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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MAY 12, 1997
SunTrust Banks, Inc.
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(Exact name of registrant as specified in its charter)
Georgia 001-08918 58-1575035
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(State of incorporation) (Commission File Number) (IRS Employer
Identification No.)
303 Peachtree Street, N.E. 30308
Atlanta, Georgia ----------
- ---------------------------------------- (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: 404-588-7711
SunTrust Capital I
SunTrust Capital II
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(Exact name of registrant as specified in its charter)
Delaware N/A To be applied for
- ------------------------ ------------------------ -------------------
(State of incorporation) (Commission File Number) (IRS Employer
Identification No.)
303 Peachtree Street, N.E. 30308
Atlanta, Georgia ----------
- ---------------------------------------- (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: 404-588-7711
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ITEM 5. OTHER EVENTS.
SunTrust Banks, Inc. (the "Company"), SunTrust Capital I and SunTrust
Capital II (the "Trusts" and, together with the Company, the "Registrants") are
filing this Current Report on Form 8-K so as to file with the Securities and
Exchange Commission certain items that are to be incorporated by reference into
their Registration Statement on Form S-3 (Registration Nos. 333-25381,
333-25381-01 and 333-25381-02).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement.
4.9 -- Form of Supplemental Indenture to be used in
connection with the issuance by the Company of
Subordinated Debentures.
8.1 -- Form of Tax Opinion of King & Spalding.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrants have duly caused this Current Report on Form 8-K to be signed on
their behalf by the undersigned, hereunto duly authorized.
Date: May 12, 1997 SUNTRUST BANKS, INC.
By: /s/ Raymond D. Fortin
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Raymond D. Fortin
Senior Vice President
Date: May 12, 1997 SUNTRUST CAPITAL I
By: /s/ Raymond D. Fortin
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Raymond D. Fortin
Trustee
Date: May 12, 1997 SUNTRUST CAPITAL II
By: /s/ Raymond D. Fortin
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Raymond D. Fortin
Trustee
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
No. Exhibit Numbered Page
- ------- ------- -------------
<S> <C> <C> <C>
1.1 -- Form of Underwriting Agreement
4.9 -- Form of Supplemental Indenture to be used in
connection with the issuance by the Company of
Subordinated Debentures
8.1 -- Form of Tax Opinion of King & Spalding
</TABLE>
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EXHIBIT 1.1
SunTrust Banks, Inc.
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
The statutory business trust organized under the Business
Trust Act (the "Delaware Act") of the State of Delaware and identified on
Schedule I hereto (the "Trust") and SunTrust Banks, Inc., a Georgia corporation
(the "Company" and, together with the Trust, the "Offerors"), confirm their
agreement with you and each of the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of the Trust's securities identified in Schedule I hereto
(the "Preferred Securities") to be issued under a declaration of trust
identified in Schedule I hereto (the "Declaration") among the Company, the
trustees named therein, including the institutional trustee identified in
Schedule I hereto (the "Institutional Trustee"), and the holders from time to
time of beneficial ownership interests in the assets of the Trust. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has agreed to guarantee irrevocably and
unconditionally the obligations of the Trust with respect to the Preferred
Securities (the "Preferred
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Securities Guarantee") pursuant to a Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement") by and between the Company and
The First National Bank of Chicago, as trustee (the "Preferred Guarantee
Trustee") on behalf of the holders of Preferred Securities of the Trust. The
Company has also agreed to guarantee irrevocably and unconditionally the
obligations of the Trust with respect to the Common Securities (the "Common
Securities Guarantee") pursuant to a Common Securities Guarantee Agreement (the
"Common Securities Guarantee Agreement") to the same extent as the Preferred
Securities Guarantee except that upon an event of default under the Indenture,
the holders of Preferred Securities shall have priority over holders of Common
Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
The proceeds from the sale of the Preferred Securities to the
Underwriters together with the proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities" and, together with
the Preferred Securities, the "Trust Securities") will be used by the Trust to
purchase $# aggregate principal amount of the Company's subordinated debt
securities identified in Schedule I hereto (the "Debentures") to be issued by
the Company pursuant to an indenture identified in Schedule I hereto (the "Base
Indenture") between the Company and the trustee identified in Schedule I hereto
(the "Debt Trustee"), as amended by a supplemental indenture pertaining to the
Deben- tures to be purchased by the Trust and identified in Schedule I hereto
(the "Supplemental Indenture" and, together with the Base Indenture, the
"Indenture").
1. Representations and Warranties. The Offerors jointly
and severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Preferred Securities is a
Delayed Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable and, if the offering of the Preferred Securities
is a Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
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(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Preferred Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering
of the Preferred Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Preferred Securi- ties and the
offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective
Date. The Company will next file with the Commission pursuant
to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement
relating to the Preferred Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Preferred Securities
and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Offerors have advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration state-
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ment (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Preferred Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Preferred Securities in
accordance with Rules 430A and 424(b)(l) or (4), or (y) prior
to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x),
the Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect
to the Preferred Securities and the offering thereof. As
filed, such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required
information, with respect to the Preferred Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Offerors have advised you, prior to the Execution Time, will
be included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as hereinafter
defined), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of
the Act, the Securi-
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ties Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date each of the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture did or will comply in
all material respects with the requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act
of the Institutional Trustee, (ii) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the
Guarantee Trustee, (iii) that part of the Registration Statement which
shall consti- tute the Statement of Eligibility and Qualification
(Form T-l) under the Trust Indenture Act of the Debt Trustee or (iv)
the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that
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the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the
date hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus
which describes the Preferred Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Preferred
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Preferred Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information
with respect to the Preferred Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incor-
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porated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement, with the result
that only information required pursuant to Rule 415 need be included
in such registration statement at the effective date thereof with
respect to the securities so offered. Whether the offering of the
Preferred Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Trust agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the purchase
price set forth in Schedule I hereto the principal amount of the Preferred
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Preferred Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Preferred Securities to be purchased by the Underwriters shall be
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as set forth in Schedule II hereto less the respective amounts of Contract
Securities (as defined) determined as provided below. Preferred Securities to
be purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Preferred Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Preferred Securities from the Trust
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Offerors may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the principal amount of the
Preferred Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Offerors will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors but, except as the Offerors
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Preferred Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of Preferred
Securities set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Offerors in writing; provided, however, that the
total principal amount of Preferred
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Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five business
days after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and the
Offerors or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer, or certified
or official bank check or checks drawn on or by a New York bank and payable in
such funds as are specified in Schedule I hereto. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Preferred Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
The Trust agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Agreements of the Offerors. The Offerors jointly and
severally agree with the several Underwriters that:
(a) The Offerors will use their best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
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of the offering of the Preferred Securities, the Offerors will not
file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus unless the Offerors have furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Offerors will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Offerors will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Preferred Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by either of the Offerors of any notification with respect to the
suspension of the qualification of the Preferred Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Offerors will use their best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Preferred Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the
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circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Offerors promptly will (i) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make
generally available to the holders of the Preferred Securities and to
the Representatives an earnings statement or statements of the Company
and its subsidiaries that will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Offerors will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Offerors will arrange for the qualification of
the Preferred Securities for sale under the laws of such jurisdictions
as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities and will arrange for the determination of the
legality of the Preferred Securities for purchase by institutional
investors.
