<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1997
REGISTRATION NO. 333-25381
333-25381-01
333-25381-02
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
SUNTRUST CAPITAL I
SUNTRUST CAPITAL II
(Exact name of registrant as specified in its Trust Agreement)
<TABLE>
<S> <C>
DELAWARE EACH TO BE APPLIED FOR
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
SUNTRUST BANKS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
GEORGIA 58-1575035
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(404) 588-7711
(Address, including zip code, and telephone number, including area code, of each
registrant's principal executive offices)
RAYMOND D. FORTIN, ESQ.
SENIOR VICE PRESIDENT
SUNTRUST BANKS, INC.
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(404) 588-7165
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
COPIES TO:
<TABLE>
<C> <C>
MARY A. BERNARD SUSAN J. SUTHERLAND
KING & SPALDING SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
120 WEST 45TH STREET 919 THIRD AVENUE
NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10022
(212) 556-2100 (212) 735-3000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 6, 1997
PROSPECTUS
SUNTRUST BANKS, INC.
SUBORDINATED DEBT SECURITIES
---------------------------
SUNTRUST CAPITAL I
SUNTRUST CAPITAL II
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
SUNTRUST BANKS, INC.
---------------------------
SunTrust Banks, Inc., a Georgia corporation ("SunTrust" or the "Company"),
may offer from time to time, in one or more series, subordinated debt securities
consisting of debentures, notes or other evidences of indebtedness (the
"Subordinated Debt Securities") in amounts, at prices and on terms to be
determined at the time of such offering. The Subordinated Debt Securities when
issued will be unsecured obligations of the Company. The Company's obligations
under the Subordinated Debt Securities will be subordinate and junior in right
of payment to certain other indebtedness, as may be described in a prospectus
supplement (a "Prospectus Supplement") accompanying this prospectus (the
"Prospectus").
SunTrust Capital I and SunTrust Capital II (each, a "SunTrust Capital
Trust"), each a statutory business trust formed under the laws of the State of
Delaware, may offer and sell, from time to time, preferred securities,
representing beneficial ownership interests in the assets of the respective
SunTrust Capital Trust ("Preferred Securities"). The Company will be the owner
of the common securities (the "Common Securities," and together with the
Preferred Securities, the "Trust Securities") representing beneficial ownership
interests in the assets of such SunTrust Capital Trusts. The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of a
SunTrust Capital Trust out of moneys held by such SunTrust Capital Trust, and
payments on liquidation, redemption or otherwise with respect to such Preferred
Securities, will be guaranteed by SunTrust to the extent described herein (each
a "Preferred Securities Guarantee"). See "Description of the Preferred
Securities Guarantees." SunTrust's obligations under the Preferred Securities
Guarantees will be subordinate and junior in right of payment to certain other
indebtedness of SunTrust as may be described in an accompanying Prospectus
Supplement. Subordinated Debt Securities may be issued and sold from time to
time in one or more series to a SunTrust Capital Trust, or a trustee of such
SunTrust Capital Trust, in connection with the investment of the proceeds from
the offering of Preferred Securities and Common Securities of such SunTrust
Capital Trust. The Subordinated Debt Securities purchased by a SunTrust Capital
Trust may be subsequently distributed pro rata to holders of Trust Securities in
connection with the dissolution of such SunTrust Capital Trust as may be
described in an accompanying Prospectus Supplement. The Subordinated Debt
Securities and the Preferred Securities and the related Preferred Securities
Guarantees are sometimes collectively referred to hereafter as the "Offered
Securities."
Specific terms of the Subordinated Debt Securities of any series or the
Preferred Securities of any SunTrust Capital Trust, the terms of which will
mirror the terms of the Subordinated Debt Securities held by such SunTrust
Capital Trust in respect of which this Prospectus is being delivered, will be
set forth in the Prospectus Supplement with respect to such securities, which
will describe, without limitation and where applicable, the following: (i) in
the case of
(Continued on next page)
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------------
THE SECURITIES OFFERED HEREBY ARE NOT DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
The date of this Prospectus is May , 1997
<PAGE> 3
(continued from previous page)
Subordinated Debt Securities, the specific designation, aggregate principal
amount, denomination, maturity, premium, if any, any exchange, redemption or
sinking fund provisions, if any, interest rate (which may be fixed or variable),
if any, the time and method of calculating interest payments, if any, dates on
which premium and interest will be payable, the right of SunTrust, if any, to
defer payment of interest on the Subordinated Debt Securities and the maximum
length of such deferral period, the initial public offering price, subordination
terms, and any listing on a securities exchange and other specific terms of the
offering; and (ii) in the case of Preferred Securities, the designation, number
of securities, liquidation preference per security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions will be payable and dates
from which distributions shall accrue, any voting rights, terms for any exchange
into other securities, any redemption, exchange or sinking fund provisions, any
other rights, preferences, privileges, limitations or restrictions relating to
the Preferred Securities and the terms upon which the proceeds of the sale of
the Preferred Securities shall be used to purchase a specific series of
Subordinated Debt Securities of SunTrust. If so specified in the Prospectus
Supplement, Offered Securities may be issued in whole or in part in the form of
one or more temporary or permanent global securities ("Global Securities"). If,
as set forth in a Prospectus Supplement, the Company has the right to defer
payments of interest on a series of Subordinated Debt Securities by extending
the interest payment period of such series of Subordinated Debt Securities, and
the Company exercises that right, distributions on the corresponding series of
Preferred Securities will also be deferred.
If, as set forth in a Prospectus Supplement, the Company has the right to
defer payments of interest on a series of Subordinated Debt Securities by
extending the interest payment period of such series of Subordinated Debt
Securities, and the Company exercises that right, distributions on the
corresponding series of Preferred Securities will also be deferred.
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering. The Prospectus Supplement relating to any
series of Offered Securities will contain information concerning the United
States federal income tax considerations applicable to the Offered Securities.
SunTrust and/or each of the SunTrust Capital Trusts may sell the Offered
Securities directly to purchasers, through agents designated from time to time,
to dealers or through underwriters or a group of underwriters. If any agents of
SunTrust and/or any SunTrust Capital Trust or any underwriters or dealers are
involved in the sale of the Offered Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be set
forth in the related Prospectus Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY SUNTRUST,
ANY SUNTRUST CAPITAL TRUST OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF SUNTRUST OR ANY SUNTRUST CAPITAL TRUST
SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER OR SOLICITATION BY ANYONE IN ANY
STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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2
<PAGE> 4
AVAILABLE INFORMATION
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by SunTrust and the SunTrust Capital Trusts with the
Securities and Exchange Commission (the "SEC" or the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Offered Securities. This Prospectus does not contain all of the information set
forth in such Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC, although it does include a
summary of the material terms of the Indenture (as defined herein) and the
Declaration of Trust (as defined herein) of each SunTrust Capital Trust to be
used in connection with the issuance of Subordinated Debt Securities and
Preferred Securities, respectively. Reference is made to such Registration
Statement and to the exhibits thereto for further information with respect to
the Company, the SunTrust Capital Trusts and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the SEC or
incorporated by reference herein are not necessarily complete, and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement. Each such statement is qualified in its entirety by
such reference.
SunTrust is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the SEC.
Such reports, proxy statements and other information concerning the Company can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549 and at the Commission's Regional Offices in New York (13th Floor, 7
World Trade Center, New York, New York 10048) and Chicago (Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661-2511). The Commission also maintains a
Web site at http://www.sec.gov. that contains reports, proxy statements and
other information regarding registrants that file electronically with the
Commission. In addition, such reports, proxy statement and other information
concerning the Company can be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
No separate financial statements of the SunTrust Capital Trusts have been
included herein. SunTrust does not consider that such financial statements would
be material to holders of the Preferred Securities because (i) all of the voting
securities of the SunTrust Capital Trusts will be owned, directly or indirectly,
by SunTrust, a reporting company under the Exchange Act, (ii) the SunTrust
Capital Trusts have no independent operations and exist for the sole purpose of
issuing securities representing undivided beneficial interests in their
respective assets and investing the proceeds thereof in Subordinated Debt
Securities issued by SunTrust, and (iii) SunTrust's obligations described herein
and in any accompanying Prospectus Supplement to provide certain indemnities in
respect of and be responsible for certain costs, expenses, debts and liabilities
of each of the SunTrust Capital Trusts under the Indenture and any supplemental
indenture thereto and pursuant to the applicable Declaration of Trust, the
applicable Preferred Securities Guarantee issued with respect to Preferred
Securities issued by such SunTrust Capital Trust, the Subordinated Debt
Securities purchased by such SunTrust Capital Trust and the Indenture, taken
together, constitute a full and unconditional guarantee of payments due on the
Preferred Securities. See "Description of the Subordinated Debt Securities" and
"Description of the Preferred Securities Guarantees."
The SunTrust Capital Trusts are not currently subject to the informational
requirements of the Exchange Act. The SunTrust Capital Trusts will become
subject to such requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive exemptions
therefrom.
3
<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus its Annual
Report on Form 10-K for the year ended December 31, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference into this Prospectus and shall be deemed a part hereof
from the date of filing of such documents. Any statement contained in this
Prospectus or any accompanying Prospectus Supplement or in a document
incorporated or deemed to be incorporated by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Prospectus or such
accompanying Prospectus Supplement to the extent that a statement contained
herein or therein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein or therein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference herein, except for
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents. Written requests for any such documents should be
sent to: James C. Armstrong, First Vice President -- Investor Relations,
SunTrust Banks, Inc., 303 Peachtree Street, N.E., Atlanta, Georgia 30308.
Telephone requests may be directed to 404-588-7425.
4
<PAGE> 6
THE COMPANY
GENERAL
The Company is a regional bank holding company which, through its
subsidiary banks (the "Subsidiary Banks"), conducts a broad range of commercial
banking activities, including accepting demand, time and saving deposits, making
secured and unsecured business and consumer loans and leases, extending
commercial lines of credit, issuing and servicing credit cards and certain other
types of revolving credit accounts, providing commercial factoring services,
cash management services, investment counseling, safe deposit services, personal
and corporate trust and other fiduciary services and engaging in leasing,
mortgage banking, correspondent banking, international banking, investment
banking, trading in U.S. government securities and municipal bonds and
underwriting certain types of general obligation municipal bonds.
Under the longstanding policy of the Federal Reserve Board, a bank holding
company is expected to act as a source of financial strength for its subsidiary
banks and to commit resources to support such banks. As a result of this policy,
the Company may be required to commit resources to the Subsidiary Banks in
circumstances where it might not otherwise do so.
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Subordinated Debt Securities and the
Preferred Securities Guarantees, to participate in the distribution and payment
of assets of any subsidiary upon the subsidiary's liquidation or
recapitalization would be subject to the prior claims of such subsidiary's
creditors except to the extent that the Company may itself be a creditor with
recognized claims against the subsidiary.
The Company's principal executive offices are located at 303 Peachtree
Street, N.E., Atlanta, Georgia 30308, and its telephone number is 404-588-7711.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges of the Company. The consolidated ratio of earnings to fixed charges has
been computed by dividing (i) net income plus all applicable income taxes plus
fixed charges by (ii) fixed charges. Fixed charges represent interest expense
(ratios are presented both including and excluding interest on deposits), and
the portion of net rental expense which is deemed to be equivalent to interest
on long-term debt. Interest expense (other than on deposits) includes interest
on long-term debt, federal funds purchased and securities sold under agreements
to repurchase, mortgages, commercial paper and other funds borrowed.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1996 1995 1994 1993 1992
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Including interest on deposits............................. 1.61x 1.61x 1.83x 1.87x 1.58x
Excluding interest on deposits............................. 3.30x 3.20x 4.24x 5.07x 4.70x
</TABLE>
THE TRUSTS
Each SunTrust Capital Trust is a statutory business trust formed under
Delaware law pursuant to (i) a separate declaration of trust (each a
"Declaration") executed by the Company, as sponsor for such trust (the
"Sponsor"), and the Trust Trustees (as defined herein) for such trust and (ii)
the filing of a certificate of trust with the Delaware Secretary of State. Each
SunTrust Capital Trust exists for the exclusive purposes of (i) issuing its
Preferred Securities and Common Securities, (ii) investing the gross proceeds of
such Trust Securities in the Subordinated Debt Securities and (iii) engaging in
only those other activities necessary or incidental thereto. The Common
Securities of a SunTrust Capital Trust will rank pari passu, and payments will
be made thereon pro rata, with the Preferred Securities of such SunTrust Capital
Trust except that upon an event of default under the related Declaration, the
rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the
5
<PAGE> 7
Preferred Securities. The Company will, directly or indirectly, acquire Common
Securities in an aggregate liquidation amount equal to at least 3% of the total
capital of each SunTrust Capital Trust.
The number of trustees of each SunTrust Capital Trust (the "Trust
Trustees") shall initially be five. The duties and obligations of the Trust
Trustees shall be governed by the Declaration of such SunTrust Capital Trust.
Three of such Trust Trustees will be employees or officers of, or affiliated
with, the Company (the "Regular Trustees"). The fourth of such Trust Trustees
will be a financial institution that will be unaffiliated with the Company and
will act as property trustee and as indenture trustee for purposes of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), pursuant to the
terms set forth in a Prospectus Supplement (the "Institutional Trustee"). In
addition, unless the Institutional Trustee maintains a principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, one Trust Trustee of each SunTrust Capital Trust will have its
principal place of business or reside in the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the SunTrust
Capital Trusts and the offering of Trust Securities, the payment of which will
be guaranteed by the Company. No amendment or modification may be made to the
Declaration of a Trust that would adversely affect the powers, preferences or
special rights of the Trust Securities issued thereby without the approval of
the holders of a majority in liquidation amount of such Trust Securities. If any
such amendment or modification would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or modification and such amendment or
modification shall not be effective except with the approval of the holders of a
majority in liquidation amount of such class of Trust Securities.
