the Indentures. Unless the applicable prospectus supplement states otherwise, the trustee under the Senior Indenture will be PNC Bank, National Association, and the trustee under the Subordinated Indenture will be Bank One Trust Company, N.A. (as successor in interest to The First National Bank of Chicago). We have summarized selected provisions of the Indentures below. The summary is not complete. The forms of the Indentures have been filed as exhibits to the registration statement and you should read the Indentures for provisions that may be important to you. In the summary below, we have included references to section numbers of the applicable Indenture so that you can easily locate these provisions. Capitalized terms used in the summary have the meaning specified in the Indentures. You can obtain copies of the Indentures by following the directions under the caption "Where You Can Find More Information" beginning on page 1 of this prospectus. GENERAL The Indentures do not limit the aggregate principal amount of debt securities that we may issue and provide that we may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. We may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable Indenture. The Indentures also do not limit our ability to incur other debt and do not contain financial or similar restrictive covenants. 9 12 A prospectus supplement relating to a series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following: - the title of the debt securities; - whether the debt securities are senior debt securities or subordinated debt securities; - any limit on the total principal amount of the debt securities; - the maturity date or dates of the debt securities; - the rate or rates of interest, which may be fixed or variable, per annum at which the debt securities will bear interest, or the method of determining such rate or rates, if any; - the date or dates from which interest, if any, will accrue; - the dates on which interest will be payable and the related record dates; - whether payments of principal or interest will be determined by any index, formula or other method and the manner of determining the amount of such payments; - the place or places where the principal of and premium, if any, and interest on the debt securities will be payable if other than the location specified in this prospectus; - any redemption dates, prices, rights, obligations and restrictions on the debt securities; - any mandatory or optional sinking fund, purchase fund or analogous provisions; - the denominations in which the debt securities will be issuable if other than denominations of $1,000 and integral multiples thereof; - the portion of the principal amount of the debt securities payable upon the acceleration of the maturity of the debt securities if other than the principal amount; - the currency or currency unit in which principal and interest will be paid if other than U.S. dollars; - whether we will issue the debt securities in permanent global form and the circumstances under which such permanent global debt security may be exchanged; - whether the subordination provisions summarized below or different subordination provisions will apply to the debt securities; - if such debt securities are senior debt securities, whether the defeasance provisions of the Senior Indenture will be applicable to such series of debt securities; - any special tax implications of the debt securities; - any deletions from, changes in or additions to the events of default or the covenants specified in the applicable Indenture; and - any other material terms of the debt securities not specified in this prospectus (Section 301). 10 13 We may issue both senior debt securities and subordinated debt securities at a substantial discount below their stated principal amount. We refer to these securities as Original Issue Discount Securities, which means any security that provides for an amount less than its principal amount to be due and payable upon the acceleration of its maturity. We will describe the federal income tax consequences and other special considerations applicable to any Original Issue Discount Securities in the applicable prospectus supplement. Unless the applicable prospectus supplement states otherwise, the debt securities will be issued only in fully registered form, without coupons, in denominations of $1,000 and any integral multiple thereof. Holders of debt securities will not pay any service charge for any registration of transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with such registration or transfer. PAYMENT; TRANSFER Unless the applicable prospectus supplement states otherwise, principal, premium, if any, and interest, if any, on the debt securities will be payable, and the debt securities will be transferable, at the corporate trust office of SunTrust Bank in Atlanta, Georgia, except that interest may be paid at our option by check mailed to the address of the holder entitled thereto as it appears on the security register. We will have the right to require a holder of any debt security, in connection with any payment on such debt security, to certify information to us or, in the absence of such certification, we will be entitled to rely on any legal presumption to enable us to determine our obligation, if any, to deduct or withhold taxes, assessments or governmental charges from such payment. RANKING General. The debt securities will be our direct unsecured obligations. The senior debt securities will rank equally with our other unsecured and unsubordinated indebtedness. The subordinated debt securities will rank junior to all Senior Indebtedness (as defined below) and, in certain circumstances, to all Additional Senior Obligations (as defined below). As of March 31, 2000, we had an aggregate of approximately $5,233.2 million of long-term Senior Indebtedness outstanding and an aggregate of approximately $720.2 million of short-term Senior Indebtedness outstanding, which consisted primarily of commercial paper. As of March 31, 2000, we had no Additional Senior Obligations outstanding. We expect from time to time to incur additional Senior Indebtedness and Additional Senior Obligations. The Indentures do not prohibit or limit the incurrence of additional Senior Indebtedness or Additional Senior Obligations. As of March 31, 2000, we had an aggregate of approximately $2,427.0 million of long-term subordinated debt securities outstanding. Because we are a holding company, our right and the rights of our creditors, including holders of debt securities, to participate in any distribution of assets of any of our subsidiaries upon its liquidation, reorganization or otherwise would be subject to the prior claims of creditors of that subsidiary, except to the extent that we are a creditor of that subsidiary with recognized claims. However, in the event of a liquidation or other resolution of an insured depository institution, the claims of depositors and other general or subordinated creditors are entitled to a priority of payment over the claims of holders of any obligation of the institution to its shareholders, including any depository institution holding company or any shareholder or creditor thereof. Our subsidiaries have significant 11 14 outstanding long-term debt and substantial obligations with respect to deposit liabilities and federal funds purchased, securities sold under repurchase agreements, other short-term borrowings and various other financial obligations. In addition, the Indentures and the debt securities will not contain any provision that would protect the holders of the debt securities against a sudden and dramatic decline in credit quality resulting from a takeover, recapitalization or similar restructuring of our company or other event involving us that may adversely affect our credit quality. Subordination of the Subordinated Securities. The subordinated debt securities will be subordinate and junior in right of payment to all of our Senior Indebtedness and, in certain circumstances relating to the dissolution, winding-up, liquidation of or reorganization of our company, to all Additional Senior Obligations (Article 13). Under the Subordinated Indenture "Senior Indebtedness" means (1) all indebtedness of our company for money borrowed, whether now outstanding or subsequently created, assumed or incurred, other than: - the subordinated debt securities; - any obligation ranking equally with the subordinated debt securities; or - any obligation ranking junior to the subordinated debt securities, and (2) any deferrals, renewals or extensions of any such Senior Indebtedness. The Subordinated Indenture defines the term indebtedness for money borrowed to mean: - any obligation of ours, or any obligation guaranteed by us, for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments; and - any deferred obligation for the payment of the purchase price of property or assets acquired other than in the ordinary course of business. The Subordinated Indenture defines Additional Senior Obligations to mean all of our indebtedness, whether now outstanding or subsequently created, assumed or incurred, for claims in respect of derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; provided, however, that Additional Senior Obligations do not include: (1) any claims in respect of Senior Indebtedness; or (2) any obligations ranking junior to or equally with the subordinated debt securities. As a result of these subordination provisions, no payment on account of the principal of, premium, if any, or interest on the subordinated debt securities may be made if a payment default with respect to Senior Indebtedness exists and any applicable grace period has expired or the maturity of any Senior Indebtedness has been accelerated. Upon any payment or distribution of assets to creditors upon any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities 12 15 or similar proceedings or any liquidation or winding-up of or relating to our company as a whole, whether voluntary or involuntary, (1) the holders of all Senior Indebtedness will first be entitled to receive payment in full before the holders of the subordinated debt securities will be entitled to receive any payment in respect of the principal of, premium, if any, or interest on the subordinated debt securities; and (2) if after giving effect to the operation of clause (1) above; - any assets remain available for payment or distribution in respect of the subordinated debt securities, and - creditors in respect of Additional Senior Obligations have not received payment in full; then the amounts referred to in the first bullet above will first be applied to pay or provide for the payment in full of all such Additional Senior Obligations before any payment may be made on the subordinated debt securities. If the holders of subordinated debt securities receive any payment at a time when they know that all Senior Indebtedness and Additional Senior Obligations have not been paid in full, then such payment shall be held in trust for the benefit of the holders of Senior Indebtedness and/or Additional Senior Obligations, as the case may be (Section 1301). As a result of these subordination provisions, in the event of our insolvency, holders of subordinated debt securities may recover less, ratably, than holders of Senior Indebtedness and Additional Senior Obligations. In addition, in the event of insolvency, our creditors that do not hold Senior Indebtedness or who hold subordinated debt securities may recover less, ratably, than holders of Senior Indebtedness and may recover more, ratably, than holders of the subordinated debt securities. RESTRICTION ON DISPOSITION OF VOTING STOCK OF CERTAIN SUBSIDIARIES Under the Senior Indenture, we have agreed not sell, assign, pledge, transfer or otherwise dispose of, or permit the issuance of, or permit a Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of Voting Stock of any Subsidiary or any securities convertible into Voting Stock of any Subsidiary which is: (1) a Principal Constituent Bank; or (2) a Subsidiary which owns shares of Voting Stock or any securities convertible into Voting Stock of a Principal Constituent Bank. Notwithstanding the foregoing, this covenant does not prohibit: - any dispositions made by us or any Subsidiary (A) acting in a fiduciary capacity for any Person other than us or any Subsidiary or (B) to us or any of its wholly owned (except for directors' qualifying shares) Subsidiaries; or - the merger or consolidation of a Principal Constituent Bank with and into a Principal Constituent Bank. 13 16 This covenant also does not prohibit sales, assignments, pledges, transfers or other dispositions of shares of Voting Stock of a corporation referred to in clause (1) or (2) above where: (1) the sales, assignments, pledges, transfers or other dispositions are 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 (2) the sales, assignments, pledges, transfers or other dispositions are 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 authority to the acquisition by us, directly or indirectly, of any other corporation or entity; or (3) in the case of a disposition of shares of Voting Stock or any securities convertible into Voting Stock of a Principal Constituent Bank, or sales of Voting Stock or any securities convertible into Voting Stock of any Subsidiary included in clause (2) above, the sales, assignments, pledges, transfers or other dispositions are: - for fair market value as determined by our board of directors or the board of directors of the Subsidiary disposing of such shares or securities; and - after giving effect to such disposition and to any potential dilution (if the shares or securities are convertible into Voting Stock), we and our directly or indirectly wholly owned Subsidiaries will own directly not less than 80% of the Voting Stock of such Principal Constituent Bank or Subsidiary; or (4) a Constituent Bank sells additional shares of Voting Stock to its shareholders at any price, so long as immediately after such sale we own, directly or indirectly, at least as great a percentage of the Voting Stock of such Constituent Bank as it owned prior to such sale of additional shares; or (5) a pledge is made or a lien is created to secure loans or other extensions of credit by a Constituent Bank subject to Section 23A of the Federal Reserve Act (Section 1005). Any Constituent Bank that has total assets equal to more than 15% of the total assets of all Constituent Banks is defined in the Senior Indenture to be a Principal Constituent Bank (Section 101). As of March 31, 2000, SunTrust Bank was the only Constituent Bank that is a Principal Constituent Bank. The Subordinated Indenture does not contain the foregoing covenant. EVENTS OF DEFAULT Definition. The Indentures define an Event of Default with respect to debt securities of any series as any one of the following events: (1) failure to pay any interest on any debt security of that series when due and payable, continued for 30 days; (2) failure to pay principal of or any premium on any debt security of that series when due; (3) failure to deposit any sinking fund payment, when due, in respect of any debt security of that series; 14 17 (4) failure to perform any other covenant in the applicable Indenture (other than a covenant included in such Indenture solely for the benefit of series of debt securities other than that series), continued for 90 days after written notice as provided in the applicable Indenture; (5) the entry of a decree or order for relief in respect of our company by a court having jurisdiction in the premises in an involuntary case under federal or state bankruptcy laws and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; (6) the commencement by us of a voluntary case under federal or state bankruptcy laws or the consent by us to the entry of a decree or order for relief in an involuntary case under any such law; and (7) any other Event of Default provided with respect to debt securities of that series (Section 501). Remedies. If an Event of Default: - with respect to senior debt securities of any series occurs and is continuing, or - described in clause (5) or clause (6) with respect to subordinated debt securities of any series occurs and is continuing, then either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare by notice in writing to us the principal amount (or, if the debt securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the debt securities of that series to be due and payable immediately. At any time after a judgment or decree based on acceleration has been obtained, the holders of a majority in aggregate principal amount of outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration (Section 502). Accordingly, unless the applicable prospectus supplement states otherwise, the payment of the principal of the subordinated debt securities may be accelerated only upon the occurrence of an Event of Default described in clause (5) or clause (6) of the preceding paragraph and may not be accelerated upon a payment or covenant default. In the event of a payment of covenant default with respect to subordinated debt securities, the trustee, subject to certain limitations and conditions, may institute judicial proceedings to enforce the payment of any amount due or the performance of such covenant or any other proper remedy (Section 503). Under certain circumstances, the trustee may withhold notice to the holders of the subordinated debt securities of a default if the trustee in good faith determines that the withholding of such notice is in the best interest of such holders, and the trustee shall withhold such notice for certain defaults for a period of 30 days (Section 602). Obligations of Trustee. The Indentures provide that, subject to the duty of the relevant trustee during default to act with the required standard of care, such trustee will be under no obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the holders, unless such holders shall have offered to such trustee reasonable security or indemnity (Section 603). Subject to such provisions for the indemnification of the trustee and to certain other conditions, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for 15 18 any remedy available to the relevant trustee, or exercising any trust or power conferred on such trustee, with respect to the debt securities of that series. However, such trustee may decline to act if the holders' direction is contrary to law or the applicable Indenture, would unduly prejudice the right of other holders or would involve such trustee in personal liability (Section 512). No holder of any debt security of any series will have any right to institute any proceeding with respect to the applicable Indenture, or for the appointment of a receiver or trustee or for any remedy, unless: - such holder has given the relevant trustee written notice of a continuing Event of Default with respect to the debt securities of that series; - the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the relevant trustee to institute such proceeding as trustee; - such trustee has not received an inconsistent direction from the holders of a majority in principal amount of the outstanding debt securities of that series; and - the trustee has failed to institute the requested proceeding within 60 days (Section 507). However, the holder of any debt security will have an absolute right to receive payment of the principal of, premium, if any, and interest on such debt security on the due dates expressed in such debt security and to institute suit for the enforcement of any such payment (Section 508). Under the Indentures we must furnish to the relevant trustee annually a statement regarding our performance of certain of our obligations under the applicable Indenture and as to any default in such performance (Section 1005). DEFEASANCE AND COVENANT DEFEASANCE The Senior Indenture provides that, to the extent indicated in the applicable prospectus supplement, we may choose to deposit in trust with the relevant trustee cash and/or government securities in an amount sufficient, without reinvestment, to pay all sums due on any series of senior debt securities. If we make this deposit, then, at our option, we: (1) will be deemed to have satisfied and paid all of our obligations in respect of the senior debt securities of a particular series; or (2) will not need to comply with certain restrictive covenants contained in the Senior Indenture and the occurrence of a covenant default will no longer be an Event of Default with respect to such series of senior debt securities, which we refer to as covenant defeasance. Such a trust may only be established if, among other things, - no Event of Default exists or occurs as a result of such deposit; and - we deliver an opinion of counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit. 16 19 If we exercise our covenant defeasance option with respect to any series of senior debt securities and the maturity of that series is accelerated upon an Event of Default, the amount of cash and government securities on deposit with the trustee may not be sufficient to pay amounts due on such senior debt securities at the time of the acceleration. However, we will remain liable with respect to such payments (Article 13). The Subordinated Indenture does not contain defeasance and covenant defeasance provisions. MODIFICATION AND WAIVER We and the relevant trustee may modify and amend the applicable Indenture with the consent of the holders of 66 2/3% in aggregate principal amount of the outstanding debt securities of each series affected by such modification or amendment. However, we may not, without the consent of the holder of each debt security affected: - change the maturity date of the principal of, or interest on, any debt security, - reduce the principal amount of, or any premium or rate of interest on, any debt security, - reduce the amount of principal of an Original Issue Discount Security payable upon acceleration of the maturity thereof, - change the place or currency of payment of principal of, or any premium or interest on, any debt security, - impair the right to institute suit for the enforcement of any payment on or with respect to any debt security, or - reduce the percentage in principal amount of outstanding debt securities of any series required to modify or amend either Indenture or to waive compliance with certain provisions of, or defaults under, either Indenture (Section 902). The holders of at least 66 2/3% in aggregate principal amount of the outstanding debt securities of each series may, on behalf of all holders of debt securities of that series, waive, insofar as that series is concerned, our compliance with certain restrictive provisions of the applicable Indenture. (Senior Indenture Section 1007; Subordinated Indenture Section 1006). The holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series may, on behalf of all holders of debt securities of that series, waive any past default under the applicable Indenture, except: - a default in the payment of principal of, or any premium or interest on, any debt security of that series; or - a default in respect of a covenant or provision which under such Indenture cannot be modified or amended without the consent of the holder of each debt security of the series affected (Section 513). 17 20 CONSOLIDATION, MERGER AND TRANSFER OF ASSETS We may consolidate with or merge into, or transfer our assets substantially as an entirety to, any corporation organized under the laws of the U.S, any state thereof or the District of Columbia, provided that: - the successor corporation assumes our obligations on the debt securities and under the Indentures, - after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred and be continuing, and - that certain other conditions are met (Section 801). TRUSTEES Either or both of the trustees may resign or be removed with respect to one or more series of debt securities and a successor trustee may be appointed to act with respect to such series (Section 610). In the event that two or more persons are acting as trustee with respect to different series of debt securities, each such trustee shall be a trustee of a trust under the related Indenture separate and apart from the trust administered by any other such trustee, and any action described herein to be taken by the "trustee" may then be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee (Section 611). In the normal course of business, we and our subsidiaries conduct banking transactions with the trustees, and the trustees conduct banking transactions with us and our subsidiaries. BOOK-ENTRY SECURITIES The debt securities of a series may be issued in the form of one or more book-entry securities that will be deposited with a Depositary or its nominee identified in the applicable prospectus supplement (Section 301). In such a case, one or more book-entry securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of debt securities of the series to be represented by such book-entry security or securities. Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a book-entry security may not be transferred except as a whole by the Depositary for such book-entry security to a nominee of such Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor of the Depositary or a nominee of such successor (Section 305). The specific terms of the depositary arrangement with respect to any portion of a series of debt securities to be represented by a book-entry security will be described in the applicable prospectus supplement. We anticipate that the following provisions will apply to all depositary arrangements. Upon the issuance of a book-entry security, the Depositary for such book-entry security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the debt securities represented by such book-entry security to the accounts of persons that have accounts with such Depositary, or participants. Such 18 21 accounts shall be designated by the underwriters or agents with respect to such debt securities or by us if such debt securities are offered and sold directly by us. Participants include securities brokers and dealers, banks and trust companies, clearing corporations and certain other organizations. Access to the Depositary's system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly, which we refer to as indirect participants. Persons who are not participants may beneficially own book-entry securities held by the Depositary only through participants or indirect participants. Ownership of beneficial interests in any book-entry security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depositary or its nominee with respect to interests of participants for such book-entry security and on the records of participants with respect to interests of indirect participants. The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws, as well as the limits on participation in the Depositary's book-entry system, may impair the ability to transfer beneficial interests in a book-entry security. So long as the Depositary or its nominee is the registered owner of a book-entry security, such Depositary or such nominee will be considered the sole owner or holder of the debt securities represented by such book-entry security for all purposes under the applicable Indenture. Except as provided below, owners of beneficial interests in debt securities represented by book-entry securities will not be entitled to have debt securities of the series represented by such book-entry security registered in their names, will not receive or be entitled to receive physical delivery of such debt securities in definitive form, and will not be considered the owners or holders thereof under the applicable Indenture. Payments of principal of, premium, if any, and interest on debt securities registered in the name of the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the book-entry security representing such debt securities. We expect that the Depositary for a series of debt securities or its nominee, upon receipt of any payment of principal, premium or interest, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the book-entry security for such debt securities, as shown on the records of such Depositary or its nominee. We also expect that payments by participants and indirect participants to owners of beneficial interests in such book-entry security held through such persons will be governed by standing instructions and customary practices, as is now the case with securities registered in "street name", and will be the responsibility of such participants and indirect participants. Neither us, the trustee, any authenticating agent, any paying agent, nor the security registrar for such debt securities will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the book-entry security for such debt securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests (Section 311). If the Depositary for debt securities of a series notifies us that it is unwilling or unable to continue as Depositary or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, we have agreed to appoint a successor depositary. If such a successor is not appointed by us within 90 days, we will issue debt securities of such series in definitive registered form in exchange for the book-entry security representing such series of debt securities. In addition, we may at any time and in our sole discretion determine that the debt securities of any series issued in the 19 22 form of one or more book-entry securities shall no longer be represented by such book-entry security or debt securities and, in such event, will issue debt securities of such series in definitive registered form in exchange for such book-entry security or securities representing such series of debt securities. Further, if we so specify with respect to the debt securities of a series, or if an Event of Default, or an event which with notice, lapse of time or both would be an Event of Default with respect to the debt securities of such series has occurred and is continuing, an owner of a beneficial interest in a book-entry security representing debt securities of such series may receive debt securities of such series in definitive registered form. In any such instance, an owner of a beneficial interest in a book-entry security will be entitled to physical delivery in definitive registered form of debt securities of the series represented by such book-entry security equal in principal amount to such beneficial interest and to have such debt securities registered in its name (Section 305). PLAN OF DISTRIBUTION We may sell any series of debt securities: - through underwriters or dealers; - through agents; or - directly to one or more purchasers. Any such underwriters, dealers or agents may include any of our broker-dealer subsidiaries, including SunTrust Equitable Securities. The distribution of the debt securities may be effected from time to time in one or more transactions: - at a fixed price or prices, which may be changed from time to time; - at market prices prevailing at the time of sale; or - at prices related to such prevailing market prices, or at negotiated prices. For each series of debt securities, the prospectus supplement will set forth the terms of the offering including: - the initial public offering price; - the names of any underwriters, dealers or agents; - the purchase price of the debt securities; - our proceeds from the sale of the debt securities; - any underwriting discounts, agency fees, or other compensation payable to underwriters or agents; - any discounts or concessions allowed or reallowed or repaid to dealers; and - the securities exchanges on which the debt securities will be listed, if any. If we use underwriters in the sale, they will buy the debt securities for their own account. The underwriters may then resell the debt securities in one or more transactions 20 23 at a fixed public offering price or at varying prices determined at the time of sale or thereafter. The obligations of the underwriters to purchase the debt securities will be subject to certain conditions. The underwriters will be obligated to purchase all the debt securities offered if they purchase any debt securities. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. In connection with an offering, underwriters and selling group members and their affiliates may engage in transactions to stabilize, maintain or otherwise affect the market price of the debt securities in accordance with applicable law. If we use dealers in the sale, we will sell debt securities to such dealers as principals. The dealers may then resell the debt securities to the public at varying prices to be determined by such dealers at the time of resale. If we use agents in the sale, they will use their reasonable best efforts to solicit purchases for the period of their appointment. If we sell directly, no underwriters or agents would be involved. We are not making an offer of debt securities in any state that does not permit such an offer. Underwriters, dealers and agents that participate in the debt securities distribution may be deemed to be underwriters as defined in the Securities Act of 1933. Any discounts, commissions, or profit they receive when they resell the debt securities may be treated as underwriting discounts and commissions under that Act. We may have agreements with underwriters, dealers and agents to indemnify them against certain civil liabilities, including certain liabilities under the Securities Act of 1933, or to contribute with respect to payments that they may be required to make. We may authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the debt securities from us on a future date at a specific price. This type of contract may be made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts. The debt securities will be new issues of securities with no established trading market and unless otherwise specified in the applicable prospectus supplement, we will not list any series of the debt securities on any exchange. It has not presently been established whether the underwriters, if any, of the debt securities will make a market in the debt securities. If the underwriters make a market in the debt securities, such market making may be discontinued at any time without notice. No assurance can be given as to the liquidity of the trading market for the debt securities. Our broker-dealer subsidiaries are members of the NASD and may participate in distributions of debt securities. Accordingly, offerings of debt securities in which our broker-dealer subsidiaries participate will conform with the provisions of Rule 2720 of the Conduct Rules of the NASD. This prospectus, together with any applicable prospectus supplement, may also be used by any of our broker-dealer subsidiaries in connection with offers and sales of debt securities in market-making transactions at negotiated prices related to prevailing market prices at the time of sale. Any of our broker- dealer subsidiaries, including SunTrust Equitable Securities, may act as principal or agent in such transactions. None of our broker-dealer subsidiaries has any obligation to make a market in any of the debt securities 21 24 and may discontinue any market-making activities at any time without notice, at its sole discretion. Underwriters, dealers or agents may be customers of, engage in transactions with, or perform services for, us and our subsidiaries in the ordinary course of business. LEGAL MATTERS Certain legal matters with respect to the debt securities will be passed upon for us by Raymond D. Fortin, Senior Vice President and Secretary, and by King & Spalding, and for any underwriters by Skadden, Arps, Slate, Meagher & Flom LLP. As of March 31, 2000, Mr. Fortin beneficially owned 7,500 shares of our common stock and held options to purchase 6,000 shares of our common stock. EXPERTS The audited consolidated financial statements of SunTrust Banks, Inc. incorporated by reference in this prospectus and elsewhere in the Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated herein in reliance upon the authority of said firm as experts in giving said report. 22 25 - ------------------------------------------------------ - ------------------------------------------------------ NO DEALER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT. YOU MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS AN OFFER TO SELL ONLY THE SECURITIES OFFERED HEREBY, BUT ONLY UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS CURRENT ONLY AS OF ITS DATE ------------------------ TABLE OF CONTENTS PROSPECTUS
PAGE ---- About this Prospectus................ 2 Where You Can Find More Information........................ 2 Forward-Looking Statements........... 3 SunTrust Banks, Inc.................. 4 Use of Proceeds...................... 4 Ratio of Earnings to Fixed Charges... 5 Certain Regulatory Considerations.... 5 Description of the Debt Securities... 9 Plan of Distribution................. 20 Legal Matters........................ 22 Experts.............................. 22
- ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ SUNTRUST BANKS, INC. ------------------ PROSPECTUS JUNE , 2000 ------------------ - ------------------------------------------------------ - ------------------------------------------------------ 26 Subject to completion, dated June 12, 2000 SUNTRUST BANKS, INC. - $200,000,000 of 7 3/8% Notes Due 2002 - $250,000,000 of Floating Rate Notes Due April 22, 2002 - $200,000,000 of 6 1/8% Subordinated Notes Due 2004 - $200,000,000 of 7 3/8% Subordinated Notes Due 2006 - $300,000,000 of 6.25% Senior Notes Due June 1, 2008 - $300,000,000 of 7.75% Subordinated Notes Due 2010 - $200,000,000 of 6% Subordinated Notes Due 2026 - $250,000,000 of 6% Senior Debentures Due January 15, 2028 SUNTRUST BANK HOLDING COMPANY, a wholly owned subsidiary of SunTrust Banks, Inc. and successor in interest to Crestar Financial Corporation - $125,000,000 of 8 1/4% Subordinated Notes Due 2002 - $150,000,000 of 8 3/4% Subordinated Notes Due 2004 - $150,000,000 of 6 1/2% Putable/Callable Subordinated Notes Due January 15, 2018 ------------------------ You should read this prospectus carefully before you invest in any of the securities listed above. ------------------------ Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The debt securities will be our unsecured obligations, will not be saving accounts, deposits or other obligations of ours or any of our subsidiaries and will not be insured by the Federal Deposit Insurance Corporation, the bank insurance fund or any other governmental agency or instrumentality. ------------------------ The date of this prospectus is June , 2000 27 ABOUT THIS PROSPECTUS This prospectus is a part of a registration statement that we filed with the SEC using a "shelf" registration process. This prospectus provides you with a general description of the outstanding debt securities listed on the cover page of this prospectus. You should read this prospectus together with the additional information described under the heading "Where You Can Find More Information." You may also obtain from the SEC a copy of the registration statement and exhibits that we filed with the SEC. The registration statement may contain additional information that may be important to you. The outstanding debt securities were originally issued by us or Crestar Financial Corporation, or Crestar. We acquired Crestar in a merger transaction on December 31, 1998. Following this acquisition, Crestar was a wholly owned subsidiary of ours. On December 31, 1999, Crestar was merged into our wholly owned subsidiary, SunTrust Banks of Florida, Inc., which then changed its name to SunTrust Bank Holding Company, or SunTrust Holding. As a result, SunTrust Holding is the primary obligor on the outstanding debt securities originally issued by Crestar, and we have fully and unconditionally guaranteed the payment of these securities. This prospectus may be used by our broker-dealer subsidiaries, including SunTrust Equitable Securities, Inc., in connection with offers and sales of the outstanding debt securities listed on the cover page of this prospectus in market-making transactions at negotiated prices relating to prevailing market prices at the time of sale. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at its public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. Our SEC filings are also available at the office of the New York Stock Exchange. For further information on obtaining copies of our public filings at the New York Stock Exchange, you should call (212) 656-5060. The SEC allows us to "incorporate by reference" into this prospectus the information we file with them, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this prospectus and information that we subsequently file with the SEC will automatically update and supercede information in this prospectus and in our other filings with the SEC. We incorporate by reference the documents listed below, which we have already filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all the debt securities offered by this prospectus: - Annual Report on Form 10-K for the year ended December 31, 1999; - Quarterly Report on Form 10-Q for the quarter ended March 31, 2000; and 2 28 - Current Report on Form 8-K dated April 11, 2000. You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing or calling us at the following address: SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 (404) 658-4879 Attention: Eugene S. Putnam, Jr. Senior Vice President You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone else to provide you with additional or different information. We are only offering the outstanding debt securities in states where the offer is permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this document. FORWARD-LOOKING STATEMENTS This prospectus contains forward-looking statements. We may also make forward-looking statements in reports filed with the SEC that we incorporate by reference in this prospectus. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words "believes," "expects," "anticipates," "plans," estimates" or similar expressions. These statements are based on beliefs and assumptions of our management, and on information currently available to our management. Forward-looking statements are not guarantees of performance. They involve risks, uncertainties and assumptions. We caution you that a number of important factors could cause actual results to differ materially from those contained in any forward-looking statement. Many of these factors are beyond our ability to control or predict. Such factors include, but are not limited to, the following: - competitive pressures among depository and other financial institutions may increase significantly; - changes in the interest rate environment may reduce margins; - general economic or business conditions may lead to a deterioration in credit quality or a reduced demand for credit; - legislative or regulatory changes, including changes in accounting standards, may adversely affect the business in which we are engaged; - changes in the securities markets; and - our competitors may have greater financial resources and develop products that enable them to compete more successfully than we do. We believe these forward-looking statements are reasonable; however, undue reliance should not be placed on any forward-looking statements, which are based on current 3 29 expectations. Further, forward-looking statements speak only as of the date they are made, and we undertake no obligation to update publicly any of them in light of new information or future events. SUNTRUST BANKS, INC. We are the ninth largest commercial banking organization in the U.S. with assets of approximately $96.0 billion at March 31, 2000. We provide a full line of consumer and commercial banking services to more than 3.7 million customers through over 1,100 full-service banking offices in Alabama, Florida, Georgia, Maryland, Tennessee, Virginia and the District of Columbia. Our primary businesses include traditional deposit and credit services as well as trust and investment services. We also provide, through various subsidiaries, credit cards, mortgage banking, credit-related insurance, discount brokerage and investment banking services. As of March 31, 2000, we had total deposits of $66.3 billion, discretionary trust assets of $88.7 billion and a mortgage servicing portfolio of $39.6 billion. Under the long-standing policy of the Board of Governors of the Federal Reserve System, which we refer to as the Federal Reserve, a bank holding company is expected to act as a source of financial strength for its subsidiary banks and to commit resources to support these banks. As a result of this policy, we may be required to commit resources to our subsidiary banks in circumstances where we might not otherwise do so. Because we are a bank holding company, our rights and the rights of our creditors, including the holders of any of the debt securities offered by this prospectus, to participate in the distribution and payment of assets of any of our subsidiaries upon the subsidiary's liquidation or recapitalization would be subject to the prior claims of such subsidiary's creditors except to the extent that we may be a creditor with recognized claims against the subsidiary. We are incorporated under the laws of the State of Georgia. Our principal executive offices are located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308. Our general information telephone number is 404-588-7711. USE OF PROCEEDS We will not receive any proceeds in connection with sales of the outstanding debt securities offered by this prospectus. All offers and sales of outstanding debt securities will be for the account of our broker-dealer subsidiary in connection with market making transactions. 4 30 RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges of our company, which includes our subsidiaries, on a consolidated basis. The ratio of earnings to fixed charges has been computed by dividing: - net income plus all applicable income taxes plus fixed charges, by - fixed charges. Fixed charges represent interest expense, either including or excluding interest on deposits as set forth below, and the portion of net rental expense deemed to be equivalent to interest on long-term debt. Interest expense, other than on deposits, includes interest on long-term debt, federal funds purchased and securities sold under agreements to repurchase, mortgages, commercial paper and other funds borrowed. For 1999, the ratio of earnings to fixed charges has been computed excluding extraordinary gains.