(f) Until the business day following the Closing Date,
the Offerors will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt
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securities issued or guaranteed by the Company or the Trust (other
than the Preferred Securities, the Preferred Securities Guarantee and
the Debentures).
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Offerors contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Offerors made in any
certificates pursuant to the provisions hereof, to the performance by the
Offerors of their obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Raymond D. Fortin, Senior Vice
President - Legal of the Company, or of other counsel for the Company
satisfactory to the Representatives, dated the Closing Date, to the
effect that:
i) each of the Company, SunTrust Banks of Florida,
Inc., SunTrust Banks of Georgia, Inc., SunTrust Banks of
Tennessee, Inc., SunTrust Bank, Central Florida and SunTrust
Bank, Atlan-
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ta (individually a "Subsidiary" and collectively the
"Subsidiaries"), has been duly incorporated or organized and
is validly existing as a corporation or banking association in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly quali- fied to
do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business; and the Company is duly registered
as a bank holding company under the Bank Holding Company Act
of 1956, as amended;
ii) each of the Declaration, the Preferred Securities
Guarantee Agreement, the Common Securities Guarantee
Agreement, the Base Indenture, the Supplemental Indenture, the
Debentures, this Agreement and any Delayed Delivery Contract
has been duly authorized by the Company;
iii) except as otherwise set forth in the Final
Prospectus, all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not ade-
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quately disclosed in the Final Prospectus; and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, that is not
described or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements (or provisions
thereof) relating to the Company fairly summarize in all
material respects such proceedings, material contracts or
agreements (or provisions thereof);
v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Trust, of a character required to be
disclosed in the Registration Statement that is not adequately
disclosed in the Final Prospectus;
vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained or
incorporated therein and the Form T-1 Statements of
Eligibility and Qualification filed as exhibits to the
Registration Statement, as to which such counsel need express
no opinion) comply as to form in all material respects with
the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder;
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vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated
herein or in any Delayed Delivery Contract, except such as
have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Preferred Securities by
the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
viii) the execution, delivery and performance by the
Company of this Agreement, any Delayed Delivery Contract, the
Declaration, the Preferred Securities Guarantee Agreement, the
Common Securities Guarantee Agreement, the Base Indenture and
the Supplemental Indenture, the consummation by the Company of
the transactions herein and therein contemplated and the
issuance and sale of the Debentures will not conflict with,
result in a breach or violation of, or constitute a default
under any law or the charter or by-laws of the Company or the
terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or
any of its subsidiaries is a party or bound or any judgment,
order or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
subsidiaries;
ix) to the knowledge of such counsel, no holder of
securities of the Company has rights to the registration of
such securities under the Registration Statement.
In addition, such counsel shall state that he has no reason to believe
that at the Effective Date the Registration Statement (other than the
financial statements and other financial and statistical information
contained or incorporated therein and the Form T-1 Statements of
Eligibility and Qualifi-
15
<PAGE> 16
cation filed as exhibits to the Registration Statement, as to which
such counsel need express no belief) contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus (other than the financial
statements and other financial and statistical information contained
or incorporated therein and the Form T-1 Statements of Eligibility and
Qualification filed as exhibits to the Registration Statement, as to
which such counsel need express no belief) as of its date and as of
the Closing Date includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Georgia or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and the Trust and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Company shall have furnished to the
Representatives the opinion of King & Spalding, counsel for the
Company, dated the Closing Date, to the effect that:
i) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Preferred
Securities, Common Securities and Debentures conform in all
material respects to the respective descriptions thereof
contained in the Final Prospectus;
ii) the Declaration has been duly executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and
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<PAGE> 17
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iii) the Preferred Securities Guarantee Agreement has
been duly executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iv) the Common Securities Guarantee Agreement has
been duly executed and delivered by the Company and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
v) the Base Indenture and Supplemental Indenture
have each been duly executed and delivered by the
Company, the Base Indenture has been duly qualified under the
Trust Indenture Act, and the Base Indenture and Supplemental
Indenture each constitute a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies); and the Debentures are in the form contemplated by
17
<PAGE> 18
the Base Indenture and Supplemental Indenture and, when
executed and authenticated in accordance with the provisions
of the Base Indenture and Supplemental Indenture and delivered
to and paid for by the Trust, will constitute legal, valid and
binding obligations of the Company (subject, as to enforcement
of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies) entitled to the
benefits of the Base Indenture and Supplemental Indenture;
vi) this Agreement and any Delayed Delivery Contract
have been duly executed and delivered by the Company;
vii) the statements in the Final Prospectus under the
captions "Description of the Preferred Securities,"
"Description of the Preferred Securities Guarantee,"
"Description of the Debentures" and "ERISA Considerations,"
and in the Basic Prospectus under the captions "Description of
the Subordinated Debt Securities," "Description of the
Preferred Securities" and "Description of the Preferred
Securities Guarantees," in each case insofar as such
statements constitute summaries of the legal matters or
documents (or provisions thereof) referred to therein, fairly
present the information required to be described with respect
to such legal matters and documents (or provisions thereof)
and fairly summarize in all material respects such legal
matters and documents (or provisions thereof) required to be
so described;
viii) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
18
<PAGE> 19
Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
In rendering such opinion, such counsel may rely (A) upon the
opinion of Raymond D. Fortin, Senior Vice President - Legal of the
Company, or of other counsel for the Offerors satisfactory to the
Representatives, (B) as to matters involving the application of laws,
other than the Delaware General Corporation Law and the laws of the
States of Georgia and New York and of the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (C) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Trust and public officials.
References to the Final Prospectus made in this paragraph (c) include
any supplements thereto at the Closing Date.
(d) The Offerors shall have furnished to the
Representatives the opinion of King & Spalding, special tax counsel
for the Company and the Trust, dated the Closing Date, to the effect
that:
i) the Trust will be classified as a grantor trust
and not as an association taxable as a corporation for United
States federal income tax purposes. As a result, each
beneficial owner of Preferred Securities (a "Securityholder")
will be required to include in its gross income its pro rata
share of the interest income, including original issue
discount, paid or accrued with respect to the Debentures,
whether or not cash is actually distributed to the
Securityholder;
ii) the Debentures will be treated as indebtedness of
the Company for United States federal income tax purposes; and
iii) the discussion contained in the Final Prospectus
under the caption "United States Federal Income Taxation"
constitutes, in all material respects, a fair and accurate
summary
19
<PAGE> 20
of United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities
under current law.