The First National Bank of Chicago ("First Chicago") will act as indenture
trustee for purposes of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), pursuant to the terms set forth in the Prospectus Supplement
(the "Institutional Trustee") and First Chicago Delaware Inc. will act as the
Delaware Trustee for each SunTrust Capital Trust. The office of the Delaware
Trustee in the State of Delaware is 300 King Street, Wilmington, Delaware 19801.
The principal executive offices of each SunTrust Capital Trust are located at
303 Peachtree Street, N.E., Atlanta, Georgia 30308, and the telephone number of
each SunTrust Capital Trust is 404-588-7711.
USE OF PROCEEDS
Each SunTrust Capital Trust will use all proceeds received from the sale of
the Preferred Securities to purchase Subordinated Debt Securities from the
Company. Except as otherwise set forth in the applicable Prospectus Supplement,
the Company intends to use the proceeds from the sale of its Subordinated Debt
Securities for general corporate purposes, including investments in, or loans
to, its subsidiaries, refinancing of debt, including outstanding commercial
paper and other short-term indebtedness, redemption or repurchase of shares of
its outstanding common and preferred stock, the satisfaction of other
obligations, the purchase of trust-originated capital securities or for such
other purposes as may be specified in the applicable Prospectus Supplement.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in one or more
series under an Indenture, which term includes all supplements thereto (the
"Indenture"), to be entered into by the Company and First Chicago, as trustee
(the "Debt Trustee"). The terms of such Subordinated Debt Securities will
include those stated in the Indenture, which shall be filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and those made
part of the Indenture by the Trust Indenture Act. The following summary of the
material terms of the Indenture does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the Indenture and the Trust Indenture Act. Whenever particular
provisions or defined terms in the Indenture are referred to herein, such
provisions or defined terms are incorporated by reference herein.
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<PAGE> 8
GENERAL
The Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Indenture does not limit the aggregate principal
amount of Subordinated Debt Securities that may be issued thereunder and
provides that the Subordinated Debt Securities may be issued from time to time
in one or more series. The Subordinated Debt Securities are issuable in one or
more series pursuant to an indenture supplemental to the Indenture or a
resolution of the Company's Board of Directors or a committee appointed thereby
(each, a "Supplemental Indenture").
In the event Subordinated Debt Securities are issued to a SunTrust Capital
Trust or a Trust Trustee thereof in connection with the issuance of Trust
Securities by such SunTrust Capital Trust, such Subordinated Debt Securities
subsequently may be distributed pro rata to the holders of such Trust Securities
in connection with the dissolution of such SunTrust Capital Trust as described
in the Prospectus Supplement relating to such Trust Securities. Only one series
of Subordinated Debt Securities will be issued to a SunTrust Capital Trust or a
Trust Trustee thereof in connection with the issuance of Trust Securities by
such SunTrust Capital Trust.
Reference is made to the Prospectus Supplement relating to the particular
series of Subordinated Debt Securities being offered thereby for the following
terms: (i) the title of the Subordinated Debt Securities; (ii) any limit upon
the aggregate principal amount of the Subordinated Debt Securities that may be
authenticated and delivered under the Indenture; (iii) the date or dates on
which the principal of and premium, if any, on the Subordinated Debt Securities
is payable; (iv) the rate or rates at which the Subordinated Debt Securities
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable or the manner of
determination of such interest payment dates and the record dates for the
determination of holders to whom interest is payable on any such interest
payment dates; (v) the place or places where the principal of, premium, if any,
and any interest on the Subordinated Debt Securities shall be payable; (vi) the
right, if any, to extend the interest payment periods and the duration of such
extension; (vii) the price or prices at which, the period or periods within
which, the event or events giving rise to, and the terms and conditions upon
which, Subordinated Debt Securities may be redeemed, in whole or in part, at the
option of the Company, pursuant to any sinking fund or otherwise; (viii) the
obligation, if any, of the Company to redeem or purchase the Subordinated Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a holder thereof and the price or prices at which, and the period or periods
within which, and the terms and conditions upon which, Subordinated Debt
Securities shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation; (ix) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Subordinated Debt Securities
shall be issuable; (x) any event of default with respect to the Subordinated
Debt Securities, if not set forth in the Indenture; (xi) the form of the
Subordinated Debt Securities including the form of the certificate of
authentication; (xii) any trustee, authenticating or paying agent, warrant
agent, transfer agent or registrar with respect to the Subordinated Debt
Securities; (xiii) whether the Subordinated Debt Securities shall be issued in
whole or in part in the form of one or more Global Securities and, in such case,
the Global Depositary (as defined herein) for such Global Security or Global
Securities, and certain other matters relating to such Global Securities; and
(xiv) any other terms of the series.
If a Prospectus Supplement specifies that a series of Subordinated Debt
Securities is denominated in a currency or currency unit other than United
States dollars, such Prospectus Supplement shall also specify the denomination
in which such Subordinated Debt Securities will be issued and the coin or
currency in which the principal of, premium, if any, and interest, if any, on,
such Subordinated Debt Securities will be payable, which may be United States
dollars based upon the exchange rate for such other currency or currency unit
existing on or about the time a payment is due.
The Indenture does not contain provisions that would afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction or other similar transaction involving SunTrust that may adversely
affect such holders.
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FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in a Prospectus Supplement, the Subordinated
Debt Securities will be issued in fully registered form without coupons and in
denominations of $1,000 and integral multiples of $1,000. No service charge will
be made for any transfer or exchange of the Subordinated Debt Securities, but
the Company or the Debt Trustee may require payment of a sum sufficient to cover
any tax or other government charge payable in connection therewith.
Unless otherwise provided in a Prospectus Supplement, principal, premium,
if any, or interest, if any, will be payable and the Subordinated Debt
Securities may be surrendered for payment or transferred at the offices of the
Debt Trustee as paying and authenticating agent, provided that payment of
interest, if any, may be made at the option of the Company (i) by check mailed
to the address of the person entitled thereto as it appears in the Security
Register or (ii) by wire transfer to an account maintained by the person
entitled thereto as specified in the applicable Security Register.
BOOK-ENTRY SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities of a series may be issued in whole or in
part in the form of one or more Global Securities that will be deposited with,
or on behalf of, a depositary (the "Global Depositary") or its nominee,
identified in the Prospectus Supplement relating to such series. In such case,
one or more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
Outstanding Subordinated Debt Securities of the series to be represented by such
Global Security or Securities. Unless and until it is exchanged in whole or in
part for Subordinated Debt Securities in definitive registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Global Depositary for such Global Security to a nominee for such Global
Depositary and except in the circumstances described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Subordinated Debt Securities to be represented by a
Global Security and a description of the Global Depositary will be provided in
the Prospectus Supplement.
SUBORDINATION
The Subordinated Debt Securities will be subordinated and junior in right
of payment to certain other indebtedness of the Company (which may include both
senior and subordinated indebtedness for money borrowed) to the extent set forth
in a Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY
The Company has covenanted that it will not, and will not permit any
subsidiary of the Company to, (i) declare or pay any dividends or distributions
on, or prepay, purchase, acquire, or make a liquidation payment with respect to,
any of SunTrust'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 Subordinated Debt Securities) that rank pari passu
with, or junior in right of payment to, the Subordinated Debt Securities or
(iii) make any guarantee payment with respect to any guarantee by the Company of
debt securities of any subsidiary of the Company if such guarantee ranks pari
passu with, or junior in right of payment to, the Subordinated Debt Securities
(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 shareholders' 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 relating to Trust Securities
issued by the SunTrust Capital Trust holding the Subordinated Debt Securities,
(d) the purchase of fractional 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
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employees and (g) obligations under any of the Company's dividend reinvestment
or stock purchase plans), if at such time (i) 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"
under the Indenture with respect to the Subordinated Debt Securities of such
series and (b) in respect of which the Company shall not have taken reasonable
steps to cure, (ii) if such Subordinated Debt Securities are held by the
Institutional Trustee, the Company shall be in default with respect to its
payment of obligations under the Preferred Securities Guarantee or Common
Securities Guarantee relating to such SunTrust Capital Trust or (iii) the
Company shall have given notice of its election of the exercise of its right to
defer payment of interest on such Subordinated Debt Securities by extending the
interest payment period as provided in the Indenture with respect to the
Subordinated Debt Securities and shall not have rescinded such notice, or such
period, or any extension thereof, shall be continuing.
In the event Subordinated Debt Securities are issued to a SunTrust Capital
Trust or Trust Trustee thereof in connection with the issuance of Trust
Securities of such SunTrust Capital Trust, for so long as such Trust Securities
remain outstanding, the Company will covenant (i) to maintain, directly or
indirectly, 100% ownership of the Common Securities of such SunTrust Capital
Trust, provided that certain successors that are permitted pursuant to the
Indenture may succeed to the Company's ownership of the Common Securities, (ii)
as issuer of the Subordinated Debt Securities, not to voluntarily terminate,
wind-up or liquidate such SunTrust Capital Trust, except upon prior approval of
the Federal Reserve Board (if then required under applicable capital guidelines
or policies of the Federal Reserve Board) and in connection with (a) a
distribution of Subordinated Debt Securities to the holders of the Trust
Securities in liquidation of the SunTrust Capital Trust or (b) certain mergers,
consolidations or amalgamations permitted by the Declaration of such SunTrust
Capital Trust, (iii) to use its reasonable efforts, consistent with the terms
and provisions of the Declaration of such SunTrust Capital Trust to cause such
SunTrust Capital Trust to remain classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes and (iv) to use its reasonable efforts to cause the Subordinated Debt
Securities to continue to be classified as indebtedness of the Company for
United States federal income tax purposes.
LIMITATION ON MERGERS AND SALES OF ASSETS
The Company shall not consolidate with, or merge into, any corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person unless (i) the successor entity shall expressly assume the obligations of
the Company under the Indenture and (ii) after giving effect thereto, no Event
of Default, and no event that, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing under the
Indenture.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events that has occurred and is continuing constitutes an "Event of Default"
with respect to each series of Subordinated Debt Securities:
(i) default for 30 days in payment of any interest on the Subordinated
Debt Securities of that series when due; provided, however, that a valid
extension of the interest payment period by the Company shall not
constitute a default in the payment of interest for this purpose; or
(ii) default in payment of principal or premium, if any, on the
Subordinated Debt Securities of that series when due either at maturity,
upon redemption, by declaration or otherwise; provided, however, that a
valid extension of the maturity of such Subordinated Debt Securities shall
not constitute a default for this purpose; or
(iii) default by the Company in the performance or breach, in any
material respect, of any other of the covenants or agreements in the
Indenture that shall not have been remedied for a period of 90 days after
written notice to the Company by the Debt Trustee or to the Debt Trustee
and the Company by the holders of not less than 25% in principal amount of
the Subordinated Debt Securities of that series; or
(iv) certain events of bankruptcy, insolvency or reorganization of the
Company; or
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(v) any other Event of Default provided with respect to a particular
series of Subordinated Debt Securities as described in the related
Prospectus Supplement.
The Indenture provides that the Debt Trustee may withhold notice to the
holders of a series of Subordinated Debt Securities (except in payment of
principal, premium, if any, or interest on, such Subordinated Debt Securities)
if the Trustee considers it in the interest of such holders to do so.
The Indenture provides that if an Event of Default with respect to any
series of Subordinated Debt Securities shall have occurred and be continuing,
either the Debt Trustee or the holders of 25% in principal amount of the
Subordinated Debt Securities of such series affected thereby then outstanding
may declare the principal of all such Subordinated Debt Securities of such
series to be due and payable immediately, but upon certain conditions, such
declarations may be annulled and past defaults may be waived (except defaults in
payment of principal of, or interest or premium, if any, on, the Subordinated
Debt Securities) by the holders of a majority in principal amount of the
Subordinated Debt Securities of such series then outstanding.
The holders of a majority in principal amount of the Subordinated Debt
Securities of any series affected and then outstanding shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Debt Trustee under the Indenture with respect to such series,
provided that the holders of the Subordinated Debt Securities shall have offered
to the Debt Trustee reasonable indemnity against expenses and liabilities. The
Indenture also provides that, notwithstanding any other provision of the
Indenture, the holder of any Subordinated Debt Security of any series shall have
the right to institute suit for the enforcement of any payment of principal of,
or premium, if any, and interest on, such Subordinated Debt Security on the
Stated Maturity (as defined in the Indenture) or upon repayment or redemption of
such Subordinated Debt Security and that such right shall not be impaired
without the consent of such holder. The Indenture requires the annual filing by
the Company with the Debt Trustee of a certificate as to the absence of certain
defaults under the Indenture.