THREE MONTHS ENDED YEAR ENDED DECEMBER 31, MARCH 31, -------------------------------- ------------ 1995 1996 1997 1998 1999 1999 2000 ---- ---- ---- ---- ---- ---- ---- Including interest on deposits.... 1.59 1.58 1.60 1.54 1.60 1.64 1.59 Excluding interest on deposits.... 3.13 3.11 2.76 2.33 2.39 2.52 2.76
CERTAIN REGULATORY CONSIDERATIONS The following discussion sets forth certain of the elements of the comprehensive regulatory framework applicable to bank holding companies and banks and provides certain specific information relevant to our company. Federal and state regulation of financial institutions such as our company is intended primarily for the protection of depositors and the federal deposit insurance funds rather than our shareholders or other creditors. GENERAL As a bank holding company, we are subject to the regulation and supervision of the Federal Reserve. As of December 31, 1999, we had 29 bank subsidiaries that were subject to supervision and regulation by applicable state and federal banking agencies, including the Federal Reserve, the Office of the Comptroller of the Currency, which we refer to as the Comptroller, and the Federal Deposit Insurance Corporation, which we refer to as the FDIC. Effective January 1, 2000, 27 of our bank subsidiaries merged into SunTrust Bank, Atlanta, which changed its name to SunTrust Bank. SunTrust Bank, which we refer to as the Bank, is a Georgia state bank which now has branches in Alabama, Florida, Georgia, Maryland, Tennessee, Virginia and the District of Columbia. The Bank is a member of the Federal Reserve System and is regulated by the Federal Reserve and the Georgia Department of Banking and Finance. The Bank is subject to various requirements and restrictions under federal and state law, including requirements to maintain reserves against deposits, restrictions on the types and amounts of loans that may be made and the interest that may be charged thereon, and limitations on the types of investments that may be made and the types of services that may be offered. Various consumer laws and regulations also affect the operations of the Bank. In addition to the 5 31 impact of regulation, commercial banks are affected significantly by the actions of the Federal Reserve as it attempts to control the money supply and credit availability in order to influence the economy. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, bank holding companies from any state may now acquire banks located in any other state, subject to certain conditions, including concentration limits. In addition, a bank may now establish branches across state lines by merging with a bank in another state (unless applicable state law prohibits such interstate mergers), provided certain conditions are met. Federal law and regulatory policy impose a number of obligations and restrictions on bank holding companies and their depository institution subsidiaries designed to reduce potential loss exposure to the depositors of such depository institutions and to the FDIC insurance fund in the event the depository institution becomes in danger of default or is in default. For example, under a policy of the Federal Reserve with respect to bank holding company operations, a bank holding company is required to serve as a source of financial strength to its subsidiary depository institutions and commit resources to support such institutions in circumstances where it might not do so absent this policy. In addition, the "cross-guarantee" provisions of federal law require insured depository institutions under common control to reimburse the FDIC for any loss suffered or reasonably anticipated as a result of the default of a commonly controlled insured depository institution or for any assistance provided by the FDIC to a commonly controlled insured depository institution in danger of default. In the event of the insolvency or receivership of the Bank, the claims of depositors and general creditors of the Bank are entitled to a priority of payment over any of our claims or claims of our creditors, including any claims based on any debt the Bank owes to us. Various regulatory bodies regulate and supervise our nonbanking subsidiaries. For example, SunTrust Equitable Securities Corporation is a broker-dealer and investment adviser registered with the SEC and a member of the New York Stock Exchange, Inc. and the National Association of Securities Dealers, Inc., which we refer to as the NASD. SunTrust Securities, Inc. and Crestar Securities Corporation are also broker-dealers registered with the SEC and members of the NASD. Trusco Capital Management, Inc. and Crestar Asset Management Company are investment advisers registered with the SEC. We also have one limited purpose national bank subsidiary, SunTrust BankCard, N.A., which is regulated by the Comptroller. On November 12, 1999, financial modernization legislation known as the Gramm-Leach-Bliley Act, which we refer to as the Act, was signed into law. The Act creates a new type of financial services company called a financial holding company. A bank holding company that elects to become a financial holding company may engage in expanded debt securities activities and insurance sales and underwriting activities, and may also acquire debt securities firms and insurance companies, subject in each case to certain conditions. Securities firms and insurance companies may also choose to establish or become financial holding companies and thereby acquire banks, subject to certain conditions. We became a financial holding company under the Act in March 2000. In order to maintain our status as a financial holding company, we must maintain our capital levels, examination ratings, and Community Reinvestment Act examination ratings at levels higher than those required of a bank holding company that has not elected to become a financial holding company. 6 32 In addition to the Act, there have been a number of legislative and regulatory proposals that would have an impact on the operation of bank/financial holding companies and their bank and nonbank subsidiaries. It is impossible to predict whether or in what form these proposals may be adopted in the future and, if adopted, what their effect will be on us. PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS There are various legal and regulatory limits on the extent to which the Bank may pay dividends or otherwise supply funds to us. In addition, federal and state bank regulatory agencies also have the authority to prevent a bank or bank holding company from paying a dividend or engaging in any other activity that, in the opinion of the agency, would constitute an unsafe or unsound practice. FDIC regulations require that management report annually on its responsibility for preparing its institution's financial statements, and establishing and maintaining an internal control structure and procedures for financial reporting and compliance with designated laws and regulations concerning safety and soundness. The principal source of our cash revenues is dividends from our subsidiaries, including the Bank. Federal and Georgia law limit the payment of these dividends to a certain extent. The Federal Reserve Bank or the Comptroller, as the case may be, must approve any dividend if the total of all dividends declared by any state member bank of the Federal Reserve or any national bank in any calendar year exceeds the bank's net income for that year combined with its retained net income for the preceding two years, less any required transfers to surplus or a fund for the retirement of any preferred stock. In addition, a dividend may not be paid in excess of a bank's undivided profits. The relevant federal and state bank regulatory agencies also have authority to prohibit a bank holding company, or a state or national bank from engaging in what, in the opinion of such regulatory body, constitutes an unsafe or unsound practice in conducting its business. Such regulatory agencies could deem the payment of dividends, depending upon the financial condition of the subsidiary, to constitute such an unsafe or unsound practice. Under Georgia law (which would apply to any payment of dividends by the Bank to us), the prior approval of the Georgia Department of Banking and Finance is required before any cash dividends may be paid by a state bank if: (1) total classified assets at the most recent examination of such bank exceed 80% of the Tier 1 capital plus the allowance for loan losses of such bank; (2) the aggregate amount of dividends declared or anticipated to be declared in the calendar year exceeds 50% of the net profits, after taxes but before dividends, for the previous calendar year; or (3) the ratio of Tier 1 capital to adjusted total assets is less than 6%. Retained earnings of our banking subsidiaries available for payment of cash dividends under all applicable regulations without obtaining governmental approval totaled approximately $634.2 million as of March 31, 2000. In addition, the Bank is subject to limitations under Sections 23A and 23B of the Federal Reserve Act with respect to extensions of credit to, investments in, and certain other transactions with us and our other subsidiaries. Furthermore, such loans and extensions of credit, as well as certain other transactions, are also subject to various collateral requirements. 7 33 CAPITAL ADEQUACY The Federal Reserve has adopted minimum risk-based and leverage capital guidelines for bank holding companies. The minimum required risk-based capital ratio of qualifying total capital to risk-weighted assets (including certain off-balance-sheet items, such as standby letters of credit) is 8%, of which 4% must consist of Tier 1 capital. As of December 31, 1999, our total risk-based capital ratio was 11.3%, including 7.5% of Tier 1 capital. The minimum required leverage capital ratio (Tier 1 capital to average total assets) is 3% for bank holding companies that meet certain specified criteria, including that they have the highest regulatory rating. As of December 31, 1999, our leverage capital ratio was 7.17%. Higher risk-based and leverage ratios may apply under certain circumstances. The Bank is subject to similar risk-based and leverage capital requirements adopted by the federal banking agencies. Failure to meet capital requirements can subject a bank to a variety of enforcement remedies, including additional substantial restrictions on its operations and activities, termination of deposit insurance by the FDIC, and under certain conditions the appointment of a receiver or conservator. The federal banking agencies have broad powers under current federal law to take prompt corrective action to resolve problems of insured depository institutions The extent of these powers depends on whether the institutions in question are "well capitalized," "adequately capitalized," "undercapitalized," "significantly undercapitalized" or "critically undercapitalized," as these terms are defined under regulations issued by each of the federal banking agencies. Under certain circumstances, an institution may be downgraded to a category lower than that warranted by its capital levels and subjected to the supervisory restrictions applicable to institutions in the lower capital category. A depository institution is generally prohibited from making capital distributions (including paying dividends) or paying management fees to a holding company if the institution would thereafter be undercapitalized. An undercapitalized depository institution is subject to restrictions in a number of areas, including asset growth, acquisitions, branching, new lines of business, and borrowing from the Federal Reserve. In addition, an undercapitalized depository institution is required to submit a capital restoration plan. A depository institution's holding company must guarantee the capital plan up to an amount equal to the lesser of 5% of the depository institution's assets at the time it becomes undercapitalized or the amount needed to restore the capital of the institution to the levels required for the institution to be classified as adequately capitalized at the time the institution fails to comply with the plan and any such guarantee would be entitled to a priority of payment in bankruptcy. A depository institution is treated as if it is significantly undercapitalized if it fails to submit a capital plan that is based on realistic assumptions and is likely to succeed in restoring the depository institution's capital. Significantly undercapitalized depository institutions may be subject to a number of additional significant requirements and restrictions, including requirements to sell sufficient voting stock to become adequately capitalized, to replace or improve management, to reduce total assets, to cease acceptance of correspondent bank deposits, to restrict senior executive compensation and to limit transactions with affiliates. Critically undercapitalized depository institutions are further subject to restrictions on paying principal or interest on 8 34 subordinated debt, making investments, expanding, acquiring or selling assets, extending credit for highly-leveraged transactions, paying excessive compensation, amending their charters or bylaws and making any material changes in accounting methods. In general, a receiver or conservator must be appointed for a depository institution within 90 days after the institution is deemed to be critically undercapitalized. DESCRIPTION OF THE DEBT SECURITIES -- SUNTRUST BANKS, INC. As used in this section, outstanding debt securities means the debentures, notes, bonds and other evidences of indebtedness that have been issued by SunTrust Banks, Inc. and are listed on the cover of this prospectus. The outstanding debt securities are either senior debt securities or subordinated debt securities. Senior debt securities were issued under a "Senior Indenture" and subordinated debt securities were issued under a "Subordinated Indenture". We sometimes refer to the Senior Indenture and the Subordinated Indenture in this prospectus collectively as the Indentures. The trustee under the Senior Indenture is PNC Bank, National Association, and the trustee under the Subordinated Indenture is Bank One Trust Company, N.A. (as successor in interest to The First National Bank of Chicago). We have summarized selected provisions of the Indentures below. The summary is not complete. The forms of the Indentures have been filed as exhibits to the registration statement and you should read the Indentures for provisions that may be important to you. In the summary below, we have included references to section numbers of the applicable Indenture so that you can easily locate these provisions. Capitalized terms used in the summary have the meaning specified in the Indentures. You can obtain copies of the Indentures by following the directions under the caption "Where You Can Find More Information" beginning on page 1 of this prospectus. GENERAL The Indentures do not limit the aggregate principal amount of debt securities that we may issue and provide that we may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. The Indentures also do not limit our ability to incur other debt and do not contain financial or similar restrictive covenants. The outstanding debt securities were issued in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof. Holders of outstanding debt securities will not pay any service charge for any registration of transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with such registration or transfer. PAYMENT; TRANSFER Principal, premium, if any, and interest, if any, on the outstanding debt securities is payable, and the outstanding debt securities are transferable, at the corporate trust office of SunTrust Bank in Atlanta, Georgia, except that interest may be paid at our option by check mailed to the address of the holder entitled thereto as it appears on the security register. We have the right to require a holder of any outstanding debt security, in connection with any payment on such debt security, to certify information to us or, in the absence of such certification, we are entitled to rely on any legal presumption to enable us 9 35 to determine our obligation, if any, to deduct or withhold taxes, assessments or governmental charges from such payment. RANKING General. The outstanding debt securities are our direct unsecured obligations. The outstanding senior debt securities rank equally with our other unsecured and unsubordinated indebtedness. The outstanding subordinated debt securities rank junior to all Senior Indebtedness (as defined below) and, in certain circumstances, to all Additional Senior Obligations (as defined below). As of March 31, 2000, we had an aggregate of approximately $5,233.2 million of long-term Senior Indebtedness outstanding and an aggregate of approximately $720.2 million of short-term Senior Indebtedness outstanding, which consisted primarily of commercial paper. As of March 31, 2000, we had no Additional Senior Obligations outstanding. We expect from time to time to incur additional Senior Indebtedness and Additional Senior Obligations. The Indentures do not prohibit or limit the incurrence of additional Senior Indebtedness or Additional Senior Obligations. As of March 31, 2000, we had an aggregate of approximately $2,427.0 million of long-term subordinated debt securities outstanding. Because we are a holding company, our right and the rights of our creditors, including holders of outstanding debt securities, to participate in any distribution of assets of any of our subsidiaries upon its liquidation, reorganization or otherwise would be subject to the prior claims of creditors of that subsidiary, except to the extent that we are a creditor of that subsidiary with recognized claims. However, in the event of a liquidation or other resolution of an insured depository institution, the claims of depositors and other general or subordinated creditors are entitled to a priority of payment over the claims of holders of any obligation of the institution to its shareholders, including any depository institution holding company or any shareholder or creditor thereof. Our subsidiaries have significant outstanding long-term debt and substantial obligations with respect to deposit liabilities and federal funds purchased, securities sold under repurchase agreements, other short-term borrowings and various other financial obligations. In addition, the Indentures and the outstanding debt securities do not contain any provision that protects the holders of the outstanding debt securities against a sudden and dramatic decline in credit quality resulting from a takeover, recapitalization or similar restructuring of our company or other event involving us that may adversely affect our credit quality. Subordination of the Subordinated Securities. The outstanding subordinated debt securities are subordinate and junior in right of payment to all of our Senior Indebtedness and, in certain circumstances relating to the dissolution, winding-up, liquidation of or reorganization of our company, to all Additional Senior Obligations (Article 13). Under the Subordinated Indenture "Senior Indebtedness" means (1) all indebtedness of our company for money borrowed, whether now outstanding or subsequently created, assumed or incurred, other than: - the outstanding subordinated debt securities; - any obligation ranking equally with the outstanding subordinated debt securities; or 10 36 - any obligation ranking junior to the outstanding subordinated debt securities; and (2) any deferrals, renewals or extensions of any such Senior Indebtedness. The Subordinated Indenture defines the term indebtedness for money borrowed to mean: - any obligation of ours, or any obligation guaranteed by us, for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments; and - any deferred obligation for the payment of the purchase price of property or assets acquired other than in the ordinary course of business. The Subordinated Indenture defines Additional Senior Obligations to mean all of our indebtedness, whether now outstanding or subsequently created, assumed or incurred, for claims in respect of derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; provided, however, that Additional Senior Obligations do not include: (1) any claims in respect of Senior Indebtedness; or (2) any obligations ranking junior to or equally with the outstanding subordinated debt securities. As a result of these subordination provisions, no payment on account of the principal of, premium, if any, or interest on the outstanding subordinated debt securities may be made if a payment default with respect to Senior Indebtedness exists and any applicable grace period has expired or the maturity of any Senior Indebtedness has been accelerated. Upon any payment or distribution of assets to creditors upon any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to our company as a whole, whether voluntary or involuntary, (1) the holders of all Senior Indebtedness will first be entitled to receive payment in full before the holders of the outstanding subordinated debt securities will be entitled to receive any payment in respect of the principal of, premium, if any, or interest on the outstanding subordinated debt securities; and (2) if after giving effect to the operation of clause (1) above; - any assets remain available for payment or distribution in respect of the outstanding subordinated debt securities, and - creditors in respect of Additional Senior Obligations have not received payment in full; then the amounts referred to in the first bullet above will first be applied to pay or provide for the payment in full of all such Additional Senior Obligations before any payment may be made on the outstanding subordinated debt securities. If the holders of outstanding subordinated debt securities receive any payment at a time when they know that all Senior Indebtedness and Additional Senior Obligations have not been paid in full, then such payment shall be held in trust for the benefit of the holders of Senior Indebtedness and/or Additional Senior Obligations, as the case may be (Section 1301). 11 37 As a result of these subordination provisions, in the event of our insolvency, holders of outstanding subordinated debt securities may recover less, ratably, than holders of Senior Indebtedness and Additional Senior Obligations. In addition, in the event of insolvency, our creditors that do not hold Senior Indebtedness or who hold outstanding subordinated debt securities may recover less, ratably, than holders of Senior Indebtedness and may recover more, ratably, than holders of the outstanding subordinated debt securities. RESTRICTION ON DISPOSITION OF VOTING STOCK OF CERTAIN SUBSIDIARIES Under the Senior Indenture, we have agreed not to sell, assign, pledge, transfer or otherwise dispose of, or permit the issuance of, or permit a Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of Voting Stock of any Subsidiary or any securities convertible into Voting Stock of any Subsidiary which is: (1) a Principal Constituent Bank; or (2) a Subsidiary which owns shares of Voting Stock or any securities convertible into Voting Stock of a Principal Constituent Bank. Notwithstanding the foregoing, this covenant does not prohibit: - any dispositions made by us or any Subsidiary (A) acting in a fiduciary capacity for any Person other than us or any Subsidiary or (B) to us or any of its wholly owned (except for directors' qualifying shares) Subsidiaries; or - the merger or consolidation of a Principal Constituent Bank with and into a Principal Constituent Bank. This covenant also does not prohibit sales, assignments, pledges, transfers or other dispositions of shares of Voting Stock of a corporation referred to in clause (1) or (2) above where: (1) the sales, assignments, pledges, transfers or other dispositions are 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 (2) the sales, assignments, pledges, transfers or other dispositions are 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 authority to the acquisition by us, directly or indirectly, of any other corporation or entity; or (3) in the case of a disposition of shares of Voting Stock or any securities convertible into Voting Stock of a Principal Constituent Bank, or sales of Voting Stock or any securities convertible into Voting Stock of any Subsidiary included in clause (2) above, the sales, assignments, pledges, transfers or other dispositions are: - for fair market value as determined by our board of directors or the board of directors of the Subsidiary disposing of such shares or securities; and - after giving effect to such disposition and to any potential dilution (if the shares or securities are convertible into Voting Stock), we and our directly or indirectly wholly owned Subsidiaries will own directly not less than 80% of the Voting Stock of such Principal Constituent Bank or Subsidiary; or 12 38 (4) a Constituent Bank sells additional shares of Voting Stock to its shareholders at any price, so long as immediately after such sale we own, directly or indirectly, at least as great a percentage of the Voting Stock of such Constituent Bank as it owned prior to such sale of additional shares; or (5) a pledge is made or a lien is created to secure loans or other extensions of credit by a Constituent Bank subject to Section 23A of the Federal Reserve Act (Section 1005). Any Constituent Bank that has total assets equal to more than 15% of the total assets of all Constituent Banks is defined in the Senior Indenture to be a Principal Constituent Bank (Section 101). As of March 31, 2000, SunTrust Bank was the only Constituent Bank that is a Principal Constituent Bank. The Subordinated Indenture does not contain the foregoing covenant. EVENTS OF DEFAULT Definition. The Indentures define an Event of Default with respect to outstanding debt securities of any series as any one of the following events: (1) failure to pay any interest on any debt security of that series when due and payable, continued for 30 days; (2) failure to pay principal of or any premium on any debt security of that series when due; (3) failure to deposit any sinking fund payment, when due, in respect of any debt security of that series; (4) failure to perform any other covenant in the applicable Indenture (other than a covenant included in such Indenture solely for the benefit of series of outstanding debt securities other than that series), continued for 90 days after written notice as provided in the applicable Indenture; (5) the entry of a decree or order for relief in respect of our company by a court having jurisdiction in the premises in an involuntary case under federal or state bankruptcy laws and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; (6) the commencement by us of a voluntary case under federal or state bankruptcy laws or the consent by us to the entry of a decree or order for relief in an involuntary case under any such law; and (7) any other Event of Default provided with respect to debt securities of that series (Section 501). Remedies. If an Event of Default: - with respect to outstanding senior debt securities of any series occurs and is continuing, or - described in clause (5) or clause (6) with respect to outstanding subordinated debt securities of any series occurs and is continuing, 13 39 then either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare by notice in writing to us the principal amount (or, if the outstanding debt securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the outstanding debt securities of that series to be due and payable immediately. At any time after a judgment or decree based on acceleration has been obtained, the holders of a majority in aggregate principal amount of outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration (Section 502). Accordingly, the payment of the principal of the outstanding subordinated debt securities may be accelerated only upon the occurrence of an Event of Default described in clause (5) or clause (6) of the preceding paragraph and may not be accelerated upon a payment or covenant default. In the event of a payment of covenant default with respect to outstanding subordinated debt securities, the trustee, subject to certain limitations and conditions, may institute judicial proceedings to enforce the payment of any amount due or the performance of such covenant or any other proper remedy (Section 503). Under certain circumstances, the trustee may withhold notice to the holders of the outstanding subordinated debt securities of a default if the trustee in good faith determines that the withholding of such notice is in the best interest of such holders, and the trustee shall withhold such notice for certain defaults for a period of 30 days (Section 602). Obligations of Trustee. The Indentures provide that, subject to the duty of the relevant trustee during default to act with the required standard of care, such trustee will be under no obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the holders, unless such holders shall have offered to such trustee reasonable security or indemnity (Section 603). Subject to such provisions for the indemnification of the trustee and to certain other conditions, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the relevant trustee, or exercising any trust or power conferred on such trustee, with respect to the outstanding debt securities of that series. However, such trustee may decline to act if the holders' direction is contrary to law or the applicable Indenture, would unduly prejudice the right of other holders or would involve such trustee in personal liability (Section 512). No holder of any outstanding debt security of any series has any right to institute any proceeding with respect to the applicable Indenture, or for the appointment of a receiver or trustee or for any remedy, unless: - such holder has given the relevant trustee written notice of a continuing Event of Default with respect to the outstanding debt securities of that series; - the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the relevant trustee to institute such proceeding as trustee; - such trustee has not received an inconsistent direction from the holders of a majority in principal amount of the outstanding debt securities of that series; and - the trustee has failed to institute the requested proceeding within 60 days (Section 507). 14 40 However, the holder of any outstanding debt security has an absolute right to receive payment of the principal of (and premium, if any) and interest on such debt security on the due dates expressed in such debt security and to institute suit for the enforcement of any such payment (Section 508). Under the Indentures we must furnish to the relevant trustee annually a statement regarding our performance of certain of our obligations under the applicable Indenture and as to any default in such performance (Section 1005). DEFEASANCE AND COVENANT DEFEASANCE The Senior Indenture provides that we may choose to deposit in trust with the relevant trustee cash and/or government securities in an amount sufficient, without reinvestment, to pay all sums due on any series of outstanding senior debt securities. If we make this deposit, then, at our option, we: (1) will be deemed to have satisfied and paid all of our obligations in respect of such outstanding senior debt securities of a particular series; or (2) will not need to comply with certain restrictive covenants contained in the Senior Indenture and the occurrence of a covenant default will no longer be an Event of Default with respect to such series of outstanding senior debt securities, which we refer to as covenant defeasance. Such a trust may only be established if, among other things, - no Event of Default exists or occurs as a result of such deposit; and - we deliver an opinion of counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit. If we exercise our covenant defeasance option with respect to any series of outstanding senior debt securities and the maturity of that series is accelerated upon an Event of Default, the amount of cash and government securities on deposit with the trustee may not be sufficient to pay amounts due on such senior debt securities at the time of the acceleration. However, we will remain liable with respect to such payments (Article 13). The Subordinated Indenture does not contain defeasance and covenant defeasance provisions. MODIFICATION AND WAIVER We and the relevant trustee may modify and amend the applicable Indenture with the consent of the holders of 66 2/3% in aggregate principal amount of the outstanding debt securities of each series affected by such modification or amendment. However, we may not, without the consent of the holder of each outstanding debt security affected, modify or amend: - the maturity date of the principal of, or interest on, any debt security, - reduce the principal amount of, or any premium or rate of interest on, any debt security, 15 41 - reduce the amount of principal of an Original Issue Discount Security payable upon acceleration of the maturity thereof, - change the place or currency of payment of principal of, or any premium or interest on, any debt security, - impair the right to institute suit for the enforcement of any payment on or with respect to any debt security, or - reduce the percentage in principal amount of outstanding debt securities of any series required to modify or amend either Indenture or to waive compliance with certain provisions of, or defaults under, either Indenture (Section 902). The holders of at least 66 2/3% in aggregate principal amount of the outstanding debt securities of each series may, on behalf of all holders of outstanding debt securities of that series, waive, insofar as that series is concerned, our compliance with certain restrictive provisions of the applicable Indenture. (Senior Indenture Section 1007; Subordinated Indenture Section 1006). The holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series may, on behalf of all holders of outstanding debt securities of that series, waive any past default under the applicable Indenture, except: - a default in the payment of principal of, or any premium or interest on, any debt security of that series; or - a default in respect of a covenant or provision which under such Indenture cannot be modified or amended without the consent of the holder of each debt security of the series affected (Section 513). CONSOLIDATION, MERGER AND TRANSFER OF ASSETS We may consolidate with or merge into, or transfer our assets substantially as an entirety to, any corporation organized under the laws of the U.S., any state thereof or the District of Columbia, provided that: - the successor corporation assumes our obligations on the outstanding debt securities and under the Indentures; - after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred and be continuing; and - that certain other conditions are met (Section 801). TRUSTEES Either or both of the trustees may resign or be removed with respect to one or more series of outstanding debt securities and a successor trustee may be appointed to act with respect to such series (Section 610). In the event that two or more persons are acting as trustee with respect to different series of debt securities, each such trustee shall be a trustee of a trust under the related Indenture separate and apart from the trust administered by any other such trustee, and any action described herein to be taken by the 16 42 "trustee" may then be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee (Section 611). In the normal course of business, we and our subsidiaries conduct banking transactions with the trustees, and the trustees conduct banking transactions with us and our subsidiaries. BOOK-ENTRY SECURITIES The outstanding debt securities were issued in the form of one or more book-entry securities that were deposited with The Depository Trust Company, which we refer to as DTC or the Depositary. (Section 301). Unless and until it is exchanged in whole or in part for outstanding debt securities in definitive registered form, a book-entry security may not be transferred except as a whole by the Depositary for such book-entry security to a nominee of such Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor of the Depositary or a nominee of such successor (Section 305). Ownership of beneficial interests in any book-entry security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depositary or its nominee with respect to interests of participants in such book-entry security and on the records of participants with respect to interests of indirect participants. Participants include securities brokers and dealers, banks and trust companies, clearing corporations and certain other organizations. Access to the Depositary's system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly, which we refer to as indirect participants. Persons who are not participants may beneficially own book-entry securities held by the Depositary only through participants or indirect participants. The laws of some states require that certain purchasers of outstanding debt securities take physical delivery of such debt securities in definitive form. Such laws, as well as the limits on participation in the Depositary's book-entry system, may impair the ability to transfer beneficial interests in a book-entry security. So long as the Depositary or its nominee is the registered owner of a book-entry security, such Depositary or such nominee will be considered the sole owner or holder of the outstanding debt securities represented by such book-entry security for all purposes under the applicable Indenture. Except as provided below, owners of beneficial interests in outstanding debt securities represented by book-entry securities will not be entitled to have such debt securities of the series represented by such book-entry security registered in their names, will not receive or be entitled to receive physical delivery of such debt securities in definitive form, and will not be considered the owners or holders thereof under the applicable Indenture. Payments of principal of, premium, if any, and interest on debt securities registered in the name of the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the book-entry security representing such outstanding debt securities. We expect that the Depositary or its nominee, upon receipt of any payment of principal, premium or interest, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the book-entry security for such debt securities, as shown on the records of such Depositary or its nominee. We also expect that payments by participants and indirect participants to owners of beneficial interests in such book-entry security held 17 43 through such persons will be governed by standing instructions and customary practices, as is now the case with securities registered in "street name", and will be the responsibility of such participants and indirect participants. Neither us, the trustee, any authenticating agent, any paying agent, nor the security registrar for such debt securities will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the book-entry security for such debt securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests (Section 311). If the Depositary for outstanding debt securities of a series notifies us that it is unwilling or unable