(e) The Trust shall have furnished to the Representatives
the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special
Delaware counsel for the Trust, dated the Closing Date, to the effect
that:
i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act; all filings required under the laws of the State
of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made;
ii) the Declaration has been duly qualified under the
Trust Indenture Act and constitutes a legal, valid and binding
instrument enforceable against the Regular Trustees in
accordance with its terms (subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies);
iii) under the Delaware Act and the Declaration, the
Trust has the power and authority to (A) execute and deliver,
and to perform its obligations under, this Agreement and any
Delayed Delivery Contract, (B) issue and sell the Preferred
Securities and the Common Securities and (C) conduct its
business as described in the Final Prospectus;
iv) the Preferred Securities have been duly
authorized for issuance by the Trust and are in the form
contemplated by the Declaration and, subject to the
qualifications set forth below, when certificates therefor in
the form examined by such counsel are issued, executed and
authenticated in accordance with the Declaration and delivered
and paid for in accordance with this Agreement and any Delayed
Delivery Contract, will be validly issued, fully paid
20
<PAGE> 21
and nonassessable undivided beneficial ownership interests in
the assets of the Trust entitled to the benefits of the
Declaration; and the holders of the Preferred Securities will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. Such counsel may bring to the attention of the
Underwriters, however, that the Preferred Securities holders
may be obligated, pursuant to the Declaration, to (i) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred
Securities and the issuance of replacement Preferred
Securities, and (ii) provide security and indemnity in
connection with requests of or directions to the Property
Trustee (as defined) to exercise its rights and powers under
the Declaration. The issuance of the Preferred Securities is
not subject to preemptive or other similar rights under the
Delaware Act or the Declaration;
v) the Common Securities have been duly authorized
for issuance by the Trust and are in the form contemplated by
the Declaration and, subject to the qualifications set forth
below, when certificates therefor in the form examined by such
counsel are issued, delivered and paid for in accor- dance
with the Declaration, will be validly issued, fully paid and
nonassessable undivided beneficial ownership interests in the
assets of the Trust entitled to the benefits of the
Declaration; and the holders of the Common Securities will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Such counsel may bring to the attention of the Underwriters,
however, that the Common Securities holders may be obligated,
pursuant to the Declaration, to (i) provide indemnity and/or
security in connection with and pay taxes or governmental
charges arising from transfers of Common Securities and the
issuance of replacement Common Securities,
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<PAGE> 22
and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined)
to exercise its rights and powers under the Declaration. The
issuance of the Common Securities is not subject to preemptive
or other similar rights under the Delaware Act or the
Declaration;
vi) this Agreement and any Delayed Delivery Contract
have been duly authorized, executed and delivered by the
Trust;
vii) based on such counsel's review of Applicable
Laws, no Governmental Approval which has not been obtained or
taken and is not in full force and effect is required to
authorize or is required in connection with the execution or
delivery by the Trust of this Agreement or any Delayed
Delivery Contract or the performance by the Trust of the
transactions contemplated hereby and thereby. As used in this
paragraph and the following paragraph, (A) the term
"Applicable Laws" means only the Delaware Business Trust Act,
the General Corporation Law of the State of Delaware and those
laws, rules and regulations of the State of Delaware which, in
such counsel's experience, are ordinarily applicable to
transactions of the type contemplated by this Agreement and
any Delayed Delivery Contract (excluding (1) federal
securities laws and state securities or "blue sky" laws and
(2) any anti-fraud laws), but without such counsel having made
any special investigation with respect to any other laws,
rules or regulations; (B) the term "Governmental Approval"
means any consent, approval, license, authorization or
validation of, or filing, qualification or registration with,
any Governmental Authority pursuant to Applicable Laws; and
(C) the term "Governmental Authority" means any Delaware
legislative, judicial, administrative or regulatory body under
Applicable Laws;
viii) the execution, delivery and performance by the
Trust of this Agreement and any Delayed Delivery Contract, and
the issuance and sale of the Preferred Securities and the
Common
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<PAGE> 23
Securities by the Trust in accordance with the terms of this
Agreement and the consummation of the other transactions
contemplated hereby, will not (a) violate any Applicable Laws
or (b) conflict with the certificate of trust of the Trust or
the Declaration; and
ix) the Trust is not regulated or required to be
registered as an "investment company" under the Investment
Company Act of 1940, as amended.
(f) The Offerors shall have furnished to the
Representatives the opinion of Pepper, Hamilton & Scheetz, special
Delaware counsel for The First National Bank of Chicago, as
Institutional Trustee under the Declaration, Preferred Guarantee
Trustee under the Preferred Securities Guarantee Agreement and Debt
Trustee under the Indenture, and First Chicago Delaware Inc., as
Delaware Trustee under the Declaration, dated the Closing Date, with
respect to such matters as the Representatives may reasonably require.
(g) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Preferred Securities and the Debentures; with
respect to the execution, delivery and performance of the Declaration,
the Preferred Securities Guarantee Agreement, the Base Indenture and
the Supplemental Indenture; and with respect to the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require, and the Offerors shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(h) The Offerors shall have each furnished to the
Representatives their respective certificates, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, and by two or more of the Regular
Trustees of the Trust, respectively, dated the Clos-
23
<PAGE> 24
ing Date, each to the effect that the signers of each such certificate
have carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
i) the representations and warranties of the
Company and the Trust, as the case may be, in this Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company and the Trust, as the case may be, has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the knowledge of
the Company and the Trust, as the case may be, threatened; and
iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries and of the
Trust, as the case may be, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(i) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
24
<PAGE> 25
i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
ii) on the basis of a reading of the amounts
included or incorporated in the Registration Statement and the
Final Prospectus in response to Item 301 of Regulation S-K and
of the latest unaudited financial statements made available by
the Company and its subsidiaries; carrying out certain
specified procedures (but not an audit in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive
committee of the Company and its subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) the amounts in the "Selected
Historical Financial Data" included or incorporated
in the Registration Statement and the Final
Prospectus do not agree with the corresponding
amounts in the audited and unaudited financial
statements from which such amounts were derived;
(2) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited
25
<PAGE> 26
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(3) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the shareholders' equity of the Company
and its subsidiaries as compared with the amounts
shown on the most recent consolidated balance sheet
included or incorporated in the Registration
Statement and the Final Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year (on a
consolidated basis), in net interest income; net
interest income after provision for loan losses or in
income before income taxes, or in the total or per
share amount of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(4) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and the
Final Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
26
<PAGE> 27
iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12.1 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the Company's Quarterly Reports on Form 10- Q, incorporated in
the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
iv) if unaudited pro forma financial statements
are included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (i)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Arthur Andersen LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth in the introductory paragraph to this paragraph (i),
in subparagraphs (i) and (ii)(2) above and, to the extent referring to
infor-
27
<PAGE> 28
mation contained in Exchange Act reports incorporated in the
Registration Statement and the Final Prospectus in subparagraphs
(ii)(l) and (iii) above.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (i) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries or of the
Trust the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representa- tives, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Preferred Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(m) The Trust shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
28
<PAGE> 29
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Offerors in
writing or by telephone or fax confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Underwriters, at 919 Third Avenue, New York, New York 10022, on the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Preferred Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied, because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company or the
Trust to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Preferred Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Preferred Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in
29
<PAGE> 30
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 or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Offerors by or on behalf
of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, the Trust and each of
the Regular Trustees, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Offerors by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Offerors acknowledge that the statements set forth in the last two
paragraphs of the cover page, under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sales of Preferred
Securities pursuant to delayed delivery arrangements, in the last sentence
under the heading "Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent
30
<PAGE> 31
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which
31
<PAGE> 32
the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Offerors and by the Underwriters from the offering of the Preferred Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Preferred Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Offerors and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Offerors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Offerors or the Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement, each director of the Company and
each Regular Trustee of the Trust shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Preferred Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall
32
<PAGE> 33
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Preferred
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Preferred Securities set forth opposite the names of all
the remaining Underwriters) the Preferred Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Preferred Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Preferred
Securities, and if such nondefaulting Underwriters do not purchase all the
Preferred Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Offerors. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Offerors and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of and payment for the Preferred Securities,
if prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by federal or Florida,
Georgia, Tennessee or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Preferred Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
33
<PAGE> 34
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of the Trust or its Regular Trustees
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Offerors or any of the officers, directors,
trustees or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Preferred Securities. The provisions
of Sections 6 and 7 hereof shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or faxed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company or the Trust, will
be mailed, delivered or faxed and confirmed to it at 303 Peachtree Street,
N.E., Atlanta, Georgia 30308, attention of the Treasurer.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
34
<PAGE> 35
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof
whereupon this Letter and your acceptance shall represent a binding agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
SunTrust Capital *
by
-----------------------
Name:
Title:
SunTrust Banks, Inc.
by
-----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified below.