MODIFICATION OF 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 Subordinated Debt Securities of all series
affected by such modification at the time outstanding, to amend the Indenture or
modify the rights of the holders of the Subordinated Debt Securities; provided,
that no such amendment shall (i) change the fixed maturity of any Subordinated
Debt Securities, or reduce the principal amount thereof or reduce the rate or
extend the time of payment of interest thereon, or make the principal of, or
interest or premium, if any, on, the Subordinated Debt Securities payable in any
coin or currency other than that provided in the Subordinated Debt Securities,
or impair or affect the right of any holder of Subordinated Debt Securities to
institute suit for the payment thereof or reduce any amount payable on
prepayment, without the consent of the holder of each Subordinated Debt Security
so affected, or (ii) reduce the aforesaid percentage of Subordinated Debt
Securities, for which the consent of the holders is required for any such
modification, without the consent of the holders of each Subordinated Debt
Security affected. If Subordinated Debt Securities of a series are held by a
SunTrust Capital Trust or a Trust Trustee thereof, a supplemental indenture
requiring such consent will not be effective until the holders of a majority in
liquidation amount of the Trust Securities of the applicable SunTrust Capital
Trust shall have consented to such supplemental indenture; provided, that if the
consent of the holders of each outstanding Subordinated Debt Security of a
series is required, such supplemental indenture shall not be effective until
each holder of the Trust Securities of the applicable SunTrust Capital Trust
shall have consented to such supplemental indenture. As a result of these
pass-through voting rights with respect to modifications to the Indenture, no
modification thereto shall be effective until the holders of a majority in
liquidation amount of the Trust Securities consent to such modification and no
modification described in clauses (i) or (ii) shall be effective without the
consent of each holder of Preferred Securities and each holder of Common
Securities of the applicable SunTrust Capital Trust.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Subordinated Debt
Securities of a series not previously delivered to the Debt Trustee for
cancellation (i) have become due and payable or (ii) will become due
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and payable at their Stated Maturity within one year, and the Company deposits
or causes to be deposited with the Debt Trustee trust funds, in trust, for the
purpose of, and in an amount sufficient for, payment and discharge of the entire
indebtedness on the Subordinated Debt Securities of such series not previously
delivered to the Debt Trustee for cancellation, for the principal (and premium,
if any) and interest to the date of the deposit or to the Stated Maturity, as
the case may be, then the Indenture will cease to be of further effect with
respect to that series (except as to the Company's obligations to pay all other
sums due with respect to that series pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Indenture with
respect to that series.
GOVERNING LAW
The Indenture and the Subordinated Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York.
THE DEBT TRUSTEE
First Chicago, which serves as the Debt Trustee, the Institutional Trustee
and the Preferred Guarantee Trustee (as defined herein), has a principal
corporate trust office at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126. The Company and its affiliates have normal banking
relationships with the Debt Trustee and its affiliates in the ordinary course of
business.
DESCRIPTION OF THE PREFERRED SECURITIES
Each SunTrust Capital Trust may issue only one series of Preferred
Securities and such series shall have the terms described in the Prospectus
Supplement relating thereto. The Declaration of each SunTrust Capital Trust
authorizes the Regular Trustees of such SunTrust Capital Trust to issue on
behalf of such SunTrust Capital Trust one series of Preferred Securities. Each
such Declaration will be qualified as an indenture under the Trust Indenture
Act. The Preferred Securities will have such terms, including with respect to
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the related Declaration, which shall be filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and such terms as are made part
of such Declaration by the Trust Indenture Act. The terms of the Preferred
Securities will mirror the terms of the related Subordinated Debt Securities
held by the relevant SunTrust Capital Trust and described in the Prospectus
Supplement relating thereto. Reference is made to the Prospectus Supplement
relating to the particular Preferred Securities of a SunTrust Capital Trust for
specific terms, including (i) the distinctive designation of such Preferred
Securities; (ii) the number and the initial public offering price of Preferred
Securities issued by such SunTrust Capital Trust; (iii) the annual distribution
rate (or method of determining such rate) for Preferred Securities issued by
such SunTrust Capital Trust, the date or dates upon which such distributions
shall be payable and the date or dates from which distributions shall accrue;
(iv) whether distributions on Preferred Securities issued by such SunTrust
Capital Trust shall be cumulative, and, in the case of Preferred Securities
having such cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on Preferred Securities
issued by such SunTrust Capital Trust shall be cumulative; (v) the amount or
amounts that shall be paid out of the assets of such SunTrust Capital Trust to
the holders of Preferred Securities of such SunTrust Capital Trust upon
voluntary or involuntary dissolution, winding-up or termination of such SunTrust
Capital Trust; (vi) the obligation, if any, of such SunTrust Capital Trust to
purchase or redeem Preferred Securities issued by such SunTrust Capital Trust
and the price or prices at which, the period or periods within which, and the
terms and conditions upon which, Preferred Securities issued by such SunTrust
Capital Trust shall be purchased or redeemed, in whole or in part, pursuant to
such obligation; (vii) the voting rights, if any, of Preferred Securities issued
by such SunTrust Capital Trust in addition to those required by law, including
the number of votes per Preferred Security and any requirement for the approval
by the holders of Preferred Securities, or of Preferred Securities issued by one
or more SunTrust Capital Trusts, or of both, as a condition to specified action
or amendments to the Declaration of such SunTrust Capital Trust; (viii) the
terms and conditions, if any, upon which the Subordinated Debt Securities may be
distributed to holders of Preferred Securities; (ix) the right and/or
obligation, if any, of SunTrust to redeem or purchase such Preferred Securities
pursuant to any sinking fund or analogous provision, or at the option of the
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holder thereof, and the period or periods for which, the price or prices at
which, and the terms and conditions upon which, such Preferred Securities shall
be redeemed or repurchased, in whole or in part, pursuant to such right and/or
obligation; (x) the terms and conditions, if any, upon which the Preferred
Securities may be converted into shares of the common stock of SunTrust,
including the conversion price and the circumstances, if any, under which such
conversion right shall expire; (xi) if applicable, any securities exchange upon
which the Preferred Securities shall be listed; and (xii) any other relevant
rights, preferences, privileges, limitations or restrictions of Preferred
Securities issued by such SunTrust Capital Trust not inconsistent with the
Declaration of such SunTrust Capital Trust or with applicable law. All Preferred
Securities offered hereby will be guaranteed by the Company to the extent set
forth below under "Description of the Preferred Securities Guarantees." Certain
United States federal income tax considerations applicable to any offering of
Preferred Securities will be described in the Prospectus Supplement relating
thereto.
In connection with the issuance of Preferred Securities, each SunTrust
Capital Trust will issue one series of Common Securities. The Declaration of
each SunTrust Capital Trust authorizes the Regular Trustees of such trust to
issue on behalf of such SunTrust Capital Trust one series of Common Securities
having such terms including distributions, redemption, voting, liquidation
rights or such restrictions as shall be set forth therein. Except for voting
rights, the terms of the Common Securities issued by a SunTrust Capital Trust
will be identical to the terms of the Preferred Securities issued by such
SunTrust Capital Trust and the Common Securities will rank pari passu and
payments will be made thereon pro rata with the Preferred Securities except
that, upon an Event of Default under the Declaration, the rights of the holders
of the Common Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise will be subordinated to the rights of
the holders of the Preferred Securities. Except in certain limited
circumstances, the Common Securities will also carry the right to vote to
appoint, remove or replace any of the Trust Trustees of a SunTrust Capital
Trust. All of the Common Securities of each SunTrust Capital Trust will be
directly or indirectly owned by the Company.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an Event of Default under the Declaration of a SunTrust Capital Trust
occurs and is continuing, then the holders of Preferred Securities of such
SunTrust Capital Trust will rely on the enforcement by the Institutional Trustee
of its rights as a holder of the applicable series of Subordinated Debt
Securities against the Company. In addition, the holders of a majority in
liquidation amount of the Preferred Securities of such SunTrust Capital Trust
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the applicable Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a holder of
the Subordinated Debt Securities. If the Institutional Trustee fails to enforce
its rights under the applicable series of Subordinated Debt Securities, a holder
of Preferred Securities of such SunTrust Capital Trust may institute a legal
proceeding directly against the Company to enforce the Institutional Trustee's
rights under the applicable series of Subordinated Debt Securities without first
instituting any legal proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default under
the applicable Declaration has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest on, premium, if any,
or principal on the applicable series of Subordinated Debt Securities on the
date such interest, premium or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of Preferred Securities of
such SunTrust Capital Trust may directly institute a proceeding for enforcement
of payment to such holder of the principal of, premium, if any, or interest on,
the applicable series of Subordinated Debt Securities having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder (a "Direct Action") on or after the respective due date specified in the
applicable series of Subordinated Debt Securities. In connection with such
Direct Action, the Company will be subrogated to the rights of such holder of
Preferred Securities under the applicable Declaration to the extent of any
payment made by the Company to such holder of Preferred Securities in such
Direct Action.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
For information concerning the relationship between First Chicago, the
Institutional Trustee, and the Company, see "Description of the Subordinated
Debt Securities -- The Debt Trustee."
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
A Preferred Securities Guarantee will be executed and delivered by SunTrust
for the benefit of the holders from time to time of Preferred Securities issued
by each SunTrust Capital Trust. Each such Preferred Securities Guarantee will be
qualified as an indenture under the Trust Indenture Act. First Chicago will act
as trustee under each Preferred Securities Guarantee for purposes of the Trust
Indenture Act (the "Preferred Guarantee Trustee"). The terms of each Preferred
Securities Guarantee, which shall be filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, will be those set forth therein
and those made part of such Preferred Securities Guarantee by the Trust
Indenture Act. The summary of the material terms of the Preferred Securities
Guarantees set forth below does not purport to be complete and is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
each such Preferred Securities Guarantee and the Trust Indenture Act. Each
Preferred Securities Guarantee will be held by the Preferred Guarantee Trustee
for the benefit of the holders of the Preferred Securities of the applicable
SunTrust Capital Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by a SunTrust Capital
Trust, the Guarantee Payments (as defined herein) (except to the extent paid by
such SunTrust Capital Trust), as and when due, regardless of any defense, right
of set-off or counterclaim that such SunTrust Capital Trust may have or assert.
The following payments with respect to Preferred Securities issued by a SunTrust
Capital Trust, to the extent not paid by such SunTrust Capital Trust (the
"Guarantee Payments"), will be subject to the Preferred Securities Guarantee
thereon (without duplication): (i) any accrued and unpaid distributions that are
required to be paid on such Preferred Securities, but if and only to the extent
such SunTrust Capital Trust shall have funds available therefor; (ii) the
redemption price, including all accrued and unpaid distributions to the date of
payment (the "Redemption Price"), but if and only to the extent such SunTrust
Capital Trust has funds available therefor with respect to any Preferred
Security called for redemption by such SunTrust Capital Trust; and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of such SunTrust
Capital Trust (other than in connection with the distribution of Subordinated
Debt Securities to the holders of Preferred Securities or the redemption of all
of the Preferred Securities upon the maturity or redemption of the Subordinated
Debt Securities), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid distributions on such Preferred Securities to the date of
payment, but if and only to the extent such SunTrust Capital Trust has funds
available therefor and (b) the amount of assets of such SunTrust Capital Trust
remaining available for distribution to holders of such Preferred Securities in
liquidation of such SunTrust Capital Trust. The redemption price and liquidation
amount will be fixed at the time the Preferred Securities are issued. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of Preferred
Securities or by causing the applicable SunTrust Capital Trust to pay such
amounts to such holders.
No Preferred Securities Guarantee will apply to any payment of
distributions, except to the extent such SunTrust Capital Trust shall have funds
available therefor. If the Company does not make interest payments on the
Subordinated Debt Securities purchased by a SunTrust Capital Trust, such
SunTrust Capital Trust will not pay distributions on the Preferred Securities
issued by such SunTrust Capital Trust and will not have funds available
therefor. See "Description of the Subordinated Debt Securities -- Certain
Covenants of the Company." The Preferred Securities Guarantee, when taken
together with the Company's obligations under the Subordinated Debt Securities,
the Indenture and the Declaration, including its obligations as issuer of the
Subordinated Debt Securities to pay costs, expenses, debts and liabilities of
such SunTrust Capital Trust (other than with respect to the payment of
principal, premium, if any, and interest on the Trust Securities), will provide
a full and unconditional guarantee on a subordinated basis by the Company of
payments due on the Preferred Securities.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities
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issued by the applicable SunTrust Capital Trust. The manner of obtaining any
such approval of holders of such Preferred Securities will be as set forth in an
accompanying Prospectus Supplement. All guarantees and agreements contained in a
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the holders of the Preferred Securities of the applicable SunTrust Capital Trust
then outstanding.
The Company has also separately agreed to guarantee irrevocably and
unconditionally the obligations of the SunTrust Capital Trusts with respect to
the Common Securities (the "Common Securities Guarantees") to the same extent as
the Preferred Securities Guarantees, except that upon an Event of Default under
the Indenture, holders of Preferred Securities shall have priority over holders
of Common Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable SunTrust Capital Trust (i) upon full payment
of the Redemption Price of all Preferred Securities of such SunTrust Capital
Trust, (ii) upon distribution of the Subordinated Debt Securities held by such
SunTrust Capital Trust to the holders of the Preferred Securities of such
SunTrust Capital Trust or (iii) upon full payment of the amounts payable in
accordance with the Declaration of such SunTrust Capital Trust upon liquidation
of such SunTrust Capital Trust. Each Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if, at any
time, any holder of Preferred Securities issued by the applicable SunTrust
Capital Trust must restore payment of any sums paid under such Preferred
Securities or such Preferred Securities Guarantee.