to continue as Depositary or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, we have agreed to appoint a successor depositary. If such a successor is not appointed by us within 90 days, we will issue outstanding debt securities of such series in definitive registered form in exchange for the book-entry security representing such series of outstanding debt securities. In addition, we may at any time and in our sole discretion determine that the outstanding debt securities of any series issued in the form of one or more book-entry securities shall no longer be represented by such book-entry securities. In such event, we will issue outstanding debt securities of such series in definitive registered form in exchange for such book-entry security or securities representing such series of debt securities. Further, if we so specify with respect to the outstanding debt securities of a series, or if an Event of Default, or an event that with notice, lapse of time or both would be an Event of Default with respect to the debt securities of such series has occurred and is continuing, an owner of a beneficial interest in a book-entry security representing outstanding debt securities of such series may receive debt securities of such series in definitive registered form. In any such instance, an owner of a beneficial interest in a book-entry security will be entitled to physical delivery in definitive registered form of outstanding debt securities of the series represented by such book-entry security equal in principal amount to such beneficial interest and to have such debt securities registered in its name (Section 305). DESCRIPTION OF THE DEBT SECURITIES -- SUNTRUST HOLDING As used in this section, outstanding debt securities means the debentures, notes, bonds and other evidences of indebtedness that have been issued by SunTrust Holding (as successor in interest to Crestar) and are listed on the cover of this prospectus. The outstanding debt securities are all subordinated debt securities. The 6 1/2% Putable/Callable Subordinated Notes due January 15, 2018 and the 8 3/4% Subordinated Notes Due 2004 were issued under an Indenture dated as of September 1, 1993, as supplemented, between SunTrust Holding and The Chase Manhattan Bank, as trustee. The 8 1/4% Subordinated Notes Due 2002 were issued under an Indenture dated as of February 1, 1985, as supplemented, between SunTrust Holding and The Chase Manhattan Bank, as trustee. We sometimes refer to these Indentures in this section collectively as the Indentures, and we sometimes refer to the Indenture dated as of February 1, 1985 as the Prior Indenture. We have summarized selected provisions of the Indentures below. The summary is not complete. The forms of the Indentures have been filed as exhibits to the registration statement and you should read the Indentures for provisions that may be important to you. In the summary below, we have included references to section numbers of the applicable Indenture so that you can easily locate these provisions. Capitalized terms used in the summary have the meaning specified in the Indentures. You can obtain copies of the 18 44 Indentures by following the directions under the caption "Where You Can Find More Information" beginning on page 1 of this prospectus. GENERAL The Indentures do not limit the aggregate principal amount of debt securities that may be issued thereunder and provide that debt securities may be issued thereunder from time to time in one or more series (Section 301). The Indentures also do not limit SunTrust Holding's ability to incur other debt and do not contain financial or similar restrictive covenants. The debt securities were issued in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof (Section 302). No service charge will be made for any registration of transfer or exchange of the outstanding debt securities, but SunTrust Holding may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith (Sections 302 and 305). PAYMENT; TRANSFER Principal, premium, if any, and interest on the outstanding debt securities is payable, and the transfer of the outstanding debt securities is registrable, at the office of the relevant trustee, except that, at the option of SunTrust Holding, interest may be paid by mailing a check to the address of the person entitled thereto as it appears on the register for the debt securities (Sections 305 and 1002). RANKING General. The outstanding debt securities are direct unsecured obligations of SunTrust Holding. The outstanding debt securities rank junior to all Senior Indebtedness of SunTrust Holding. As of March 31, 2000, SunTrust Holding had an aggregate of approximately $2,675.9 million of long-term Senior Indebtedness (as defined below) outstanding and an aggregate of approximately $1,500.3 million of short-term Senior Indebtedness outstanding. SunTrust Holding expects to incur additional Senior Indebtedness. The Indentures do not prohibit or limit the incurrence of additional Senior Indebtedness. As of March 31, 2000, SunTrust Holding had an aggregate of approximately $1,087.2 million of subordinated debt securities outstanding. Because SunTrust Holding is a holding company, its right and the rights of its creditors, including holders of outstanding debt securities, to participate in any distribution of assets of any of its subsidiaries upon its liquidation, reorganization or otherwise would be subject to the prior claims of creditors of that subsidiary, except to the extent that SunTrust Holding is a creditor of that subsidiary with recognized claims. However, in the event of a liquidation or other resolution of an insured depository institution, the claims of depositors and other general or subordinated creditors are entitled to a priority of payment over the claims of holders of any obligation of the institution to its shareholders, including any depository institution holding company or any shareholder or creditor thereof. SunTrust Holdings' subsidiaries have significant outstanding long-term debt and substantial obligations with respect to deposit liabilities and federal funds purchased, securities sold under repurchase agreements, other short-term borrowings and various other financial obligations. 19 45 In addition, the Indentures and the outstanding debt securities do not contain any provision that protects the holders of the outstanding debt securities against a sudden and dramatic decline in credit quality resulting from a takeover, recapitalization or similar restructuring of SunTrust Holding or other event involving SunTrust Holding that may adversely affect its credit quality. Subordination of the Debt Securities. The outstanding debt securities are subordinate and junior in right of payment to all Senior Indebtedness of SunTrust Holding (Article 15). Under the Indentures, Senior Indebtedness generally means any debt for borrowed money other than debt that is expressly made junior to the outstanding debt securities, together with certain obligations of general creditors. In the event that SunTrust Holding defaults in the payment of any principal, premium, if any, or interest on any Senior Indebtedness when it becomes due and payable, then, until such default is cured or waived or ceases to exist, no direct or indirect payment (in cash, property, securities by set-off or otherwise) may be made with respect to the principal, premium, if any, or interest on the outstanding debt securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the outstanding debt securities (Section 1501). In the event of: (1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to SunTrust Holding, its creditors or its property; (2) any proceeding for the liquidation, dissolution or other winding up of SunTrust Holding, voluntary or involuntary; (3) any assignment by SunTrust Holding for the benefit of creditors; or (4) any other marshalling of the assets of SunTrust Holding, all Senior Indebtedness must first be paid in full before any payment or distribution, whether in cash, securities or other property, may be made in respect of the outstanding debt securities. In such event, any payment or distribution on account of the principal, premium, if any, or interest on the outstanding debt securities that would otherwise be payable in respect of the outstanding debt securities in the absence of these subordination provisions will be paid directly to the holders of Senior Indebtedness until all Senior Indebtedness has been paid in full. After payment in full of all Senior Indebtedness, the holders of outstanding debt securities, together with the holders of any obligations of SunTrust Holding ranking equally with the outstanding debt securities, will be entitled to be paid in full from the remaining assets of SunTrust Holding before any payment or other distribution may be made on account of any capital stock or obligations of SunTrust Holding ranking junior to the outstanding debt securities. If the trustee or any holder of outstanding debt securities receives any payment or distribution on account of the principal, premium, if any, or interest on the outstanding debt securities in violation of the foregoing subordination provisions, such payment or distribution will be received in trust for the benefit of, and will be paid over or delivered to, the holders of the Senior Indebtedness (Section 1501). As a result of these subordination provisions, in the event of the insolvency of SunTrust Holding, holders of Senior Indebtedness may receive more, ratably, and holders of the outstanding debt securities may receive less, ratably, than the other creditors of 20 46 SunTrust Holding. These subordination provisions will not prevent the occurrence of an Event of Default in respect of the outstanding debt securities. See "-- Events of Default and Rights of Acceleration" for limitations on the right of acceleration. GUARANTEE OF THE OUTSTANDING DEBT SECURITIES All of the outstanding debt securities of SunTrust Holding have been fully and unconditionally guaranteed by SunTrust Banks, Inc. NO RESTRICTION ON SALE OR ISSUANCE OF STOCK OF CRESTAR BANK Under the Prior Indenture, SunTrust Holding may not issue, sell, assign, transfer or otherwise dispose of shares of, or securities convertible into, or options, warrants or rights to subscribe for, or purchase shares of, Voting Stock of the Bank (as defined below) if, after giving effect to any such transaction and to the issuance of the maximum number of shares of Voting Stock of the Bank issuable upon the exercise of all such convertible securities, options, warrants or rights, SunTrust Holding would own, directly or indirectly, 80% or less of the shares of the Bank. Notwithstanding the foregoing, this covenant does not prohibit issuances, sales, assignments, transfers or dispositions: (1) made in compliance with an order of a court or regulatory authority of competent jurisdiction or made as a condition imposed by such court or authority to the acquisition by SunTrust Holding, directly or indirectly, of any other corporation or entity; or (2) when the proceeds are within 270 days, or such longer period of time as may be necessary to obtain any required regulatory approval, to be invested pursuant to an understanding or agreement in principle reached at the time of such issuance, sale, assignment, transfer or disposition in a Controlled Subsidiary (including any person which upon such investment becomes a Controlled Subsidiary) engaged in a banking business or any other business then legally permissible for bank holding companies. The Prior Indenture also prohibits: (1) the merger or consolidation of the Bank with or into any other corporation unless the surviving corporation is, or upon consummation of the merger or consolidation will become, a Controlled Subsidiary; and (2) the lease, sale or transfer of all or substantially all of the properties and assets of the Bank to any corporation or other person, except to a Controlled Subsidiary or a person that will become a Controlled Subsidiary, upon such lease, sale or transfer. The Prior Indenture defines Bank to mean: - SunTrust Bank (as successor in interest to Crestar Bank), and - any successor to all or substantially all the business of Crestar Bank (now SunTrust Bank) as constituted on the date of the Prior Indenture; and - any surviving or transferee corporation described in the foregoing covenant. 21 47 The Prior Indenture defines the term Controlled Subsidiary to mean a Subsidiary more than 80% of the outstanding shares of Voting Stock of which are owned by SunTrust Holding and/or other Controlled Subsidiaries. The Prior Indentures defines the term Voting Stock to mean 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. The other Indenture does not contain the foregoing covenant. EVENTS OF DEFAULT AND RIGHTS OF ACCELERATION Events of Default. The Indentures define an Event of Default with respect to the outstanding debt securities as being certain events involving the bankruptcy or reorganization of SunTrust Holding (Section 501). No Event of Default with respect to a particular series of outstanding debt securities issued under the Indentures necessarily constitutes an Event of Default with respect to any other series of outstanding debt securities. If an Event of Default with respect to outstanding debt securities of any series occurs and is continuing, either the relevant trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal amount (or, if the debt securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the debt securities of that series to be immediately due and payable. At any time after a declaration of acceleration with respect to outstanding debt securities of any series has been made, but before a judgment or decree based on acceleration has been obtained, the holders of a majority in aggregate principal amount of the outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration (Section 502). Limited Rights of Acceleration. The Indentures do not provide for any right of acceleration of the payment of principal of the outstanding debt securities upon a payment default or covenant default. In the event of a payment default or covenant default, the relevant trustee may, subject to certain limitations and conditions, seek to enforce payment of such principal, premium, if any, or interest, or the performance of such covenant or agreement (Section 503). Obligations of Trustee. The Indentures provide that, subject to the duty of the trustee in the case of an Event of Default to act with the required standard of care, the trustee will be under no obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the holders, unless such holders have offered to the trustee reasonable indemnity (Sections 601 and 603). Subject to such provisions for the indemnification of the trustee, or holders of a majority in aggregate principal amount of the outstanding debt securities of any series will 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 debt securities of that series (Section 512). 22 48 CONSOLIDATION, MERGER AND SALE OF ASSETS SunTrust Holding may, without the consent of holders of any of the outstanding debt securities, consolidate or merge with or into, or convey, transfer or lease its properties and assets substantially as an entirety, to any corporation organized under the laws of any domestic jurisdiction, provided that: - the successor corporation assumes SunTrust Holding's obligations on the outstanding debt securities and under the Indentures; - after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time would become an Event of Default, has occurred and is continuing; and - that certain other conditions are met (Section 801). Under each Indenture, SunTrust Holding must furnish to the relevant trustee annually a statement regarding the performance by SunTrust Holding of certain of its obligations under the applicable Indenture and as to any default in such performance (Section 1007). MODIFICATION AND WAIVER SunTrust Holding and the relevant trustee may modify or amend the applicable Indenture with the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by such modification or amendment. However, SunTrust Holding and the relevant trustee may not, without the consent of the holder of each debt security affected: - change the stated maturity date of the principal of, or any installment of principal of, premium, if any, or any interest on, any debt security; - reduce the principal, premium, if any, or interest on, any debt security, change the method of calculation thereon or reduce the amount payable on redemption thereof; - reduce the amount of principal of a debt security payable upon acceleration of the maturity thereof; - change the place or currency of payment of principal of, premium, if any, or interest on, any debt security; - impair the rights of any holder to conversion rights; - impair the right to institute suit for the enforcement of any payment on or with respect to any debt security; or - reduce the percentage in principal amount of outstanding debt securities of any series required to modify or amend either Indenture or to waive compliance with certain provisions of, or defaults under, either Indenture (Sections 901 and 902). The holders of a majority in principal amount of the outstanding debt securities of all affected series may, on behalf of the holders of such debt securities, waive compliance by SunTrust Holding with certain restrictive provisions of the Indentures. The holders of a majority in principal amount of the outstanding debt securities of all affected series also may, on behalf of the holders of all such debt securities, waive any past default under the applicable Indenture with respect to such outstanding debt securities, except a default in 23 49 the payment of the principal, premium, if any, or interest on, any debt security or in respect of a provision which under such Indenture cannot be modified or amended without the consent of the holders of all of the outstanding debt securities affected thereby (Section 513). REGARDING THE TRUSTEE The Chase Manhattan Bank is the trustee under each of the Indentures. Notice to The Chase Manhattan Bank should be directed to its Corporate Trust Office, 450 West 33rd Street, New York, New York 10001, Attention: Corporate Trustee Administration Department. SunTrust Holding and certain of SunTrust Holding's subsidiaries maintain deposit accounts and banking relations with the trustee. GLOBAL SECURITIES The outstanding debt securities were issued in the form of one or more fully registered securities in global form, each a global security, that was deposited with the Depositary. Unless and until any such global security is exchanged in whole or in part for debt securities in definitive certificated form, such global security may not be transferred except as a whole by the Depositary for such global security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor (Section 303). Ownership of beneficial interests in such global security will be limited to participants or indirect participants. Ownership of beneficial interests by participants in such global security will be shown by book-keeping entries on, and the transfer of that ownership interest will be effected only through book-keeping entries to, records maintained by the Depositary or its nominee for such global security. Ownership of beneficial interests in such global security by persons that hold through participants will be shown by book-keeping entries on, and the transfer of that ownership interest among or through such participants will be effected only through book-keeping entries to, records maintained by such participants. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive certificated form rather than book-entry form. Such laws may impair the ability to own, transfer or pledge beneficial interests in any global security. So long as the Depositary for a global security or its nominee is the registered owner of such global security, such Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the outstanding debt securities represented by such global security for all purposes under the Indentures. Except as set forth below, owners of beneficial interests in a global security will not be entitled to have outstanding debt securities of the series represented by such global security registered in their names, will not receive or be entitled to receive physical delivery of outstanding debt securities of such series in definitive certificated form and will not be considered the holders thereof for any purposes under the Indentures. Accordingly, each person owning a beneficial interest in such global security must rely on the procedures of the Depositary and, if such person is not a participant, on the procedures of the participant through which such person directly or indirectly owns its interest, to exercise any rights of a holder under the Indentures. The Indentures provide that the Depositary may grant proxies and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, 24 50 waiver or other action which a holder is entitled to give or take under the Indentures (Section 104). SunTrust Holding understands that under existing industry practices, if SunTrust Holding requests any action of holders or any owner of a beneficial interest in such global security desires to give any notice or take any action that a holder is entitled to give or take under the Indentures, the Depositary for such global security would authorize the participants holding the relevant beneficial interest to give such notice or take such action, and such participants would authorize beneficial owners owning through such participants to give such notice or take such action or would otherwise act upon the instructions of beneficial owners owning through them. Payments on outstanding debt securities represented by a global security registered in the name of a Depositary or its nominee will be made to such Depositary or its nominee, as the case may be, as the registered owner of such global security. None of SunTrust Holding, the trustee or any paying agent for such debt securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in any global security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests (Section 308). If the Depositary for any series of outstanding debt securities represented by a global security is at any time unwilling or unable to continue as Depositary and a successor Depositary is not appointed by SunTrust Holding within 90 days, SunTrust Holding will issue such outstanding debt securities in definitive certificated form in exchange for such global security. In addition, SunTrust Holding may at any time and in its sole discretion determine not to have the outstanding debt securities of a series represented by one or more global securities and, in such event, will issue debt securities of such series in definitive certificated form in exchange for the global security representing such series of debt securities (Section 305). Further, an owner of a beneficial interest in a global security representing outstanding debt securities of a series may, on terms acceptable to SunTrust Holding and the Depositary for such global security, receive outstanding debt securities of such series in definitive certificated form, if SunTrust Holding so specifies with respect to the outstanding debt securities of such series. In any such instance, an owner of a beneficial interest in a global security will be entitled to have outstanding debt securities of the series represented by such global security equal in principal amount to such beneficial interest registered in its name and will be entitled to physical delivery of such outstanding debt securities in definitive certificated form. Outstanding debt securities of such series so issued in definitive certificated form will be issued in denominations of $1,000 and integral multiples thereof and will be issued in registered form (Section 305). TERMS OF THE OUTSTANDING DEBT SECURITIES SUNTRUST BANKS, INC. 7 3/8% Notes Due 2002. The notes are limited to $200 million aggregate principal amount, mature on July 1, 2002 and bear interest at a rate equal to 7 3/8% per year. Interest on the notes is payable semiannually on January 1 and July 1 of each year, beginning January 1, 1993, to the persons in whose names the notes are registered at the close of business on the January 15 and July 15 immediately preceding the interest payment date. 25 51 Floating Rate Notes Due April 22, 2002. The notes are limited to $250 million aggregate principal amount, mature on April 22, 2002 and bear interest at a floating rate that is reset quarterly based on the London Interbank Offered Rate, or LIBOR, plus a spread of 0.08%. Interest on the notes is payable quarterly January 22, April 22, July 22 and October 22 of each year, beginning July 22, 1997, to the persons in whose names the notes are registered at the close of business on the January 1, April 1, July 1 and October 1 immediately preceding the interest payment date. The calculation agent will determine the applicable LIBOR on each interest determination date (as defined below) in accordance with the following provisions: (1) For each interest period (as defined below), on the applicable interest determination date, LIBOR will be the rate for deposits in U.S. dollars having a maturity of three months that appears on the Telerate Page 3750 (as defined below) as of 11:00 a.m., London time, on such interest determination date. (2) If on any interest determination date, such rate for deposits in U.S. dollars having a maturity of three months does not appear on the Telerate Page 3750 as specified in clause (1) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars are offered by four major banks in the London interbank market selected by the Calculation Agent at approximately 11:00 a.m., London time, on such interest determination date to prime banks in the London interbank market having a maturity of three months and in a principal amount equal to an amount that is representative for a single transaction in such market at such time. The calculation agent will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that interest determination date will be the arithmetic mean of the quotations. If fewer than two quotations are provided, LIBOR for that interest determination date will be the arithmetic mean of the rates quoted by three major banks in The City of New York, selected by the calculation agent, at approximately 11:00 a.m., New York City time, on such interest determination date for loans in U.S. dollars to leading European banks having a maturity of three months and in a principal amount equal to an amount that is representative for a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the calculation agent are not quoting as described above, LIBOR will be LIBOR in effect on such interest determination date. The term Telerate Page 3750 means the display page 3750 on the Dow Jones Telerate Service or any other page that replaces 3750 on that service for the purpose of displaying London interbank offered rate. An interest period is each successive period beginning on and including an interest payment date and ending on but excluding the next succeeding interest payment date or the date of maturity. For purposes of calculating LIBOR, the term interest determination date for any interest period means the second London business day preceding the Interest Payment Date commencing such interest period. "London business day" shall mean any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market. Accrued interest on the notes from the last date to which interest has been paid or duly provided for is calculated by multiplying the face amount of the notes by an accrued interest factor. This accrued interest factor is computed by adding the interest factor 26 52 calculated for each day from the initial issue date or from the last date to which interest has been paid or duly provided for up to the date for which accrued interest is being calculated. The interest factor (expressed as a decimal) for each such day is computed by dividing the interest rate (expressed as a decimal) applicable to such date by 360. All percentages resulting from any calculation of the interest factor, including calculation of the interest factor or the arithmetic mean of any interest rate quotation, will be rounded, if necessary, to the nearest one millionth of a percentage point, with five ten-millionths of a percentage point rounded upwards (e.g. 4.5876545% (or .045876545) being rounded up to 4.587655% (or .04587655)), and all dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent being rounded upwards). 6 1/8% Subordinated Notes Due 2004. The notes are limited to $200 million aggregate principal amount, mature on February 15, 2004 and bear interest at a rate equal to 6 1/8% per year. Interest on the notes is payable semi-annually on February 15 and August 15 of each year, beginning August 15, 1994, to the persons in whose names the notes are registered at the close of business on the February 1 or August 1 immediately preceding the interest payment date. 7 3/8% Subordinated Notes Due 2006. The notes are limited to $200 million in aggregate principal amount, mature on July 1, 2006 and bear interest at a rate equal to 7 3/8% per year. Interest on the notes is payable semiannually on January 1 and July 1 of each year, beginning January 1, 1997, to the persons in whose names the notes are registered at the close of business on the June 15 and December 15 immediately preceding the interest payment date. 6.25% Senior Notes Due June 1, 2008. The notes are limited to $300 million aggregate principal amount, mature on June 1, 2008 and bear interest at a rate equal to 6.25% per year. Interest on the notes is payable semiannually on June 1 and December 1 of each year, beginning December 1, 1998, to the persons in whose names the notes are registered at the close of business on the May 15 and November 15 immediately preceding the interest payment date. 7.75% Subordinated Notes Due 2010. The notes were issued in an initial aggregate principal amount of $300 million, mature on May 1, 2010, and bear interest at a rate equal to 7.75% per year. Interest on the notes is payable semiannually on May 1 and November 1 of each year, beginning November 1, 2000, to the persons in whose names the notes are registered at the close of business on the April 15 and October 15 immediately preceding the interest payment date. We may issue additional notes from this series in the future without the approval of the holders of the $300 million of notes outstanding as of the date of this prospectus. 6% Subordinated Notes Due 2026. The notes are limited to $200 million aggregate principal amount, mature on February 15, 2026 and bear interest at a rate equal to 6% per year. Interest on the notes is payable on February 15 and August 15 of each year, beginning August 15, 1996, to the persons in whose names the notes are registered at the close of business on the February 1 or August 1 immediately preceding the interest payment date. The notes may be redeemed in whole or in part at the option of the holder of the notes on February 15, 2006 (or if February 15, 2006 is not a business day, the next succeeding business) at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest to the redemption date. If a holder of a note elects to exercise 27 53 the redemption option with respect to such note or a portion thereof, such note must be received, together with an appropriate redemption notice, by the trustee no earlier than December 15, 2005 and no later than 5:00 p.m., New York City time, on January 15, 2006 (or, if January 15, 2006 is not a business day, the next succeeding business day). We must deposit the redemption price with the trustee no later than 10:00 a.m., New York City time, on February 15, 2006 (or, if February 15, 2006 is not a business day, the next succeeding business day). The redemption price will be paid to holders of notes who have properly exercised their optional redemption right by check to the address set forth in the security register. 6% Senior Debentures Due January 15, 2028. The debentures are limited to $250 million aggregate principal amount, mature on January 15, 2028 and bear interest at a rate equal to 6% per year. Interest on the debentures is payable semiannually on January 15 and July 15 of each year, beginning July 15, 1998, to the persons in whose names the debentures are registered at the close of business on the January 1 and July 1 immediately preceding the interest payment date. SUNTRUST BANK HOLDING COMPANY (AS SUCCESSOR IN INTEREST TO CRESTAR) 8 1/4% Subordinated Notes Due 2002. The notes are limited to $125 million aggregate principal amount, mature July 15, 2002 and bear interest at a rate equal to 8 1/4% per year. Interest on the notes is payable semiannually on January 15 and July 15 of each year, beginning January 15, 1993, to the persons in whose names the notes are registered at the close of business on the January 1 and July 1 immediately preceding the interest payment date. 8 3/4% Subordinated Notes Due 2004. The notes are limited to $150 million aggregate principal amount, mature on November 15, 2004 and bear interest at a rate equal to 8 3/4% per year. Interest on the notes is payable semiannually on May 15 and November 15 of each year, beginning May 15, 1995, to the persons in whose names the notes are registered at the close of business on the April 30 or October 31 immediately preceding the interest payment date. 6 1/2% Putable/Callable Subordinated Notes Due January 15, 2018. The notes are limited to $150 million aggregate principal amount, mature on January 15, 2018 and bear interest at a rate equal to 6 1/2% per year. Interest on the notes is payable semiannually on January 15 and July 15 of each year, beginning July 15, 1998, to the persons in whose names the notes are registered at the close of business on the January 1 immediately preceding the interest payment date. The notes are subject to mandatory redemption on January 15, 2008, which we refer to as the coupon reset date, through either: - the exercise of the call option by Union Bank of Switzerland, London branch or Morgan Stanley & Co. International Limited, which we refer to as the callholders, or - in the event a callholder does not exercise the call option, the automatic exercise of the put option by the trustee on behalf of the holders. The call option of each callholder is with respect to $75 million principal amount of the notes. To exercise its call option, a callholder must give written notice to the trustee no later than 15 calendar days prior to the coupon reset date, which we refer to as the call notice. If a callholder elects to exercise its call option and purchase all of its applicable principal amount of the notes, such notes will be acquired by the callholder from the 28 54 holders of such notes on the coupon reset date at a purchase price equal to 100% of the principal amount thereof. Any callholder exercising its call option shall be required, not later than 2:00 p.m. New York City time on the business day prior to the coupon reset date, to deliver the purchase price for the notes being purchased in immediately available funds to the trustee for payment on the coupon reset date. In addition, the holders of the applicable principal amount of the notes will be required to deliver such notes to the callholder against payment therefor on the coupon reset date through the facilities of DTC. If a callholder elects to exercise the call option, the obligation of such callholder to pay the purchase price for the notes being purchased is subject to the conditions precedent that, - since the date of the call notice, no Event of Default (as defined in the Indenture), or any event which, with the giving of notice or passage of time, or both, would constitute an Event, with respect to the notes shall have occurred and be continuing; - no Market Disruption Event (as defined below) shall have occurred; and - two or more dealers shall have provided timely bids in the manner described below. No holder of any notes or any interest therein shall have any right or claim against a callholder as a result of such callholder purchasing or not purchasing the notes. If the applicable call option has not been exercised, or if the applicable callholder fails to deliver the purchase price for the notes to the trustee not later than 2:00 p.m. New York City time on the business day prior to the coupon reset date, the trustee must exercise the option to put such notes to SunTrust Holding. Upon exercise of this put option, SunTrust Holding will be required to purchase such notes on January 15, 2008 at a purchase price equal to 100% of the entire principal amount thereof. The put option will be exercised automatically by the trustee, on behalf of the holders of such notes, if the call option has not been exercised with respect to such notes. If the trustee exercises the put option, SunTrust Holding will deliver the purchase price to the trustee, together with the accrued and unpaid interest due on January 15, 2008, by no later than 12:00 noon New York City time on the coupon reset date, and the holders of such notes must deliver such notes to SunTrust Holding against payment therefor on the coupon reset date through the facilities of DTC. Such notes will be cancelled and no notes will be issued in lieu of or in exchange therefor. No holder of any notes or any interest therein has the right to consent or object to the trustee's duty to exercise the put option. Pursuant to the applicable Indenture, - UBS Securities LLC has been appointed the calculation agent for notes subject to the call option of Union bank of Switzerland, London branch; and - Morgan Stanley & Co. Incorporated has been appointed the calculation agent for notes subject to the call option of Morgan Stanley & Co. International Limited; provided, that such calculation agents shall act jointly on all matters in the event that the call options are exercised for the entire principal amount of the notes. If a callholder for the applicable amount of notes has exercised the call option as described above, SunTrust Holding and the applicable calculation agent shall complete the following steps in order to 29 55 determine the interest rate to be paid on such notes from and including such coupon reset date to the final maturity date of the notes. SunTrust Holding and the applicable calculation agent shall use reasonable efforts to cause the actions contemplated below to be completed in as timely a manner as possible. (1) SunTrust Holding shall provide the calculation agents with one list, no later than four business days prior to the coupon reset date, containing the names and address of five dealers, two of which shall be UBS Securities LLC in the event Union Bank of Switzerland, London branch exercises its call option and Morgan Stanley & Co. Incorporated in the event Morgan Stanley & Co. International Limited exercises its call option, from which it desires the applicable calculation agent to obtain the bids (as defined below) for the purchase of such notes. As used herein, business day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the City of New York generally are authorized or obligated by law or executive order to close. (2) Within one business day following receipt by the calculation agents of the list of dealers, the applicable calculation agent shall provide to each dealer on the list: - a copy of the Prospectus dated January 22, 1998 and the Prospectus Supplement dated January 22, 1998 relating to the offering of the notes; - a copy of the form of notes; and - a written request that each such dealer submit a bid to the applicable calculation agent by 12:00 noon, New York City time, which we refer to as the bid deadline, on the third business day prior to the coupon reset date, which we refer to as the bid date. The term bid means an irrevocable written offer given by a dealer for the purchase settling on the coupon reset date, and shall be quoted by such dealer as a stated yield to maturity on the notes. Each dealer shall be provided with: - the name of SunTrust Holding; - an estimate of the purchase price, which shall be stated as a U.S. dollar amount and be calculated by the applicable calculation agent in accordance with clause (3) below; - the principal amount and maturity of the notes; and - the method by which interest will be calculated on the notes. (3) The purchase price to be paid by any dealer for the notes shall be equal to: - the principal amount of the notes, plus - a premium, which we refer to as the note premium, equal to the excess, if any, of (A) the discounted present value to the coupon reset date of a bond with a maturity of January 15, 2018 which has an interest rate of 5.558%, semi-annual interest payments on each January 15 and July 15, commencing July 15, 2008, and a principal amount of $150,000,000, and assuming a discount rate equal to the treasury rate over (B) $150,000,000. 