- -------------------------------
by
-----------------------------
by
---------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
Date:
---------
35
<PAGE> 36
SCHEDULE I
<TABLE>
<S> <C>
Underwriting Agreement: Underwriting Agreement dated
__________
Registration Statement: No. 333-25381, 333-25381-01
and 333-25381-02
Trust Issuing
Preferred Securities: SunTrust Capital Trust ______
Declaration Governing
Preferred Securities: Amended and Restated Declaration of
Trust of SunTrust Capital Trust
_____, dated as of __________, among
the Company, the trustees named
therein and the holders from time to
time of beneficial ownership
interests in the assets of SunTrust
Capital Trust _____
Institutional Trustee
under Declaration: The First National Bank of
Chicago
Preferred Securities Guarantee
Agreement Guaranteeing
Preferred Securities: Preferred Securities Guarantee
Agreement, dated as of __________,
between the Company and The First
National Bank of Chicago, as trustee
Guarantee Trustee Under
Preferred Securities
Guarantee Agreement: The First National Bank of Chicago
</TABLE>
I-1
<PAGE> 37
<TABLE>
<S> <C>
Base Indenture
Governing Debentures: Indenture, dated __________, between
the Company and The First National
Bank of Chicago, as trustee (the
"Debt Trustee")
Supplemental Indenture
Governing Debentures: __________ Supplemental Indenture,
dated __________, between the
Company and the Debt Trustee
Debt Trustee: The First National Bank of
Chicago
Representative(s): ----------------------
[address]
Title, Purchase Price
and Description of
Preferred Securities:
Title: Floating Rate Junior Subordi-
nated Deferrable Interest
Debentures, Series _____ due
----------
Principal amount: ----------
Purchase price (including
accrued interest or
amortization, if any): ----------
Sinking fund provisions:
-------------------------------------
Redemption provisions:
-------------------------------------
Other provisions:
-------------------------------------
Closing Date, Time and Location:
Closing Date: ----------
Time: ----------
Location:
-------------------------------------
</TABLE>
I-2
<PAGE> 38
<TABLE>
<S> <C>
Type of Offering:
-------------------------------------
Payment of Funds:
-------------------------------------
Delayed Delivery Arrangements:
Fee:
----------
Minimum principal amount
of each contract: $
---------
Maximum aggregate principal
amount of all contracts: $
---------
Modification of items to be
covered by the letter from
Arthur Andersen LLP delivered
pursuant to Section 5(i)
at the Execution Time: [No modification except that such
letter will be delivered at Closing
Time, not Execution Time.]
</TABLE>
I-3
<PAGE> 39
SCHEDULE II
Principal Amount of Preferred
Underwriters Securities to be Purchased
- ------------ -----------------------------
$
- ---------- ----------
-----------------------------
Total.......................... $
----------
II-1
<PAGE> 40
SCHEDULE III
Delayed Delivery Contract
----------
[Insert name and address
of lead Representative(s)]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SunTrust
Capital _____ (the "Trust"), and the Trust agrees to sell to the undersigned,
on __________ (the "Delivery Date"), $__________ principal amount of the
Trust's Preferred Securities, Series _____ due __________ (the "Preferred
Securities") offered by the Trust's Prospectus dated __________, 1997 and
related Prospectus Supplement dated __________, _____ receipt of a copy of
which is hereby acknowledged, at a purchase price of _____% of the principal
amount thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from __________ to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Preferred Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City time, on the
Delivery Date to or upon the order of the Trust in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Trust and the undersigned, upon delivery to the undersigned of the
Preferred Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or fax communication addressed to the Trust not less than five full
business days prior to the Delivery Date. If no request is received, the
Preferred Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Preferred
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Preferred Securities on the Delivery Date, and the obligation of
the Trust to sell and deliver Preferred Securities on the Delivery Date, shall
be subject to the conditions (and neither
III-1
<PAGE> 41
party shall incur any liability by reason of the failure thereof) that (l) the
purchase of Preferred Securities to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Trust, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Preferred Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters,
the Trust will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion(s) of counsel
for the Trust delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Preferred Securities, and the obligation of the Trust to cause the Preferred
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Preferred Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Trust's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Trust, it is required that the Trust sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Trust and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
III-2
<PAGE> 42
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
----------------------------------
(Name of Purchaser)
by
--------------------------------
(Signature and Title of Officer)
----------------------------------
(Address)
Accepted:
SunTrust Capital
-----
by
----------------------------
Name:
Title:
SunTrust Banks, Inc.
by
----------------------------
Name:
Title:
III-3
<PAGE> 1
EXHIBIT 4.9
==================================
FIRST SUPPLEMENTAL INDENTURE
between
SUNTRUST BANKS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of __________, 1997
==================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.4. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 8.2. Covenants as to the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
ARTICLE IX
MISCELLANEOUS
<S> <C> <C>
SECTION 9.1. Ratification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.2. Acknowledgement of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . . . . 16
SECTION 9.4. Debt Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.6. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
ii
<PAGE> 4
FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1997
(the "First Supplemental Indenture"), between SunTrust Banks, Inc., a Georgia
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Debt Trustee"), under the Indenture dated as of __________, 1997 between
the Company and the Debt Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Debt Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt Securities
to be known as its Floating Rate Junior Subordinated Deferrable Interest
Debentures, Series A, due __________, 20__ (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof
to be set forth as provided in the Indenture and this First Supplemental
Indenture;
WHEREAS, SunTrust Capital I, a Delaware statutory business
trust (the "Trust"), has offered to the public $__________ aggregate
liquidation amount of its Floating Rate Preferred Securities, Series A (the
"Preferred Securities"), representing beneficial ownership interests in the
assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $__________ aggregate liquidation amount of its Common Securities; and
WHEREAS, the Company has requested that the Debt Trustee
execute and deliver this First Supplemental Indenture pursuant to Sections 2.03
and 9.01 of the Indenture and all requirements necessary to make this First
Supplemental Indenture a valid and binding instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Debt Trustee, the valid and binding
obligations of the Company, have been performed, and the execution and delivery
of this First Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
additional terms, provisions and conditions thereof, the Company covenants and
agrees with the Debt Trustee as follows:
<PAGE> 5
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: Business Day; Clearing Agency; Common Securities; Delaware
Trustee; Direct Action; Distribution; Institutional Trustee Account; Preferred
Securities; Preferred Securities Guarantee; Preferred Security Certificate;
Regular Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"3-Month LIBOR" shall have the meaning set forth in Section
2.5(b).
"90 Day Period" shall have the meaning set forth in Section
2.5(f).
"Additional Sums" shall have the meaning set forth in Section
2.5(f).