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Company to perform any of its payment or other obligations
thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
relating to such Preferred Securities Guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities. If the Preferred Guarantee
Trustee fails to enforce such Preferred Securities Guarantee, any holder of
Preferred Securities relating to such Preferred Securities Guarantee may
institute a legal proceeding directly against the Company to enforce the
Preferred Guarantee Trustee's rights under such Preferred Securities Guarantee,
without first instituting a legal proceeding against the relevant SunTrust
Capital Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a Guarantee
Payment, a holder of Preferred Securities may directly institute a proceeding
against the Company for enforcement of the Preferred Securities Guarantee for
such payment. The Company waives any right or remedy to require that any action
be brought first against such SunTrust Capital Trust or any other person or
entity before proceeding directly against the Company.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Unless otherwise provided in the applicable Prospectus Supplement, the
Preferred Securities Guarantees with respect to the Preferred Securities of any
SunTrust Capital Trust will constitute unsecured obligations of the Company and
will rank (i) subordinate and junior in right of payment to certain liabilities
of the Company (which may include both senior and subordinated indebtedness for
money borrowed) to the extent set forth in a Prospectus Supplement, (ii) pari
passu with any guarantee now or hereafter entered into by SunTrust in respect of
any other SunTrust Capital Trust or any other similar financing vehicle
sponsored by SunTrust and (iii) senior to all capital stock now or hereafter
issued by the Company and to any guarantee now or hereafter entered into by the
Company in respect of any of its capital stock. The terms of the Preferred
Securities provide that each holder of Preferred Securities issued by the
applicable SunTrust Capital Trust, by acceptance thereof, agrees to the
subordination provisions and other terms of the Preferred Securities Guarantee
relating thereto as described in the applicable Prospectus Supplement.
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The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby.
For information concerning the relationship between the Preferred Guarantee
Trustee and the Company, see "Description of the Subordinated Debt
Securities -- The Debt Trustee."
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with the laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the Declaration of each of the SunTrust Capital Trusts, the
sole purpose of each is to issue the Trust Securities evidencing undivided
beneficial interests in the assets of such SunTrust Capital Trust, and to invest
the proceeds from such issuance and sale in the Subordinated Debt Securities.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities held by a given SunTrust Capital Trust, such
payments will be sufficient to cover distributions and payments due on the Trust
Securities of such SunTrust Capital Trust because of the following factors: (i)
the aggregate principal amount of such Subordinated Debt Securities will be
equal to the sum of the aggregate stated liquidation amount of such Trust
Securities; (ii) the interest rate and payment dates for the Subordinated Debt
Securities will match the distribution rate and payment dates for the Preferred
Securities; (iii) SunTrust, as issuer of the Subordinated Debt Securities, shall
pay, and the applicable SunTrust Capital Trust shall not be obligated to pay,
directly or indirectly, all costs, expenses, debts, and obligations of the
applicable SunTrust Capital Trust (other than with respect to the payment of
principal, premium, if any, and interest on the Trust Securities); and (iv) the
related Declaration further provides that the Trust Trustees shall not take or
cause or permit such SunTrust Capital Trust, among other things, to engage in
any activity that is not consistent with the purposes of that SunTrust Capital
Trust.
Payments of distributions (to the extent funds are available therefor) and
other payments due on the Preferred Securities (to the extent funds are
available therefor) are guaranteed by SunTrust as and to the extent set forth
under "Description of the Preferred Securities Guarantees." If SunTrust does not
make interest payments on the Subordinated Debt Securities purchased by the
applicable SunTrust Capital Trust, it is expected that such SunTrust Capital
Trust will not have sufficient funds to pay distributions on the Preferred
Securities issued thereby. A Preferred Securities Guarantee does not apply to
any payment of distributions unless and until the applicable SunTrust Capital
Trust has sufficient funds for the payment of such distributions. A Preferred
Securities Guarantee covers the payment of distributions and other payments on
the related Preferred Securities only if, and to the extent that, SunTrust has
made a payment of interest or principal on the Subordinated Debt Securities held
by the applicable SunTrust Capital Trust as its sole asset. A Preferred
Securities Guarantee, when taken together with SunTrust's obligations under the
related Subordinated Debt Securities, and the Indenture and the related
Declaration, including its obligations to pay costs, expenses, debts and
liabilities of the applicable
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SunTrust Capital Trust (other than with respect to the Trust Securities),
provides a full and unconditional guarantee on a subordinated basis of amounts
due on the related Preferred Securities.
If SunTrust fails to make interest or other payments on the Subordinated
Debt Securities held by a SunTrust Capital Trust when due (taking into account
any Extension Period), the related Declaration provides a mechanism whereby the
holders of the Preferred Securities issued thereunder, using the procedures
described in "Description of the Preferred Securities -- Book-Entry Only
Issuance -- The Depository Trust Company" and "-- Voting Rights" in the
accompanying Prospectus Supplement, may direct the Institutional Trustee to
enforce its rights under such Subordinated Debt Securities. If the Institutional
Trustee fails to enforce its rights under the Subordinated Debt Securities, a
holder of Preferred Securities may institute a legal proceeding against SunTrust
to enforce the Institutional Trustee's rights under the Subordinated Debt
Securities without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of SunTrust to pay interest or
principal on the Subordinated Debt Securities on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a holder of Preferred Securities may institute a Direct Action for
payment on or after the respective due date specified in the Subordinated Debt
Securities. In connection with such Direct Action, SunTrust will be subrogated
to the rights of such holder of Preferred Securities under the Declaration to
the extent of any payment made by SunTrust to such holder of Preferred
Securities in such Direct Action. SunTrust, under each Preferred Securities
Guarantee, acknowledges that the Preferred Guarantee Trustee shall enforce the
Preferred Securities Guarantee on behalf of the holders of the related Preferred
Securities. If SunTrust fails to make payments under a Preferred Securities
Guarantee, the Preferred Securities Guarantee provides a mechanism whereby the
holders of the related Preferred Securities may direct the Preferred Guarantee
Trustee to enforce its rights thereunder. Any holder of Preferred Securities may
institute a legal proceeding directly against SunTrust to enforce the Preferred
Guarantee Trustee's rights under the related Preferred Securities Guarantee
without first instituting a legal proceeding against the applicable SunTrust
Capital Trust, the Preferred Guarantee Trustee, or any other person or entity.
SunTrust and each of the SunTrust Capital Trusts believe that the above
mechanisms and obligations, taken together, provide a full and unconditional
guarantee by SunTrust on a subordinated basis of payments due on Preferred
Securities issued by any such Trust. See "Description of the Preferred
Securities Guarantees -- General."
PLAN OF DISTRIBUTION
SunTrust may sell the Subordinated Debt Securities and either SunTrust
Capital Trust may sell Preferred Securities in any of, or any combination of,
the following ways: (i) directly to purchasers, (ii) through agents designated
from time to time, (iii) through underwriters or groups of underwriters, and
(iv) through dealers. Such agents, underwriters or dealers may be affiliates of
SunTrust, and offers or sales of Offered Securities may include secondary market
transactions by affiliates of SunTrust.
Offers to purchase Offered Securities may be solicited directly by SunTrust
and/or either SunTrust Capital Trust, as the case may be, or by agents
designated by SunTrust and/or either SunTrust Capital Trust, as the case may be,
from time to time. Any such agent, who may be deemed to be an underwriter (as
that term is defined in the Securities Act) involved in the offer or sale of the
Offered Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by SunTrust to such agent will be set forth,
in the Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment (ordinarily five business days or less). Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, SunTrust will
execute an underwriting agreement with such underwriters at the time of sale and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales of the Offered Securities in respect of which this Prospectus is
delivered.
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If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, SunTrust and/or either SunTrust Capital
Trust, as the case may be, will sell such Offered Securities to the dealer as
principal. The dealer may then resell such Offered Securities to the public at
varying prices to be determined by such dealer at the time of resale. The name
of the dealer and the terms of the transaction will be set forth in the
applicable Prospectus Supplement.
Agents, underwriters and dealers may be entitled under the relevant
agreements to indemnification by SunTrust and/or either SunTrust Capital Trust,
as the case may be, against certain liabilities, including liabilities under the
Securities Act.
The offer and sale of the Offered Securities will comply with Rule 2810 of
the Rules of Conduct of the National Association of Securities Dealers, Inc.
(the "NASD"). In addition, no NASD member participating in offers and sales of
securities will execute a transaction in the Offered Securities in a
discretionary account without the prior specific written approval of the
member's customer.
Underwriters, agents or their controlling persons may engage in
transactions and perform services for SunTrust and its affiliates in the
ordinary course of business.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Subordinated Debt Securities and the Preferred Securities
Guarantees will be passed upon for SunTrust by King & Spalding. Certain matters
of Delaware law relating to the validity of the Preferred Securities will be
passed upon on behalf of each of the SunTrust Capital Trusts by Skadden, Arps,
Slate, Meagher & Flom (Delaware), special Delaware counsel to the SunTrust
Capital Trusts. Certain other legal matters will be passed upon for SunTrust by
Raymond D. Fortin, Senior Vice President and Counsel of SunTrust. Certain legal
matters will be passed upon for agents or underwriters, if any, by Skadden,
Arps, Slate, Meagher & Flom LLP. As of December 31, 1996 Raymond D. Fortin was
the record and beneficial owner of 20,800 shares of common stock of SunTrust and
held options to purchase 3,000 shares of common stock of SunTrust.
EXPERTS
The consolidated financial statements of SunTrust included in the Annual
Report on Form 10-K for the year ended December 31, 1996, incorporated herein by
reference, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said report.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $181,818
Legal fees and expenses..................................... 100,000
Blue Sky fees and expenses.................................. 10,000
Accounting fees and expenses................................ 50,000
Printing and engraving expenses............................. 100,000
Fees and expenses of Trustees............................... 20,000
Paying Agent fees........................................... 10,000
Rating Agency fees.......................................... 80,000
Miscellaneous expenses...................................... 13,182
--------
Total............................................. $565,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
PART 5 OF ARTICLE 8 OF THE GEORGIA BUSINESS CORPORATION CODE STATES:
14-2-850. PART DEFINITIONS.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor entity
of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director" or "officer" means an individual who is or was a
director or officer, respectively, of a corporation or who, while a
director or officer of the corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee,
or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan, or other entity. A director or
officer is considered to be serving an employee benefit plan at the
corporation's request if his or her duties to the corporation also impose
duties on, or otherwise involve services by, the director or officer to the
plan or to participants in or beneficiaries of the plan. Director or
officer includes, unless the context otherwise requires, the estate or
personal representative of a director or officer.
(3) "Disinterested director" means a director who at the time of a
vote referred to in subsection (c) of Code Section 14-2-853 or a vote or
selection referred to in subsection (b) or (c) of Code Section 14-2-855 or
subsection (a) of Code Section 14-2-856 is not:
(A) A party to the proceeding; or
(B) An individual who is a party to a proceeding having a familial,
financial, professional, or employment relationship with the director
whose indemnification or advance for expenses is the subject of the
decision being made with respect to the proceeding, which relationship
would, in the circumstances, reasonably be expected to exert an
influence on the director's judgment when voting on the decision being
made.
(4) "Expenses" includes counsel fees.
(5) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a
proceeding.
(6) "Official capacity" means:
(A) When used with respect to a director, the office of director in
a corporation; and
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(B) When used with respect to an officer, as contemplated in Code
Section 14-2-857, the office in a corporation held by the officer.
Official capacity does not include service for any other domestic or
foreign corporation or any partnership, joint venture, trust, employee benefit
plan, or other entity.
(7) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative,
or investigative and whether formal or informal.
14-2-851. AUTHORITY TO INDEMNIFY.
(a) Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity, that
such conduct was in the best interests of the corporation;
(B) In all other cases, that such conduct was at least not opposed
to the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the individual had
no reasonable cause to believe such conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a)(1)(B) of this Code section.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Code section.
(d) A corporation may not indemnify a director under this Code section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant
standard of conduct under this Code section; or
(2) In connection with any proceeding with respect to conduct for
which he was adjudged liable on the basis that personal benefit was
improperly received by him, whether or not involving action in his official
capacity.
14-2-852. MANDATORY INDEMNIFICATION.
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
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14-2-853. ADVANCE FOR EXPENSES.
(a) A corporation may, before final disposition of a proceeding, advance
funds to pay for or reimburse the reasonable expenses incurred by a director who
is a party to a proceeding because he or she is a director if he or she delivers
to the corporation:
(1) A written affirmation of his or her good faith belief that he or
she has met the relevant standard of conduct described in Code Section
14-2-851 or that the proceeding involves conduct for which liability has
been eliminated under a provision of the articles of incorporation as
authorized by paragraph (4) of subsection (b) of Code Section 14-2-202; and
(2) His or her written undertaking to repay any funds advanced if it
is ultimately determined that the director is not entitled to
indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of this
Code section must be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to the financial ability of
the director to make repayment.
(c) Authorization under this Code section shall be made:
(1) By the board of directors:
(A) When there are two or more disinterested directors, by a
majority vote of all the disinterested directors (a majority of whom
shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors appointed
by such a vote; or
(B) When there are fewer than two disinterested directors, by the
vote necessary for action by the board in accordance with subsection (c)
of Code Section 14-2-824, in which authorization directors who do not
qualify as disinterested directors may participate; or
(2) By the shareholders, but shares owned or voted under the control
of a director who at the time does not qualify as a disinterested director
with respect to the proceeding may not be voted on the authorization.
14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES.