30 56 The term treasury rate means the per annum rate equal to the offer side yield to maturity of the current on-the-run 10-year United States Treasury Security per Telerate page 500 at 11:00 a.m., New York City time on the Bid Date (or such other date that may be agreed upon by SunTrust Holding and the applicable calculation agent) or, if such rate does not appear on Telerate page 500 at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the Bid Date. (4) Following receipt of the bids, the applicable calculation agent shall provide written notice to SunTrust Holding setting forth: - the names of each of the dealers from whom such calculation agent received bids on the bid date; - the bid submitted by each such dealer; and - the purchase price as determined pursuant to paragraph (3) above. Except as provided below, the applicable calculation agent shall thereafter select from the five bids received the bid with lowest yield to maturity and establish the coupon reset rate equal to the interest rate which would amortize the notes premium fully over the term of the notes at the yield to maturity indicated by the bid selected, provided, however, that if such calculation agent has not received a bid from a dealer by the bid deadline, the bid selected shall be the lowest of all bids received by such time and provided, further that if any two or more of the lowest bids submitted are equivalent, SunTrust Holding shall in its sole discretion select any of such equivalent bids (and such selected bid shall be the selected bid). (5) Immediately after calculating the coupon reset rate, the applicable calculation agent shall provide written notice to SunTrust Holding and the trustee setting forth such coupon reset rate. SunTrust Holding shall thereafter establish the coupon reset rate as the new interest rate on the notes, effective from and including January 15, 2008, by delivering to the trustee on or before the coupon reset date of an officers' certificate. (6) The applicable callholder shall sell such notes to the dealer that made the selected bid at the purchase price described above, such sale to be settled on the coupon reset date in immediately available funds. If a calculation agent determines that: - since the call notice, an Event of Default, or any event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default with respect to the notes shall have occurred and be continuing; - a market Disruption Event (as defined below) has occurred following the exercise of its call option or the call option of the related callholder; or - two or more of the dealers have failed to provide bids in a timely manner substantially as provided above; then such call option will be automatically revoked, and the trustee will exercise the put option on behalf of the holders. 31 57 Market Disruption Event shall mean any of the following: - a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the establishment of minimum prices in such exchange; - a general moratorium on commercial banking activities declared by either federal or New York State authorities; - any material adverse change in the existing financial, political or economic conditions in the United States of America; - an outbreak or escalation of major hostilities involving the United States of America or the declaration of a national emergency or war by the United States of America; or - any material disruption of the U.S. government securities market, U.S. corporate bond market, or U.S. federal wire system. PLAN OF DISTRIBUTION This prospectus may be used by any of our broker-dealer subsidiaries in connection with offers and sales of outstanding debt securities in market-making transaction at negotiated prices related to prevailing market prices at the time of sale. Any of our broker-dealer subsidiaries, including SunTrust Equitable Securities, may act as principal or agent in such transactions. None of our broker-dealer subsidiaries has any obligation to make a market in any of the debt securities and may discontinue any market-making activities at any time without notice, at its sole discretion. Our broker-dealer subsidiaries are members of the NASD and may participate in distributions of the outstanding debt securities. Accordingly, any offerings of the outstanding debt securities in which our broker-dealer subsidiaries participate will conform with the provisions of Rule 2720 of the Conduct Rules of the NASD. LEGAL MATTERS Certain legal matters with respect to certain of the outstanding debt securities were passed upon for us by Raymond D. Fortin, Senior Vice President and Secretary, and by King & Spalding. As of March 31, 2000, Mr. Fortin beneficially owned 7,500 shares of our common stock and held options to purchase 6,000 shares of our common stock. EXPERTS The audited consolidated financial statements of SunTrust Banks, Inc. incorporated by reference in this prospectus and elsewhere in the Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated herein in reliance upon the authority of said firm as experts in giving said report. 32 58 - ------------------------------------------------------ - ------------------------------------------------------ NO DEALER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS AN OFFER TO SELL ONLY THE SECURITIES OFFERED HEREBY, BUT ONLY UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY AS OF ITS DATE. ------------------------ TABLE OF CONTENTS PROSPECTUS
PAGE ---- About this Prospectus............... 2 Where You Can Find More Information....................... 2 Forward-Looking Statements.......... 3 SunTrust Banks, Inc................. 4 Use of Proceeds..................... 4 Ratio of Earnings to Fixed Charges........................... 5 Certain Regulatory Considerations... 5 Description of the Debt Securities -- SunTrust Banks, Inc............................... 9 Description of the Debt Securities -- SunTrust Holding.... 18 Terms of the Outstanding Debt Securities........................ 25 Plan of Distribution................ 32 Legal Matters....................... 32 Experts............................. 32
- ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ SUNTRUST BANKS, INC. ------------------ PROSPECTUS JUNE , 2000 ------------------ - ------------------------------------------------------ - ------------------------------------------------------ 59 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION Estimated expenses in connection with the issuance and distribution of the debt securities being registered, other than underwriting compensation, are as follows: Securities and Exchange Commission registration fee......... $118,000 National Association of Securities Dealers, Inc. filing fee....................................................... 30,500 Blue Sky fees and expenses.................................. 5,000 Attorneys' fees and expenses................................ 10,000 Accounting fees and expenses................................ 15,000 Printing and engraving expenses............................. 25,000 Fees of indenture trustees.................................. 20,000 Paying Agent fees........................................... 9,500 Rating Agency fees.......................................... 100,000 Miscellaneous expenses...................................... 10,000 -------- Total..................................................... $343,000 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS PART 5 OF ARTICLE 8 OF THE GEORGIA BUSINESS CORPORATION CODE STATES: 14-2-850. PART DEFINITIONS As used in this part, the term: (1) "Corporation" includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. (2) "Director" or "officer" means an individual who is or was a director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity. A director or officer is considered to be serving an employee benefit plan at the corporation's request if his or her duties to the corporation also impose duties on, or otherwise involve services by, the director or officer to the plan or to participants in or beneficiaries of the plan. Director or officer includes, unless the context otherwise requires, the estate or personal representative of a director or officer. (3) "Disinterested director" means a director who at the time of a vote referred to in subsection (c) of Code Section 14-2-853 or a vote or selection referred to in subsection (b) or (c) of Code Section 14-2-855 or subsection (a) of Code Section 14-2-856 is not: (A) A party to the proceeding; or 60 (B) An individual who is a party to a proceeding having a familial, financial, professional, or employment relationship with the director whose indemnification or advance for expenses is the subject of the decision being made with respect to the proceeding, which relationship would, in the circumstances, reasonably be expected to exert an influence on the director's judgment when voting on the decision being made. (4) "Expenses" include counsel fees. (5) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (6) "Official capacity" means: (A) When used with respect to a director, the office of director in a corporation; and (B) When used with respect to an officer, as contemplated in Code Section 14-2-857, the office in a corporation held by the officer. Official capacity does not include service for any other domestic or foreign corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. (7) "Party" means an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. (8) "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative and whether formal or informal. 14-2-851. AUTHORITY TO INDEMNIFY (a) Except as otherwise provided in this Code section, a corporation may indemnify an individual who is a party to a proceeding because he or she is or was a director against liability incurred in the proceeding if: (1) Such individual conducted himself or herself in good faith; and (2) Such individual reasonably believed: (A) In the case of conduct in his or her official capacity, that such conduct was in the best interests of the corporation; (B) In all other cases, that such conduct was at least not opposed to the best interests of the corporation; and (C) In the case of any criminal proceeding, that the individual had no reasonable cause to believe such conduct was unlawful. (b) A director's conduct with respect to an employee benefit plan for a purpose he or she believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subparagraph (a)(1)(B) of this Code section. II-2 61 (c) The termination of a proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Code section. (d) A corporation may not indemnify a director under this Code section: (1) In connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under this Code section; or (2) In connection with any proceeding with respect to conduct for which he was adjudged liable on the basis that personal benefit was improperly received by him, whether or not involving action in his official capacity. 14-2-852. MANDATORY INDEMNIFICATION A corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. 14-2-853. ADVANCE FOR EXPENSES (a) A corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he or she is a director if he or she delivers to the corporation: (1) A written affirmation of his or her good faith belief that he or she has met the relevant standard of conduct described in Code Section 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by paragraph (4) of subsection (b) of Code Section 14-2-202; and (2) His or her written undertaking to repay any funds advanced if it is ultimately determined that the director is not entitled to indemnification under this part. (b) The undertaking required by paragraph (2) of subsection (a) of this Code section must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to the financial ability of the director to make repayment. (c) Authorizations under this Code section shall be made: (1) By the board of directors: (A) When there are two or more disinterested directors, by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; or (B) When there are fewer than two disinterested directors, by the vote necessary for action by the board in accordance with subsection (c) of Code Section 14-2-824, in which authorization directors who do not qualify as disinterested directors may participate; or II-3 62 (2) By the shareholders, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to the proceeding may not be voted on the authorization. 14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES (a) A director who is a party to a proceeding because he or she is a director may apply for indemnification or advance for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall: (1) Order indemnification or advance for expenses if it determines that the director is entitled to indemnification under this part; or (2) Order indemnification or advance for expenses if it determines, in view of all the relevant circumstances, that it is fair and reasonable to indemnify the director or to advance expenses to the director, even if the director has not met the relevant standard of conduct set forth in subsections (a) and (b) of Code Section 14-2-851, failed to comply with Code Section 14-2-853, or was adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Code Section 14-2-851, but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding. (b) If the court determines that the director is entitled to indemnification or advance for expenses under this part, it may also order the corporation to pay the director's reasonable expenses to obtain court-ordered indemnification or advance for expenses. 14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION (a) A corporation may not indemnify a director under Code Section 14-2-851 unless authorized thereunder and a determination has been made for a specific proceeding that indemnification of the director is permissible in the circumstances because he or she has met the relevant standard of conduct set forth in Code Section 14-2-851. (b) The determination shall be made: (1) If there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (2) By special legal counsel: (A) Selected in the manner prescribed in paragraph (1) of this subsection; or (B) If there are fewer than two disinterested directors, selected by the board of directors (in which selection directors who do not qualify as disinterested directors may participate); or (3) By the shareholders, but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination. II-4 63 (c) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subparagraph (b)(2)(B) of this Code section to select special legal counsel. 14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION (a) If authorized by the articles of incorporation or a bylaw, contract, or resolution approved or ratified by the shareholders by a majority of the votes entitled to be cast, a corporation may indemnify or obligate itself to indemnify a director made a party to a proceeding including a proceeding brought by or in the right of the corporation, without regard to the limitations in other Code sections of this part, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to any existing or threatened proceeding that would be covered by the authorization may not be voted on the authorization. (b) The corporation shall not indemnify a director under this Code section for any liability incurred in a proceeding in which the director is adjudged liable to the corporation or is subjected to injunctive relief in favor of the corporation: (1) For any appropriation, in violation of the director's duties, of any business opportunity of the corporation; (2) For acts or omissions which involve intentional misconduct or a knowing violation of law; (3) For the types of liability set forth in Code Section 14-2-832; or (4) For any transaction from which he or she received an improper personal benefit. (c) Where approved or authorized in the manner described in subsection (a) of this Code section, a corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (1) The director furnishes the corporation a written affirmation of his or her good faith belief that his or her conduct does not constitute behavior of the kind described in subsection (b) of this Code section; and (2) The director furnishes the corporation a written undertaking, executed personally or on his or her behalf, to repay any advances if it is ultimately determined that the director is not entitled to indemnification under this Code section. II-5 64 14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS (a) A corporation may indemnify and advance expenses under this part to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation: (1) To the same extent as a director; and (2) If he or she is not a director, to such further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors, or contract except for liability arising out of conduct that constitutes: (A) Appropriation, in violation of his or her duties, of any business opportunity of the corporation; (B) Acts or omissions which involve intentional misconduct, or a knowing violation of law; (C) The types of liability set forth in Code Section 14-2-832; or (D) Receipt of an improper personal benefit. (b) The provisions of paragraph (2) of subsection (a) of this Code section shall apply to an officer who is also a director if the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer. (c) An officer of the corporation who is not a director is entitled to mandatory indemnification under Code Section 14-2-852, and may apply to a court under Code Section 14-2-854 for indemnification or advances for expenses, in each case to the same extent to which a director may be entitled to indemnification or advances for expenses under those provisions. (d) A corporation may also indemnify and advance expenses to an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors, or contract. 14-2-858. INSURANCE A corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the corporation or who, while a director, officer, employee, or agent of the corporation, serves at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a director, officer, employee, or agent, whether or not the corporation would have power to indemnify or advance expenses to him or her against the same liability under this part. 14-2-859. APPLICATION OF PART (a) A corporation may, by a provision in its articles of incorporation or bylaws or in a resolution adopted or a contract approved by its board of directors or shareholders, obligate itself in advance of the act or omission giving rise to a proceeding to provide indemnification or advance funds to pay for or reimburse expenses consistent with this II-6 65 part. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section 14-2-855. Any such provision that obligates the corporation to provide indemnification to the fullest extent permitted by law shall be deemed to obligate the corporation to advance funds to pay for or reimburse expenses in accordance with Code Section 14-2-853 to the fullest extent permitted by law, unless the provision specifically provides otherwise. (b) Any provision pursuant to subsection (a) of this Code section shall not obligate the corporation to indemnify or advance expenses to a director of a predecessor of the corporation, pertaining to conduct with respect to the predecessor, unless otherwise specifically provided. Any provision for indemnification or advance for expenses in the articles of incorporation, bylaws, or a resolution of the board of directors or shareholders, partners, or, in the case of limited liability companies, members or managers of a predecessor of the corporation or other entity in a merger or in a contract to which the predecessor is a party, existing at the time the merger takes effect, shall be governed by paragraph (3) of subsection (a) of Code Section 14-2-1106. (c) A corporation may, by a provision in its articles of incorporation, limit any of the rights to indemnification or advance for expenses created by or pursuant to this part. (d) This part does not limit a corporation's power to pay or reimburse expenses incurred by a director or an officer in connection with his or her appearance as a witness in a proceeding at a time when he or she is not a party. (e) Except as expressly provided in Code Section 14-2-857, this part does not limit a corporation's power to indemnify, advance expenses to, or provide or maintain insurance on behalf of an employee or agent. ARTICLES OF INCORPORATION AUTHORITY Article 14 of the Corporation's Articles of Incorporation provides: In addition to any powers provided by law, in the Bylaws, or otherwise, the Corporation shall have the power to indemnify any person who becomes a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. BYLAW AUTHORITY Article VII of the Corporation's Bylaws provides: Section 1. DEFINITIONS As used in this Article, the term: (A) "Corporation" includes any domestic or foreign predecessor entity of this Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. II-7 66 (B) "Director" means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity. A "director" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a director. (C) "Disinterested director" means a director who at the time of a vote referred to in Section 3(C) or a vote or selection referred to in Section 4(B), 4(C) or 7(A) is not: (i) a party to the proceeding; or (ii) an individual who is a party to a proceeding having a familial, financial, professional, or employment relationship with the director whose indemnification or advance for expenses is the subject of the decision being made with respect to the proceeding, which relationship would, in the circumstances, reasonably be expected to exert an influence on the director's judgment when voting on the decision being made. (D) "Employee" means an individual who is or was an employee of the Corporation or an individual who, while an employee of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. An "Employee" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Employee" includes, unless the context requires otherwise, the estate or personal representative of an employee. (E) "Expenses" includes counsel fees. (F) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (G) "Officer" means an individual who is or was an officer of the Corporation which for purposes of this Article VII shall include an assistant officer, or an individual who, while an Officer of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity. An "Officer" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Officer" includes, unless the context requires otherwise, the estate or personal representative of an Officer. (H) "Official capacity" means: (i) when used with respect to a director, the office of a director in a corporation; and (ii) when used with respect to an Officer, the office in a corporation held by the Officer. Official capacity does not include service for any other domestic or foreign corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. (I) "Party" means an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. II-8 67 (J) "Proceeding" means any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative or investigative and whether formal or informal. Section 2. BASIC INDEMNIFICATION ARRANGEMENT (A) Except as provided in subsections 2(D) and 2(E) below and, if required by Section 4 below, upon a determination pursuant to Section 4 in the specific case that such indemnification is permissible in the circumstances under this subsection because the individual has met the standard of conduct set forth in this subsection (A), the Corporation shall indemnify an individual who is made a party to a proceeding because he is or was a director or Officer against liability incurred by him in the proceeding if he conducted himself in good faith and, in the case of conduct in his official capacity, he reasonably believed such conduct was in the best interest of the Corporation, or in all other cases, he reasonably believed such conduct was at least not opposed to the best interests of the Corporation and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. (B) A person's conduct with respect to an employee benefit plan for a purpose he believes in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 2(A) above. (C) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 2(A) above. (D) The Corporation shall not indemnify a person under this Article in connection with (i) a proceeding by or in the right of the Corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that such person has met the relevant standard of conduct under this section, or (ii) with respect to conduct for which such person was adjudged liable on the basis that personal benefit was improperly received by him, whether or not involving action in his official capacity. Section 3. ADVANCES FOR EXPENSES (A) The Corporation may advance funds to pay for or reimburse the reasonable expenses incurred by a director or Officer who is a party to a proceeding because he is a director or Officer in advance of final disposition of the proceeding if: (i) such person furnishes the Corporation a written affirmation of his good faith belief that he has met the relevant standard of conduct set forth in subsection 2(A) above or that the proceeding involves conduct for which liability has been eliminated under the Corporation's Articles of Incorporation; and (ii) such person furnishes the Corporation a written undertaking meeting the qualifications set forth below in subsection 3(B), executed personally or on his behalf, to repay any funds advanced if it is ultimately determined that he is not entitled to any indemnification under this Article or otherwise. (B) The undertaking required by subsection 3(A)(ii) above must be an unlimited general obligation of the director or Officer but need not be secured and shall be accepted without reference to financial ability to make repayment. (C) Authorizations under this Section shall be made: (i) By the Board of Directors: (a) when there are two or more disinterested directors, by a majority vote of all disinterested directors (a majority of whom shall for such purpose constitute a quorum) or II-9 68 by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; or (b) when there are fewer than two disinterested directors, by a majority of the directors present, in which authorization directors who do not qualify as disinterested directors may participate; or (ii) by the shareholders, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to the proceeding may not be voted on the authorization. Section 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION (A) The Corporation shall not indemnify a director or Officer under Section 2 above unless authorized thereunder and a determination has been made for a specific proceeding that indemnification of such person is permissible in the circumstances because he has met the relevant standard of conduct set forth in subsection 2(A) above; provided, however, that regardless of the result or absence of any such determination, to the extent that a director or Officer has been wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director or Officer, the Corporation shall indemnify such person against reasonable expenses incurred by him in connection therewith. (B) The determination referred to in subsection 4(A) above shall be made: (i) If there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (ii) by special legal counsel: (1) selected by the Board of Directors or its committee in the manner prescribed in subdivision (i); or (2) if there are fewer than two disinterested directors, selected by the Board of Directors (in which selection directors who do not qualify as disinterested directors may participate); or (iii) by the shareholders; but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination. (C) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses of a director or Officer in the specific case shall be made in the same manner as the determination that indemnification is permissible, as described in subsection 4(B) above, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection 4(B)(ii)(2) above to select counsel. (D) The Board of Directors, a committee thereof, or special legal counsel acting pursuant to subsection (B) above or Section 5 below, shall act expeditiously upon an application for indemnification or advances, and cooperate in the procedural steps required to obtain a judicial determination under Section 5 below. (E) The Corporation may, by a provision in its Articles of Incorporation or Bylaws or in a resolution adopted or a contract approved by its Board of Directors or shareholders, II-10 69 obligate itself in advance of the act or omission giving rise to a proceeding to provide indemnification or advance funds to pay for or reimburse expenses consistent with this part. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in Section 3(C) or Section 4(C). Section 5. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES. A director or Officer who is a party to a proceeding because he is a director or Officer may apply for indemnification or advances for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall order indemnification or advances for expenses if it determines that: (i) The director is entitled to indemnification under this part; or (ii) In view of all the relevant circumstances, it is fair and reasonable to indemnify the director or Officer or to advance expenses to the director or Officer, even if the director or Officer has not met the relevant standard of conduct set forth in subsection 2(A) above, failed to comply with Section 3, or was adjudged liable in a proceeding referred to in subsections (i) or (ii) of Section 2(D), but if the director or Officer was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding, unless the Articles of Incorporation of the Corporation or a Bylaw, contract or resolution approved or ratified by shareholders pursuant to Section 7 below provides otherwise. If the court determines that the director or Officer is entitled to indemnification or advance for expenses, it may also order the Corporation to pay the director's or Officer's reasonable expenses to obtain court-ordered indemnification or advance for expenses. Section 6. INDEMNIFICATION OF OFFICERS AND EMPLOYEES (A) Unless the Corporation's Articles of Incorporation provide otherwise, the Corporation shall indemnify and advance expenses under this Article to an employee of the Corporation who is not a director or Officer to the same extent, consistent with public policy, as to a director or Officer. (B) The Corporation may indemnify and advance expenses under this Article to an Officer of the Corporation who is a party to a proceeding because he is an Officer of the Corporation: (i) to the same extent as a director; and (ii) if he is not a director, to such further extent as may be provided by the Articles of Incorporation, the Bylaws, a resolution of the Board of Directors, or contract except for liability arising out of conduct that is enumerated in subsections (A)(i) through (A)(iv) of Section 7. The provisions of this Section shall also apply to an Officer who is also a director if the sole basis on which he is made a party to the proceeding is an act or omission solely as an Officer. Section 7. SHAREHOLDER APPROVED INDEMNIFICATION (A) If authorized by the Articles of Incorporation or a Bylaw, contract or resolution approved or ratified by shareholders of the Corporation by a majority of the votes entitled to be cast, the Corporation may indemnify or obligate itself to indemnify a person made a party to a proceeding, including a proceeding brought by or in the right of the Corporation, without regard to the limitations in other sections of this Article, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested II-11 70 director with respect to any existing or threatened proceeding that would be covered by the authorization may not be voted on the authorization. The Corporation shall not indemnify a person under this Section 7 for any liability incurred in a proceeding in which the person is adjudged liable to the Corporation or is subjected to injunctive relief in favor of the Corporation: (i) for any appropriation, in violation of his duties, of any business opportunity of the Corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for the types of liability set forth in Section 14-2-832 of the Georgia Business Corporation Code; or (iv) for any transaction from which he received an improper personal benefit. (B) Where approved or authorized in the manner described in subsection 7(A) above, the Corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (i) the proposed indemnitee furnishes the Corporation a written affirmation of his good faith belief that his conduct does not constitute behavior of the kind described in subsection 7(A)(i)-(iv) above; and (ii) the proposed indemnitee furnishes the Corporation a written undertaking, executed personally, or on his behalf, to repay any advances if it is ultimately determined that he is not entitled to indemnification. Section 8. LIABILITY INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the Corporation or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against or incurred by him in that capacity or arising from his status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him against the same liability under Section 2 or Section 3 above. Section 9. WITNESS FEES. Nothing in this Article shall limit the Corporation's power to pay or reimburse expenses incurred by a person in connection with his appearance as a witness in a proceeding at a time when he is not a party. Section 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or advances expenses to a director in connection with a proceeding by or in the right of the Corporation, the Corporation shall report the indemnification or advance, in writing, to shareholders with or before the notice of the next shareholders' meeting. Section 11. SEVERABILITY. In the event that any of the provisions of this Article (including any provision within a single section, subsection, division or sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions of this Article shall remain enforceable to the fullest extent permitted by law. II-12 71 Section 12. INDEMNIFICATION NOT EXCLUSIVE. The rights of indemnification provided in this Article VII shall be in addition to any rights which any such director, Officer, employee or other person may otherwise be entitled by contract or as a matter of law. UNDERWRITING AGREEMENT Pursuant to the form of underwriting agreement, incorporated by reference as Exhibit 1.1 to this Registration Statement, the Corporation has agreed to indemnify the underwriters, if any, against certain liabilities under federal and state securities laws. INSURANCE The Registrant has purchased a policy of directors and officers liability (including company reimbursement coverage) insurance that provides certain coverage for the Registrant and its subsidiaries and their respective directors and officers with respect to, among other things, liability under federal and state securities laws. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 1* -- Form of Underwriting Agreement (incorporated by reference to Exhibit 1 to SunTrust Banks, Inc.'s Registration Statement on Form S-3 (Registration No. 333-46093)). 4.1* -- Indenture, dated as of May 1, 1993, between the Corporation and PNC Bank, National Association, as trustee (incorporated by reference to Exhibit 4(a) to SunTrust Banks, Inc.'s Registration Statement on Form S-3 (Registration No. 33-62162)). 4.2* -- Indenture, dated as of May 1, 1993, between the Corporation and Bank One Trust Company, N.A. (as successor in interest to The First National Bank of Chicago), as trustee (incorporated by reference to Exhibit 4(b) to SunTrust Banks, Inc.'s Registration Statement on Form S-3 (Registration No. 33-62162)). 4.3 -- Indenture, dated as of February 1, 1985, between SunTrust Bank Holding Company (as successor in interest to Crestar Financial Corporation) and The Chase Manhattan Bank, as trustee. 4.4 -- Indenture, dated as of September 1, 1993, between SunTrust Bank Holding Company (as successor in interest to Crestar Financial Corporation) and The Chase Manhattan Bank, as trustee (incorporated by reference to Exhibit 4.1 to Crestar Financial Corporation's Registration Statement on Form S-3 (Registration No. 33-50387)). 4.5 -- Third Supplemental Indenture (to Indenture dated as of February 1, 1985), dated as of July 1, 1992, between SunTrust Bank Holding Company (as successor in interest to Crestar Financial Corporation) and The Chase Manhattan Bank, as Trustee. 4.6 -- Resolutions of The Board of Directors of Crestar Financial Corporation (now known as SunTrust Bank Holding Company) approving issuance of $150 million of 8 3/4% Subordinated Notes Due 2004.
II-13 72
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 4.7 -- First Supplemental Indenture (to Indenture dated as of September 1, 1993), dated as of January 1, 1998, between SunTrust Bank Holding Company (as successor in interest to Crestar Financial Corporation) and The Chase Manhattan Bank, as Trustee. 5* -- Opinion of Raymond D. Fortin, General Counsel of SunTrust Banks, Inc., as to the legality of the securities being registered. 12 -- Statement setting forth computation of ratios of earnings to fixed charges. 23.1 -- Consent of Arthur Andersen LLP. 23.4* -- Consent of Raymond D. Fortin, Counsel of the Corporation (included in Exhibit 5). 25.1* -- Statement of eligibility of PNC Bank, National Association, as trustee, on Form T-1. 25.2* -- Statement of eligibility of The First National Bank of Chicago, as trustee, on Form T-1. 25.3 -- Statement of eligibility of The Chase Manhattan Bank, as trustee, on Form T-1 (incorporated by reference to Exhibit 25 to Crestar Financial Corporation's Registration Statement on Form S-3 (Registration No. 33-50387)).