"Calculation Agent" shall have the meaning set forth in
Section 2.5(b).
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the
2
<PAGE> 6
date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstantial risk that the Company will not be entitled to treat
an amount equal to the liquidation amount of the Preferred Securities as "Tier
I Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable to
the Company.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Debentures" shall have the meaning set forth in the preamble
of this First Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of __________, 1997, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Depositary", with respect to the Debentures, means The
Depository Trust Company or such other successor Clearing Agency for the
Preferred Securities.
"Determination Date" shall have the meaning set forth in
Section 2.5(b)(i).
"Dissolution Event" means the liquidation of the Trust
pursuant to the Declaration and the distribution of the Debentures held by the
Institutional Trustee to the holders of the Trust Securities issued by the
Trust pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in
Section 2.4(a)(i).
"Index Maturity" shall have the meaning set forth in Section
2.5(b)(i).
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(e).
"Interest Period" shall have the meaning set forth in Section
2.5(b).
"Interest Rate" shall have the meaning set forth in Section
2.5(b).
3
<PAGE> 7
"Like Amount" means (i) with respect to a redemption of the
Trust Securities, Trust Securities having a liquidation amount equal to the
principal amount of Debentures to be paid in accordance with their terms and
(ii) with respect to a distribution of Debentures upon the liquidation of the
Trust, Debentures having a principal amount equal to the liquidation amount of
the Trust Securities of the holder thereof to whom Debentures are distributed.
"Market Day" shall have the meaning set forth in Section 2.5
(b).
"Maturity Date" shall mean __________, 20__.
"Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4(a)(ii).
"Other Guarantees" means all guarantees issued or to be issued
by the Company with respect to capital securities (if any) and issued to other
trusts to be established by the Company (if any), in each case similar to the
Trust.
"Redemption Price" shall mean, with respect to any redemption
of the Debentures pursuant to Article III hereof, an amount in cash equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest and Additional Sums, if any, to
the date of such redemption.
"Reference Banks" shall have the meaning set forth in Section
2.5(b)(ii).
"Reuters Screen LIBO Page" shall have the meaning set forth in
Section 2.5(b)(ii).
"Securities Registrar" shall have the meaning set forth in
Section 2.3.
"Tax Event" means the receipt by the Trust of an opinion of
counsel to the Company experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under the Declaration, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date of such opinion, subject to United States Federal income tax with
respect to income received or accrued on
4
<PAGE> 8
the Debentures, (ii) interest payable by the Company on the Debentures is not,
or within 90 days of such opinion, will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes or (iii) the
Trust is, or will be within 90 days of the date of the opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"Telerate Page 3750" shall have the meaning set forth in
Section 2.5(b)(i).
"Trust" shall have the meaning set forth in the preamble of
this First Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "Floating Rate Junior Subordinated Deferrable Interest
Debentures, Series A, due __________, 20__", limited in aggregate principal
amount to $__________, which amount shall be as set forth in any written order
of the Company for the authentication and delivery of Debentures pursuant to
Section 2.05 of the Indenture.
SECTION 2.2 Maturity.
The Maturity Date (which shall constitute the Stated Maturity
of the Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal of, premium, if any, and interest on (including Compounded Interest
and Additional Sums, if any) the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Company maintained for such purpose
as set forth in the Indenture; provided, however, that payment of interest with
respect to Debentures (other than a
5
<PAGE> 9
Global Debenture) may be made at the option of the Company (i) by check mailed
to the Holder at such address as shall appear in the Security Register or (ii)
by transfer to an account maintained by the Person entitled thereto, provided
that proper transfer instructions have been received in writing by the relevant
record date. The Company selects each of New York, New York and Chicago,
Illinois as a place of payment where the principal of (and premium, if any) and
interest on the Debentures are payable as specified in accordance herewith, and
hereby appoints The First National Bank of Chicago, the Debt Trustee, as
registrar for the Debentures (the "Security Registrar"). Notwithstanding the
foregoing, so long as the Holder of any Debentures is the Institutional
Trustee, the payment of the principal of, premium, if any, and interest
(including Compounded Interest and Additional Sums, if any) on such Debentures
held by the Institutional Trustee will be made at such place and to such
account as may be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Debt Trustee by the Institutional Trustee in exchange
for a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Debt Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees. The Company upon any
such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Debt Trustee for
authentication and delivery in accordance with the Indenture.
Payments on the Debentures issued as a Global Debenture will be made
to the Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Debt Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Debt
Trustee by the Institutional Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at
which time such Preferred Security Certificates will be cancelled and
a Debenture, registered in the name of the holder of the
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<PAGE> 10
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled, will be executed by the
Company and delivered to the Debt Trustee for authentication and
delivery in accordance with the Indenture. Upon the issuance of such
Debentures, Debentures with an equivalent aggregate principal amount
that were presented by the Institutional Trustee to the Debt Trustee
will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the Interest
Rate (as defined below) from __________, 1997 until the principal thereof
becomes due and payable, and on any overdue principal at the Interest Rate and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on the first day of __________, __________, __________ and ___________
of each year commencing on __________ 1, 1997, to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which, in respect of
any Debentures of which the Institutional Trustee is the Holder or in the case
of a Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date (as defined below). Notwithstanding the
foregoing sentence, if the Debentures are no longer in book-entry only form,
except if the Debentures are held by the Institutional Trustee, the record
dates shall be the __________ 15, __________ 15, __________ 15 and __________
15 prior to the applicable Interest Payment Date.
(b) The interest rate in respect of the Debentures
applicable during an Interest Period will be the sum of (i) a floating rate per
annum determined by reference to 3-Month LIBOR, determined as described below,
plus (ii) a margin of __________% (such sum, the "Interest Rate"). "3-Month
LIBOR" means the London, England interbank offered rate for three month U.S.
dollar deposits and with respect to any Interest Period will be calculated by
The First National Bank of Chicago, as calculation agent (the "Calculation
Agent"), as follows:
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<PAGE> 11
(i) On the second Market Day (as defined below) preceding
the commencement of such Interest Period (each, a "Determination
Date"), 3-Month LIBOR will be determined on the basis of the offered
rate for deposits of not less than U.S. $1,000,000 for a period of
three months (the "Index Maturity"), commencing on the second Market
Day immediately preceding the commencement of such Interest Period,
which appears on the display designated as Page 3750 on the Dow Jones
Telerate Service (or such other pages as may replace Page 3750 on that
service for the purpose of displaying London, England interbank offered
rates of major banks) ("Telerate Page 3750") as of 11:00 a.m., London,
England time on said Determination Date. If no such offered rate
appears, 3-Month LIBOR with respect to such Interest Period will be
determined as described in (ii) below.
(ii) With respect to a Determination Date on which no such
offered rate appears on Telerate Page 3750 as described in (i) above,
3-Month LIBOR shall be the arithmetic mean, expressed as a percentage,
of the offered rates (unless by its terms such display provides for
only a single rate, in which case a single rate shall be used) for
deposits in U.S. dollars for the Index Maturity that appears on the
display designated as "LIBO" on the Reuters Monitor Money Market Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London, England interbank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London, England time, on such date. If, in turn, at least two
such rates are not displayed on the Reuters Screen LIBO Page at such
time (unless, as aforesaid, only a single rate is required), the
Calculation Agent will obtain from each of four reference banks in
London, England selected by the Calculation Agent ("Reference Banks")
such bank's offered quotation (expressed as a percentage per annum) as
of approximately 11:00 a.m., London, England time, on such date for
deposits in U.S. dollars to prime banks in the London, England
interbank market for the Index Maturity. If two or more such
quotations are provided as requested, then 3-Month LIBOR for such date
shall be the arithmetic average of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3-Month
LIBOR for such date will be obtained from the preceding Market Day for
which the Reuters Screen LIBO Page displayed a rate for the Index
Maturity.