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it determines
that the director is entitled to indemnification under this part; or
(2) Order indemnification or advance for expenses if it determines, in
view of all the relevant circumstances, that it is fair and reasonable to
indemnify the director or to advance expenses to the director, even if the
director has not met the relevant standard of conduct set forth in
subsections (a) and (b) of Code Section 14-2-851, failed to comply with
Code Section 14-2-853, or was adjudged liable in a proceeding referred to
in paragraph (1) or (2) of subsection (d) of Code Section 14-2-851, but if
the director was adjudged so liable, the indemnification shall be limited
to reasonable expenses incurred in connection with the proceeding.
(b) If the court determines that the director is entitled to
indemnification or advance for expenses under this part, it may also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Code Section 14-2-851
unless authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
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(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the board of
directors by a majority vote of all the disinterested directors (a majority
of whom shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors appointed by
such a vote;
(2) By a special legal counsel:
(A) Selected in the manner prescribed in paragraph (1) of this
subsection; or
(B) If there are fewer than two disinterested directors, selected
by the board of directors (in which selection directors who do not
qualify as disinterested directors may participate); or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b)(2)(B) of this Code section to select special legal counsel.
14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION.
(a) If authorized by the articles of incorporation or a bylaw, contract, or
resolution approved or ratified by the shareholders by a majority of the votes
entitled to be cast, a corporation may indemnify or obligate itself to indemnify
a director made a party to a proceeding including a proceeding brought by or in
the right of the corporation, without regard to the limitations in other Code
sections of this part, but shares owned or voted under the control of a director
who at the time does not qualify as a disinterested director with respect to any
existing or threatened proceeding that would be covered by the authorization may
not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code section
for any liability incurred in a proceeding in which the director is adjudged
liable to the corporation or is subjected to injunctive relief in favor of the
corporation:
(1) For any appropriation, in violation of the director's duties, of
any business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) For the types of liability set forth in Code Section 14-2-832; or
(4) For any transaction from which he received an improper personal
benefit.
(c) Where approved or authorized in the manner described in subsection (a)
of this Code section, a corporation may advance or reimburse expenses incurred
in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation of
his or her good faith belief that his or her conduct does not constitute
behavior of the kind described in subsection (b) of this Code section; and
(2) The director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay any advances if it is
ultimately determined that the director is not entitled to indemnification
under this Code section.
14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS.
(a) A corporation may indemnify and advance expenses under this part to an
officer of the corporation who is a party to a proceeding because he or she is
an officer of the corporation;
(1) To the same extent as a director; and
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(2) If he or she is not a director, to such further extent as may be
provided by the articles of incorporation, the bylaws, a resolution of the
board of directors, or contract except for liability arising out of conduct
that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omission which involve intentional misconduct, or a
knowing violation of law;
(C) The types of liability set forth in Code Section 14-2-832; or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code section
shall apply to an officer who is also a director if the sole basis on which he
or she is made a party to the proceeding is an act or omission solely as an
officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a court
under Code Section 14-2-854 for indemnification or advances for expenses, in
each case to the same extent to which a director may be entitled to
indemnification or advances for expenses under those provisions.
(d) A corporation may also indemnify and advance expenses to an employee or
agent who is not a director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws, general or specific
action of its board of directors, or contract.
14-2-858. INSURANCE.
A corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the corporation or
who, while a director, officer, employee, or agent of the corporation, serves at
the corporation's request as a director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify or advance expenses to him or her against the same
liability under this part.
14-2-859. APPLICATION OF PART.
(a) A corporation may, by a provision in its articles of incorporation or
bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section
14-2-855. Any such provision that obligates the corporation to provide
indemnification to the fullest extent permitted by law shall be deemed to
obligate the corporation to advance funds to pay for or reimburse expenses in
accordance with Code Section 14-2-853 to the fullest extent permitted by law,
unless the provision specifically provides otherwise.
(b) Any provision pursuant to subsection (a) of this Code section shall not
obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation, pertaining to conduct with respect to the
predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of incorporation,
limit any of the rights to indemnification or advance for expenses created by or
pursuant to this part.
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(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part does
not limit a corporation's power to indemnify, advance expenses to, or provide or
maintain insurance on behalf of an employee or agent.
ARTICLES OF INCORPORATION AUTHORITY
Article 14 of the Corporation's Articles of Incorporation provides:
In addition to any powers provided by law, in the Bylaws, or
otherwise, the Corporation shall have the power to indemnify any person who
becomes a party or who is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including any action by or in the right of
the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
BYLAW AUTHORITY
Article VII of the Corporation's Bylaws provides:
Section 1. DEFINITIONS. As used in this Article, the term:
(A) "Corporation" includes any domestic or foreign predecessor
entity of this Corporation in a merger or other similar transaction in
which the predecessor's existence ceased upon consummation of the
transaction.
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A "director" is considered to be serving an
employee benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate
or personal representative of a director.
(C) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partners, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. An "Employee" is considered to be serving an
employee benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the plan.
"Employee" includes, unless the context requires otherwise, the estate
or personal representative of an employee.
(D) "Expenses" includes attorneys' fees.
(E) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect to
a proceeding.
(F) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an
assistant officer, or an individual who, while an Officer of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. An "Officer" is considered
to be serving an employee
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benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an Officer.
(G) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(H) "Proceeding" means any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 2. BASIC INDEMNIFICATION ARRANGEMENT.
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4
in the specific case that such indemnification is permissible in the
circumstances under this subsection because the individual has met the
standard of conduct set forth in this subsection (A), the Corporation
shall indemnify an individual who is made a party to a proceeding
because he is or was a director or Officer against liability incurred by
him in the proceeding if he acted in a manner he believed in good faith
to be in or not opposed to the best interests of the Corporation and, in
the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for
a purpose he believes in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirement of subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement,
or conviction, or upon a plea of nolo contendere or its equivalent shall
not, of itself, be determinative that the proposed indemnitee did not
meet the standard of conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article
in connection with (i) a proceeding by or in the right of the
Corporation in which such person was adjudged liable to the Corporation,
or (ii) any other proceeding in which such person was adjudged liable on
the basis that he improperly received a personal benefit.
(E) Indemnification permitted under this Article in connection with
a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 3. ADVANCES FOR EXPENSES.
(A) The Corporation may pay for or reimburse the reasonable
expenses incurred by a director or Officer as a party to a proceeding in
advance of final disposition of the proceeding if: (i) such person
furnishes the Corporation a written affirmation of his good faith belief
that he has met the standard of conduct set forth in subsection 2(A)
above; and (ii) such person furnishes the Corporation a written
undertaking meeting the qualifications set forth below in subsection
3(B), executed personally or on his behalf, to repay any advances if it
is ultimately determined that he is not entitled to any indemnification
under this Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be
an unlimited general obligation of the director or Officer but need not
be secured and shall be accepted without reference to financial ability
to make repayment.
Section 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(A) The Corporation shall not indemnify a director or Officer under
Section 2 above unless a separate determination has been made in the
specific case that indemnification of such person is permissible in the
circumstances because he has met the standard of conduct set forth in
subsection 2(A) above; provided, however, that regardless of the result
or absence of any such determination, and
II-7
<PAGE> 26
unless limited by the Articles of Incorporation of the Corporation, to
the extent that a director or Officer has been successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party,
or in defense of any claim, issue or matter therein, because he is or
was a director or Officer, the Corporation shall indemnify such person
against reasonable expenses incurred by him in connection therewith.
(B) The determination referred to in subsection 4(A) above shall be
made:
(i) by the Board of Directors of the Corporation by majority
vote of a quorum consisting of directors not at the time parties to
the proceeding;
(ii) If a quorum cannot be obtained under subdivision (i), by
majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the
time parties to the proceeding;
(iii) by special legal counsel:
(1) selected by the Board of Directors or its committee in
the manner prescribed in subdivision (i) or (ii); or
(2) if a quorum of the Board of Directors cannot be obtained
under subdivision (i) and a committee cannot be designated under
subdivision (ii), selected by a majority vote of the full Board
of Directors (in which selection directors who are parties may
participate); or
(iv) by the shareholders; provided that shares owned by or voted
under the control of the directors or Officers who are at the time
parties to the proceeding may not be voted on the determination.
(C) Evaluation as to reasonableness of expenses of a director or
Officer in the specific case shall be made in the same manner as the
determination that indemnification is permissible, as described in
subsection 4(B) above, expect that if the determination is made by
special legal counsel, evaluation as to reasonableness of expenses shall
be made by those entitled under subsection 4(B)(iii) above to select
counsel.
(D) The Board of Directors, a committee thereof, or special legal
counsel acting pursuant to subsection (B) above or Section 5 below,
shall act expeditiously upon an application for indemnification or
advances, and cooperate in the procedural steps required to obtain a
judicial determination under Section 5 below.
Section 5. COURT-ORDERED INDEMNIFICATION AND ADVANCE FOR EXPENSES. A
director or Officer who is a party to a proceeding may apply for
indemnification or advances for expenses to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers
necessary, may order indemnification or advances for expenses if it
determines that:
(i) The applicant is entitled to mandatory indemnification under
the final clause of subsection 4(A) above (in which case the Corporation
shall pay the indemnitee's reasonable expenses incurred to obtain
court-ordered indemnification);
(ii) The applicant is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or
not he met the standard of conduct set forth in subsection 2(A) above or
was adjudged liable as described in subsection 2(D) above (but if he was
adjudged so liable, any court-ordered indemnification shall be limited
to reasonable expenses incurred by the indemnitee unless the Articles of
Incorporation of the Corporation or a Bylaw, contract or resolution
approved or ratified by shareholders pursuant to Section 7 below
provides otherwise); or
(iii) In the case of advances for expenses, the applicant is
entitled, pursuant to the Articles of Incorporation, Bylaws or any
applicable resolution or agreement, to payment or reimbursement to of
his
II-8
<PAGE> 27
reasonable expenses incurred as a party to a proceeding in advance of
final disposition of the proceeding.
Section 6. INDEMNIFICATION OF EMPLOYEES. Unless the Corporation's
Articles of Incorporation provide otherwise, the Corporation shall
indemnify and advance expenses under this Article to an employee of the
Corporation who is not a director or Officer to the same extent as to a
director or Officer.
Section 7. SHAREHOLDER APPROVED INDEMNIFICATION.
(A) If authorized by the Articles of Incorporation or a Bylaw,
contract or resolution approved or ratified by shareholders of the
Corporation by a majority of the votes entitled to be cast, the
Corporation may indemnify or obligate itself to indemnify a person made
a party to a proceeding, including a proceeding brought by or in the
right of the Corporation, without regard to the limitations in other
sections of this Article. The Corporation shall not indemnify a person
under this Section 7 for any liability incurred in a proceeding in which
the person is adjudged liable to the Corporation or is subjected to
injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct
or a knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832
of the Georgia Business Corporation Code; or
(iv) for any transaction from which he received an improper
personal benefit.
(B) Where approved or authorized in the manner described in
subsection 7(A) above, the Corporation may advance or reimburse expenses
incurred in advance of final disposition of the proceedings only if:
(i) the proposed indemnitee furnishes the Corporation a written
affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection 7(A)(i) -
(iv) above; and
(ii) the proposed indemnitee furnishes the Corporation a written
undertaking, executed personally, or on his behalf, to repay any
advances if it is ultimately determined that he is not entitled to
indemnification.
Section 8. LIABILITY INSURANCE. The Corporation may purchase and
maintain insurance on behalf of a director or officer, employee, or agent
of the Corporation or who, while a director, officer, employee, or agent of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise against liability asserted against or
incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the Corporation would have
power to indemnify against the same liability under Section 2 or Section 3
above.
Section 9. WITNESS FEES. Nothing in this Article shall limit the
Corporation's power to pay or reimburse expense incurred by a person in
connection with his appearance as a witness in a proceeding at a time when
he has not been made a named defendant or respondent in the proceeding.
Section 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies
or advances expenses to a director in connection with a proceeding by or in
the right of the Corporation, the Corporation shall report the
indemnification or advance, in writing, to shareholders with or before the
notice of the next shareholders' meeting.
Section 11. SEVERABILITY. In the event that any of the provisions of
this Article (including any provision within a single section, subsection,
division or sentence) is held by a court of competent
II-9
<PAGE> 28
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions of this Article shall remain enforceable to the fullest extent
permitted by law.
UNDERWRITING AGREEMENT
Pursuant to the form of underwriting agreement, filed as Exhibit 1.1
to this Registration Statement, the Company has agreed to indemnify the
underwriters, if any, against certain liabilities under federal and state
securities laws.
INSURANCE
The Registrant has purchased a policy of directors and officers
liability (including company reimbursement coverage) insurance that
provides certain coverage for the Registrant and its subsidiaries and their
respective directors and officers with respect to, among other things,
liability under federal and state securities laws.
INDEMNIFICATION OF TRUSTS
The Declaration of Trust of each Trust limits the liability of the
Trustee to the Trust and certain persons and provides for the
indemnification by the Trust or SunTrust of the Trustees, their officers,
directors and employees and certain other persons.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <C> <S>
1.1** -- Form of Underwriting Agreement.
4.1 -- Certificate of Trust of SunTrust Capital I. (Certificate of
Trust for SunTrust Capital II, identical except for the
name, will be filed on request.)
4.2 -- Declaration of Trust of SunTrust Capital I. (Declaration of
Trust for SunTrust Capital II, identical except for the
name, will be filed on request.)