- ------------------------- * Previously filed. ITEM 17. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar volume of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume or price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; II-14 73 provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-15 74 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, SunTrust Banks, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post Effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on the 9th day of June, 2000. SUNTRUST BANKS, INC. By: /s/ DONALD T. HEROMAN ----------------------------------- Donald T. Heroman Treasurer Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ L. PHILLIP HUMANN Chairman of the Board June 9, 2000 - --------------------------------------------------- and Chief Executive L. Phillip Humann Officer /s/ JOHN W. SPIEGEL Executive Vice President June 9, 2000 - --------------------------------------------------- and Chief Financial John W. Spiegel Officer /s/ WILLIAM P. O'HALLORAN Senior Vice President June 9, 2000 - --------------------------------------------------- and Chief Accounting William P. O'Halloran Officer /s/ J. HYATT BROWN Director June 9, 2000 - --------------------------------------------------- J. Hyatt Brown /s/ A. W. DAHLBERG Director June 9, 2000 - --------------------------------------------------- A. W. Dahlberg /s/ ALSTON D. CORRELL Director June 9, 2000 - --------------------------------------------------- Alston D. Correll /s/ SUMMERFIELD K. JOHNSTON, JR. Director June 9, 2000 - --------------------------------------------------- Summerfield K. Johnston, Jr. /s/ DAVID H. HUGHES Director June 9, 2000 - --------------------------------------------------- David H. Hughes
II-16 75
SIGNATURE TITLE DATE --------- ----- ---- /s/ M. DOUGLAS INVESTER Director June 9, 2000 - --------------------------------------------------- M. Douglas Invester /s/ JOSEPH L. LANIER, JR. Director June 9, 2000 - --------------------------------------------------- Joseph L. Lanier, Jr. Director - --------------------------------------------------- Frank E. McCarthy Director - --------------------------------------------------- G. Gilmor Minor, III /s/ LARRY L. PRINCE Director June 9, 2000 - --------------------------------------------------- Larry L. Prince /s/ SCOTT L. PROBASCO, JR. Director June 9, 2000 - --------------------------------------------------- Scott L. Probasco, Jr. /s/ R. RANDALL ROLLINS Director June 9, 2000 - --------------------------------------------------- R. Randall Rollins Director - --------------------------------------------------- Frank S. Royal, M.D. Director - --------------------------------------------------- Richard G. Tilgham /s/ JAMES B. WILLIAMS Director June 9, 2000 - --------------------------------------------------- James B. Williams *By: /s/ RAYMOND D. FORTIN --------------------------------------------- Raymond D. Fortin Attorney-in-Fact
II-17 EX-4.3 2 0002.txt INDENTURE BETWEEN SUNTRUST AND CHASE MANHATTAN 1 EXHIBIT 4.3 ================================================================================ UNITED VIRGINIA BANKSHARES INCORPORATED TO CHEMICAL BANK, Trustee ------------------- Indenture Dated as of February 1, 1985 ------------------- ================================================================================ 2 UNITED VIRGINIA BANKSHARES INCORPORATED Conciliation and tie between Trust Indenture Act of 1939 and Indenture dated as of February 1, 1985
Trust Indenture Act Section Indenture Section - --------------- ----------------- ss. 310(a)(1) ......................................... 609 (a)(2) ......................................... 609 (a)(3) ......................................... Not Applicable (a)(4) ......................................... Not Applicable (b) ............................................ 608 610 ss. 311(a) ............................................ 613(a) (b) ............................................ 613(b) (b)(2) ......................................... 703(a)(2) 703(b) ss. 312(a) ............................................ 701 702(a) (b) ............................................ 702(b) (c) ............................................ 702(c) ss. 313(a) ............................................ 703(a) (b) ............................................ 703(b) (c) ............................................ 703(a), 703(b) (d) ............................................ 703(c) ss. 314(a) ............................................ 704 (b) ............................................ Not Applicable (c)(1) ......................................... 102 (c)(2) ......................................... 102 (c)(3) ......................................... Not Applicable (d) ............................................ Not Applicable (e) ............................................ 102 ss. 315(a) ............................................ 601(a) (b) ............................................ 602 703(a)(6) (c) ............................................ 601(b) (d) ............................................ 601(c) (d)(1) ......................................... 601(a)(1) (d)(2) ......................................... 601(c)(2) (d)(3) ......................................... 601(c)(3) (e) ............................................ 514 ss. 316(a) ............................................ 101 (a)(1)(A) ...................................... 502 512
-i- 3
Trust Indenture Act Section Indenture Section - --------------- ----------------- (a)(1)(B) ...................................... 513 (a)(2) ......................................... Not Applicable (b) ............................................ 508 ss. 317(a)(1) ......................................... 503 (a)(2) ......................................... 504 (b) ............................................ 1003 ss. 318(a) ............................................ 107
- -------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. -ii- 4 TABLE OF CONTENTS
PAGE PARTIES.........................................................................................................1 RECITALS OF THE COMPANY.........................................................................................1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. DEFINITIONS........................................................................................1 "ACT"...........................................................................................................2 "AFFILIATE".....................................................................................................2 "AUTHENTICATING AGENT"..........................................................................................2 "AUTHORIZED NEWSPAPER"..........................................................................................2 "BANK"..........................................................................................................2 "BOARD OF DIRECTORS"............................................................................................2 "BOARD RESOLUTION"..............................................................................................2 "BUSINESS DAY"..................................................................................................2 "CAPITAL SECURITIES"............................................................................................2 "CAPITAL SECURITY ELECTION FORM"................................................................................2 "CASH PROCEEDS".................................................................................................3 "COMMISSION"....................................................................................................3 "COMMON STOCK"..................................................................................................3 "COMPANY".......................................................................................................3 "COMPANY REQUEST" OR "COMPANY ORDER"............................................................................3 "CONTROLLED SUBSIDIARY".........................................................................................3 "CORPORATE TRUST OFFICE"........................................................................................3 "CORPORATION"...................................................................................................3
Note: This Table of Contents shall not, for any purpose, be deemed to be part of the Indenture. -i- 5 "DEFAULT".......................................................................................................3 "DEFAULTED INTEREST"............................................................................................3 "EVENT OF DEFAULT"..............................................................................................3 "EXCHANGE AGENT"................................................................................................3 "EXCHANGE DATE".................................................................................................3 "EXCHANGE PRICE"................................................................................................3 "EXCHANGE PROCEEDS".............................................................................................4 "HOLDER"........................................................................................................4 "INDENTURE".....................................................................................................4 "INTEREST"......................................................................................................4 "INTEREST PAYMENT DATE".........................................................................................4 "MARKET VALUE"..................................................................................................4 "MATURITY"......................................................................................................4 "OFFICERS' CERTIFICATE".........................................................................................4 "OPINION OF COUNSEL"............................................................................................4 "OPTIONAL SECURITIES FUND"......................................................................................4 "ORIGINAL ISSUE DISCOUNT SECURITY"..............................................................................4 "OUTSTANDING"...................................................................................................4 "PAYING AGENT"..................................................................................................5 "PERPETUAL PREFERRED STOCK".....................................................................................5 "PERSON"........................................................................................................5 "PLACE OF EXCHANGE".............................................................................................6 "PLACE OF PAYMENT"..............................................................................................6 "PREDECESSOR SECURITY"..........................................................................................6 "PRIMARY FEDERAL REGULATOR".....................................................................................6
-ii- 6 "QUALIFYING INVESTMENT".........................................................................................6 "REDEMPTION DATE"...............................................................................................6 "REDEMPTION PRICE"..............................................................................................6 "REGULAR RECORD DATE"...........................................................................................6 "RESPONSIBLE OFFICER"...........................................................................................6 "SECONDARY OFFERING"............................................................................................7 "SECURITIES"....................................................................................................7 "SECURITIES FUND"...............................................................................................7 "SECURITY REGISTER", "SECURITY REGISTRAR" AND "CO-SECURITY REGISTRAR".................................................................................7 "SENIOR INDEBTEDNESS"...........................................................................................7 "SPECIAL RECORD DATE"...........................................................................................7 "STATED MATURITY"...............................................................................................7 "SUBSIDIARY"....................................................................................................7 "TRUSTEE".......................................................................................................7 "TRUST INDENTURE ACT"...........................................................................................7 "VICE PRESIDENT"................................................................................................7 "VOTING STOCK"..................................................................................................8 SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS...............................................................8 SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.............................................................8 SECTION 104. ACTS OF HOLDERS....................................................................................9 SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY..............................................................9 SECTION 106. NOTICE TO HOLDERS; WAIVER.........................................................................10 SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.................................................................10 SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS..........................................................10
-iii- 7 SECTION 109. SUCCESSORS AND ASSIGNS............................................................................11 SECTION 110. SEPARABILITY CLAUSE...............................................................................11 SECTION 111. BENEFITS OF INDENTURE.............................................................................11 SECTION 112. GOVERNING LAW.....................................................................................11 SECTION 113. LEGAL HOLIDAYS....................................................................................11 ARTICLE TWO SECURITY FORMS.....................................................................................11 SECTION 201. FORMS GENERALLY...................................................................................11 SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...................................................12 ARTICLE THREE THE SECURITIES SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES..............................................................12 SECTION 302. DENOMINATIONS.....................................................................................14 SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING....................................................14 SECTION 304. TEMPORARY SECURITIES..............................................................................15 SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE...............................................15 SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..................................................16 SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED....................................................17 SECTION 308. PERSONS DEEMED OWNERS.............................................................................18 SECTION 309. CANCELLATION......................................................................................18 SECTION 310. COMPUTATION OF INTEREST...........................................................................18 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE...........................................................19 SECTION 402. APPLICATION OF TRUST MONEY........................................................................20
-iv- 8 ARTICLE FIVE REMEDIES SECTION 501. EVENTS OF DEFAULT.................................................................................20 SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................................................21 SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.....................................................................................22 SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..................................................................23 SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.................................................................................................24 SECTION 506. APPLICATION OF MONEY COLLECTED....................................................................24 SECTION 507. LIMITATION ON SUITS...............................................................................24 SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.......................................................................................25 SECTION 509. RESTORATION OF RIGHTS AND REMEDIES................................................................25 SECTION 510. RIGHTS AND REMEDIES CUMULATIVE....................................................................25 SECTION 511. DELAY OR OMISSION NOT WAIVER......................................................................26 SECTION 512. CONTROL BY HOLDERS................................................................................26 SECTION 513. WAIVER OF PAST DEFAULTS...........................................................................26 SECTION 514. UNDERTAKING FOR COSTS.............................................................................27 SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..................................................................27 ARTICLE SIX THE TRUSTEE SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES...............................................................27 SECTION 602. NOTICE OF DEFAULTS................................................................................28 SECTION 603. CERTAIN RIGHTS OF TRUSTEE.........................................................................29 SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..............................................................................................30 SECTION 605. MAY HOLD SECURITIES...............................................................................30
-v- 9 SECTION 606. MONEY HELD IN TRUST...............................................................................30 SECTION 607. COMPENSATION AND REIMBURSEMENT....................................................................30 SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS...........................................................31 SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...........................................................36 SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.................................................36 SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................................................38 SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...................................................................................................39 SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.................................................39 SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT...............................................................43 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS....................................................................................................44 SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS....................................................................................................45 SECTION 703. REPORTS BY TRUSTEE................................................................................46 SECTION 704. REPORTS BY-COMPANY................................................................................47 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..............................................................................................48 SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.................................................................48 ARTICLE NINE SUPPLEMENTAL INDENTURE SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS................................................49 SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...................................................50 SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES..............................................................51
-vi- 10 SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.................................................................51 SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT...............................................................51 SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES................................................52 SECTION 907. SUBORDINATION UNIMPAIRED..........................................................................52 ARTICLE TEN COVENANTS SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.......................................................52 SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY..................................................................52 SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST................................................53 SECTION 1004. CORPORATE EXISTENCE..............................................................................54 SECTION 1005. MAINTENANCE OF PROPERTIES........................................................................54 SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS................................................................54 SECTION 1007. LIMITATION ON ISSUE AND DISPOSITION OF VOTING STOCK OF, AND MERGER AND SALE OF ASSETS BY, THE BANK.................................................................55 SECTION 1008. STATEMENT AS TO COMPLIANCE.......................................................................56 SECTION 1009. WAIVER OF CERTAIN COVENANTS......................................................................56 ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. APPLICABILITY OF ARTICLE.........................................................................56 SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE............................................................57 SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED................................................57 SECTION 1104. NOTICE OF REDEMPTION.............................................................................57 SECTION 1105. DEPOSIT OF REDEMPTION PRICE......................................................................58 SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE............................................................58 SECTION 1107. SECURITIES REDEEMED IN PART......................................................................58
-vii- 11 ARTICLE TWELVE SINKING FUNDS SECTION 1201. APPLICABILITY OF ARTICLE.........................................................................59 SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES............................................59 SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND........................................................59 ARTICLE THIRTEEN EXCHANGE OF CAPITAL SECURITIES FOR SECURITIES SECTION 1301. APPLICABILITY OF ARTICLE.........................................................................60 SECTION 1302. EXCHANGE OF CAPITAL SECURITIES...................................................................60 SECTION 1303. NOTICES OF EXCHANGE..............................................................................60 SECTION 1304. RIGHTS AND DUTIES OF HOLDERS OF SECURITIES TO BE EXCHANGED FOR CAPITAL SECURITIES...........................................................................62 SECTION 1305. DEPOSIT OF EXCHANGE PRICE........................................................................64 SECTION 1306. SECURITIES DUE ON EXCHANGE DATE; SECURITIES EXCHANGED IN PART..........................................................................................64 SECTION 1307. FORM OF CAPITAL SECURITY ELECTION FORM...........................................................64 SECTION 1308. COVENANTS OF THE COMPANY.........................................................................65 SECTION 1309. REVOCATION OF OBLIGATION TO EXCHANGE CAPITAL SECURITIES FOR SECURITIES..................................................................................66 SECTION 1310. OPTIONAL SECURITIES FUND.........................................................................66 SECTION 1311. PROVISION IN CASE OF CONSOLIDATION, MERGER OR TRANSFER OF ASSETS......................................................................................67 SECTION 1312. RESPONSIBILITY OF TRUSTEE........................................................................67 ARTICLE FOURTEEN SECURITIES FUNDS SECTION 1401. CREATION OF A SECURITIES FUND....................................................................68 SECTION 1402. DEPOSITS INTO A SECURITIES FUND..................................................................68 SECTION 1403. COVENANT OF THE COMPANY TO SELL OR CAUSE TO BE SOLD CAPITAL SECURITIES AND DEPOSIT PROCEEDS....................................................................69
-viii- 12 SECTION 1404. INVESTMENT OF MONEYS IN A SECURITIES FUND........................................................70 SECTION 1405. REPAYMENT TO THE COMPANY FROM A SECURITIES FUND..................................................70 SECTION 1406. PAYMENT TO PAYING AGENT FROM A SECURITIES FUND...................................................70 ARTICLE FIFTEEN SUBORDINATION OF SECURITIES SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS....................................................71 SECTION 1502. TRUSTEE AND HOLDERS OF SECURITIES MAY RELY ON CERTIFICATE OF LIQUIDATING AGENT; TRUSTEE MAY REQUIRE FURTHER EVIDENCE TO OWNERSHIP OF SENIOR INDEBTEDNESS; TRUSTEE NOT FIDUCIARY HOLDERS TO SENIOR INDEBTEDNESS...............................................................................................73 SECTION 1503. PAYMENT PERMITTED IF NO DEFAULT..................................................................73 SECTION 1504. TRUSTEE AND EXCHANGE AGENT NOT CHARGED WITH KNOWLEDGE OF PROHIBITION...................................................................................74 SECTION 1505. TRUSTEE TO EFFECTUATE SUBORDINATION..............................................................74 SECTION 1506. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS...............................................75 SECTION 1507. ARTICLE APPLICABLE TO PAYING AGENTS..............................................................75 SECTION 1508. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.................................................75 TESTIMONIAL....................................................................................................76 SIGNATURES.....................................................................................................76 ACKNOWLEDGMENTS................................................................................................76
-ix- 13 INDENTURE, dated as of February 1, 1985, between UNITED VIRGINIA BANKSHARES INCORPORATED, a corporation duly organized and existing under the laws of the Commonwealth of Virginia (herein called the "Company"), having its principal office at 919 East Main Street, Richmond, Virginia 23261, and CHEMICAL BANK, a corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutual covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. 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 which are fined 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, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; and 14 (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. Certain terms, used principally in Article Six, are defined in that Article. "Act", when used with respect to any Holder, has the meaning specified in Section 104. "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 to act on behalf of the Trustee to authenticate Securities. "Authorized Newspaper" means a newspaper of general circulation in the relevant area, printed in the English language and customarily published on each Business Day therein. "Bank" means United Virginia Bank and (i) any successor or successors to all or substantially all of the business of United Virginia Bank as presently constituted (ii) any surviving corporation or transferee corporation referred to in Section 1007. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of officers and/or directors of the Company appointed by that board. "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 and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close. "Capital Securities" means any securities issued by the Company which consist of any one of the following: (i) Common Stock, (ii) Perpetual Preferred Stock, or (iii) other securities which at the date of issuance constitute primary capital of the Company under regulations of or as determined by the Company's Primary Federal Regulator, provided that if any securities under (iii) are (x) issued in exchange for Securities under this Indenture and (y) are debt obligations which are themselves exchangeable for Capital Securities as defined herein, the Company shall have received the approval of the Company's Primary Federal Regulator for such issuance. Capital Securities may have such terms, rights and preferences as may be determined by the Company. "Capital Security Election Form" means a form substantially in the form included in Section 1307. 2 15 "Cash Proceeds" has the meaning specified in Section 1402. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, 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 at such time. "Common Stock" means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. "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" or "Company Order" means a written request or order signed in the name of the Company by its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Controlled Subsidiary" means a Subsidiary more than 80% of the outstanding shares of Voting Stock of which is owned directly or indirectly, by the Company, or by one, or more other Controlled Subsidiaries, or by the Company and one or more other Controlled Subsidiaries. "Corporate Trust Office" means the principal office of the Trustee in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Indenture is located at 55 Water Street, New York, New York 10041. "Corporation" includes corporations, associations, companies and business trusts. "Default" has the meaning specified in Section 503. "Defaulted Interest" has the meaning specified in Section 307. "Event of Default" has the meaning specified in Section 501. "Exchange Agent" means the Person or Persons appointed by the Company to give notices and to exchange Securities of any series for Capital Securities as specified in Article Thirteen. "Exchange Date", when used with respect to the Securities of any series, means any date on which such Securities are to be exchanged for Capital Securities pursuant to this Indenture. "Exchange Price", when used with respect to any Security of any series to be exchanged for Capital Securities, means the amount of Capital Securities for which such Security is to be 3 16 exchanged pursuant to this Indenture or the aggregate sale price of such Capital Securities in the Secondary Offering for the account of the Holder of such Security as the case may be. "Exchange Proceeds" has the meaning specified in Section 1402. "Holder" means a Person in whose name a Security is registered in the Security 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 particular series of Securities established as contemplated by Section 301. "Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Market Value" of any Capital Securities issued on any Exchange Date for Securities of any series shall be the sale price of such Capital Securities as are sold in the Secondary Offering for the account of the Holders of the Securities of such series. In the event no such Secondary Offering takes place, the Market Value of such Capital Securities shall be the fair value of such Capital Securities on such Exchange Date as determined by three independent nationally recognized investment banking firms selected by the Company, "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 or otherwise. "Officers' Certificate" means a certificate signed by the Chairman of the Board of Directors or the President or a Vice Chairman or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, 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 the Company, and who shall be satisfactory to the Trustee. "Optional Securities Fund" means the fund for the Securities of any series created pursuant to the provisions of Section 1310. "Original Issue Discount Security" means any Security which 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 502. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: 4 17 (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment or redemption money or Capital Securities, as the case may be, in the necessary amount have been theretofore deposited with the Trustee or any Paying Agent or, in the case of exchange, the Exchange Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent or Exchange Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Company and the Trustee has been made and, provided further, that if such Securities are being exchanged, the Exchange Date has occurred; and (iii) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of 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 which the Trustee knows to be so owned shall be so disregarded. Securities so owned which 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 of such other obligor. "Paying Agent" means 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. "Perpetual Preferred Stock" means any stock of any class of the Company which has a preference over Common Stock in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not mandatorily redeemable or repayable, or redeemable or repayable at the option of the Holder, otherwise than in shares of Common Stock or Perpetual Preferred Stock of another class or series with the proceeds of the sale of Common Stock or Perpetual Preferred Stock. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. 5 18 "Place of Exchange", when used with respect to Securities of any series, means any place where the Securities of such series are exchangeable for Capital Securities as specified as contemplated by Section 301. "Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 301. "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 306 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. "Primary Federal Regulator" means the primary United States Federal regulator of the Company (which at the date of this Indenture is the Board of Governors of the Federal Reserve System), or any successor body or institution. "Qualifying Investment" for any Securities Fund means (i) any debt security of or guaranteed by the United States of America or any agency thereof, (ii) any debt security (including any security of the Company or any Subsidiary of the Company) which at the time is rated in any of the four highest categories (including any subdivision thereof) by any securities rating agency nationally recognized in the United States of America and (iii) time deposits with, including certificates of deposit issued by, any bank or trust company (including any Subsidiary of the Company), any unsecured debt security of which (or any unsecured debt security of the parent of which) is at the time rated in any of the four highest categories (including any subdivision hereof) by any securities rating agency nationally recognized in the United States, provided, in each case, that such security or deposit matures on or before the Stated Maturity of the Securities of the series to which such Securities Fund relates. "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 on the Securities of any series means the date specified for that purpose as contemplated by Section 301. "Responsible Officer", when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular 6 19 corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Secondary Offering", when used with respect to the Securities of any series, means the offering and sale by the Company of Capital Securities for the account of Holders of Securities of such series who elect to receive cash and not Capital Securities on the Exchange Date for such series. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Securities Fund" means the fund for the Securities of any series created pursuant to the provisions of Section 1401. "Security Register", "Security Registrar" and "Co-Security Registrar" have the respective meanings specified in Section 305. "Senior Indebtedness" means any obligation of the Company to its creditors, whether now outstanding or subsequently incurred, other than (i) any obligation as to which, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligation is not Senior Indebtedness and (ii) obligations evidenced by the Securities. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means a corporation more than 50% of the outstanding shares of 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. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities 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 as in force at the date as of which this instrument was executed, except as provided in Section 905. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". 7 20 "Voting Stock" means stock which 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. SECTION 102. Compliance Certificates 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 an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture 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 103. Form 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 matter 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 Person 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 8 21 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. SECTION 104. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given 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 agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments 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 601) 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 a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of Securities shall be proved by the Security Register. (d) 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. SECTION 105. 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 by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, 9 22 given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trustee Administration Department, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Secretary at 919 East Main Street, Richmond, Virginia 23261, or at any other address previously furnished in writing to the Trustee by the Company. SECTION 106. 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 his address as it appears in the Security 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. 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. In case, by reason of the suspension of publication of any Authorized Newspaper, or by reason of any other cause, it shall be impossible or impracticable to make publication of any notice in an Authorized Newspaper or Authorized Newspapers as required by this Indenture or by the Securities, then such method of publication or notification as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 107. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. SECTION 108. 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. 10 23 SECTION 109. 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 110. 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. SECTION 111. 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, the holders of Senior indebtedness and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 112. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, provided that the rights, duties, standard of care and immunities of the Trustee in connection with the administration of its trust hereunder shall be governed by the laws of the State of New York. SECTION 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Exchange Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Security) payment of interest or principal (and premium, if any) or exchange of Securities for Capital Securities or cash need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, Exchange Date or at the Stated Maturity, and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Exchange Date or Stated Maturity, as the case may be. ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. The Securities of each series shall be in substantially the form 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 the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of 11 24 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 303 for the authentication and delivery of such Securities. The Trustee's certificates of authentication shall be in substantially the form set forth in this Article. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 202. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication on all Securities shall be in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. CHEMICAL BANK, as Trustee By: ---------------------------- Authorized Officer ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); (2) any limit upon the aggregate principal amount of the Securities of the series which 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 304, 305, 306, 906, 1107 or 1306); 12 25 (3) the date or dates on which the principal of the Securities of the series is payable; (4) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such 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 Interest Payment Date; (5) the place or places, if any, in addition to the Borough of Manhattan, The City of New York, and the City of Richmond, Virginia, where the principal of (and premium, if any) and interest on Securities of the series shall be payable; (6) the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series may be redeemed in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) the place or places at which, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities shall be exchangeable for Capital Securities of the Company, which terms and conditions shall not be inconsistent with Article Thirteen; (9) any covenant or option of the Company to create a Securities Fund for the repayment of the Securities and the terms and conditions of such Securities Fund, including the latest maturity date of any Qualifying Investment, which terms and conditions shall not be inconsistent with Article Fourteen; (10) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (11) any Events of Default with respect to Securities of such series, if not set forth herein; (12) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; and (13) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). The Securities shall be subordinate and junior in right of payment to Senior Indebtedness of the Company as provided in Article Fifteen. 13 26 All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any such indenture supplemental hereto. At the option of the Company, interest on the Securities of any series that bears interest may be paid by mailing a check to the address of the person entitled thereto as such address shall appear in the Security Register. 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. SECTION 302. Denominations. The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by (i) the Chairman or a Vice Chairman of the Board of Directors or its President or one of its Vice Presidents and (ii) its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary, under its corporate seal which may, but need not, be attested. 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 and subject to the provisions hereof shall authenticate and deliver such Securities. 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 which is not reasonably acceptable to the Trustee. 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 14 27 in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. SECTION 304. 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 which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities 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 that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. 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 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the office of the Security Registrar designated pursuant to this Section 305 or Section 1002 a register (referred to as the "Security 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. United Virginia Bank, a Subsidiary of the Company, having its principal place of business at 919 East Main Street, Richmond, Virginia 23261, is hereby initially appointed Security Registrar and the Trustee is hereby initially appointed a Co-Security Registrar in each case for the purpose of registering Securities and transfers of Securities as herein provided. Upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, 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 and of a like aggregate principal amount. At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount, 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 15 28 authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon any registration of 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 registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of 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 registration of transfer or exchange of Securities, other than an exchange pursuant to Section 304, 906, 1107 or 1306 not involving any transfer. The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. SECTION 306. 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 series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and 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 either 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 upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount 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 may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed 16 29 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 307. Payment of Interest; Interest Rights Preserved. Interest on any Security which 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. Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record 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 (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 of such series 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 which 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 Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special 17 30 Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, 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 on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of 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 308. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) 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. SECTION 309. Cancellation. All Securities surrendered for payment, redemption, registration of 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 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 which 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 held by the Trustee shall be disposed of as directed by a Company Order. SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. 18 31 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights to exchange Securities for Capital Securities or rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, 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 which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 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 1003) 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, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount 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 to the date of such deposit (in the case of Securities which 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 19 32 provided for relating to the satisfaction and discharge of this indenture have been complied with. In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of all series as to which it is Trustee and if the other conditions thereto are met. In the event there are two or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments from all Trustees hereunder. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and to any Holder pursuant to Section 1308, the rights and remedies of the Trustee under Articles Five and Six with respect to the enforcement of Section 1308, the obligations of the Trustee to any Authenticating Agent under Section 614 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 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, 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 whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently exchanged for Capital Securities shall be returned to the Company upon Company Request. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Fifteen or 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) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, trustee, custodian, 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 20 33 affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (2) the commencement by the Company of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereinafter in effect, or the consent by the Company to the entry of a decree or order for relief in an involuntary case under any such law or to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (3) any other Event of Default provided with respect to Securities of such series. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then 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 Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of 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 amount) shall become immediately due and payable in cash. 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 (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and 21 34 (D) 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 nonpayment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any 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 (including any obligation to exchange Capital Securities for Securities of a series pursuant to Article Thirteen) of the principal of (or premium, if any, on) any Security at the Maturity thereof, or (3) default is made in the deposit of any sinking fund payment, when and as due by the terms of any Security, or (4) default is made in any required deposit of funds into a Securities Fund or (5) default is made in the performance of any covenant or a breach occurs in any warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of other series of Securities), and such default or breach continues for a period of 30 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 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; the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, including the delivery of any Capital Securities then required to be delivered, and, to the extent that the payment of such interest shall be legally enforceable, 22 35 interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts (including the delivery of any Capital Securities then required to be delivered) 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 the delivery of any Capital Securities required to be delivered and not so delivered, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys (or moneys equal to the principal amount of any Securities for which such Capital Securities were to be exchanged) adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default or a default or breach referred to in this Section 503 together with any notice or passage of time referred to in this Section (herein called a "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. SECTION 504. 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, the Trustee (irrespective of whether the principal of the Securities 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 or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; 23 36 and 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 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 it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. 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. SECTION 505. Trustee May Enforce Claims 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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. Subject to Article Fifteen, any money collected by the Trustee 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 on account of principal (or premium, if any) or 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 under Section 607; and SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities 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 Securities for principal (and premium, if any) and interest, respectively. SECTION 507. Limitation on Suits. No Holder of any Security 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 or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default or Default with respect to the Securities of that series; 24 37 (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 or 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 of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders or Holders of any other series, 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 of such Holders. SECTION 508. 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 307) interest on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and (if the terms of such Security so provide) to have such Security exchanged for Capital Securities pursuant to Article Thirteen and to institute suit for the enforcement of any such payment or exchange, and such rights shall not be impaired without the consent of such Holder. SECTION 509. 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 to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall 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 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein 25 38 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 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default or Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or 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 by the Holders, as the case may be. SECTION 512. 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, and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of (or premium, if any) or interest on any Security of such series, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default or 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. 26 39 SECTION 514. 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, suffered 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 Company, 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 on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date) or for the enforcement of the right to exchange any Security for Capital Securities as provided in Article Thirteen. SECTION 515. Waiver of 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 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 exercise of any power herein granted to the Trustee, but will suffer and permit the exercise of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to Securities of any series, (1) the Trustee undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are 27 40 specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) 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 Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (4) 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. (d) 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 602. Notice of Defaults. Within 90 days after 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 Security Register, notice of such default hereunder known to the Trustee, 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 on any Security of such series or in the payment of any sinking fund installment with respect to Securities of any such series or in the exchange of Capital Securities for Securities of such series, the Trustee shall be protected in withholding such notice if and so long 28 41 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; and provided, further, that in the case of any default of the character specified in Section 501(3) with respect to Securities of such series, no such notice to Holders of Securities of such series shall be given until at least 60 days after the occurrence thereof unless otherwise provided in or pursuant to the Board Resolution or in a supplemental indenture contemplated by Section 301. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default or Default with respect to Securities of such series. SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (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, note, other evidence of indebtedness 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 written 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; (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 which 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, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further 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 29 42 responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (h) the Trustee shall not be charged with knowledge of any Event of Default or Default with respect to Securities of any series for which it is acting as Trustee unless either (1) a Responsible Officer of the Trustee (or any successor group, division or department of the Trustee) shall have actual knowledge of the Event of Default or Default or (2) written notice of such Event of Default or Default shall have been given to a Responsible Officer of the Trustee by the Company, any other obligor on such Securities or by any Holder of such Securities. SECTION 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities and in documents relating to any Secondary Offering, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or any Capital Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security 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 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. 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 607. 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 30 43 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 or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts 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. As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities. The claims of the Trustee under this Section shall not be subject to the provisions of Article Fifteen. SECTION 608. Disqualification; Conflicting Interests. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article. (b) In the event that the Trustee shall fail to comply with the provisions of Subsection (a) of this Section with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register, notice of such failure. (c) For the purposes of this Section the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series, if (1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than that series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture 31 44 with respect to Securities of that series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures, or (ii) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of that series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of that series and such other series or under such other indenture or indentures; (2) the Trustee or any of its directors or executive officers is an obligor upon the Securities or an underwriter for the Company; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (i) one individual may be a director or an executive officer, or both, of the Trustee and a director or an executive officer, or both, of the Company but may not be at the same time an executive officer of both the Trustee and the Company; (ii) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director or an executive officers or both, of the Trustee and a director of the Company; and (iii) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this Subsection, to act as trustee, whether under an indenture or otherwise; (5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or mote of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the 32 45 Company or by any director, partner or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons; (6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), (i) 5% or more of the voting securities, or 10% or more of any other class of security, of the Company not including the Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (ii) 10% or more of any class of security of an underwriter for the Company; (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this Subsection defined), 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company; or (9) the Trustee owns, on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this Subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after May 15 in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Company fails to make payment in full of the principal of (or premium, if any) or interest on any of the Securities when and as the same becomes due and payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period, and after such date, notwithstanding the foregoing provisions of this paragraph, all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection. 33 46 The specification of percentages in paragraphs (5) to (9), inclusive, of this Subsection shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this Subsection. For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection only, (i) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (ii) an obligation shall be deemed to be "in default" when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (iii) the Trustee shall not be deemed to be the owner or holder of (A) any security which it holds as collateral security, as trustee or otherwise, for an obligation which is not in default as defined in Clause (ii) above, or (B) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (C) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity. (d) For the purposes of this Section: (1) The term "underwriter", when used with reference to the Company, means every person who, within three years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered or sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. (2) The term "director" means any director of a corporation or any individual performing similar functions with respect to any organization, whether incorporated or unincorporated. (3) The term "person" means an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization or a government or political subdivision thereof. As used in this paragraph, the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security. (4) The term "voting security" means any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person. 34 47 (5) The term "Company" means any obligor upon the Securities. (6) The term "executive officer" means the president, every vice president, every trust officer, the cashier, the secretary and the treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors. (e) The percentages of voting securities and other securities specified in this Section shall be calculated in accordance with the following provisions: (1) A specified percentage of the voting securities of the Trustee, the Company or any other person referred to in this Section (each of whom is referred to as a "person" in this paragraph) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person. (2) A specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding. (3) The term "amount" when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares and the number of units if relating to any other kind of security. (4) The term "outstanding" means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition: (i) securities of an issuer held in a sinking fund relating to securities of the issuer of the same class; (ii) securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise; (iii) securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise; and (iv) securities held in escrow if placed in escrow by the issuer thereof; provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof. 35 48 (5) A security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof substantially the same rights and privileges; provided, however, that, in the case of secured evidences of indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall, not be deemed sufficient to constitute such series different classes and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture. SECTION 609. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise Corporate trust powers, having a combined capital and surplus of at least $50,000,000 subject to supervision or examination Federal or State authority and having its Corporate Trust by Office in the Borough of Manhattan, The City of New York, if there be such a corporation in the Borough of Manhattan, The City of New York, qualified and eligible under this Article and willing to act on reasonable terms. If such corporation publishes reports of condition at least annually, pursuant to the requirements of said 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 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. SECTION 610. 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 in accordance with the applicable requirements of Section 611. (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 the instrument of acceptance by a successor Trustee required by Section 611 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 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 608(a) 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 36 49 (2) the Trustee shall cease to be eligible under Section 609 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 by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, 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 611. 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 in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent 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 of Securities of such series and accepted appointment in the manner required by Section 611, any holder who has been a bona fide Holder of a Security of such series for at least six months may, 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 Securities Trustee with respect to the Securities of any series by filing written notice of such event by first-class mail, postage prepaid, to all holders of Securities of such series as their names and addresses appear in the Security 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. 37 50 SECTION 611. 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. (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 indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (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 the 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 supplemental indenture shall constitute such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, 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 delivery to such successor Trustee, to the extent contemplated by such supplemental indenture, the 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 38 51 all such 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 612. 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 the corporate trust business of the Trustee, shall be the successor 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 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 with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against Company. (a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within four months prior to a default, as defined in Subsection (c) of this Section, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities, as defined in Subsection (c) of this Section: (1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such four months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this Subsection, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and (2) all property received by the Trustee in respect of any claims as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such four months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds. Nothing herein contained, however, shall affect the right of the Trustee: 39 52 (A) to retain for its own account (i) payments made on account of any such claim by any Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made in cash, securities or other property in respect of claims filed against the Company in bankruptcy or receiver ship or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law; (B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such four months' period; (C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such four months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in Subsection (c) of this Section, would occur within four months; or (D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property. For the purposes of Paragraphs (B), (C) and (D), property substituted after the beginning of such four months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such Paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim. If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this 40 53 paragraph, with respect to any claim, the term 'dividends' shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceedings for reorganization is pending shall have jurisdiction (i) to apportion among the Trustee, the Holders and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee and the Holders and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. Any Trustee which has resigned or been removed after the beginning of such four months' period shall be subject to the provisions of this Subsection as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such four months' period, it shall be subject to the provisions of this Section if and only if the following conditions exist: (i) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such four months' period; and (ii) such receipt of property or reduction of claim occurred within four months after such resignation or removal. (b) There shall be excluded from the operation of Subsection (a) of this Section a creditor relationship arising from: (1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture; 41 54 (3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity; (4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in Subsection (c) of this Section; (5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper, as defined in Subsection (c) of this Section. (c) For the purposes of this Section only: (1) the term 'default' means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable; (2) the term "other indenture securities" means securities upon which the Company is an obligor outstanding under any other indenture (i) under which indenture and as to which securities the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of this Section, and (iii) under which a default exists at the time of the apportionment of the funds and property held in such special account; (3) the term "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; (4) the term "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the Purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation; (5) the term "Company" means any obligor upon the Securities; and 42 55 (6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States Code. SECTION 614. Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding the Trustee may appoint an Authenticating Agent or Agents (which may be an Affiliate of the Company) with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof 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, any State thereof 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. The Trustee at the direction of the Company has initially appointed United Virginia Bank, Richmond, Virginia as an Authenticating Agent for each series of Securities issued hereunder, and the Trustee shall incur no liability for such appointment or for any misconduct or negligence of such Authenticating Agent. If United Virginia Bank at any time shall cease to be a Subsidiary of the Company, its duties as an Authenticating Agent shall terminate immediately. 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 the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, 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 which shall be 43 56 acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. 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 provisions 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 reimbursed for such payments, subject to the entitled to provisions of Section 607. The provisions of Sections 308, 604 and 605 shall be applicable to each Authenticating Agent. Pursuant to each appointment made under this Section, the Securities of each series covered by such appointment 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. CHEMICAL BANK, As Trustee By: ------------------------------------ As Authenticating Agent By: ------------------------------------ Authorized Officer ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) not later than 15 days following any Regular Record Date with respect to Securities of any series, a list, in such form as the Trustee may reasonably require, containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, or the Security Registrar, if other than the Trustee, as to the names and addresses of the Holders of the Securities of such series as of the preceding Regular Record Date, and 44 57 (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; provided, however, that if and so long as the Trustee is the Security Registrar with respect to Securities of a particular series, no such list shall be required with respect to Securities of such series. SECTION 702. 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 701 and the names and address of Holders received by the Trustee in its capacity as Co-Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list 50 furnished. (b) If three or more Holders (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either (i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 702(a), or (ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of 45 58 such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (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 any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b). SECTION 703. Reports by Trustee. (a) Within 60 days after May 15 of each year commencing with the year 1985 the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report dated as of such May 15 with respect to: (1) its eligibility under Section 609 and its qualifications under Section 608, or in lieu thereof, if to the best of its knowledge it has continued to be eligible and qualified under said Sections, a written statement to such effect; (2) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1% of the principal amount of the Securities Outstanding on the date of such report; (3) the amount, interest rate and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in Section 613(b)(2), (3), (4) or (6); (4) the property and funds, if any, physically in the possession of the Trustee as such on the date of such report; (5) any additional issue of Securities which the Trustee has not previously reported; and (6) any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Securities or the Securities of any series, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance with Section 602. 46 59 (b) The Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this Section (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this Subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the Securities Outstanding at such time, such report to be transmitted within 90 days after such time. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock 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 stock exchange. SECTION 704. Reports by-Company. The Company shall: (1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be 47 60 required by rules and regulations prescribed from time to time by the Commission. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and 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 and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, 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 supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 802. Successor Corporation Substituted. Upon any consolidation by the company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation 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 corporation had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities. 48 61 ARTICLE NINE SUPPLEMENTAL INDENTURE SECTION 901. 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 corporation to the Company and the assumption by any Such successor of the covenants of the Company herein and in the Securities; or (2) 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 (3) to add any additional Events of Default; or (4) to add to or change any provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or (5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; 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 611(b); or (9) to add to or change any provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities convertible into other securities, including capital stock; or 49 62 (10) to add to or change provisions of this Indenture to such extent as shall be necessary to permit or facilitate, with respect to any series of Securities established after the date of such addition or change, the termination of the Company's obligations under this Indenture with respect to Securities of such series, upon deposit by the Company in trust for the benefit of the Holders of Securities of such series of sufficient securities or funds to satisfy the Company's obligations with respect thereto; or (11) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect. SECTION 902. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than 662/3% 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 principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment or delivery of Capital Securities exchanged for Securities pursuant to Article Thirteen on or after the Stated Maturity thereof (or, in the case of redemption or exchange, on or after the Redemption Date or Exchange, as the case may be), 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 513 or Section 1009, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the 50 63 consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1009 or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(8), or (4) impair the right of any Holder of Securities of any series to receive on any Exchange Date for Securities of such series Capital Securities with a Market Value equal to the principal amount of such Holder's Securities of such series or in an amount sufficient to provide proceeds to such Holder upon sale by the Company in the Secondary Offering equal to the principal amount of such Holder's Securities of such series. 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. SECTION 903. 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 601) shall be fully protected in relying upon, 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 which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 904. 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 905. 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. 51 64 SECTION 906. 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 Trustee, bear a notation in form approved by the Trustee 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 Trustee and 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. SECTION 907. Subordination Unimpaired. No supplemental indenture executed pursuant to this Article shall directly or indirectly modify the provisions of Article Fifteen in any manner which might alter the subordination of the Securities. ARTICLE TEN COVENANTS SECTION 1001. 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 the Securities and this Indenture. For all purposes of this indenture, the exchange of Capital Securities for Securities of any series pursuant to this Indenture shall constitute full payment of the principal of the Securities of such series being exchanged on any Exchange Date for Securities of such series, without prejudice to any Holder's rights pursuant to Section 1308. SECTION 1002. 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, where Securities of that series may be surrendered for registration of 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 will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or 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, Attention: Corporate Trustee Administration Department, 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 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 52 65 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 or rescission and of any change in the location of any such other office or agency. The Company hereby designates as a Place of Payment for each series of Securities (i) the Borough of Manhattan, The City of New York, and appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and (ii) the City of Richmond, Virginia, and appoints United Virginia Bank at its principal office as Paying Agent in such city. The Paying Agent in the City of Richmond, Virginia shall be the principal Paying Agent. SECTION 1003. 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 that 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 in writing of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with the Paying Agent in the City of Richmond 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, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or 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 written 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 (and premium, if any) or interest on the Securities of that series; 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 53 66 Trustee, such Paying Agent shall be released from all further liability with respect to such money. 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 any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall 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 an Authorized Newspaper 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 1004. Corporate Existence. Subject to Article Eight (in the case of the Company) and to Section 1007(b) (in the case of the Bank), the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and that of each Subsidiary and the rights (charter and statutory) and franchises of the Company and its Subsidiaries; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries considered as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders. SECTION 1005. Maintenance of Properties. The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation and maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Company or of the Subsidiary concerned, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. SECTION 1006. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessment and governmental charges levied or imposed upon the Company or 54 67 any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and Supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves with respect thereto (segregated to the extent required by generally accepted accounting principles). SECTION 1007. Limitation on Issue and Disposition of Voting Stock of, and Merger and Sale of Assets by, the Bank. For so long as any of the Securities shall be Outstanding, the Company will not (a) sell, assign, transfer or otherwise dispose of any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank, and will not permit the Bank to issue any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, such Voting Stock if, after giving effect to any such transaction and to the issuance of the maximum number of shares of Voting Stock of the Bank issuable upon the exercise of all such convertible securities, options, warrants or rights, the Bank would cease to be a Controlled Subsidiary, except as otherwise provided below in this Section 1007, or (b) permit the Bank to (i) merge or consolidate with or into any other corporation unless the surviving corporation is, or upon consummation of the merger or consolidation will become, a Controlled Subsidiary, or (ii) lease, sell or transfer all or substantially all of its properties and assets to any corporation or other Person, except to a Controlled Subsidiary or a Person that, upon such lease, sale or transfer, will become a Controlled Subsidiary. Notwithstanding subparagraph (a) above, the Company may sell, assign, transfer or otherwise dispose of any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank, (i) in compliance with an order of a court or regulatory authority of competent jurisdiction or as a condition imposed by such court or authority to the acquisition by the Company, directly or indirectly, of any other corporation or entity, or (ii) when the proceeds from any such sale, assignment, transfer or disposition are within 270 days, or such longer period of time as may be necessary to obtain regulatory approvals in connection therewith, to be invested, pursuant to an understanding or agreement in principle reached at the time of sale, assignment, transfer or disposition, in any Controlled Subsidiary (including any Person which upon such investment becomes a Controlled Subsidiary) engaged in a banking business or any other business then legally permissible for bank holding companies and the Company delivers to the Trustee a written statement, which need not comply with Section 102, signed by 55 68 the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of the Company, stating that the proceeds from such sale, assignment, transfer or disposition have been so invested within such time period. Such statement shall be delivered to the Trustee within 60 days of the investment of the proceeds. SECTION 1008. Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement, which need not comply with Section 102, signed by the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of the Company, stating, as to each signer thereof, that (1) a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision, and (2) to the best of his knowledge, based on such review, (a) the Company has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default or Default, or if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof. SECTION 1009. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1004 to 1007, inclusive, with respect to the Securities of any series if before the time for such compliance the Holders of at least 66 2/3% 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 term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article. 56 69 SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such 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 or elsewhere in this Indenture, the Company shall furnish the Trustee with an officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee 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 which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series so long the remaining portion of such Security will be in an authorized denomination for Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, 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 the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, 57 70 (4) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and (6) 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. SECTION 1105. Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on the date. SECTION 1106. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall 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 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 1107. Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. 58 71 ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment" and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of sinking fund payment shall be reduced accordingly. SECTION 1203. 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 that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and will, prior to or concurrently therewith, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. 59 72 ARTICLE THIRTEEN EXCHANGE OF CAPITAL SECURITIES FOR SECURITIES SECTION 1301. Applicability of Article. The Company shall exchange Capital Securities for the Securities of any series which are exchangeable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article on a date not later than the Stated Maturity of the Securities of such series. SECTION 1302. Exchange of Capital Securities. The amount of Capital Securities which are exchangeable for each Security of any series which is so exchangeable shall be set forth in or established pursuant to a Board Resolution or supplemental indenture contemplated by Section 301 or, if not so established, shall be Capital Securities with a Market Value equal to the principal amount of such Security. The Securities of any series which are exchangeable may be exchanged at the election of the Company, as a whole or from time to time in part, at such time and for such Market Value of Capital Securities as is stated in the terms of the Securities of such series together with accrued and unpaid interest to the Exchange Date. Such Exchange Date shall be established by notice to the Holders of the Securities of such series given in the manner described in Section 1303(a) not less than 90 days nor more than 120 days prior to such Exchange Date. Notice of such Exchange Date shall also be given in the manner described in Section 1303(a) not less than 90 nor more than 120 days prior to the Stated Maturity of the Securities of any series which are exchangeable. The Exchange Date so established may be accelerated to a date not more than 60 days prior to the date so established by a later notice given by the Company in the manner prescribed in Section 1303(b) not less than three Business Days prior to the accelerated Exchange Date. The Company will effect each Secondary Offering such that the closing of such Secondary Offering will occur on the relevant Exchange Date. No fractional Capital Securities shall be issued upon exchange for any Securities. If more than one Security of any series shall be surrendered for exchange at one time by the same Holder, the amount of all Capital Securities which shall be issuable upon exchange thereof shall be computed on the basis of the aggregate principal amount of Securities of such series so surrendered. In lieu of issuing any fractional Capital Security, the Company shall pay a cash adjustment in respect of such fraction in an amount equal to, the same fraction of the Market Value of the Capital Security. SECTION 1303. Notices of Exchange. (a) All notices subject to this paragraph shall be given to the Holders of Securities of any series to be exchanged by first-class mail, postage prepaid, to their addresses as they shall appear on the Security Register (a copy of which shall promptly be delivered to the Trustee and Exchange Agent) and shall: (1) state the Exchange Date and that it is subject to acceleration in the manner described in Section 1302; 60 73 (2) state the type of Capital Securities to be exchanged for the Securities of such series on such Exchange Date; (3) contain or be accompanied by the form of Capital Security Election Form specified in Section 1307; (4) state the identification and the principal amount of the particular Securities selected to be exchanged if less than all of the Outstanding Securities of such series are to be exchanged on such Exchange Date; (5) state that each Holder of Securities of such series being exchanged will receive on such Exchange Date accrued and unpaid interest in cash (subject to Section 307) and may elect to receive Capital Securities with a Market Value equal to the relevant percentage of the principal amount of the Securities of such series by returning the Capital Security Election Form contained in Section 1307 within the time set forth therein; (6) state that, in the absence of the election specified in (5) above, such Holder shall be deemed to have elected to have Capital Securities sold by the Company in the related Secondary Offering and the proceeds thereof, together with accrued and unpaid interest, delivered to such Holder on the Exchange Date; provided, however, that in the event the Company does not effect the Secondary Offering, such Holder will receive on the Exchange Date the Capital Securities described in the notice and not cash; (7) state that on such Exchange Date the Exchange Price will become due and payable, whether in money or Capital Securities, with respect to each such Security to be exchanged and that interest thereon will cease to accrue on and after such Exchange Date; (8) state that because the Market Value of Capital Securities sold in the Secondary Offering will be determined prior to the Exchange Date, Holders of Securities who elect to receive Capital Securities on the Exchange Date will bear the market risk with respect to the value of the Capital Securities to be received from the date such Market Value is determined to the Exchange Date; (9) state that each Holder for whom Capital Securities are being offered in the Secondary Offering shall be deemed to have appointed the Company its attorney-in-fact to execute any and all documents and agreements which the Company deems necessary or appropriate to effect such Secondary Offering and the precise terms of such appointment; (10) state that (i) the Company will assume, unless advised to the contrary in writing, that the Capital Securities are to be offered for the account of the Holder, that such Holder has not held any position, office or other material relationship with the Company within three years preceding the Secondary Offering, that the Holder owns no such Capital Securities which are held other than in the name of the Holder and that after completion of the Secondary 61 74 Offering the Holder will own less than 1% of the class of such Capital Securities, (ii) if any of these assumptions is not correct, the Holder shall promptly so advise the Company, and (iii) a failure on the part of such Holder to promptly advise the Company of the incorrectness of any of such assumptions will expose such Holder to liability to the Company, other Holders of Securities of such series and underwriters, agents and other similar persons to the extent set forth in Section 1304(d) and exonerate the Company from liability to such Holder to the extent set forth in Section 1308(c); and (11) state the place or places where such Securities are to be surrendered for payment or exchange for Capital Securities. (b) Each notice in accordance with this Section 1303(b) shall be given to the Holders of Securities of any series to be exchanged by first-class mail, postage prepaid, to their addresses as they shall appear on the Security Register and published in an Authorized Newspaper in the Borough of Manhattan, The City Of New York. The Company shall promptly deliver a copy of each such notice to the Trustee and Exchange Agent. In the event that there has been a Secondary Offering, notice shall be given not less than three Business Days prior to the Exchange Date of the amount of Capital Securities to be exchanged for each $1,000 principal amount of Securities of such series in a like manner. (c) If less than all the Securities of any series are to be exchanged on any Exchange Date, the Company shall at least 15 days prior to the notice establishing such Exchange Date (unless a shorter period shall be satisfactory to the Trustee) notify the Trustee of such Exchange Date and of the principal amount of the Securities of such series to be exchanged, and the particular Securities to be exchanged shall be selected by the Trustee from the Outstanding Securities of such series, by such method as the Trustee shall deem fair and which may provide for the selection for exchange of the portion of the principal amount of Securities of such series which shall be equal to the minimum authorized denomination for Securities of such series or any whole multiple thereof. The Trustee shall promptly notify the Company in writing of the Securities selected for exchange and, in the case of any Securities selected for partial exchange, the principal amount thereof to be exchanged. SECTION 1304. Rights and Duties of Holders of Securities to be Exchanged for Capital Securities. (a) Subject to Sections 502 and 503, and without prejudice to the rights pursuant to Section 1308 of Holders of Securities of any series to be exchanged, (i) no Holder of Securities of a series which is exchangeable in accordance with its terms shall be entitled to receive any cash from the Company on any Exchange Date or at Stated Maturity except from the proceeds of the sale of Capital Securities in the related Secondary Offering and except as provided herein in lieu of any fractional Capital Securities and for accrued and unpaid interest, and (ii) in the event that the Company does not effect a Secondary Offering to provide cash to Holders of any series of Securities on any Exchange Date or at Stated Maturity, such Holders shall receive Capital Securities with a Market Value determined pursuant to the terms of the Securities of such series and not cash other than in lieu of any fractional Capital Securities and for accrued and unpaid interest. 62 75 (b) Each Holder for whom Capital Securities are offered in a Secondary Offering shall be deemed to have appointed the Company its attorney-in-fact to execute any and all documents and agreements the Company deems necessary or appropriate to effect such Secondary Offering on such terms as are set out in the notice described in Section 1303(a). (c) Unless advised to the contrary in writing within 30 days following the giving of the notice described in Section 1303(a) by any Holder for whom Capital Securities are offered in a Secondary Offering, the Company shall assume for the purposes of such Secondary Offering that the Capital Securities are to be offered for the account of such Holder, that such Holder has not held any position, office or other material relationship with the Company within three years preceding the Secondary Offering, that such Holder owns no such Capital Securities which are held other than in the name of the Holder and that after completion of the Secondary Offering such Holder will own less than 1% of the class of such Capital Securities. (d) Each Holder for whom Capital Securities are offered in the Secondary Offering agrees to indemnify and hold harmless the Company, any other Holder and any underwriter, agent or other similar person from and against any and all losses, claims, damages and liabilities resulting from or based upon any untrue statement or alleged untrue statement of any material fact contained in any notice of exchange, any offering memorandum or selling document or registration statement relating to the Secondary Offering, any preliminary prospectus or prospectus relating thereto, or any amendment thereof or supplement thereto, or resulting from or 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, which untrue statement, alleged untrue statement, omission or alleged omission is made therein (i) in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for use in connection with the preparation thereof or (ii) because of such Holder's failure to advise the Company in writing that any assumption described in Section 1303(a) (10) is incorrect. (e) In order to receive Capital Securities on any Exchange Date for a Security, the Holder of the Security to be exchanged shall surrender such Security (with, if the Company or Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), to the Exchange Agent. (f) Securities of any series to be exchanged shall be deemed to have been exchanged on the Exchange Date therefor in accordance with the provisions of this Article and the terms of the Securities of such series, and at such time the rights of the Holders of such Securities as Holders shall cease (subject to the provisions of Section 201 and 301) and the Person or Persons entitled to receive Capital Securities issuable upon such exchange shall be treated for all purposes as the record holder or holders of such Capital Securities at such time. As promptly as practicable on or after each Exchange Date, the Company shall issue and shall deliver to the Exchange Agent a certificate or certificates for the amount of Capital Securities issuable upon such exchange, together with payment in lieu of any fraction of a Capital Security as provided in Section 1302. 