(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided
in paragraphs (a) and (b) above, 3-Month LIBOR for such Interest
Period shall be 3-Month LIBOR as determined on the previous
Determination Date.
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<PAGE> 12
The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
The term "Interest Period" means each period beginning on, and
including, May __, 1997, and ending on, but excluding, the first Interest
Payment Date, and each successive period beginning on, and including, an
Interest Payment Date and ending on, but excluding, the next succeeding
Interest Payment Date.
The Interest Rate for any Interest Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in
this First Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
(c) The Calculation Agent shall, as soon as practicable
after 11:00 a.m., London, England time, on each Determination Date, determine
the Interest Rate and inform the Debt Trustee and the Paying Agent and, if any
Debentures are held by the Institutional Trustee, the Institutional Trustee.
Unless otherwise provided by the Debt Trustee, the Paying Agent will calculate
the amount of interest payable on the Debentures in respect of the following
Interest Period. The amount of interest payable for any Interest Period will
be computed on the basis of the actual number of days in the applicable
Interest Period divided by 360 and rounding the resulting figure to the nearest
cent (with one-half cent or more being rounded upwards). The determination of
the Interest Rate by the Calculation Agent and the amount of interest payable
by Paying Agent will (in the absence of wilful default, bad faith or manifest
error) be final, conclusive and binding on all concerned. None of the Debt
Trustee, the Paying Agent, the Calculation Agent, the Trust or the Company (or
any of their respective officers, directors, agents, beneficiaries, employees
or affiliates) shall have any liability to any person for (i) the selection of
any Reference Bank or (ii) any inability to retain major banks in the London,
England interbank market, in the case of the Calculation Agent, which is caused
by circumstances beyond its reasonable control.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debentures, whether by the Reference Banks (or
any of them) or the Calculation Agent, Debt Trustee or Paying Agent, will (in
the absence of wilful default, bad faith or manifest error) be binding on the
Trust, the Company, the Debt Trustee and all of the holders of the Debentures,
and no liability will (in the
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<PAGE> 13
absence of wilful default, bad faith or manifest error) attach to the
Calculation Agent, Debt Trustee or Paying Agent in connection with the exercise
or non-exercise by any of them of their powers, duties and discretion.
(e) In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a
Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date (each
date on which interest is actually payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while
the Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures
held by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event.
Additional Sums shall be treated as interest for all purposes under the
Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event or Capital Treatment Event Redemption.
If a Tax Event or a Capital Treatment Event has occurred and
is continuing then, notwithstanding Section 3.2(a) but subject to Section
3.2(c), the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders to redeem the Debentures, in whole, but not
in part, for cash within 90 days following the occurrence of such Tax Event or
Capital Treatment Event (or, if the approval of the Federal Reserve Board is
then required for such redemption, on such later date as promptly practicable
after such approval is obtained) (the "90 Day Period"), at the Redemption
Price.
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SECTION 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b), except
as otherwise may be specified in this First Supplemental Indenture or the
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after __________, _____, at the Redemption
Price. If the Debentures are only partially redeemed pursuant to this Section
3.2, the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Security Registrar; provided, that if at the time of redemption
the Debentures are registered as a Global Debenture, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(b) If a partial redemption of the Debentures would
result in the delisting of the Preferred Securities issued by the Trust from
any national securities exchange or interdealer quotation system or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may only redeem
the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1
or Section 3.2 shall be subject to the Company obtaining the prior approval of
the Federal Reserve, if such approval is then required under applicable law,
rules, guidelines or policies of the Federal Reserve.
SECTION 3.3 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding 20 consecutive
quarterly periods (the "Extension Period"), during which Extension Period no
interest shall be due and payable; provided that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date. To the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1, will bear interest thereon
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at the interest rate then in effect compounded quarterly for each quarterly
period of the Extension Period ("Compounded Interest"). At the end of the
Extension Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Sums and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders in whose names the
Debentures are registered in the Security Register on the record date relating
to the Interest Payment Date on which the Extension Period ends. Before the
termination of any Extension Period, the Company may further defer payments of
interest by further extending such period, provided that such period, together
with all such previous and further extensions within such Extension Period,
shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity
Date of the Debentures. Upon the termination of any Extension Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period, except at the end thereof.
Compounded Interest shall be treated as interest for all purposes under the
Indenture.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered
Holder at the time the Company selects an Extension Period, the Company shall
give written notice to the Regular Trustees, the Institutional Trustee and the
Debt Trustee of its selection of such Extension Period five Business Days
before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to any national securities exchange or interdealer
quotation system or to holders of the Preferred Securities issued by the Trust,
but in any event at least five Business Days before such record date.
(b) If the Institutional Trustee is not the only Holder at
the time the Company selects an Extension Period, the Company shall give the
Holders and the Debt Trustee written notice of its selection of such Extension
Period at least 10 Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to any national
securities exchange or interdealer quotation system or to the Holders.
(c) The quarterly period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarterly periods permitted in the maximum Extension Period permitted
under Section 4.1.
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ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures and the compensation of the Debt Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses relating to the
organization and operation of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Debt Trustee, unless otherwise
stated, the Company shall pay to the Debt Trustee all amounts accrued under
Section 6.06 of the Indenture to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be,
pursuant to Sections 10.4 and 10.6 of the Declaration, the Company shall pay to
the Delaware Trustee or the Institutional Trustee, as the case may be, all
amounts accrued under said Sections to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
The Debentures and the Debt Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the forms set
forth in Exhibit A hereto.
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ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________
may, upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Debt Trustee for authentication as provided in
Sections 2.03 and 2.05 of the Indenture.
ARTICLE VIII
COVENANTS
SECTION 8.1 Limitation on Dividends.
The Company will not, and will not permit any subsidiary to,
(i) declare or pay any dividends or distributions on, or prepay, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of, premium, if any, or
interest on or repay, repurchase or redeem any debt securities of the Company
(including Other Debt Securities) that rank pari passu with, or junior in right
of payment to, the Debentures or (iii) make any guarantee payment with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with,
or junior in right of payment to, the Debentures (other than (a) dividends,
distributions, redemptions, purchases or acquisitions made by the Company by
way of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee or
Common Securities Guarantee, (d) the purchase of fractional interests in shares
resulting from a reclassification of the Company's capital stock, (e) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (f) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees and (g) obligations under any dividend
reinvestment plan or stock purchase plan of the Company), if at such time (1)
there shall have occurred any event of which the Company has actual knowledge
that (a) with the giving of notice, or the lapse of time, or both, would
constitute an Event of Default hereunder and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (2) if such Debentures
are held by the Institutional Trustee, the Company shall be in
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<PAGE> 18
default with respect to its payment obligations under the Preferred Securities
Guarantee or Common Securities Guarantee or (3) the Company shall have given
notice of its selection of an Extension Period and shall not have rescinded
such notice or such Extension Period and such Extension Period shall be
continuing.