4.3 -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Preferred Securities.
4.4 -- Form of Indenture to be used in connection with the issuance
of Subordinated Debt Securities.
4.5 -- Form of Preferred Security (included in Exhibit 4.3).
4.6 -- Form of Subordinated Debt Security (included in Exhibit
4.4).
4.7 -- Form of Common Securities Guarantee.
4.8 -- Form of Preferred Securities Guarantee.
5.1 -- Opinion of King & Spalding as to the legality of the
Subordinated Debt Securities and Preferred Securities
Guarantees to be issued by SunTrust (including the Consent
of such Counsel).
5.2 -- Opinion of Skadden, Arps, Slate, Meagher & Flom (Delaware)
as to the legality of the Preferred Securities to be issued
by the SunTrust Capital Trusts (including the Consent of
such Counsel).
12.1* -- Computation of the Ratios of Earnings to Fixed Charges.
23.1* -- Consent of Arthur Andersen LLP.
23.2 -- Consent of King & Spalding (included in Exhibit 5.1).
23.3 -- Consent of Skadden, Arps, Slate, Meagher & Flom (Delaware)
(included in Exhibit 5.2).
25.1* -- Statement of Eligibility of Debt Trustee under the
Indenture.
25.2* -- Statement of Eligibility of Institutional Trustee under the
Amended and Restated Declaration of Trust of SunTrust
Capital I.
</TABLE>
II-10
<PAGE> 29
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <C> <S>
25.3* -- Statement of Eligibility of Institutional Trustee under the
Amended and Restated Declaration of Trust of SunTrust
Capital II.
25.4* -- Statement of Eligibility of Preferred Guarantee Trustee
under the Preferred Securities Guarantee of SunTrust for the
benefit of the holders of Preferred Securities of SunTrust
Capital I.
25.5* -- Statement of Eligibility of Preferred Guarantee Trustee
under the Preferred Securities Guarantee of SunTrust for the
benefit of the holders of Preferred Securities of SunTrust
Capital II.
</TABLE>
- ---------------
* Previously filed
** To be filed under a Current Report on Form 8-K and incorporated by reference
herein.
ITEM 17. UNDERTAKINGS
Each of the undersigned registrants (the "Registrants") hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by any Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of any Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing
II-11
<PAGE> 30
provisions, or otherwise, the Registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by any Registrant of
expenses incurred or paid by a director, officer or controlling person of
such Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will,
unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(6) That, (i) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this Registration Statement as of the time it was declared
effective; and (ii) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-12
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia, on May 5,
1997.
SUNTRUST BANKS, INC.
By: /s/ JAMES B. WILLIAMS
------------------------------------
James B. Williams
Chairman of the Board
and Chief Executive Officer
SUNTRUST CAPITAL I
By: /s/ DONALD T. HEROMAN
------------------------------------
Donald T. Heroman
Trustee
SUNTRUST CAPITAL II
By: /s/ DONALD T. HEROMAN
------------------------------------
Donald T. Heroman
Trustee
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities with SunTrust Banks, Inc. and on the date
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board and Chief May 5, 1997
- ----------------------------------------------------- Executive Officer
James B. Williams
* President and Director May 5, 1997
- -----------------------------------------------------
L. Phillip Humann
* Executive Vice President and May 5, 1997
- ----------------------------------------------------- Chief Financial Officer
John W. Spiegel
* Senior Vice President and Chief May 5, 1997
- ----------------------------------------------------- Accounting Officer
William P. O'Halloran
* Director May 5, 1997
- -----------------------------------------------------
J. Hyatt Brown
* Director May 5, 1997
- -----------------------------------------------------
James D. Camp, Jr.
* Director May 5, 1997
- -----------------------------------------------------
Alston D. Correll
</TABLE>
II-13
<PAGE> 32
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
Director May 5, 1997
*
- -----------------------------------------------------
A.W. Dahlberg
* Director May 5, 1997
- -----------------------------------------------------
Roberto C. Goizueta
* Director May 5, 1997
- -----------------------------------------------------
David H. Hughes
* Director May 5, 1997
- -----------------------------------------------------
Joseph L. Lanier, Jr.
* Director May 5, 1997
- -----------------------------------------------------
Larry L. Prince
* Director May 5, 1997
- -----------------------------------------------------
Scott L. Probasco, Jr.
* Director May 5, 1997
- -----------------------------------------------------
R. Randall Rollins
</TABLE>
*By: /s/ RAYMOND D. FORTIN
----------------------------------
Raymond D. Fortin
Attorney-in-Fact
II-14
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF TRUST
The undersigned, the trustees of SunTrust Capital I, desiring
to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810 et esq., hereby certify as follows:
1. The name of the business trust being formed hereby (the "Trust") is
"SunTrust Capital I."
2. The name and business address of the trustee of the Trust which has
its principal place of business in the State of Delaware is as
follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
3. This Certificate of Trust shall be effective as of the date of
filing.
Dated: April 16, 1997
/s/ Raymond D. Fortin
---------------------
Raynond D. Fortin
Regular Trustee
/s/ Donald T. Heroman
---------------------
Donald T. Heroman
Regular Trustee
/s/ Kenneth Houghton
--------------------
Kenneth Houghton
Regular Trustee
FIRST CHICAGO DELAWARE INC., as
Delaware Trustee
By: /s/ Richard Manella
--------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By: /s/ Richard Manella
-------------------
Authorized Signatory
<PAGE> 1
EXHIBIT 4.2
================================
DECLARATION OF TRUST
SunTrust Capital I
Dated as of April 16, 1997
================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-----------
ARTICLE II
ORGANIZATION
SECTION 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
----
SECTION 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------
SECTION 2.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-------
SECTION 2.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
---------
SECTION 2.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
------------------------------
SECTION 2.6 Powers of the Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
----------------------
SECTION 2.7 Filing of Certificate of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
------------------------------
SECTION 2.8 Duration of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-----------------
SECTION 2.9 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-------------------------------
SECTION 2.10 Declaration Binding on Securities Holders . . . . . . . . . . . . . . . . . . . . . . . . . 7
-----------------------------------------
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
--------
SECTION 3.2 Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------------
SECTION 3.3 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------------
SECTION 3.4 Institutional Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
---------------------
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration. . . . . . . . . . . . . . . . . 9
----------------------------------------------------------
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-----------
SECTION 4.2 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
--------------
SECTION 4.3 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
---------------
SECTION 4.4 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
------------------
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
----------
SECTION 5.2 Termination of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
--------------------
SECTION 5.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-------------
SECTION 5.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
--------
SECTION 5.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
----------------------
SECTION 5.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
----------------------
SECTION 5.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
------------
</TABLE>
i
<PAGE> 3
DECLARATION OF TRUST
OF
SunTrust Capital I
April 16, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of
April 16, 1997 by the Trustees (as defined herein), the Sponsor (as defined
herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Delaware Business Trust Act for the purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the exclusive benefit of the holders, from time to time, of
the securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless
otherwise specified; and
<PAGE> 4
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means securities representing undivided
beneficial ownership interests in the assets of the Trust with such terms as
may be set out in any amendment to this Declaration.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the
issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by
the Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Delaware Trustee" has the meaning set forth in Section 3.3.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Parent Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture
2
<PAGE> 5
supplemental thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" has the meaning set forth in Section
3.4.
"Parent" means SunTrust Banks, Inc., a Georgia corporation or
any successor entity in a merger.
"Parent Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" means securities representing undivided
beneficial ownership interests in the assets of the Trust with such terms as
may be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE> 6
ARTICLE II.
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "SunTrust
Capital I." The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
SunTrust Banks, Inc., 303 Peachtree Street, N.E., Atlanta, Georgia, 30308-3201.
At any time, the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The Sponsor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under the
Business Trust Act, and that this Declaration constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the office of the Secretary of State
of the State of Delaware in the form attached hereto. The Trust is hereby
established by the Sponsor and the Trustees for the purposes of (i) issuing
Preferred Securities and investing the proceeds thereof in Debentures, (ii)
issuing and selling Common Securities to the Sponsor in exchange for cash and
investing the proceeds thereof in additional Debentures and (iii) engaging in
such other activities as are necessary, convenient or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
Concurrent with the first issuance of any Securities by the
Trust, the Sponsor and the Trustees intend to enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement referred to below at the time such registration statement becomes
effective under the Securities Act, to provide for the contemplated operation
of the Trust created hereby and the issuance of the Preferred Securities and
the Common Securities referred to therein. Prior to the
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execution and delivery of such amended and restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain, prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Regular Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Regular Trustees as set forth in this
Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other
than the Securities and the issuance of the Securities shall be
limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities;
(b) in connection with the issue and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a
registration statement on Form S-3 prepared by the Sponsor
(the "Registration Statement"), including any amendments
thereto in relation to the registration of the Preferred
Securities under the Securities Act;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined by the
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Sponsor to be necessary in order to qualify or register all or part of
the Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for sale;
(iii) execute and file on behalf of the Trust,
with the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice
of issuance of any Preferred Securities a listing application
and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on
much exchange or national market, as the case may be;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor relating to the registration
of the Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act; and
(v) negotiate the terms of, and execute and
enter into, on behalf of the Trust, an underwriting agreement
and pricing agreement providing for the sale of the Preferred
Securities substantially in the form included as an exhibit to
the Registration Statement at the time it becomes effective
under the Securities Act;
(c) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors and consultants and provide for reasonable
compensation for such services;
(d) to incur expenses that are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust in
the form attached hereto as Exhibit A with the Secretary of State of the State
of Delaware.
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SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for fifty-five (55) years from the date
hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation to the
Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing or quotation upon notice of
issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the
registration of the class of Preferred Securities under Section 12(b)
or 12(g) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement
and pricing agreement providing for the sale of the Preferred
Securities.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
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ARTICLE III.
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be five (5), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however that the number of Trustees shall in no event be less than two (2);
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity that has its principal place of business in the State of
Delaware (the "Delaware Trustee"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (a "Regular Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustees shall be:
Raymond D. Fortin
Donald T. Heroman
Kenneth Houghton
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of, any
one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purposes of signing any documents that the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
First Chicago Delaware Inc.
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any
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of the powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Trustees (except as required by the Business Trust Act)
described in this Declaration. The Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the negligence or willful misconduct of the
Delaware Trustee.
SECTION 3.4 Institutional Trustee.
The Sponsor hereby appoints The First National Bank of Chicago
as the Institutional Trustee, as the trustee meeting the requirements of an
eligible trustee of the Trust Indenture Act of 1939, as amended.
Notwithstanding any other provision of this Declaration, the
Institutional Trustee shall not be entitled to exercise any of the powers, nor
shall the Institutional Trustee have any of the duties and responsibilities of
the Trustees (except as required by the Business Trust Act) described in this
Declaration. Notwithstanding anything herein to the contrary, the
Institutional Trustee shall not be liable for the acts or omissions to act of
the Trust or of the Regular Trustees except such acts as the Institutional
Trustee is expressly obligated or authorized to undertake under this
Declaration or the Business Trust Act and except for the negligence or willful
misconduct of the Institutional Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration.
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ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Securities might properly be
paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
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provides terms that are, fair and reasonable to the Trust or any
holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification.
(a.) (i) The Debenture Issuer shall indemnify, to
the full extent permitted by law, any Parent Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or
was a Parent Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
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its equivalent, shall not, of itself, create a presumption that the
Parent Indemnified Person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Parent Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Trust to procure
a judgment in its favor by reason of the fact that he is or was a
Parent Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Trust and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such
Parent Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses that
such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Parent Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 4.3(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Parent Indemnified Person is
proper in the circumstances because he has met the applicable standard
of conduct set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by
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independent legal counsel in a written opinion, or (3) by the
holder(s) of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Parent Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 4.3(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such Parent Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion or (iii) the holder(s) of the Common Securities of the Trust,
that, based upon the facts known to the Regular Trustees, counsel or
the holder(s) of the Common Securities of the Trust at the time such
determination is made, such Parent Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Parent Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder(s) of the Common Securities of
the Trust reasonably determine that such person deliberately breached
his duty to the Trust or to the holder(s) of its Common Securities or
Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 4.3(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of shareholders or disinterested
directors of the Debenture Issuer or of the holder(s) of the Preferred
Securities of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office. All rights to indemnification under this Section 4.3(a)
shall be deemed to be provided by a contract between the Debenture
Issuer and each Parent Indemnified Person who serves in such capacity
at any time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any rights or
obligations then existing.
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(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Parent
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Debenture Issuer would have the power to
indemnify him against such liability under the provisions of this
Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix.) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.3(a) shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Parent Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee and the Institutional Trustee, (ii) any Affiliate of the Delaware
Trustee or the Institutional Trustee, and (iii) any officers, directors,
stockholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee or the Institutional Trustee (each
of the Persons in (i) through (iii) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
provisions of this Section 4.3(b) shall survive the termination of this
Declaration or the resignation or removal of the Delaware Trustee or
Institutional Trustee.