63 76 SECTION 1305. Deposit of Exchange Price. At least 90 days prior to any Exchange Date the Company will appoint an Exchange Agent and on any Exchange Date for Securities of any series which may be exchanged the Company shall deposit with the Exchange Agent (or, if the Company is acting as Exchange Agent, segregate and hold in trust as provided in Section 1003) Capital Securities and an amount of money which together are sufficient to pay the Exchange Price of, and accrued interest on, all the Securities of such series or portions thereof which are to be exchanged on the Exchange Date. SECTION 1306. Securities Due on Exchange Date; Securities Exchanged in Part. The Securities of any series to be exchanged shall become due and payable on the Exchange Date for such Securities at the Exchange Price therein specified, and from and after such date (unless the Company shall default in the payment of the Exchange Price and accrued interest) Securities of such series, or the portion thereof, to be exchanged shall cease to bear interest. Upon surrender of any Security of such series for exchange, such Security shall be paid by the company at the Exchange Price, together with accrued interest to the Exchange Date; provided, however, that if such Exchange Date is an Interest Payment Date, the interest payable on such date shall be paid to the Holder of Securities of such series according to the terms of the Securities of such series and the provisions of Section 307. If any Security of any series for which the notice specified in Section 1303(a) is duly given shall not be so paid or exchanged upon surrender thereof for exchange in accordance with Section 1306, the principal shall, until paid, bear interest from such Exchange Date at the rate or rates prescribed therefor in such Security. Any Security which is to be exchanged only in part shall be surrendered to the Exchange Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute, the Trustee shall authenticate and there shall be delivered to the Holder of such Security without service charge a new Security or Securities of the same series, of any authorized denomination as requested by such Holder in an aggregate principal amount equal to and in exchange for the unexchanged portion of principal of the Security so surrendered. SECTION 1307. Form of Capital Security Election Form. The form of Capital Security Election Form shall be substantially as follows with such additions, deletions or changes thereto as may be approved by the Company: "CAPITAL SECURITY ELECTION FORM To: [Insert Name and Address of any Exchange Agent] The undersigned Holder of (insert title of Security] ("Securities") of United Virginia Bankshares Incorporated hereby elects to receive on the Exchange Date determined pursuant to the Indenture, dated as of February 1, 1985 ("Indenture"), 64 77 between United Virginia Bankshares Incorporated and Chemical Bank, Trustee, and referred to in the notice of exchange delivered to the undersigned with this Capital Security Election Form, Capital Securities (as defined in the Indenture) registered in the name of such Holder of Securities of United Virginia Bankshares Incorporated with a Market Value (as defined in the Indenture) equal to the principal amount of the Securities being exchanged which are registered in the name of the undersigned Holder. Unless this Capital Security Election Form is received by any Exchange Agent named above at the address shown above on or prior to 19 , the Holder will be deemed to have elected to participate in the sale of the Holder's Capital Securities in the Secondary Offering and will receive cash on the Exchange Date in an amount equal to the principal amount of all Securities being exchanged owned by the Holder. All terms used herein and not otherwise defined herein shall have the meanings specified in the Indenture. Dated -------------------------- -------------------------- Name of Holder SECTION 1308. Covenants of the Company. (a) The Company agrees that all Capital Securities issued in exchange for Securities will upon issuance be duly and validly issued and, if applicable, fully paid and nonassessable. If any Capital Securities required to be exchanged for Securities hereunder require registration with or approval of any governmental authority under any Federal or State law, or any national securities exchange, before such Capital Securities may be issued, the Company shall use its best efforts to cause such Capital Securities to be duly registered or approved, as the case may be. The Company will pay any and all transfer, stamp or similar taxes that may be payable in respect of the issue or delivery of Capital Securities in exchange for Securities pursuant hereto. (b) The Company unconditionally undertakes to sell Capital Securities in each Secondary Offering (and to bear all expenses of each Secondary Offering, including underwriting discounts and commissions) at the times and in the manner required by this Indenture unless all Holders of the Securities of any series to be exchanged have duly elected to receive Capital Securities on the related Exchange Date. (c) The Company agrees to indemnify and hold harmless any Holder for the account of whom Capital Securities are being offered and sold in connection with any Secondary Offering and any underwriter, agent or other similar person from and against any and all losses, claims, damages and liabilities resulting from or based upon any untrue statement or alleged untrue statement of any material fact contained in any notice of exchange, any offering memorandum or selling document or registration statement relating to the Secondary Offering, any preliminary prospectus or prospectus contained therein, or any amendment thereof or supplement thereto, or resulting from or 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 or resulting from the Company's failure to comply with Section 1308(a); provided, however, that the Company will 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 any such untrue statement, alleged untrue statement, omission or alleged omission made therein , (i) in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such 65 78 Holder specifically for use in connection with the preparation thereof or (ii) because of such Holder's failure to advise the Company in writing that any assumption described in Section 1303(a)(10) is incorrect. In connection with any Secondary Offering, the Company agrees to obtain usual and appropriate indemnification of any Holder for the account of whom Capital Securities are being offered and sold in any Secondary Offering from any underwriter, agent or other similar person. SECTION 1309. Revocation of Obligation to Exchange Capital Securities for Securities. The Company's obligation to exchange Capital Securities for Securities of any series as provided in Section 1301 is absolute and unconditional; provided, however, that such obligation may be revoked at the option of the Company at any time on not less than 60 days' prior notice given in the manner provided in Section 1303(b) to the Holders of Securities of such series, the Trustee and the Exchange Agent, if the Company shall determine that the Securities of such series do not constitute primary capital of the Company under applicable regulations of its Primary Federal Regulator or if the Securities of such series shall cease being treated as primary capital of the Company by its Primary Federal Regulator or if approval of its Primary Federal Regulator is obtained for such revocation and, in each case, shall furnish the Trustee with an Opinion of Counsel to such effect. In the event such obligation is revoked, (a) the Company will pay the percentage of the principal amount established in the terms of the Securities of such series in cash from any source on the Stated Maturity thereof, and (b) the Company may, at any time when pursuant to their terms such Securities are redeemable, on not less than 30 nor more than 60 days' prior notice, redeem the Securities of such series, in whole or in part, for cash from any source at the percentage of the principal amount established in the terms of the Securities of such series, plus accrued interest to the Redemption Date. SECTION 1310. Optional Securities Fund. (a) (1) With respect to Securities of any series which provide that the Securities of such series are exchangeable for Capital Securities, the Company may elect to create and establish a segregated fund (the "Optional Securities Fund") with the Trustee into which funds may at any time be deposited by the Company to the extent and under the provisions set forth in Section 1402 as if the Optional Securities Fund, were a Securities Fund to be used to pay the principal of the Securities of such series. The Optional Securities Fund shall be governed by the terms of Securities of such series and (except as otherwise specified as contemplated by Section 301) this Section. (2) Notwithstanding any provision to the contrary contained in this Indenture or in the Securities of any series, neither funds deposited in an Optional Securities Fund, nor any other property from time to time held in an Optional Securities Fund, shall be deemed to be, for any purpose, property of the Holders of the Securities or trust funds, and an Optional Securities Fund shall not constitute security for the payment of the Securities. 66 79 (b) In lieu of, or in addition to, any exchange of Capital Securities for Securities of any series which may be made in accordance with the provisions of this Article, the Company may elect to redeem the Securities of such series, in whole or in part, in accordance with Article Eleven of this Indenture and the terms of the Securities of such series by paying the principal of such Securities with funds deposited in the Optional Securities Fund for such series at a price equal to the percentage of the principal amount established in the terms of the Securities of such series on the Redemption Date of the Securities to be so redeemed and (except if such Redemption Date shall be an Interest Payment Date) accrued interest on such Securities. If such Redemption Date is an Interest Payment Date, the interest payable on such date shall be paid to the Holder of Securities of such Series according to the terms of the Securities of such series and the provisions of Section 307. (c) Funds held in the Optional Securities Fund shall be invested and reinvested by the Trustee in accordance with the provisions of Section 1404 as if the Optional Securities fund were a Securities Fund. (d) Funds held in the Optional Securities Fund shall be repaid to the Company in accordance with the provisions of Section 1405 as if the Optional Securities Fund were a Securities Fund. (e) In the event that Securities of a series are to be redeemed from the Optional Securities Fund, the Trustee shall pay to any Paying Agent funds in the Optional Securities Fund for the payment of the principal of Securities of such series in accordance with the provisions of Section 1406 as if the Optional Securities Fund were a Securities Fund. SECTION 1311. Provision in Case of Consolidation, Merger or Transfer of Assets. In case of any consolidation of the Company with, or merger of the Company into, any other corporation (other than a consolidation or merger in which the Company is the continuing corporation), or in case of any conveyance or transfer of the properties and assets of the Company substantially as an entirety, the corporation formed by such consolidation or the corporation into which the Company shall have been merged or the corporation which shall have acquired such assets of the Company, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter to receive securities of such successor on the Exchange Date for such Security with a Market Value equal to the principal amount of such Security. The above provisions of this Section shall similarly apply to successive consolidations, mergers, conveyances or transfers. SECTION 1312. Responsibility of Trustee. The Trustee shall not at any time be under any duty or responsibility to any Holder of Securities of any series to be exchanged to determine the Market Value of any Capital Securities delivered in exchange for Securities of such series and may rely on and shall be entitled to receive prior to any Exchange Date for Securities of such series an Officers' Certificate of the Company as to the Market Value of the Capital Securities being exchanged for the Securities of such series and the amount of Capital Securities being exchanged for each $1,000 principal 67 80 amount of Securities of such series and that such Capital Securities qualify as Capital Securities under the definition thereof contained in this Indenture. The Trustee shall not be accountable with respect to the validity or value (or the kind or amount) of any Capital Securities which may at any time be issued or delivered in exchange for any Security; and the Trustee does not make any representation with respect thereto. The Trustee shall not be responsible for any failure of the Company to issue, transfer or deliver any Capital Securities or Capital Security certificates or other securities or property upon the surrender of any Security for the purpose of exchange or to comply with any of the covenants of the Company contained in this Article. ARTICLE FOURTEEN SECURITIES FUNDS SECTION 1401. Creation of a Securities Fund. When specified in a Board Resolution, Officers' Certificate or supplemental indenture pursuant to Sections 201 and 301 for the Securities of any series, the Company will create and establish a segregated fund (a "Securities Fund") with the Trustee into which funds shall be deposited by the Company as provided in Section 1402 for the Securities of such series. Notwithstanding any provision to the contrary contained in this Indenture or in the Securities of any series, neither funds deposited in a Securities Fund, nor any other property from time to time held in a Securities Fund, shall be deemed to be, for any purpose, property of the Holders of the Securities or trust funds, and a Securities Fund shall not constitute security for the payment of the Securities. SECTION 1402. Deposits into a Securities Fund. Amounts in any Securities Fund will consist solely of (i) the net proceeds from the sale of Capital Securities for cash ("Cash Proceeds") from time to time, (ii) funds not exceeding the market value, as determined by the Company, of Capital Securities sold from time to time in exchange for other property, less the expenses to effect any such exchanges ("Exchange Proceeds") and (iii) other funds which the regulations of the Primary Federal Regulator then permit to be deposited in the Securities Fund, in each case which the Company shall from time to time elect to deposit with the Trustee for deposit into such Securities Fund. Any amount deposited by the Company with the Trustee in any Securities Fund shall be accompanied by an Officers' Certificate stating that (a) such amount is being deposited for the Securities of the series identified in such Officers' Certificate and not for any other Securities and (b) such amount, together with all amounts theretofore deposited into such Securities Fund, do not exceed the sum of the aggregate Cash Proceeds, Exchange Proceeds and any amounts deposited pursuant to Clause (iii) of the foregoing sentence after the date of initial issuance of the Securities of the applicable series. All amounts received by the Trustee which are accompanied by an Officers' Certificate to the foregoing effect (and no other amounts) shall be deposited by the Trustee into such Securities Fund. 68 81 SECTION 1403. Covenant of the Company to Sell or Cause to be sold Capital Securities and Deposit Proceeds. The Company hereby covenants and agrees with regard to the Securities of any series for which a Securities Fund is required to be maintained that (i) by the Interest Payment Date which occurs on or next preceding the date when one-third of the period from the date of issuance of the Securities of such series to their Stated Maturity has elapsed, it will have sold Capital Securities, either for cash or in exchange for other property, in a sufficient amount so that the aggregate of the Cash Proceeds, Exchange Proceeds and other funds eligible for deposit pursuant to Section 1402 will equal at least one-third of the original aggregate principal amount of the Securities of such series (or such lesser amount as the Primary Federal Regulator may permit from time to time), and will have deposited funds equivalent to such amount into the Securities Fund established with regard to such series, (ii) by the Interest Payment Date which occurs on or next preceding the date when two-thirds of the period from the date of issuance of the Securities of such series to their Stated Maturity has elapsed, it will have sold Capital Securities, either for cash or in exchange for other property, in a sufficient amount so that the aggregate of the Cash Proceeds, Exchange Proceeds and other funds eligible for deposit pursuant to Section 1402 will equal at least two-thirds of the original aggregate principal amount of the Securities of such series (or such lesser amount as the Primary Federal regulator may permit from time to time) and will have deposited funds equivalent to such amount into such Securities Fund, (iii) by 60 days prior to the Stated Maturity of the Securities of such series, it will have sold Capital Securities, either for cash or in exchange for other property, in a sufficient. amount so that the aggregate of the Cash Proceeds, Exchange Proceeds and other funds eligible for deposit pursuant to Section 1402 will equal not less than the original aggregate principal amount of the Securities of such series (or such lesser amount as the Primary Federal Regulator may permit from time to time) and will have deposited funds equivalent to such amount into such Securities Fund; and (iv) by 10 days prior to the Stated Maturity of the Securities of such series, if the aggregate amount of funds in such Securities Fund is not sufficient to pay all of the principal of (and premium, if any) on the Securities of such series coming due, it will have sold Capital Securities in a sufficient amount so that the aggregate of the Cash Proceeds, the Exchange Proceeds and other funds eligible for deposit pursuant to Section 1402 will equal not less than the amount necessary in order to provide sufficient funds for such payment and will have deposited additional funds equivalent to such amount into such Securities Fund; provided, however, that such covenant and agreement of the Company shall be cancelled, and any amounts theretofore paid into any such Securities Fund will, upon Company Request, be repaid to it, (x) in the event that the Company shall determine that the indebtedness represented by the Securities of such series in excess of amounts theretofore deposited into such Securities Fund does not constitute primary capital of the Company under applicable regulations of its Primary Federal Regulator or if such indebtedness shall cease being treated as primary capital of the Company by its Primary Federal Regulator or if approval of its Primary Federal Regulator is obtained for such revocation and, in each case, the Company shall furnish the Trustee with an Opinion of Counsel to such effect, or (y) if the Company shall have exchanged or redeemed such Securities pursuant to the terms of the Securities of such series. 69 82 SECTION 1404. Investment of Moneys in a Securities Fund. Moneys held in a Securities Fund shall be invested and reinvested by the Trustee in specified Qualifying Investments, and such investments and reinvestments shall be liquidated or disposed of, all at the direction of the Company, each such direction to be in a written instrument (or orally in which case the Company shall promptly confirm such directions in a written instrument) signed by an authorized officer of the Company. All such investments shall be held by or under the control of the Trustee and shall be deemed at all times to be a part of such Securities Fund. All interest or discount earned on such investments and any profit realized therefrom shall be promptly paid to the Company and will not be deemed to be part of such Securities Fund. The Company shall not direct the Trustee to make any investments or reinvestments other than those permitted by law and this Indenture. In making, disposing of or liquidating any such investments and reinvestments the Trustee may rely on directions delivered to it pursuant to this Section, and the Trustee shall be relieved of all liability with respect to making, disposing of or liquidating such investments and reinvestments in accordance with such directions and shall not be responsible for any losses incurred in connection with such investments or reinvestments or the disposition or liquidation thereof. SECTION 1405. Repayment to the Company from a Securities Fund. In the event that the Company shall have redeemed any of the Securities of any series for which a Securities Fund is required to be maintained other than out of the Securities Fund, there shall forthwith be repaid by the Trustee to the Company from the Securities Fund for the Securities of such series an amount of funds not in excess of the principal amount of Securities so redeemed. Any amounts remaining in such Securities Fund after redemption of all the Securities of such series or after payment in full of the principal of and interest on all the Securities of such series (or provision for the payment thereof as provided in Article Four of this Indenture) and of the fees, charges and expenses of the Trustee shall be repaid to the Company. Prior to any repayment by the Trustee to the Company of amounts from a Securities Fund as provided in this Section, the Trustee shall have been furnished with a Company Order requesting repayment of a specified amount from such Securities Fund and an Officers' Certificate certifying that the conditions precedent to any such repayment have been satisfied and, in the case of a repayment based upon the redemption of Securities pursuant to the terms of the Securities of such series, certifying as to the principal amount of the Securities so redeemed. SECTION 1406. Payment to Paying Agent from a Securities Fund. On the Business Day next preceding the Stated Maturity of the Securities of a series for which a Securities Fund is required to be maintained or any date fixed for redemption of such Securities, the Trustee shall, upon Company Order, pay to the Paying Agent in a Place of Payment such amount as is available in the Securities Fund for the Securities of such series and necessary to pay the principal of (and premium, if any) on Securities becoming due on such date. Subject to the provisions of Article Fifteen and of the last sentence of Section 1401, upon declaration of acceleration upon the occurrence of an Event of Default, the Trustee shall apply such amount as is available in the Securities Fund and necessary to pay the principal of (and premium if any) and interest on Securities which have become due and payable. 70 83 ARTICLE FIFTEEN SUBORDINATION OF SECURITIES SECTION 1501. Securities Subordinate to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture or the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of Securities of each series, by his acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of (or premium, if any) or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities or by exchange for Capital Securities. In the event of (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (b) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (c) any assignment by the Company for the benefit of creditors, or (d) any other marshalling of the assets of the Company, all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any 71 84 series shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations. In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by the Trustee or any Holder in contravention of any of the terms hereof, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the Holders of Securities of each series, the obligation of the Company to pay to such Holders the principal of (and premium, if any) and interest on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payments or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior 72 85 Indebtedness shall, as between the Company and its creditors other than the holders of Senior Indebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Securities of such series. The provisions of this Section 1501 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Securities or ranking junior to the Securities. SECTION 1502. Trustee and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence to Ownership of Senior Indebtedness; Trustee Not Fiduciary Holders to Senior Indebtedness. Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee and the Holders shall be entitled to rely upon an order or decree made by any court of competent jurisdiction in which such dissolution or winding upon liquidation or reorganization or arrangement proceedings are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other Person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the absence of any such bankruptcy trustee, receiver, assignee or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) as evidence that such Person is a holder of such Senior Indebtedness (or is such a trustee or representative). In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payments or distributions pursuant to this Article Fifteen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, as to the extent to which such Person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such Person under this Article Fifteen, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. SECTION 1503. Payment Permitted If No Default. Nothing contained in this Article Fifteen or elsewhere in this Indenture, or in any of the Securities, shall prevent (a) the Company at any time, except during the pendency of any dissolution, winding up, liquidation or reorganization proceedings referred to in, or under the 73 86 conditions described in, Section 1501, from making payments of the principal of (or premium, if any) or interest on the Securities or delivering Capital Securities in exchange for Securities on the Exchange Date, or (b) the application by the Trustee or any Paying Agent of any moneys deposited with it hereunder to payments of the principal of (or premium, if any) or interest on the Securities or the delivery by any Exchange Agent of Capital Securities in exchange for Securities on the Exchange Date, if, at the time of such deposit or exchange, the Trustee, such Paying Agent or Exchange Agent, as the case may be, did not have the written notice provided for in Section 1504 of any event prohibiting the making of such deposit or exchange, or if, at the time of such deposit or exchange (whether or not in trust) by the Company with the Trustee, Paying Agent (other than the Company) or Exchange Agent such payment or exchange would not have been prohibited by the provisions of this Article, and the Trustee, any Paying Agent or Exchange Agent shall not be affected by any notice to the contrary received by it on or after such date. SECTION 1504. Trustee and Exchange Agent Not Charged with Knowledge of Prohibition. Anything in this Article Fifteen or in elsewhere in this Indenture contained to the contrary notwithstanding, the Trustee and any Exchange Agent shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of money to or by the Trustee or the delivery of Capital Securities by any Exchange Agent and shall be entitled conclusively to assume that no such facts exist and that no event specified in Section 1501 has happened, until the Trustee or Exchange Agent, as the case may be, shall have received an Officers' Certificate to that effect or notice in writing to that effect signed by or on behalf of the holder or holders, or their representatives, of Senior Indebtedness who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee or Exchange Agent, as the case may be, to be such holder or holders or representatives or from any trustee under any indenture pursuant such Senior Indebtedness shall be outstanding; provided, however, that, if prior to the third Business Day preceding the date upon which by the terms hereof any money becomes payable or Capital Securities are required to be delivered for any purpose (including, without limitation, the payment of either the principal of or interest on any Security), or in the event of the execution of an instrument pursuant to Section 401 acknowledging satisfaction and discharge of this Indenture, then if prior to the second Business Day preceding the date of such execution, the Trustee, any Paying Agent or Exchange Agent shall not have received with respect to such money or Capital Securities the Officers' Certificate or notice provided for in this Section 1504, then, anything herein contained to the contrary notwithstanding, the Trustee, such Paying Agent or Exchange Agent shall have full power and authority to receive such money and Capital Securities and apply the same to the purpose for which they were received and shall not be affected by the notice to the contrary which may be received by it on or after such date. The Company shall give prompt written notice to the Trustee, to the Paying Agent and to the Exchange Agent of any facts which would prohibit the payment of money or the delivery of Capital Securities to or by the Trustee, any Paying Agent or Exchange Agent. SECTION 1505. Trustee to Effectuate Subordination. Each Holder of Securities by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination 74 87 as between such Holder and holders of Senior Indebtedness as provided in this Article and appoints the Trustee its attorney-in-fact for any and all such purposes. SECTION 1506. Rights of Trustee as Holder of Senior Indebtedness. The Trustee shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at the time be held by it, to the same extent as any other holder of Senior indebtedness; provided, however, that nothing in this Indenture shall deprive the Trustee of any of its rights as such holder; and provided, further, that nothing in this Article shall apply to claims of, or payments to the Trustee under or pursuant to Section 607. SECTION 1507. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if the Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Sections 1504 and 1506 shall not apply to the Company or any Affiliate of the Company if the Company or such Affiliate acts as Paying Agent. SECTION 1508. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Indebtedness. No right of any present or future holsters of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with. The holders of Senior Indebtedness may, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Senior Indebtedness, or amend or supplement any instrument pursuant to which any such Senior Indebtedness is issued or by which it may be secured, or release any security therefor, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness, including, without limitation, the waiver of default thereunder, all without notice to or assent from the Holders of the Securities or the Trustee and without affecting the obligations of the Company, the Trustee or the Holders of the Securities under this Article. 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. 75 88 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. [Seal] UNITED VIRGINIA BANKSHARES INCORPORATED By: /s/ C. Garland Hagen -------------------------------------- Senior Vice President and Treasurer Attest: /s/ Lewis B. Flinn, Jr. - ----------------------------------- Senior Vice President and Secretary [seal] CHEMICAL BANK, Trustee By: /s/ William Berls -------------------------------------- Vice President Attest: Peter Morse - ----------------------------------- Trust Officer 76 EX-4.5 3 0003.txt THIRD SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.5 - -------------------------------------------------------------------------------- CRESTAR FINANCIAL CORPORATION TO CHEMICAL BANK, Trustee ------------------------ THIRD SUPPLEMENTAL INDENTURE Dated as of July 1, 1992 TO INDENTURE Dated as of February 1, 1985 ------------------------ $125,000,000 8 1/4% Subordinated Notes Due 2002 - -------------------------------------------------------------------------------- 2 THIRD SUPPLEMENTAL INDENTURE, dated as of July 1, 1992, to INDENTURE (the "Original Indenture"), dated as of February 1, 1985, between CRESTAR FINANCIAL CORPORATION, formerly known as United Virginia Bankshares Incorporated, a corporation duly organized and existing under the laws of the Commonwealth of Virginia (herein called the "Company"), and CHEMICAL BANK, a corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY AND THE TRUSTEE The Company and the Trustee are parties to the Original Indenture relating to the issuance from time to time by the Company of any of its Securities on terms to be specified at the time of issuance. The Company and the Trustee have heretofore entered into a First Supplemental Indenture (the "First Supplemental Indenture"), dated as of March 1, 1986, to the Original Indenture, and a Second Supplemental Indenture dated as of September 1, 1986. (The Original Indenture as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture is referred to herein as the "Indenture.") The Company has duly authorized the creation of an issue of its 8 1/4% Subordinated Notes due July 15, 2002 (herein called the "Notes") of substantially the tenor and amount hereinafter set forth, and the Company and the Trustee wish to modify certain provisions of the Indenture. To provide for the foregoing, the Company has duly authorized the execution and delivery of this Third Supplemental Indenture. Under Sections 901(5) and 901(7) of the Indenture, the Company, when authorized by a Board Resolution, and the Trustee may, without the consent of the Holders, enter into one or more indentures supplemental to the Indenture for the purposes, respectively, of (i) changing or eliminating any of the provisions of the Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; and (ii) establishing the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Indenture. The changes effected herein shall become effective prior to the issuance of the Notes and no series of Securities created prior to the date hereof shall be affected by these changes. The Company, pursuant to the foregoing authority, proposes in and by this Third Supplemental Indenture to amend the Indenture in certain respect to Securities of any series created after the date hereof. 3 The entry into the Third Supplemental Indenture by the parties hereto is in all respects authorized by the Indenture and all things necessary to make this Third Supplemental Indenture a valid agreement of the Company, in accordance with its terms have been done. NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE 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 series thereof created after the date hereof, as follows: ARTICLE ONE Amendments to the Indenture Section 1.1 Amendments to Section 101. Section 101 of the Indenture is amended to add new definitions thereto, in the appropriate alphabetical sequence as follows: "Depositary" means, with respect to the Securities of any series issuable or issued in the form of a Global Security, a clearing agency registered under the Securities Exchange Act of 1934, as amended, or any successor thereto, which shall in either case be designated by the Company pursuant to Sections 301 and 305 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series. "Global Security or Securities" means one or more fully registered Securities in global form evidencing all or part of a series of Securities issued to the Depositary for such series or its nominee or registered in the name of the Depositary or its nominee. Section 1.2 Amendments to Section 104. Section 104 of the Indenture is amended to add new paragraphs (e) and (f) to the end thereof as follows: (e) Without limiting the generality of the foregoing, unless otherwise specified pursuant to Section 301 or pursuant to one or more indentures supplemental hereto, a Holder, including a Depositary that is the Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or 2 4 taken by Holders, and a Depositary that is the Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Depositary's standing instructions and customary practices. (f) The Trustee shall fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Security held by a Depositary entitled under the procedures of such Depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date. Section 1.3 Amendments to Section 201. Section 201 of the Indenture is amended to add the parenthetical "(including global form)" immediately after the word "form" in the second line thereof. Section 1.4 New Section 203. The Indenture is amended to add a new Section 203 as follows: SECTION 203. Securities in Global Form. If any Security of a series is issuable in global form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section 102. 3 5 Section 1.5 Amendment to Section 301. Section 301 of the Indenture is amended to redesignate paragraph (13) thereof as paragraph (14), and to add new paragraph (13) as follows: (13) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary for such Global Security or Securities; and Section 1.6 Amendments to Section 303. Section 303 of the Indenture is amended to add the following new paragraph as the final paragraph thereof: If the Company shall establish pursuant to Section 301 that the Securities of a series are to be issued in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary." Section 1.7 Amendments to Section 305. Section 305 of the Indenture is hereby amended to: (a) add the parenthetical "(except Global Securities)" immediately following the word "series" in the second line of the third paragraph thereof; and (b) add the following new paragraphs as the final paragraphs thereof: Notwithstanding any other provision of this Section 305, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a 4 6 nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of a series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Securities. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series, in exchange for such Global Security or Securities. If specified by the Company pursuant to Section 301 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (i) to the Person specified by such Depositary a new Security or Securities of the same series, of any authorized denomination as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and 5 7 (ii) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to Clause (i) above. Upon the exchange of a Global Security for Securities in definitive registered form, in authorized denominations, such Global Security shall be canceled by the Trustee. Securities in definitive registered form issued in exchange for a Global Security pursuant to this Section 305 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered. Section 1.8 Amendment to Section 308. Section 308 of the Indenture is amended to add a new paragraph as the last paragraph thereof as follows: None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Section 1.9 Amendment to Section 1107. Section 1107 of the Indenture is hereby amended to add the following immediately following the final word of the sentence comprising such Section: , except that if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security or Securities in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. 6 8 ARTICLE TWO The Notes Section 2.1 Title and Terms. The aggregate principal amount of the Securities (the "Notes") which may be authenticated and delivered under this Third Supplemental Indenture is limited to $125,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306 or 906 of the Indenture. The Notes shall be known and designated as the Company's "8 1/4% Subordinated Notes Due 2002." Their Stated Maturity shall be July 15, 2002, and they shall bear interest at the annual rate of 8 1/4% from July 15, 1992 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on January 15 and July 15 in each year until the principal thereof is paid or duly provided for. Pursuant to Section 301 of the Indenture, the Notes shall be issued in whole in the form of a Global Security and the Depositary for the Notes shall be The Depository Trust Company. The interest so payable on any January 15 or July 15 will, subject to certain exceptions provided in the Indenture, be paid (i) in the case of all Notes represented by one or more Global Securities registered in the name of a Depositary or its nominee, to such Depositary or such nominee for the account of the beneficial owners of the Notes as reflected on the records of such Depositary or such nominee or its participants and (ii) in the case of any Notes issued in definitive certificated form, to the persons in whose names such certificated Notes are registered, in each case, to the person in whose name the Note is registered at the close of business on the December 31 or June 30, as the case may be, next preceding such January 15 or July 15 and may, at the option of the Company, be paid by check mailed to the registered address of such person. The principal of and interest on the Notes shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, and in the City of Richmond, Virginia and at any other office or agency maintained by the Company for such purpose; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Note Register. The Notes shall be subordinated in right of payment to Senior Indebtedness as provided in Article Fifteen of the Indenture. 7 9 ARTICLE THREE Miscellaneous Section 3.1 Table of Contents. The Table of Contents to the Indenture is hereby amended to reflect the additions and deletions described in this Third Supplemental Indenture. Section 3.2 Effect of Third Supplemental Indenture. The Indenture, as supplemented and amended by this Third Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture and the Third Supplemental Indenture shall be read, taken and construed as one and the same instrument. Upon the execution of this Third Supplemental Indenture, the Indenture shall be, and be deemed to be, modified and amended in accordance herewith and the respective rights, limitation of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders of all Notes shall thereafter be determined, exercised and enforced under the Indenture subject in all respects to such modifications and amendments, and all the terms and conditions of this Third Supplemental Indenture shall be, and be deemed to be, part of the terms and conditions of the Indenture for any and all purposes; provided, however, that nothing contained in this Third Supplemental Indenture shall affect or apply to any series of Securities outstanding prior to the date hereof (including Securities authenticated and delivered upon registration or transfer of such outstanding Securities, or in exchange therefor, or in lieu thereof). Section 3.3 Successors and Assigns. All covenants and agreements in this Third Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not. Section 3.4 Separability Clause. In case any provision in this Third Supplemental Indenture 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. Section 3.5 Benefits of Supplemental Indenture. Nothing in this Third Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this Third Supplemental Indenture. Section 3.6 Definitions. All capitalized terms used and not defined herein shall have the respective meanings assigned to them in the Indenture. 8 10 Section 3.7 Counterparts. This Third Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 3.8 Trustee Not Responsible for Recitals. The Trustee has executed this Third Supplemental Indenture only upon the terms and conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee shall not be responsible for the correctness of the recitals herein contained which shall be taken to be statements of the Company, and the Trustee makes no representation and shall have no responsibility for, and in respect of, the validity or sufficiency of this Third Supplemental Indenture or the execution hereof by the Company. Section 3.9 Governing Law. This Third Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, provided that the rights, duties, standard of care and immunities of the Trustee in connection with the administration of its duties hereunder shall be governed by the laws of the State of New York. Section 3.10 Acceptance of the Trust. The Trustee accepts the trusts created by the Indenture, as supplemented by this Third Supplemental Indenture, and agrees to perform the same upon the terms and conditions in the Indenture, as supplemented by this Third Supplemental Indenture. 9 11 IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. [SEAL] CRESTAR FINANCIAL CORPORATION By: ----------------------------------------- Its Vice Chairman of the Board Attest: - ---------------------------------- Its Senior Vice President, Deputy General Counsel and Assistant Secretary [SEAL] CHEMICAL BANK, AS TRUSTEE By: ----------------------------------------- Its -------------------------------------- Attest: - ---------------------------------- Its ------------------------------- 10 EX-4.6 4 0004.txt RESOLUTIONS OF THE BOARD OF DIRECTORS OF CRESTAR 1 EXHIBIT 4.6 CRESTAR FINANCIAL CORPORATION BOARD OF DIRECTORS MEETING FRIDAY, SEPTEMBER 23, 1994 RESOLUTIONS AUTHORIZING THE ISSUANCE OF UP TO $150 MILLION IN DEBT SECURITIES UPON TERMS DETERMINED BY THE PRICING COMMITTEE: WHEREAS, the Board of Directors of Crestar Financial Corporation on September 24, 1993 authorized the filing of a shelf registration for $300,000,000 of securities and appointed a Pricing Committee to establish the terms of any subordinated Debt Securities to be issued in connection with the shelf registration; and, WHEREAS, The Board of Directors has determined, upon the advice and recommendation of management, that there is a current need to raise capital to fund the Corporation's ongoing mergers and acquisitions program. NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of Crestar Financial Corporation hereby authorizes the sale and issuance of up to $150 million in Debt Securities at such time and upon such terms and provisions as may be determined by the Pricing Committee in accordance with resolutions adopted by the board of Directors on September 24, 1993; and, BE IT FURTHER RESOLVED, that the Pricing Committee and other officers of the Corporation are authorized to take any and all actions necessary or advisable to effectuate the authorized sale and issuance of Debt Securities. 2 CRESTAR FINANCIAL CORPORATION PRICING COMMITTEE OF THE BOARD OF DIRECTORS RESOLUTIONS NOVEMBER 9, 1994 RESOLVED, that the Company shall issue its subordinated notes registered pursuant to Registration Statement No. 33-50387 (the "Notes") with the following terms: (1) the Notes shall be designated "8 3/4 Subordinated Notes Due November 15, 2004", (2) the Notes shall have a maximum aggregate principal amount of $150,000,000, (3) the Notes shall mature and the principal thereon shall be due on November 15, 2004, (4) the Notes shall bear interest at the rate of 8 3/4% per annum from November 15, 1994, and the Company shall pay interest on the principal amount of the Notes semi-annually on May 15 and November 15 of each year to the persons in whose names the Notes are registered at the close of business on April 30 and October 31, as the case may be, next preceding such May 15 and November 15, (5) principal and interest on the Notes shall be payable at the office or agency of the Company in the Borough of Manhattan, the City and State of New York or the City of Richmond, Virginia or at any other office of the Company maintained by the Company for such purpose; provided, however, that the Company may, at its option, make interest payments by mailing a check to the address of the person entitled thereto as such address shall appear in the Note register, (6) the Notes shall be issued in denominations of $1,000 and integral multiples thereof, (7) the Notes shall be issued in whole in the form of a global security, and the depositary of the Notes shall be The Depository Trust Company, (8) Crestar Bank shall be appointed to serve as authenticating agent for the Notes, (9) Crestar Bank and Chemical Bank each shall be appointed to act as paying agent for the Notes; provided, however, as long as the Notes are in the form of a global security the Notes shall be paid in accordance with the provisions of the applicable letter of representations and (10) the Notes shall have other terms as set forth in the form of certificate for such Notes attached hereto as Exhibit A; and FURTHER RESOLVED, that the form, terms and provisions of the proposed underwriting agreement (the "Underwriting Agreement") between the Company and Morgan Stanley & Co. Incorporated, as representative of the underwriters named therein, in the form attached hereto as Exhibit B, including pricing and other terms and conditions of the sale of the Notes, is hereby approved; and FURTHER RESOLVED, that the form of Note attached hereto as Exhibit A is hereby approved; and FURTHER RESOLVED, that the Authorized Officers hereby are authorized and directed to execute and deliver, on behalf of the Company, under its corporate seal, and attested by its Secretary or one of its Assistant Secretaries the Underwriting Agreement with such changes, amendments, additions, deletions and modifications as the officer so acting may deem necessary; and FURTHER RESOLVED, that all actions heretofore taken by officers, employees and agents of the Company in furtherance of the transactions contemplated by these resolutions are hereby ratified, adopted and approved; and 3 FURTHER RESOLVED, that all officers, employees and agents of the Company are hereby authorized and directed to take any actions they deem necessary to implement the intent of the foregoing resolutions. 