SECTION 8.2 Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee
of such trust in connection with the issuance of Trust Securities by the Trust,
for so long as such Trust Securities remain outstanding, the Company (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Company, permitted pursuant
to Article X of the Indenture, may succeed to the Company's ownership of such
Common Securities, (ii) will use commercially reasonable efforts to cause the
Trust (a) to remain a grantor trust, except in connection with a distribution
of Debentures to the holders of Trust Securities in liquidation of the Trust,
the redemption of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust and not an
association taxable as a corporation for United States federal income tax
purposes and (iii) will not cause, as sponsor of the Trust, or permit, as
holder of the Common Securities, the dissolution, winding-up or termination of
the Trust, except in connection with a distribution of the Debentures as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Acknowledgement of Rights.
The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee thereof, if the Institutional Trustee of such
Trust fails to enforce its rights under this First Supplemental Indenture or
the Indenture as the Holder of the Debentures held as the assets of SunTrust
Capital I, any holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Institutional Trustee's rights
under this First Supplemental Indenture or the
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Indenture without first instituting any legal proceedings against such
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay principal of, premium, if
any, or interest on the Debentures when due, the Company acknowledges that a
holder of Preferred Securities may institute a Direct Action for enforcement of
payment to such holder of the principal of, premium, if any, or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.
SECTION 9.3 Direction of Proceedings and Waiver of Defaults by
Majority of Holders.
The Holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Debt Trustee, or exercising any trust or power conferred on the Debt
Trustee; provided, however, that (subject to the provisions of Section 6.01 of
the Indenture) the Debt Trustee shall have the right to decline to follow any
such direction if the Debt Trustee shall determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or if the Debt Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debt Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the Debt Trustee in
personal liability. Prior to any declaration accelerating the maturity of the
Debt Securities, the Holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding may on behalf of the Holders of all of
the Debt Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debt Securities (unless such default has been
cured and a sum sufficient to pay all matured installments of principal,
premium, if any, and interest due otherwise than by acceleration has been
deposited with the Debt Trustee) or (b) in respect of covenants or provisions
hereof which cannot be modified or amended without the consent of the Holder of
each Debenture affected; provided, however, that if the Debt Securities are
held by the Institutional Trustee, such waiver or modification to such waiver
shall not be effective until the holders of a majority in aggregate liquidation
amount of Trust Securities shall have consented to such waiver or modification
to such waiver; provided further, that if the consent of the Holder of each
outstanding Debenture is required, such waiver shall not be effective until
each holder
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<PAGE> 20
of the Trust Securities shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this First Supplemental Indenture and the Indenture and the
Company, the Debt Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by Section 5.08 of the Indenture, said default or Event of Default
shall for all purposes of the Debt Securities and the Indenture be deemed to
have been cured and to be not continuing.
SECTION 9.4 Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Debt Trustee, and the Debt Trustee assumes no responsibility for the
correctness thereof. The Debt Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 9.5 Governing Law.
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 9.6 Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 9.7 Counterparts.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
SUNTRUST BANKS, INC.
By
--------------------------------------
Name:
Title:
Attest:
By:
-----------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Debt Trustee
By
--------------------------------------
Name:
Title:
Attest:
By:
-----------------
Name:
Title:
<PAGE> 22
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
A-1
<PAGE> 23
No. CUSIP No.
---------- ----------
SUNTRUST BANKS, INC.
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE, SERIES A
DUE
----------
SUNTRUST BANKS, INC., a Georgia corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to SunTrust Capital I,
or registered assigns, the principal sum of $ __________ on __________ and to
pay interest on said principal sum from __________, 1997, or from the most
recent interest payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on the
first day of __________, __________, __________ and __________ of each year
commencing __________ 1, 1997, at the Interest Rate (as defined in the
Indenture (as defined below)) until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, at the Interest
Rate and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the Interest Rate compounded quarterly. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which interest is
actually payable, an "Interest Payment Date"). The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Debt Securities, as defined in said
Indenture) is registered at the close of business on the regular record date
for such interest installment, which shall be, except if the Debentures are
held by the Institutional Trustee, the close of business on the __________ 15,
__________ 15, __________ 15 and __________ 15 prior to the applicable Interest
Payment Date. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Debt Securities) is registered at the
close of business on a special record date to be fixed by the Debt Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special record date, or
may
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<PAGE> 24
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation system on
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on this Debenture shall be payable at the office or agency of the
Debt Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made, at the option of the Company, by check mailed to the registered Holder at
such address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than ten days prior to the
date of payment. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of,
premium, if any, and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Debt Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debt Trustee his
or her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Debt Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER
OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
SUNTRUST BANKS, INC.
By:
-------------------------------------
Name:
Title:
Attest:
By:
----------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Debt Trustee
By:
----------------------------------------
Authorized Officer
Dated:
-------------------------------------
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<PAGE> 26
(FORM OF REVERSE OF DEBENTURE)
This Debt Security is one of a duly authorized series of debt
securities of the Company (herein sometimes referred to as the "Debentures"),
all issued or to be issued in one or more series under and pursuant to an
Indenture, dated as of __________, 1997, duly executed and delivered between
the Company and The First National Bank of Chicago, as Debt Trustee (the "Debt
Trustee"), as supplemented by the First Supplemental Indenture, dated as of
__________, 1997, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Debt Trustee, the Company and the Holders of the Debentures. By the terms of
the Indenture, Debt Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture. This Debenture is one of the series designated on the face
hereof and is limited in aggregate principal amount as specified in said First
Supplemental Indenture
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain
conditions set forth in the Indenture, to redeem this Debenture in whole, but
not in part, at the Redemption Price within 90 days following the occurrence of
such Tax Event or Capital Treatment Event (or, if the prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve") is
then required, on such later date as promptly as practicable after such
approval is obtained). In addition, the Company shall have the right to redeem
this Debenture, in whole or in part, at any time on or after __________ 1,
2007, at the Redemption Price (any of the foregoing redemptions an "Optional
Redemption"). The "Redemption Price" means an amount in cash equal to 100% of
the principal amount together with any accrued and unpaid interest thereon,
including Additional Sums and Compounded Interest, if any, to the date of such
redemption. Any redemption pursuant to this paragraph will be made upon not
less than 30 days nor more than 60 days notice. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Security Registrar; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures beneficially held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion
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<PAGE> 27
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Notwithstanding the foregoing, any redemption of Debentures by
the Company shall be subject to the prior approval of the Federal Reserve, if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and
the Debt Trustee, with the consent of the Holders of not less than a majority
in aggregate principal amount of the outstanding Debt Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities;
provided, however, that no such supplemental indenture shall without the
consent of the Holders of the outstanding Debentures affected thereby (i)
change the Maturity Date, or reduce the rate or extend the time of payment of
interest (except as contemplated by Section 2.5 of the First Supplemental
Indenture) on any Debenture, or reduce the principal amount thereof, or reduce
any amount payable on prepayment thereof, or make the principal thereof or any
interest or premium thereon payable in any coin or currency in which any
Debenture (or premium, if any, thereon) or the interest thereon is payable or
impair or affect the right of any Holder to institute suit for payment thereof;
or (ii) reduce the percentage in principal amount of the outstanding
Debentures, the Holders of which are required to consent to any such amendment
to the First Supplemental Indenture; provided, however, that if the Debentures
are held by the Trust, such amendment shall not be effective until the holders
of a majority in liquidation amount of Trust Securities shall have consented to
such amendment; provided, further, that if the consent of the Holder of each
outstanding Debenture is required, such amendment shall not be effective until
each holder of the Trust Securities shall have consented to such amendment.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of any series
affected thereby, on behalf of all of the Holders of the Debt Securities of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of,
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<PAGE> 28
premium, if any, or interest on any of the Debt Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the time and place and at the rate
and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarterly periods
(an "Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the
Interest Rate to the extent that payment of such interest is enforceable under
applicable law); provided that no Extension Period may end on a day other than
an Interest Payment Date or last beyond the Maturity Date of the Debentures.