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SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. None of any Covered Person, the Sponsor,
the Delaware Trustee or the Institutional Trustee shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary, trustee or agent for, or may act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by
all of the Regular Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve and be of no further force
or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust; and
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(iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the Sponsor;
and
(b) As soon as is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees shall file, after
satisfaction of all liabilities of the Trust in accordance with applicable law,
a certificate of cancellation with the Secretary of State of the State of
Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
/s/ Raymond D. Fortin
---------------------
Raymond D. Fortin
Regular Trustee
/s/ Donald T. Heroman
---------------------
Donald T. Heroman
Regular Trustee
/s/ Kenneth R. Houghton
-----------------------
Kenneth R. Houhgton
Houghton Regular Trustee
FIRST CHICAGO DELAWARE INC., as Delaware Trustee
By:/s/ Richard Manella
-------------------
Richard Manella
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO, as
Institutional Trustee
By:/s/ Richard Manella
-------------------
Richard Manella
Authorized Signatory
SUNTRUST BANKS, INC., as Sponsor
By:/s/ Raymond D. Fortin
---------------------
Raymond D. Fortin
Senior Vice President
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EXHIBIT A
(begins on next page)
<PAGE> 21
CERTIFICATE OF TRUST
The undersigned, the trustees of SunTrust Capital I, desiring
to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810 et seq., hereby certify as follows:
(a) The name of the business trust being formed hereby
(the "Trust") is "SunTrust Capital I."
(b) The name and business address of the trustee of the
Trust which has its principal place of business in
the State of Delaware is as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of
the date of filing.
Dated: April 16, 1997
/s/ Raymond D. Fortin
---------------------
Raymond D. Fortin
Regular Trustee
/s/ Donald T. Heroman
---------------------
Donald T. Heroman
Regular Trustee
/s/ Kenneth R. Houghton
-----------------------
Kenneth R. Houghton
Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:/s/ Richard Manella
-------------------
Richard Manella
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO, as
Institutional Trustee
By:/s/ Richard Manella
-------------------
Richard Manella
Authorized Signatory
<PAGE> 1
EXHIBIT 4.3
====================================
AMENDED AND RESTATED DECLARATION
OF TRUST
SUNTRUST CAPITAL I
Dated as of __________, 1997
====================================
<PAGE> 2
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TABLE OF CONTENTS
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ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3 Reports by the Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.4 Periodic Reports to the Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.3 Issuance of the Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.4 Purchase of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.5 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.6 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.7 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.8 Powers and Duties of the Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.9 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . . 20
SECTION 3.10 Powers and Duties of the Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.11 Certain Duties and Responsibilities of the Institutional Trustee . . . . . . . . . . . . . 24
SECTION 3.12 Certain Rights of the Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.13 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.14 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.15 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 28
SECTION 3.16 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.17 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
</TABLE>
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<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 4.3 Right to Proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.3 Institutional Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee Generally . . . . . . . . . 34
SECTION 5.5 Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.6 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.7 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.8 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.9 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.10 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.11 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . 38
SECTION 5.13 Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.2 Execution and Delivery of Securities Certificates . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.3 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.2 Transfer of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.4 Book-Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
ii
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<TABLE>
<CAPTION>
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----
<S> <C> <C>
SECTION 9.7 Definitive Preferred Security Certificates . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.9 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.3 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.6 Compensation; Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.2 Meetings of the Holders; Action by Written Consent . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee . . . . . . . . . . . . . . . . 60
SECTION 13.2 Representations and Warranties of the Delaware Trustee . . . . . . . . . . . . . . . . . . 60
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . A2-1
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . 5.3(c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(a)
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11(b)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11(a)
316(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . 2.6 and Annex I
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6(f)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10(c)
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10(i)
- ---------------
</TABLE>
* This Cross-Reference Table does not constitute part of the Declaration
as executed and shall not affect the interpretation of any of its
terms or provisions.
v
<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SUNTRUST CAPITAL I
__________, 1997
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of __________, 1997, by the Trustees (as defined
herein), the Sponsor (as defined herein) and by the holders, from time to time,
of undivided beneficial ownership interests in SunTrust Capital I (the
"Trust"), a statutory business trust under the Business Trust Act (as defined
herein), to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established the Trust
pursuant to a Declaration of Trust dated April 16, 1997 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on April 16, 1997, for the principal purposes of issuing
and selling the Securities (as defined herein) and investing the proceeds
thereof in certain Debentures (as defined herein) of the Debenture Issuer (as
defined herein);
WHEREAS, as of the date hereof, no Securities have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
Securities, subject to the provisions of this Declaration.
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and
Annexes and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise defined in
this Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
2
<PAGE> 9
"Base Indenture" means the Indenture dated as of __________,
1997, between the Debenture Issuer and the Debt Trustee.
"Book-Entry Interest" means a beneficial ownership interest in
a Global Certificate registered in the name of a Clearing Agency or a nominee
thereof, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means a day other than (a) a day on which
banking institutions in New York, New York or Chicago, Illinois are authorized
or required by law or executive order to remain closed or (b) a day on which
the Institutional Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debt Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Calculation Agent" has the meaning set forth in Section 2(b)
of Annex I hereto.
"Capital Treatment Event" has the meaning set forth in Section
4(d) of Annex I hereto.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the "Date of Delivery" under the
Underwriting Agreement, which is also the date of execution and delivery of
this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to any
corresponding provision of any corresponding provision of any Federal tax
statute enacted
3
<PAGE> 10
after the date of this Declaration, as such specific section or corresponding
provision is in effect on the date of application of the provisions of this
Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.1.(a).
"Common Securities Guarantee" means the guarantee agreement to
be dated as of __________, 1997 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Corporate Trust Office" means (i) when used with respect to
the Institutional Trustee, the principal corporate trust office of the
Institutional Trustee located in New York, New York which on the date of this
Declaration is c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor-Window 2, New York, New York 10005 - Attention: Corporate Trust
Administration, and (ii) when used with respect to the Debt Trustee, the
Principal Office of the Debt Trustee as defined in the Base Indenture.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of the Trust or
the Trust's Affiliates; (b) any other director, stockholder, employee,
representative or agent of the Debenture Issuer or any of its Affiliates; and
(c) any Holder of Securities.
"Debenture Issuer" means SunTrust Banks, Inc., a Georgia
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination.
"Debentures" means the series of Debentures to be issued by
the Debenture Issuer under the Indenture and purchased by the Trust, and to be
held by the Institutional Trustee.
"Debt Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
4
<PAGE> 11
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Determination Date" has the meaning set forth in Section
2(b)(i) of Annex I hereto.
"Direct Action" has the meaning set forth in Section 3.10(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" or "Declaration Event of Default" in
respect of the Securities means an Event of Default (as defined in the Base
Indenture) has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Sponsor Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Base Indenture together with the
supplement thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.10(c).
"Investment Company" means an investment company as defined in
the Investment Company Act.
5
<PAGE> 12
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.8(h).
"Liquidation Distribution" has the meaning set forth in
Section 3 of Annex I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
of the relevant class.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that the officer signing the Certificate
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in rendering
the Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Original Declaration" has the meaning set forth in the
preamble hereof.
6
<PAGE> 13
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1(a).
"Preferred Securities Guarantee" means the guarantee agreement
to be dated as of __________, 1997, of the Sponsor in respect of the Preferred
Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 4(c)
of Annex I.
"Redemption/Distribution Notice" has the meaning set forth in
Section 4(a) of Annex I.
"Reference Banks" has the meaning set forth in Section 2(b)
(ii) of Annex I hereto.
"Regular Trustee" has the meaning set forth in Section 5.1(a).
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any
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other Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.
"Responsible Officer" means, when used with respect to the
Institutional Trustee or the Delaware Trustee, as the case may be, any officer
assigned to the Corporate Trust Office of the Institutional Trustee or the
corporate trust office of the Delaware Trustee, as the case may be, including
any managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Institutional Trustee or the Delaware Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Reuters Screen LIBO Page" has the meaning set forth in
Section 2(b)(ii) of Annex I hereto.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act
or any successor rule or regulation.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section 9.2.
"Securities Registrar" has the meaning set forth Section 9.2.
"Sponsor" means SunTrust Banks, Inc., a Georgia corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination.
"Sponsor Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b).
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"Successor Entity" has the meaning set forth in Section 3.17(b)
"Successor Institutional Trustee" has the meaning set forth in
Section 3.10(g)(ii).
"Successor Securities" has the meaning set forth in Section
3.17(b).
"Super Majority" has the meaning set forth in Section 2.6(a)
(ii).
"Tax Event" has the meaning set forth in Section 4(d) of Annex
I hereto.
"Telerate Page 3750" has the meaning set forth in Section
2(b)(i) of Annex I hereto.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Underwriting Agreement" means the Underwriting Agreement
dated __________, 1997 among the Trust, the Sponsor and [underwriter] [and
other representatives], as representative[s] of the several underwriters named
therein, providing for the offering and sale of the Preferred Securities to the
public.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
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(b) The Institutional Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be the
only Trustee that is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide the Institutional Trustee (i) within 14 days
after each record date for payment of Distributions, a list, in such form as
the Institutional Trustee may reasonably require, of the names and addresses of
the Holders of the Securities ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Regular Trustees on behalf of the
Trust shall be obligated to provide such List of Holders at any time the List
of Holders does not differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Institutional Trustee. The Institutional
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after December 15 of each year, the
Institutional Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Institutional Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to the Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act, such
compliance certificate to be delivered annually on or before 120 days after the
end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under the Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation amount of the
Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding; or
(iii) requires the consent or vote of each holder of
Debentures to be waived under the Indenture, then the Event of Default
under the Declaration may only be waived by each Holder of Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby ex-
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pressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Upon such waiver, any such default shall cease to exist,
and any Event of Default with respect to the Preferred Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the Preferred Securities
of an Event of Default with respect to the Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all purposes of
this Declaration without any further act, vote, or consent of the Holders of
the Common Securities.
The Holders of a Majority in liquidation amount of the
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Debentures.
(b) The Holders of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the Holders of all of the
Common Securities, (A) in accordance with the terms of the Common Securities,
direct the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee, or (B) waive any past Event of
Default with respect to the Common Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of
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Default with respect to the Common Securities and its consequences until all
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Institutional Trustee will be deemed
to be acting solely on behalf of the Holders of the Preferred Securities and
only the Holders of the Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the Securities. In the
event that an Event of Default with respect to the Preferred Securities is
waived by the Holders of Preferred Securities as provided in this Declaration,
the Holders of Common Securities agree that such waiver shall also constitute
the waiver of such Event of Default with respect to the Common Securities for
all purposes under this Declaration without any further act, vote or consent of
the Holders of the Common Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) The right of any Holder of Securities to receive
payment of Distributions on the Securities in accordance with this Declaration
and the terms of the Securities set forth in Annex I on or after the respective
payment dates therefor, or to institute suit for the enforcement of any such
payment on or after such payment dates, shall not be impaired without the
consent of such Holder.
(d) A waiver of an Event of Default under the Indenture
by the Institutional Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(d) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after
the occurrence of an Event of Default actually known to a Responsible Officer
of the Institutional Trustee, transmit by
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mail, first class postage prepaid, to the Holders of the Securities, notices of
all such defaults with respect to the Securities, unless such defaults have
been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 2.7(a) being hereby defined to be an Event of Default
as defined in the Indenture, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein);
provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Debentures or in the payment of any sinking
fund installment established for the Debentures, the Institutional Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Institutional Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities; and provided further, that in the case of any default of the
character specified in Section 5.01(c) of the Base Indenture, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof but
shall be given within 90 days after such occurrence.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) so long as the Institutional Trustee is a Paying
Agent, a default under Sections 5.01(a) and 5.01(b) of the Base
Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a Responsible Officer
of the Institutional Trustee charged with the administration of the
Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "SunTrust Capital I," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
SunTrust Banks, Inc., 303 Peachtree Street, N.E., Atlanta, Georgia, 30308-3201.
On ten Business Days written notice to the Holders, the Regular Trustees may
designate another principal office. The registered agent for the Trust is
__________,
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located at __________. At any time, the Regular Trustees may designate another
registered agent and/or principal office.
SECTION 3.3 Issuance of the Trust Securities.
On __________, 1997, the Sponsor, on behalf of the Trust and
pursuant to the Original Declaration, executed and delivered the Underwriting
Agreement. On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall execute and deliver (i) to the underwriters named in the Underwriting
Agreement, a Global Certificate, registered in the name of the nominee of the
initial Clearing Agency as specified in Section 9.4, in an aggregate amount of
__________ Preferred Securities having an aggregate liquidation amount of $
__________, against receipt of the aggregate purchase price of such Preferred
Securities of $ __________ and (ii) to the Sponsor, ___________ Common
Securities Certificates, registered in the name of the Sponsor, in an aggregate
amount of Common Securities having an aggregate liquidation amount of $_______,
against receipt of the aggregate purchase price of such Common Securities of
$ __________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution
and delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall purchase from the Sponsor with the proceeds received by the Trust from
the sale of the Securities on such date pursuant to Section 3.5, at a purchase
price of 100% of the principal amount thereof, Debentures, registered in the
name of the Institutional Trustee and having an aggregate principal amount
equal to $ __________, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustee, on behalf of the Trust, shall deliver or cause
to be delivered to the Sponsor the sum of $ __________.
SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Preferred Securities and use the proceeds from such sale to
acquire the Debentures issued under the Indenture having an aggregate
liquidation amount of the Preferred Securities so issued and sold; (b) to enter
into such agreements and arrangements as may be necessary in connection with
the sale of Pre-
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ferred Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all actions and exercise such discretion as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange
Act or State securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; (c) to issue
and sell Common Securities to the Debenture Issuer for cash and use the
proceeds of such sale to purchase as trust assets an equal aggregate principal
amount of Debentures issued under the Indenture; and (d) except as otherwise
limited herein, to engage in only those other activities necessary, or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States Federal income tax purposes as a grantor
trust.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust.