2 4 EXHIBIT A THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR SUCH OTHER NAME, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. CRESTAR FINANCIAL CORPORATION 8 3/4% SUBORDINATED NOTE DUE NOVEMBER 15, 2004 No. 1 CUSIP 226 091 AC0 Crestar Financial Corporation, a corporation duly organized and existing under the laws of the Commonwealth of Virginia (hereinafter called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered assigns the principal sum of $150,000,000 (ONE HUNDRED AND FIFTY MILLION DOLLARS) at the office or agency of the Company in the Borough of Manhattan, the City and State of New York or the City of Richmond, Virginia, on November 15, 2004, in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts, and to pay interest semi-annually on May 15 and November 15 of each year on said principal sum, commencing May 15, 1995, at the rate of 8 % per annum, at said offices or agencies, in like coin or currency, from November 15, 1994, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, until payment of such principal sum has been made or duly provided for. The interest so payable on any May 15 or November 15 will, subject to certain exceptions provided in the Indenture referred to herein, be paid to the person in whose name this Note is registered at the close of business on the April 30 or October 31, as the case may be, next preceding such May 15 or November 15 and may, at the option of the Company, be paid by check mailed to the registered address of such person. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may be paid by the Company, at its election, either to the person in whose name this Note 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 to be given to the Holder of this Note not less than 10 days prior to such Special Record Date, or at any time in any other lawful manner, all as more fully provided in said Indenture. Additional provisions of this Note are set forth on the reverse hereof 5 including, without limitation, provisions subordinating the payment of principal and interest on the Notes to the prior payment in full of Senior Indebtedness as defined in the Indenture. Such provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereof shall have been signed by the Trustee or a duly appointed authenticating agent under the Indenture referred to herein. IN WITNESS WHEREOF, Crestar Financial Corporation has caused this instrument to be duly executed under its corporate seal. Dated: November 16, 1994 CRESTAR FINANCIAL CORPORATION ATTEST: BY: -------------------------------- Vice Chairman of the Board - ----------------------------------- Secretary [SEAL] TRUSTEE'S CERTIFICATE OF AUTHENTICATION THIS IS ONE OF THE SECURITIES OF THE SERIES DESIGNATED THEREIN REFERRED TO IN THE WITHIN-MENTIONED INDENTURE. CHEMICAL BANK, AS TRUSTEE BY: -------------------------------- AUTHORIZED OFFICER 2 6 This Note is one of a duly authorized issue of securities of the Company (herein called the "Securities"), all issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 1, 1993 (herein called the "Indenture"), duly executed and delivered by the Company to Chemical Bank, a New York corporation, 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. This Note is one of the series designated on the face hereof, limited in aggregate principal amount to $150,000,000 (the "Notes"). The Notes will mature on November 15, 2004, and are not redeemable prior to maturity. The payment of principal of and interest on this Note is expressly subordinated and subject in right of payment, as provided in the Indenture, to the prior payment of any and all Senior Indebtedness of the Company, as defined in the Indenture. This Note is issued subject to such provisions, and each holder of this Note, by accepting the same, agrees, expressly for the benefit of the present and future holders of Senior Indebtedness, whether now or hereafter outstanding, to and shall be bound by such provisions. If an Event of Default (defined in the Indenture as certain events involving the bankruptcy, insolvency or reorganization of the Company) shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding, as defined in the Indenture, of each series to be affected, provided, however, that no such supplemental indenture shall change the Stated Maturity of any Security, or reduce the principal amount thereof, or reduce the rate or change the time of payment of interest thereon, or make the principal thereof or interest thereon payable in any coin or currency other than that herein before provided, or change the place of payment thereof, or impair or affect the right of any Holder of a Security to institute suit for payment thereof, or reduce the aforesaid percentage of Securities, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby. It is also provided in the Indenture that the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding may on behalf of the Holders of all of the Notes waive compliance by the Company with certain provisions of the Indenture and any past default under the Indenture with respect to the Notes and its consequences, except a default in the payment of the principal of or interest on any of the Notes or a default with respect to any provision of the Indenture that cannot be modified or amended without the consent of the Holder of each Outstanding Note. 7 Subject to the rights of the Holders of Senior Indebtedness of the Company set forth in this Note and as provided in the Indenture, no reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rates, and in the coin or currency as herein prescribed. The Notes are issuable in registered form without coupons and will be sold in denominations of $1,000 and integral multiples of $1,000 in excess thereof. Upon due presentment for registration of transfer of this Note at the office or agency of the Company in the Borough of Manhattan, the City and State of New York or the City of Richmond, Virginia, or any other location as may be provided for pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange here for, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. This Note may be exchanged for certificated securities registered in the names of the various beneficial owners hereof only if (a) the Depositary is at any time unwilling or unable to continue as Depositary or is ineligible to act as Depositary under the Indenture and a successor Depositary is not appointed by the Company within 90 days, or (b) the Company elects to issue certificated securities to all beneficial owners (as certified to the Company by the Depositary or a successor Depositary) of the Notes. The Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Note is registered as the owner of this Note, for the purpose of receiving payment of or on account of the principal hereof and, subject to the provisions on the face hereof, interest hereon, and for all other purposes, whether or not this Note shall be overdue and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. This Note shall be deemed to be a contract made under the laws of the Commonwealth of Virginia and for all purposes shall be governed by and construed in accordance with the laws of said Commonwealth, provided, however, that the rights, duties, immunities and standard of care of the Trustee under the Indenture shall be governed by the laws of the State of New York. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 2 8 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM-- as tenants in common UNIT GIFT MIN ACT--........Custodian.... TEN ENT-- as tenants by the (Cus) (Minor) entireties Under Uniform Gifts to Minors JT TEN-- as joint tenants with Act........................... rights of survivor- (State) ship and not as Tenants in Common Additional abbreviations may also be used though not in the above list. FORM OF TRANSFER FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (Please print or typewrite name and address of assignee) the within Note and does hereby irrevocably constitute and appoint _______________ (Attorney) to transfer the said Note in the Security Register of the Company, with full power of substitution in the premises. Dated: _________________ _________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Note in every particular without alteration or enlargement or any change whatever. _____________________________________ SIGNATURE GUARANTEED: The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. EX-4.7 5 0005.txt FIRST SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.7 ================================================================================ CRESTAR FINANCIAL CORPORATION AND THE CHASE MANHATTAN BANK, TRUSTEE -------------------- FIRST SUPPLEMENTAL INDENTURE Dated as of January 1, 1998 TO INDENTURE Dated as of September 1, 1993 -------------------- Subordinated Debt Securities ================================================================================ 2 FIRST SUPPLEMENTAL INDENTURE, dated as of January 1, 1998 (the "First Supplemental Indenture"), to INDENTURE (the "Original Indenture"), dated as of September 1, 1993, between CRESTAR FINANCIAL CORPORATION, a corporation duly organized and existing under the laws of the Commonwealth of Virginia (herein called the "Company"), and THE CHASE MANHATTAN BANK (formerly known as Chemical Bank), a corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has heretofore issued pursuant to the Indenture a series of Notes denominated its 8 3/4% Subordinated Notes Due 2004. The Company has duly authorized the creation of an issue of its 6 1/2% Putable/Callable Subordinated Notes due January 15, 2018, Putable/Callable January 15, 2008 (herein called the "Notes") and to provide therefor the Company has duly authorized the execution and delivery of this First Supplemental Indenture (the Original Indenture, together with the First Supplemental Indenture being hereinafter called the "Indenture"). All things necessary to make the Notes, 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 the First Supplemental Indenture a valid agreement of the Company, in accordance with their and its terms, have been done. Under Section 901(6) of the Indenture, the Company, when authorized by a Board resolution, and the Trustee may, without the consent of the Holders, enter into one or more indentures supplemental to the Indenture for the purpose of establishing the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Original Indenture. The entry into the First supplemental Indenture by the parties hereto is in all respects authorized by the Indenture. NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows: ARTICLE ONE Section 101. Construction. All references herein to Articles and Sections are references to Articles and Sections of this First Supplemental Indenture and all references to Articles and Sections of the Original Indenture specify such Original Indenture. 3 ARTICLE TWO Section 201. Form of the Notes. The Notes shall be issued in whole in the form of a Global Security in substantially the form set forth in Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this First supplemental Indenture. ARTICLE THREE The Notes Section 301. Title and Terms. The aggregate principal amount of the Notes which may be authenticated and delivered under this First Supplemental Indenture is limited to $150,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306 or 906 of the Indenture. The Notes shall be known and designated as the Company's "6 1/2% Putable/Callable Subordinated Notes due January 15, 2018, Putable/Callable January 15, 2008." Their maturity date shall be January 15, 2018 (the "Final Maturity Date"), and (subject to Article Four) they shall bear interest at the annual rate of 6 1/2% from January 27, 1998 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on January 15 and July 15 in each year (each, an "Interest Payment Date") commencing January 15, 1998 until the principal thereof is paid or duly provided for. The interest so payable on any January 15 or July 15 will, subject to certain exceptions provided in the Indenture, be paid to the Persons in whose name the Notes are registered on the fifteenth calendar day (whether or not a Business Day) immediately preceding the related Interest Payment Date. The principal of and interest on the Notes shall be payable at the office or agency of the Company in the City of Richmond, Virginia or the Borough of Manhattan, The City of New York, and at any other office or agency maintained by the Company for such purpose; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the persons entitled thereto as such address shall appear in the Security Register. The Notes shall be issued in denominations of $1,000 and integral multiples thereof. The Notes shall be issued in whole in the form of a Global Security, and the Depositary for the Notes shall be The Depository Trust Company. Crestar Bank shall be appointed to serve as authenticating agent for the Notes in accordance with the Authenticating Agency Agreement dated November 16, 1994, among the Trustee, Crestar Bank and the Company. Crestar Bank and The Chase Manhattan Bank each shall be appointed to act as paying agent for the Notes; provided, however, as long as the Notes are in the form of a Global Security the Notes shall be paid in accordance with the provisions of the applicable letter of representations. 2 4 The Notes will be subject to mandatory purchase from the existing Holders on January 15, 2008 through either the exercise of the Call Option by the Callholder or the Put Option by the Trustee as provided in Article Four. The Notes shall be subordinate and junior in right of payment to Senior Indebtedness as provided in Article Fifteen of the Indenture. ARTICLE FOUR Section 401. Call Option. (a) Call Option. The Company, or any successor and assign (in such capacity, the "Callholder"), has the right to purchase the Notes (the "Notes"), in whole or in part, but if in part in a principal amount of not less than $75,000,000 (the "Call option"), at a price equal to the par amount thereof (the "Call Price"), on January 15, 2008 (the "Coupon Reset Date") (as defined below). In the event a Callholder exercises its rights under its Call Option, (i) not later than 2:00 p.m., New York time, on the Business Day prior to the Coupon Reset Date, such Callholder shall deliver the Call Price in immediately available funds to the Trustee for payment of the Call Price on the Coupon Reset Date (interest accrued to but excluding the Coupon Reset Date will be paid by the Company on such date to Holders on the most recent Record Date) and (ii) the Holders of the Notes subject to such Call Option shall be required to deliver the Notes to such Callholder against payment therefor on the Coupon Reset Date through the facilities of DTC, if applicable. No Holder of the Notes or any interest therein shall have any right or claim against a Callholder as a result of such Callholder not purchasing the Notes. (b) Notice. A Callholder must deliver irrevocable, written notice (the "Call Notice") to the Trustee of its exercise of its Call Option prior to 4:00 p.m., New York Time, no later than fifteen (15) calendar days prior to the Coupon Reset Date. In the event that less than all of the Notes are subject to the exercise of the Call Options, thereupon the Trustee shall select by lot, or in any manner it may deem fair, the Notes so to be called. (c) Termination of Call Option. (i) If, (A) an Event of Default shall have occurred and be continuing under Section 501 of the Original Indenture (in such event, a Callholder may terminate the Call Option by written notice to the Trustee) or (B) following the Call Notice, less than two Dealers (as defined below) have submitted Bids (as defined below) in a timely manner substantially as provided below then (a) the related Call Option shall immediately terminate and (b) no amount shall be payable as a result of such termination. (ii) If a Callholder shall fail to deliver the Call Price by 2:00 p.m., New York time, on the Business Day prior to the Coupon Reset Date, then (a) its Call Option shall immediately terminate and (b) no amount shall be payable as a result of such termination. (iii) If a Calculation Agent (as defined below) determines that a Market Disruption Event (as defined below) has occurred, then (a) the related Call Option shall immediately terminate and (b) no amount shall be payable as a result of such termination. 3 5 (d) Successors and Assigns. A Callholder may at any time assign its rights and obligations under the Call Option; provided that (i) it assigns its rights and obligations in whole and not in part and (ii) it provides the Trustee with notice of such assignment contemporaneously with such assignment. Upon receipt of notice of assignment, the Trustee agrees to treat the assignee or assignees as Callholder or Callholders for all purposes hereunder. Subsection (e) hereof shall constitute notice to the Trustee of the initial assignment of the Call Option. A Callholder may assign its rights under the Call Option without notice to, or consent of, the Holders of the Notes. (e) Assignment of Call Option. Pursuant to the Underwriting Agreement dated January 22, 1998, between the Company and UBS Securities LLC, as representative of the several underwriters named therein, the Company has assigned its rights and obligations as Callholder to Union Bank Of Switzerland, London branch with respect to $75,000,000 principal amount of Notes and to Morgan Stanley & Co. International Limited with respect to $75,000,000 principal amount of Notes. References to Call Option shall mean references to the Call Option held by an individual Callholder. Section 402. Put Option. By its purchase of the Notes, each Holder irrevocably agrees that, if the Call Option with respect to an applicable principal amount of the Notes shall terminate as set forth in Section 401(c)(i), Section 401(c)(ii) or Section 401(c)(iii) of the Indenture, or the Callholder shall fail for any reason to pay the Call Price with respect to such Notes to the Trustee at or prior to the time required above, the Trustee will be obligated to exercise the right of the Holders of such Notes to require the Company to purchase such Notes in whole but not in part, on the Coupon Reset Date at a price equal to 100% of the principal amount thereof, plus accrued interest (the "Put Redemption Price"). If the Trustee exercises the Put option with respect to such Notes, then the Company shall deliver the Put Redemption Price in immediately available funds to the Trustee by no later than 12:00 noon New York time on the Coupon Reset Date and the Holders of such Notes will be required to deliver the Notes to the Company against payment therefor on the Coupon Reset Date through the facilities of DTC, if applicable. Such Notes will thereupon be canceled and no Notes will be issued in lieu of or in exchange therefor. No Holder of the Notes or any interest therein has the right to consent or object to the exercise of the Trustee's duties under the Put Option. The provisions of this clause may not be amended or waived without the consent of all of the Holders of the Notes. If the Call Option with respect to an applicable principal amount of the Notes is not exercised or the Call Price with respect to such Notes is not delivered, the Put Option with respect to such Notes shall be deemed exercised by the Trustee without any requirement of notice to or consent of the Company or the Holders. Section 403. Calculation Agents and Coupon-Reset Process. (a) Appointment of Calculation Agents. The Company hereby appoints UBS Securities LLC, a limited liability company organized under the laws of the State of New York (together with ,the corporation, if any, into which UBS Securities LLC may be merged, converted or consolidated in accordance with clause (j) below, "UBS") the calculation agent for Notes subject to the Call Option of Union Bank of Switzerland, London branch and Morgan Stanley & Co. International Limited (together with the corporation or other entity, if any, into 4 6 which Morgan Stanley & Co. International Limited may be merged, converted or consolidated in accordance with clause (j) below, "Morgan Stanley") the calculation agent for Notes subject to its Call option (in such capacity as calculation agent, each a "Calculation Agent"), and each Calculation Agent hereby accepts such appointment, as the Company's agent for the purpose of calculating the Coupon Reset Rate (as defined below) in accordance with the procedures set forth herein; provided, that such Calculation Agents shall act jointly on all matters in the event that the Call Options are exercised for the entire principal amount of the Notes. (b) Coupon Reset Process. If the Company (or either of its successors and assigns) as Callholder under the Call Option, has exercised the Call Option in accordance with the procedures set forth above, the Company and the applicable Calculation Agent shall complete the following steps in order to determine the interest rate (the "Coupon Reset Rate") to be paid on the applicable principal amount of the Notes from and including such Coupon Reset Date to January 15, 2018 (the "Final Maturity Date"). The Company and the applicable Calculation Agent shall use reasonable efforts to cause the actions contemplated below to be completed in as timely a manner as possible. (i) The Company shall provide the applicable Calculation Agent with a list (the "Dealer List"), no later than four Business Days prior to the Coupon Reset Date, containing the names and addresses of five dealers, two of which shall be UBS in the event Union Bank of Switzerland, London branch exercises its Call Option and Morgan Stanley in the event it exercises its Call Option, from which it desires the applicable Calculation Agent to obtain the Bids (as defined below) for the purchase of the applicable principal amount of the Notes. (ii) Within one Business Day following receipt by the applicable Calculation Agent of the Dealer List, the applicable Calculation Agent shall provide to each dealer ("Dealer") on the Dealer List (a) a copy of the Prospectus dated January 22, 1998 and a copy of the Prospectus Supplement dated January 22, 1998 relating to the Notes, (b) a copy of the form of Notes and (c) a written request that each such Dealer submit a Bid to the applicable Calculation Agent by 12:00 noon, New York City time (the "Bid Deadline"), on the third Business Day prior to the Coupon Reset Date (the "Bid Date"). "Bid" shall mean an irrevocable written offer given by a Dealer for the purchase settling on the Coupon Reset Date, and shall be quoted by such Dealer as a stated yield to maturity on the Notes ("Yield to Maturity"). Each Dealer shall be provided with (a) the name of the Company, (b) an estimate of the Purchase Price (which shall be stated as a US Dollar amount and be calculated by the applicable Calculation Agent in accordance with clause (iii) below), (c) the principal amount and maturity of the Notes and (d) the method by which interest will be calculated on the Notes. (iii) The purchase price to be paid by any Dealer for the Notes (the "Purchase Price") shall be equal to (a) the principal amount of the Notes plus (b) a premium (the "Notes Premium") which shall be equal to the excess, if any, of (x) the discounted present value to the Coupon Reset Date of a bond with a maturity of January 15, 2018 which has an interest rate of 5.558%, semi-annual interest payments on each January 15 and July 15, commencing July 15, 2008, on a principal amount of the Notes for which a Call Option has been exercised, and assuming a discount rate equal to the Treasury Rate over 5 7 (y) the principal amount of the Notes for which a Call Option has been exercised. "Treasury Rate" means the per annum rate equal to the offer side yield to maturity of the current on-the-run ten-year United States Treasury Security per Telerate page 500 at 11:00 a.m., New York time on the Bid Date (or such other date that may be agreed upon by the Company and the applicable Calculation Agent), or, if such rate does not appear on Telerate page 500 at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the Bid Date. (iv) Following receipt of the Bids, the applicable Calculation Agent shall provide written notice to the Company, setting forth (a) the names of each of the Dealers from whom such Calculation Agent received Bids on the Bid Date, (b) the Bid submitted by each such Dealer and (c) the Purchase Price as determined pursuant to paragraph (iii) hereof. Except as provided below, the applicable Calculation Agent shall thereafter select from the five Bids received the Bid with the lowest Yield to Maturity (the "Selected Bid") and establish the Coupon Reset Rate equal to the interest rate which would amortize the Notes Premium fully over the term of the Notes at the Yield to Maturity indicated by the Selected Bid, provided, however, that if the applicable Calculation Agent has not received a Bid from a Dealer by the Bid Deadline, the Selected Bid shall be the lowest of all Bids received by such time and provided, further that if any two or more of the lowest Bids submitted are equivalent, the Company shall in its sole discretion select any of such equivalent Bids (and such selected Bid shall be the Selected Bid). (v) Immediately after calculating the Coupon Reset Rate, the applicable Calculation Agent shall provide written notice to the Company and the Trustee, setting forth such Coupon Reset Rate. The Company shall thereafter establish the Coupon Reset Rate as the new interest rate on the Notes, effective from and including January 15, 2008, by delivery to the Trustee on or before the Coupon Reset Date of an Officers' Certificate. (vi) The applicable Callholder shall sell the Notes to the Dealer that made the Selected Bid at the Purchase Price, such sale to be settled on the Coupon Reset Date in immediately available funds. (c) Termination of Call Option. If a Calculation Agent determines, following the exercise of its Call Option, that (i) a Market Disruption Event (as defined below) has occurred or (ii) two or more of the Dealers have failed to provide Bids in a timely manner substantially as provided above, such Call Option will be automatically revoked, and the Trustee will exercise the Put option on behalf of the Holders of the applicable principal amount of the Notes. "Market Disruption Event" shall mean any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the establishment of minimum prices on such exchange; (ii) a general moratorium on commercial banking activities declared by either federal or New York State authorities; (iii) any material adverse change in the existing financial, political or economic conditions in the United States of America; (iv) an outbreak or escalation of major hostilities involving the United States of America or the declaration of a national 6 8 emergency or war by the United States of America; or (v) any material disruption of the U.S. government securities market, U.S. corporate bond market, or U.S. federal wire system. (d) Rights and Liabilities of Calculation Agent. Each Calculation Agent shall incur no liability for, or in respect of, any action taken, omitted to be taken or suffered by it in reliance upon any certificate, affidavit, instruction, notice, request, direction, order, statement or other paper, document or communication reasonably believed by it to be genuine. Any order, certificate, affidavit, instruction, notice, request, direction, statement or other communication from the Company made or given by it and sent, delivered or directed to each Calculation Agent under, pursuant to, or as permitted by, any provision of the Indenture shall be sufficient for purposes of the Indenture if such communication is in writing and signed by any officer or attorney-in-fact of the Company. Each Calculation Agent may consult with counsel satisfactory to it and the advice of such counsel shall constitute full and complete authorization and protection of such Calculation Agent with respect to any action taken, omitted to be taken or suffered by it hereunder in good faith and in accordance with and in reliance upon the advice Of such counsel. (e) Right of Calculation Agents to Own Notes, etc. Each Calculation Agent and its officers, employees and shareholders, may become owners of, or acquire any interests in, Notes, with the same rights as if such Calculation Agent were not the Calculation Agent hereunder. Each Calculation Agent may engage in, or have an interest in, any financial or other transaction with the Company or any of its affiliates as if the Calculation Agents were not the Calculation Agents hereunder. (f) Duties of Calculation Agent. In acting under the Indenture in connection with the Notes, each Calculation Agent shall be obligated only to perform such duties as are specifically set forth herein and no other duties or obligations on the part of each Calculation Agent, in its capacity as such, shall be implied by the Indenture. In acting under the Indenture, each Calculation Agent (in its capacity as such) assumes no obligation towards, or any relationship of agency or trust for or with, the holders of the Notes. (g) Termination. Resignation or Removal of Calculation Agents. The Company may at any time appoint new Calculation Agents other than the incumbent Calculation Agents if Reasonable Cause exists at such time by giving written notice to the incumbent Calculation Agents and specifying the date when the termination shall become effective. "Reasonable Care" shall mean the failure or inability of the incumbent Calculation Agent to perform any obligations they may have hereunder for any reason. A Calculation Agent may resign at any time as Calculation Agent, such resignation to be effective ten Business Days after the delivery to the Company and the Trustee of notice of such resignation. In such case, the Company may appoint a successor Calculation Agent. (h) Appointment of Successor-Calculation Agents. Any successor Calculation Agent appointed by the Company pursuant to the provisions of the foregoing clause (g) shall execute and deliver to the incumbent Calculation Agent and to the Company an instrument accepting such appointment and thereupon such successor Calculation Agent shall, without any further act or instrument, become vested with all the rights, immunities, duties and obligations of such 7 9 incumbent Calculation Agent, with like effect as if originally named as the initial Calculation Agent hereunder, and such incumbent Calculation Agent shall thereupon be obligated to transfer and deliver, and such successor Calculation Agent shall be entitled to receive and accept, copies of any available records maintained by such incumbent Calculation Agent in connection with the performance of its obligations hereunder, and such incumbent Calculation Agent shall thereupon be obligated to transfer and deliver, and such successor Calculation Agent shall be entitled to receive and accept, copies of any available records maintained by such incumbent Calculation Agent in connection with the performance of its obligations hereunder. (i) Indemnification. The Company shall indemnify and hold harmless UBS, Morgan Stanley or any successor Calculation Agents, and their respective officers and employees from and against all actions, claims, damages, liabilities, losses and reasonable expenses (including reasonable legal fees and reasonable expenses) relating to or arising out of actions or omissions in any capacity hereunder, except actions, claims, damages, liabilities, losses and expenses caused by the bad faith, gross negligence or willful misconduct of UBS, Morgan Stanley or any successor Calculation Agents, or their respective officers or employees. This clause (i) shall survive the termination of the Indenture and the payment in full of all obligations under the Notes, whether by redemption, repayment or otherwise. (j) Merger, Consolidation or Sale of Business by Calculation Agents. Any corporation or other entity into which either Calculation Agent may be merged, converted or consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Calculation Agent may be a party, or any corporation to which such Calculation Agent may sell or otherwise transfer all or substantially all of its business, shall, to the extent permitted by applicable law, become the Calculation Agent under the Indenture without the execution of any document or any further act by the parties hereto. Section 404. Provisions Respecting the Calculation Agents. Sections 403(d) through (j) of this First Supplemental Indenture are solely for the benefit of the Company and the Calculation Agents and neither the Trustee nor the holders of the Notes shall have any rights or duties with respect thereto. In furtherance of the foregoing, any violation of any of Sections 403(d) through (j) shall not constitute an Event of Default or an event which, with the giving of notice or the passage of time or both, would constitute an Event of Default or give rise to any right or obligation on the part of the Trustee to enforce compliance therewith, and in no case shall the Trustee be deemed to have assumed any obligation towards, or any relationship or agency or trust for or with, the Calculation Agents. ARTICLE FIVE Section 501. Effect of First Supplemental Indenture. The Original Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and the First Supplemental Indenture shall be read, taken and construed as one and the same instrument. Upon the execution of this First Supplemental Indenture, the Original Indenture shall be, and be deemed to be, modified and amended in accordance herewith and the respective rights, limitation 8 10 of rights, obligations, duties and immunities under the Original Indenture of the Trustee, the Company and the Holders of all Notes shall thereafter be determined, exercised enforced under the Original Indenture subject in all respects to such modifications and amendments, and all the terms and conditions of this First Supplemental Indenture shall be, and be deemed to be, part of the terms and conditions of the Original Indenture for any and all purposes; provided, however, that nothing contained in this First Supplemental Indenture shall affect or apply to any series of Securities outstanding prior to the date hereof (including Securities authenticated and delivered upon registration or transfer of such outstanding Securities, or in exchange therefor, or in lieu thereof). Section 502. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. Section 503. Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not. Section 504. Severability Clause. In case any provision in this First Supplemental Indenture or the Notes 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. Section 505. Benefits of Supplemental Indenture. Nothing in this First Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture. Section 506. Definitions. All terms used and not defined herein shall have the respective meanings assigned to them in the Original Indenture. Section 507. Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 508. Trustee Not Responsible for Recitals. The Trustee has executed this First Supplemental Indenture only upon the terms and conditions set forth in the Original Indenture. Without limiting the generality of the foregoing, 9 11 the Trustee shall not be responsible for the correctness of the recitals herein contained which shall be taken to be statements of the Company, and the Trustee makes no representation and shall have no responsibility for, and in respect of, the validity or sufficiency of this First Supplemental Indenture or the execution hereof by the Company. Section 509. Governing Law. This First Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, provided that the rights, duties, standard of care and immunities of the Trustee in connection with the administration of its duties hereunder shall be governed by the laws of the State of New York. 10 12 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. [SEAL] CRESTAR FINANCIAL CORPORATION By: ----------------------------------------- Its: Attest: By: ------------------------------- Its Senior Vice President Deputy General Counsel and Assistant Vice President [SEAL] THE CHASE MANHATTAN BANK, as Trustee By: ----------------------------------------- Its: Attest: By: ------------------------------- Its: 13 Exhibit A THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR SUCH OTHER NAME, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. CRESTAR FINANCIAL CORPORATION 6 1/2% PUTABLE/CALLABLE SUBORDINATED NOTE DUE JANUARY 15, 2018, PUTABLE/CALLABLE JANUARY 15, 2008 CUSIP No.: 226 091 AF3 No. 1 $150,000,000 CRESTAR FINANCIAL CORPORATION, a corporation duly organized and existing under the laws of the Commonwealth of Virginia (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $150,000,000 (ONE HUNDRED AND FIFTY MILLION DOLLARS) at the office or agency of the Company in the Borough of Manhattan, the City and State of New York or the City of Richmond, Virginia on January 15, 2018 in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts, and to pay interest semi-annually on January 15 and July 15 of each year (each an "Interest Payment Date") on said principal sum, commencing July 15, 1998, at the rate of 6 1/2% per annum and at such other rate, effective from and including January 15. 2008, as shall be determined pursuant to the Coupon Reset Process referred to below, at said offices or agencies, in like coin or currency, from January 27, 1998, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, until payment of such principal sum has been made or duly provided for. Payment of interest may be made at the option of the Company by check mailed to the address of the person entitled 14 thereto as such address shall appear on the Security Register. The interest so payable on any Interest Payment Date will, subject to certain exceptions provided in the Indenture, be paid to the person in whose name this Note is registered at the close of business on the December 31 or June 30, as the case may be next preceding such Interest Payment Date, whether or not such day is a Business Day (as defined herein). Reference is made to the further provisions of this Note set forth in the Indenture referred to on the reverse hereof, including those describing the Call Option, the Put Option and the Coupon Reset Process. Such further provisions and the additional provisions set forth on the reverse hereof shall for all purposes have the same effect as though fully set forth at this place. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee under the Indenture referred to on the reverse hereof. IN WITNESS WHEREOF, CRESTAR FINANCIAL CORPORATION has caused this instrument to be signed manually or by facsimile by its duly authorized officers and has caused a facsimile of its corporate seal to be affixed hereunto or imprinted hereon. Dated: January 27, 1998 CRESTAR FINANCIAL CORPORATION By: ----------------------------------------- Authorized Officer Attest: - ---------------------------------- Secretary [SEAL] CERTIFICATION OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE CHASE MANHATTAN BANK as Trustee By: ----------------------------------------- Authorized Officer 15 This Note is one of a duly authorized issue of debentures, notes, bonds or other evidences of indebtedness of the Company (hereinafter called the "Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an indenture dated as of September 1, 1993, as supplemented by the First Supplemental Indenture dated as of January 1, 1998 (the "Indenture"), duly executed and delivered by the Company to The Chase Manhattan Bank, formerly known as Chemical Bank, as Trustee (herein called the "Trustee"). Reference is hereby made to such Indenture for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the "6 1/2% Putable/Callable Subordinated Notes Due January 15, 2018, Putable/Callable January 15, 2008" (the "Notes"), limited in aggregate principal amount to $150,000,000. Subject to the Call Option and the Put Option provided for in the Indenture, the Notes are not redeemable prior to maturity. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect from time to time. The Notes are subject to all such terms and holders are referred to the Indenture and the Trust Indenture Act for a statement of those terms. The payment of principal of and interest on this Note is expressly subordinated and subject in right of payment, as provided in the Indenture, to the prior payment of any and all Senior Indebtedness of the Company, as defined in the Indenture. This Note is issued subject to such provisions, and each holder of this Note, by accepting the same, agrees, expressly for the benefit of the present and future holders of Senior Indebtedness, whether now or hereafter outstanding, to and shall be bound by such provisions. If an Event of Default (defined in the Indenture as certain events involving the bankruptcy, insolvency or reorganization of the Company) shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding, as defined in the Indenture, of each series to be affected, provided, however, that no such supplemental indenture shall change the Stated Maturity of any Security, or reduce the principal amount thereof, or reduce the rate or change the time of payment of interest thereon, or make the principal thereof or interest thereon payable in any coin or currency other than that hereinbefore provided, or change the place of payment thereof, or impair or affect the right of any Holder of a Security to institute suit for payment thereof, or reduce the aforesaid percentage of Securities, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby. It is also provided in the Indenture that the Holders of not 16 less than a majority in aggregate principal amount of the Notes at the time Outstanding may on behalf of the Holders of all of the Notes waive compliance by the Company with certain provisions of the Indenture and any past default under the Indenture with respect to the Notes and its consequences, except a default in the payment of the principal of or interest on any of the Notes or a default with respect to any provision of the Indenture that cannot be modified or amended without the consent of the Holder of each Outstanding Note. Subject to the rights of the Holders of Senior Indebtedness of the Company set forth in this Note and as provided in the Indenture, no reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional. to pay the principal of and interest on this Note at the times, place and rates, and in the coin or currency as herein prescribed. The Notes are issuable in registered form without coupons and will be sold in denominations of $1,000 and integral multiples of $1,000 in excess thereof. Upon due presentment for registration of transfer of this Note at the office or agency of the Company in the Borough of Manhattan, the City and State of New York or the City of Richmond, Virginia, or any other location as may be provided for pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. This Note may be exchanged for certificated securities registered in the names of the various beneficial owners hereof only if (a) the Depositary is at any time unwilling or unable to continue as Depositary or is ineligible to act as Depositary under the Indenture and a successor Depositary is not appointed by the Company within 90 days, or (b) the Company elects to issue certificated securities to all beneficial owners (as certified to the Company by the Depositary or a successor Depositary) of the Notes. The Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Note is registered as the owner of this Note, for the purpose of receiving payment of or on account of the principal hereof and, subject to the provisions on the face hereof, interest hereon, and for all other purposes, whether or not this Note shall be overdue and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. This Note shall be deemed to be a contract made under the laws of the Commonwealth of Virginia and for all purposes shall be governed by and construed in accordance with the laws of said Commonwealth, provided, however, that the rights, duties, immunities and standard of care of the Trustee under the Indenture shall be governed by the laws of the State of New York. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 17 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM-as tenants in common UNIT GIFT MIN ACT--.............Custodian.......... TEN ENT-as tenants by the (Cus) (Minor) entireties Under Uniform Gifts to Minors JT TEN-as joint tenants with rights of survivor- Act.................................. ship and not as Tenants (State) in Common
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST. 18 EXHIBIT 4.7 FORM OF TRANSFER FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto - -------------------------------------------------------------------------------- PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE -------------------------------------------------- - -------------------------------------------------------------------------------- (Please print or typewrite name and address of assignee) the within Note and does hereby irrevocably constitute and appoint _______________ (Attorney) to transfer the said Note in the Security Register of the Company, with full power of substitution in the premises. Dated: ---------------- ----------------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Note in every particular without alteration or enlargement or any change whatever. - ---------------------------------------- SIGNATURE GUARANTEED: The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. EX-12 6 0006.txt COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12 SUNTRUST BANKS, INC. Ratio of Earnings to Fixed Charges (In thousands)
Three Months Ended March 31 -------------------------------- 2000 1999 --------------------------------- RATIO 1 - INCLUDING DEPOSIT INTEREST Earnings: Income before income taxes and extraordinary gain $ 492,838 $ 431,852 Fixed charges 835,017 679,030 ---------- ---------- Total $1,327,855 $1,110,882 ========== ========== Fixed charges: Interest on deposits $ 554,962 $ 394,139 Interest on funds purchased 142,833 169,297 Interest on other short-term borrowings 18,946 20,288 Interest on long-term debt 111,495 88,428 Portion of rents representative of the interest factor (1/3) of rental expense 6,781 6,878 ---------- ---------- Total $ 835,017 $ 679,030 ========== ========== Earnings to fixed charges 1.59 x 1.64 x RATIO 2 - EXCLUDING DEPOSIT INTEREST Earnings: Income before income taxes and extraordinary gain $ 492,838 $ 431,852 Fixed charges 280,055 284,891 ---------- ---------- Total $ 772,893 $ 716,743 ========== ========== Fixed charges: Interest on funds purchased $ 142,833 $ 169,297 Interest on other short-term borrowings 18,946 20,288 Interest on long-term debt 111,495 88,428 Portion of rents representative of the interest factor (1/3) of rental expense 6,781 6,878 ---------- ---------- Total $ 280,055 $ 284,891 ========== ========== Earnings to fixed charges 2.76 x 2.52 x Year Ended December 31 ------------------------------------------------------------------------------- 1999 1998 1997 1996 1995 ------------------------------------------------------------------------------- RATIO 1 - INCLUDING DEPOSIT INTEREST Earnings: Income before income taxes and extraordinary gain $1,695,657 $1,498,306 $1,499,599 $1,265,942 $1,211,458 Fixed charges 2,841,964 2,773,877 2,479,633 2,185,047 2,051,441 ---------- ---------- ---------- ---------- ---------- Total $4,537,621 $4,272,183 $3,979,232 $3,450,989 $3,262,899 ========== ========== ========== ========== ========== Fixed charges: Interest on deposits $1,626,132 $1,644,229 $1,627,417 $1,585,707 $1,481,548 Interest on funds purchased 749,561 634,086 461,724 356,879 336,360 Interest on other short-term borrowings 79,521 127,800 133,814 81,683 91,271 Interest on long-term debt 359,538 340,664 230,509 134,530 118,152 Portion of rents representative of the interest factor (1/3) of rental expense 27,212 27,098 26,169 26,248 24,110 ---------- ---------- ---------- ---------- ---------- Total $2,841,964 $2,773,877 $2,479,633 $2,185,047 $2,051,441 ========== ========== ========== ========== ========== Earnings to fixed charges 1.60 x 1.54 x 1.60 x 1.58 x 1.59 x RATIO 2 - EXCLUDING DEPOSIT INTEREST Earnings: Income before income taxes and extraordinary gain $1,695,657 $1,498,306 $1,499,599 $1,265,942 $1,211,458 Fixed charges 1,215,832 1,129,648 852,216 599,340 569,893 ---------- ---------- ---------- ---------- ---------- Total $2,911,489 $2,627,954 $2,351,815 $1,865,282 $1,781,351 ========== ========== ========== ========== ========== Fixed charges: Interest on funds purchased $ 749,561 $ 634,086 $ 461,724 $ 356,879 $ 336,360 Interest on other short-term borrowings 79,521 127,800 133,814 81,683 91,271 Interest on long-term debt 359,538 340,664 230,509 134,530 118,152 Portion of rents representative of the interest factor (1/3) of rental expense 27,212 27,098 26,169 26,248 24,110 ---------- ---------- ---------- ---------- ---------- Total $1,215,832 $1,129,648 $ 852,216 $ 599,340 $ 569,893 ========== ========== ========== ========== ========== Earnings to fixed charges 2.39 x 2.33 x 2.76 x 3.11 x 3.13 x
EX-23.1 7 0007.txt CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 8, 2000 included in SunTrust Banks, Inc.'s Form 10-K for the year ended December 31, 1999 and to all references to our firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP Atlanta, Georgia June 8, 2000 -----END PRIVACY-ENHANCED MESSAGE-----