Before the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such Extension Period together with
all such further extensions thereof shall not exceed 20 consecutive quarterly
periods or extend beyond the Maturity Date of the Debentures. Upon the
termination of any such Extension Period and the payment of all accrued and
unpaid interest and any additional amounts then due, the Company may commence a
new Extension Period, subject to the foregoing requirements.
The Company will not (i) declare or pay any dividends or
distributions on, or prepay, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest on or repay, repurchase or redeem
any debt securities of the Company (including Other Debt Securities) that rank
pari passu with, or junior in right of payment to, the Debentures or (iii) make
any guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company (including Other Guarantees) if
such guarantee ranks pari passu with or junior in right of payment to the
Debentures (other than (a) dividends, distributions, redemptions, purchases or
acquisitions made by the Company by way of issuance of its capital stock (or
options, warrants or other rights to subscribe
A-7
<PAGE> 29
therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the prepayment or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee, (d)
the purchase of fractional interests in shares resulting from a
reclassification of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, (f) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees and (g) obligations under any dividend reinvestment plan
or stock purchase plan of the Company), if at such time (1) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice, or the lapse of time, or both would constitute an Event of
Default and (b) in respect of which the Company shall not have taken reasonable
steps to cure, (2) if such Debentures are held by the Institutional Trustee,
the Company shall be in default with respect to its payment obligations under
the Preferred Securities Guarantee or Common Securities Guarantee or (3) the
Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such
Extension Period shall be continuing.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules,3 guidelines or policies
of the Federal Reserve, the Company will have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders
of the Trust Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Debt
Trustee in New York, New York, c/o First Chicago Trust Company of New York, 14
Wall Street, 8th Floor - Window 2, New York, New York 10005 accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the registered Holder
hereof or his or her attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
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<PAGE> 30
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Debt Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to Section 2.5 of the First
Supplemental Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Debt Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 1
EXHIBIT 8.1
404/572-3353 404/572-5147
May __, 1997
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Ladies and Gentlemen:
We have acted as special tax counsel to SunTrust Banks, Inc. (the
"Company") and to SunTrust Capital I (the "Trust") in connection with the
proposed offering by the Trust of its Floating Rate Preferred Securities,
Series A (the "Preferred Securities") as described in that certain Prospectus
dated May 6, 1997, which is included in the Registration Statement on Form S-3
filed with the Securities and Exchange Commission in connection with the
offering of such Preferred Securities (the "Registration Statement"), and that
certain Prospectus Supplement dated May __, 1997 (the "Prospectus Supplement").
In connection therewith, you have requested our opinions with respect to the
status of the Subordinated Debentures and the Trust for United States federal
income tax purposes and the accuracy of the discussion included in Prospectus
Supplement under the heading "United States Federal Income Taxation." All
capitalized terms used herein without definition shall have the same meaning as
in the Prospectus Supplement.
FACTS AND ASSUMPTIONS RELIED UPON
In rendering the opinions expressed herein, we have examined such
documents as we have deemed appropriate, including (but not limited to) the
Registration Statement, the Prospectus Supplement and all exhibits thereto. In
our examination of documents, we have assumed, with your consent, that all
documents submitted to us are authentic originals, or if submitted as
photocopies or telecopies, that they faithfully reproduce the originals
thereof, that all such documents have been or will be duly executed to the
extent required, that all representations and statements set forth in such
documents are true and correct, and that all obligations imposed by any such
documents on the parties thereto are enforceable, and have been or will be
performed or satisfied, in accordance with their terms. In addition, we have
relied,
<PAGE> 2
SunTrust Banks, Inc.
May __, 1997
Page 2
with your consent, upon (i) the opinion of Skadden, Arps, Slate, Meagher & Flom
(Delaware), special Delaware counsel to the Trust, as to certain matters of
Delaware law relating to the validity of the Preferred Securities; and (ii) the
opinion of Raymond D. Fortin, Senior Vice President and Counsel of the Company,
as to certain other legal matters. Finally, we have assumed, again with your
consent, that the Trust (i) will not be registered under the Investment Company
Act of 1940, as amended, as a management company or unit investment trust, (ii)
will not elect under such Act to be treated as a business development company,
and (iii) will not be a common trust fund or similar fund excluded by section
3(c)(3) of such Act from the definition of "investment company" and will not be
included in the definition of "common trust fund" by section 584(a) of the
Internal Revenue Code.
OPINIONS
Based upon and subject to the foregoing, we are of the following
opinions:
(1) The Subordinated Debentures will be treated as indebtedness of
the Company for United States federal income tax purposes.
(2) The Trust will be classified as a grantor trust and will not be
treated as an association taxable as a corporation for United States federal
income tax purposes. As a result, each beneficial owner of Preferred
Securities (a "Securityholder") will be required to include in its gross income
its pro rata share of the interest income, including original issue discount,
paid or accrued with respect to the Subordinated Debentures, whether or not
cash is actually distributed to the Securityholder.
(3) The discussion contained in that portion of the Prospectus
Supplement under the caption "United States Federal Income Taxation"
constitutes, in all material respects, a fair and accurate summary of the
principal United States federal income tax consequences of the purchase,
ownership, and disposition of Preferred Securities under current law.
* * *
The opinions expressed herein are based on the Internal Revenue Code
of 1986, as amended, the United States Treasury Regulations promulgated
thereunder, current administrative positions of the United States Internal
Revenue Service, and existing judicial decisions, any of which could be changed
at any time, possibly on a retroactive basis. Any such changes could adversely
affect the opinions rendered herein and the tax consequences to the SunTrust
Capital Trusts and to the holders of the Preferred Securities. In addition,
our opinions cannot be relied upon if any of the facts contained in the
documents that we have examined, including the
<PAGE> 3
SunTrust Banks, Inc.
May __, 1997
Page 3
opinions of Skadden, Arps, Slate, Meagher & Flom (Delaware) and Raymond D.
Fortin, or if any of the assumptions that we have made, is, or later becomes,
inaccurate.
Finally, our opinions are limited to the tax matters specifically
covered thereby, and we have not been asked to address, nor have we addressed,
any other tax consequences relating to the Trust, Subordinated Debentures or
Preferred Securities.
This opinion is given as of the date hereof, and we assume no
obligation to update this opinion to reflect any fact or circumstance that may
hereafter come to our attention or any change in any law or regulation that may
hereafter occur.
We hereby consent to the filing of this opinion letter as an exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Matters" in the Prospectus Supplement. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