An action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and any action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
SECTION 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the
Debentures and the Institutional Trustee Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust and shall cause the Trust to engage in the
following activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other
than the Securities, and the issuance of Securities shall be limited
to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
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(b) in connection with the issue and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the Preferred
Securities;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined by the Sponsor to
be necessary in order to qualify or register all or part of
the Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act;
(v) execute and enter into the Underwriting
Agreement providing for the sale of the Preferred Securities;
and
(vi) to execute and file any agreement,
certificate or other document which such Regular Trustee deems
necessary or appropriate in connection with the issuance and
sale of the Preferred Securities;
(c) to acquire as trust assets the Debentures with the
proceeds of the sale of the Preferred Securities and the Common
Securities; provided, however, that the Regular Trustees shall cause
legal title to the Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders of the Preferred
Securities and the Holders of Common Securities;
(d) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the
sale of Preferred Securities to the initial purchasers thereof and the
consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the
consummation thereof;
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(e) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event or a Capital
Treatment Event; provided that the Regular Trustees shall consult with
the Sponsor and the Institutional Trustee before taking or refraining
to take any action in relation to any such Tax Event or Capital
Treatment Event;
(f) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
Section 316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices to
the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the
Securities;
(h) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action"), unless pursuant to
Section 3.10(e), the Institutional Trustee has the exclusive power to
bring such Legal Action;
(i) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable compensation
for such services;
(j) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Institutional Trustee, which
certificate may be executed by any Regular Trustee;
(l) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(m) if duly appointed pursuant to the provisions herein,
to act as registrar, transfer agent or Paying Agent for the
Securities;
(n) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its
election to defer payments of interest on the Debentures by extending
the interest payment period under the Indenture;
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(o) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing;
(p) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's
valid existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Preferred Securities or to
enable the Trust to effect the purposes for which the Trust was
created;
(q) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in carrying
out the activities of the Trust as set out in this Section 3.8,
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States Federal income tax purposes as a grantor trust and not
as an association taxable as a corporation or a partnership;
and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness of
the Debenture Issuer for United States Federal income tax
purposes,
provided that such action does not adversely affect the interests of
Holders; and
(r) to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed
with respect to the Trust to be duly prepared and filed by the Regular
Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.5, and the Regular Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust
set forth in Section 3.5.
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Subject to this Section 3.8, the Regular Trustees shall have
none of the powers or the authority of the Institutional Trustee set forth in
Section 3.10.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.8 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
SECTION 3.9 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust to not, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Institutional Trustee) shall
cause the Trust to not:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other
than the Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising any trust or power
conferred upon the Debt Trustee with respect to the Debentures, (B) waive any
past default that is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all the Debentures shall
be due and payable, or (D) consent to any amendment, modification or
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termination of the Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of a nationally
recognized independent counsel experienced in such matters to the effect that
such modification will not cause more than an insubstantial risk that for
United States Federal income tax purposes the Trust will not be classified as a
grantor trust.
SECTION 3.10 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Institutional Trustee in trust for the
benefit of the Trust and the Holders of the Securities. The right, title and
interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 5.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the Regular Trustees or to the
Delaware Trustee (if the Institutional Trustee does not also act as Delaware
Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account") in the
name of and under the exclusive control of the Institutional Trustee
on behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit or cause to be deposited such funds
into the Institutional Trustee Account and make or cause to be made
payments to the Holders of the Preferred Securities and Holders of the
Common Securities from the Institutional Trustee Account in accordance
with Section 6.1. Funds in the Institutional Trustee Account shall be
held uninvested until disbursed in accordance with this Declaration.
The Institutional Trustee Account shall be maintained with The First
National Bank of Chicago in its trust department so long as The First
National Bank of Chicago is a Paying Agent; if The First National Bank
of Chicago is not a Paying Agent, the Institutional Trustee Account
will be maintained at the Institutional Trustee or at its direction.
The Institutional Trustee shall not be liable to any Person for the
acts or omissions of The First National Bank of Chicago in connection
with the administration of the Institutional Trustee Account, unless
such acts or omissions were taken or made at the express instructions
of the Institutional Trustee. The Sponsor shall cause The First
National Bank of Chicago to (i)
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promptly advise the Institutional Trustee of all deposits and
withdrawals from the Institutional Trustee Account and of any failure
by The First National Bank of Chicago to receive from the Debenture
Issuer any payments on the Debentures when due, (ii) provide the
Institutional Trustee with monthly reports as to the activity in the
Institutional Trustee Account and (iii) permit the Institutional
Trustee to have access to The First National Bank of Chicago's records
with respect to the Institutional Trustee Account upon reasonable
request therefor;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature;
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain special events (as may be
defined in the terms of the Securities) arising from a change in law
or a change in legal interpretation or other specified circumstances
pursuant to the terms of the Securities; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee, subject to Section 2.6, shall, for the benefit
of the Holders of the Securities, enforce its rights as holder of the
Debentures under the Indenture, subject to the rights of the Holders
of the Preferred Securities pursuant to the terms of this Declaration,
the Business Trust Act and the Trust Indenture Act.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the Institutional
Trustee pursuant to the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action
that arises out of or in connection with an Event of Default of which a
Responsible Officer of the Institutional Trustee has knowledge or the
Institutional Trustee's duties and obligations under this Declaration or the
Trust Indenture Act and if such Institutional Trustee shall have failed to take
such Legal Action after a written request from a Holder of the Preferred
Securities, then such Holder of the Preferred Securities may take such Legal
Action, to the same extent as if such Holders of Preferred Securities held a
principal amount of Debentures equal to the liquidation amount of such
Preferred Securities, without first proceeding against the Institutional
Trustee or the
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Trust; provided, however, that if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute
a proceeding for enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of Preferred
Securities to the extent of any payment made by the Issuer to such Holder of
Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Institutional Trustee for the benefit of the Holders of
the Securities, will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Institutional
Trustee or its agents or their creditors.
(g) The Institutional Trustee shall continue to serve as
a Trustee until:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a successor Institutional Trustee has been appointed
and has accepted that appointment in accordance with Section 5.7 (a
"Successor Institutional Trustee").
(h) The Institutional Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(i) The Institutional Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any
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Paying Agent may be removed by the Institutional Trustee, after consultation
with the Regular Trustees, at any time and a successor Paying Agent or
additional Paying Agents may be appointed at any time by the Institutional
Trustee, subject to Section 317(b) of the Trust Indenture Act.
(j) The Institutional Trustee shall give prompt written
notice to the Holders of the Securities of any notice received by it from the
Debenture Issuer of its election to defer payments of interest on the
Debentures by extending the interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Institutional
Trustee shall have none of the duties, liabilities, powers or the authority of
the Regular Trustees set forth in Section 3.8.
The Institutional Trustee must exercise the powers set forth
in this Section 3.10 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.5, and the Institutional Trustee
shall not take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.5.
SECTION 3.11 Certain Duties and Responsibilities of the
Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and in the Securities and no implied covenants
shall be read into this Declaration against the Institutional Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Institutional Trustee has
actual knowledge, the Institutional Trustee shall exercise such of the rights
and powers vested in it by this Declaration, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed
to relieve the Institutional Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and in the Securi-
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ties and the Institutional Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration and in the
Securities, and no implied covenants or obligations shall be
read into this Declaration or the Securities against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of
the Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Institutional
Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the
Institutional Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Institutional Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Institutional
Trustee against such risk or liability is not reasonably assured to
it; and
(v) the Institutional Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Debentures
and the Institutional Trustee Account shall be to deal with such
property in a similar manner as the
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Institutional Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Institutional Trustee under this Declaration and the Trust
Indenture Act.
SECTION 3.12 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.11:
(i) the Institutional Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officer's Certificate;
(iii) whenever in the administration of this Declaration,
the Institutional Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
and, if the Trust is excluded from the definition of Investment
Company solely by means of Rule 3a-5, subject to the requirements of
Rule 3a-5, request and conclusively rely upon an Officer's
Certificate, which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the
scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its employees. The
Institutional Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(v) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any Holder, unless
such Holder shall have provided to the Institutional Trustee security
and indemnity, reasonably satis-
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factory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Institutional Trustee provided, that, nothing
contained in this Section 3.12(a)(v) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Declaration;
(vi) the Institutional Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(vii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or attorneys
and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed by it in good faith with due care by it hereunder;
(viii) any action taken by the Institutional Trustee or its
agents hereunder shall bind the Trust and the Holders, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action; and
(ix) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Institutional Trustee (i) may request
instructions from the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the
Institutional Trustee under the terms of the Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in
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conclusively relying on or acting in or accordance with such
instructions.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Institutional Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or imposed
on it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Institutional Trustee shall be construed to be a duty.
SECTION 3.13 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Trustees (except as required under the Business Trust
Act) described in this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
SECTION 3.14 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise provided herein, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to this Declaration.
SECTION 3.15 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.16 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence for fifty-five (55) years from the
Closing Date.
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SECTION 3.17 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except as
described in Section 3.17(b) and (c).
(b) The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Securities, the Delaware Trustee or
the Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its property and assets substantially
as an entirety, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities rank with
respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee
of the Successor Entity that possesses the same powers and duties as
the Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with
another organization on which the Preferred Securities are then listed
or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in
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any material respect (other than with respect to any dilution of such
Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that
of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the new entity); and
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease
neither the Trust nor the Successor Entity will be required to
register as an Investment Company;
(C) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease the
Trust (or the Successor Entity) will continue to be classified
as a grantor trust for United States Federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee and the Common
Securities Guarantee.
(c) Notwithstanding Section 3.17(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the Successor Entity to be classified as other than a grantor
trust for United States Federal income tax purposes.
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ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date, the Sponsor will purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) at the sole discretion of the Sponsor, to prepare for
filing by the Trust with the Commission a registration statement on
Form S-3 in relation to the Preferred Securities, including any
amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(c) at the sole discretion of the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities; and
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) or 12(g)
of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to
institute a Direct Action as set forth in Section 3.10(e) hereto.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased only by, and Trustees may be
approved, removed or replaced only by, the vote of the Holders of a
majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; provided
however, that, the number of Trustees shall in no
event be less than two (2); provided further that (1) one Trustee, in
the case of a natural person, shall be a person who is a resident of
the State of Delaware or that, if not anatural person, is an entity
which has its principal place of business in the State of Delaware;
(2) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with the Sponsor (a "Regular Trustee"); and (3)
one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if
it meets the applicable requirements.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law,
provided that, if the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable
law, then the Institutional Trustee shall also be the Delaware Trustee and
Section 3.13 shall have no application.
The initial Delaware Trustee shall be First Chicago Delaware
Inc.
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SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee that shall
act as Institutional Trustee, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, state, territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 5.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease
to be eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to
be specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The First
National Bank of Chicago.
(f) Any action taken by Holders of Common Securities
pursuant to this Article V shall be taken at a meeting of Holders of Common
Securities convened for such purpose or by written consent as provided in
Section 12.2.
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(g) No amendment may be made to this Article V that would
change any right with respect to the number, existence or appointment and
removal of Trustees, except with the consent of each Holder of Common
Securities.
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Raymond D. Fortin,
Donald T. Heroman and Kenneth R. Houghton.
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any
matter over which the Regular Trustees have power to act, any power of the
Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act or applicable law,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.8; and
(c) a Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.8.
SECTION 5.6 [Reserved].
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed
or removed without cause at any time except during an event of default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Com-
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mon Securities voting as a class at a meeting of the Holders of the
Common Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.7(a) until a Successor
Institutional Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional Trustee and
delivered to the Regular Trustees, the Sponsor and the Institutional Trustee
being removed; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with this Section 5.7(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until
his or her successor shall have been appointed or until his or her death,
removal or resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has
been appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered
to the Trust, the Sponsor and the resigning Institutional
Trustee; or
(B) if the Trust is excluded from the definition
of an Investment Company solely by reason of Rule 3a-5, until
the assets of the Trust have been completely liquidated and
the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
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(d) The Holders of the Common Securities shall use their
best efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee resigning
or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Institutional
Trustee or Successor Delaware Trustee, as the case may be.
(f) The Sponsor shall provide notice to the Institutional
Trustee of any registration or removal of a Regular Trustee.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee, or any one of them, shall not operate to annul the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 5.7,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees may be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regul-
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ar Trustees. Notice of any in-person meeting of the Regular Trustees shall be
hand delivered or otherwise delivered in writing (including by facsimile, with
a hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. Notwithstanding the foregoing, any
action which may be taken at a meeting of the Regular Trustees (or a committee
thereof) may be taken pursuant to a unanimous written consent of the Regular
Trustees (or committee thereof), the execution of such consent to be deemed a
waiver by such Regular Trustee of any prior notice required in connection with
such action. In the event there is only one Regular Trustee, any and all action
of such Regular Trustee shall be evidenced by a written consent of such Regular
Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.8, including any registration statement or amendment
thereto filed with the Commission, or making any other governmental filing
(including, without limitation, the Registration Statement); and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
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SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the Institutional
Trustee or the Delaware Trustee, as the case may be, shall be the successor of
the Institutional Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
SECTION 5.13 Appointment of Authenticating Agent.
The Institutional Trustee may appoint an Authenticating Agent
or Agents, which may include any Affiliate of the Sponsor, with respect to the
Securities which shall be authorized to act on behalf of the Institutional
Trustee to authenticate the Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 9.2, and Securities so authenticated shall be entitled to the benefits
of this Declaration and shall be valid and obligatory for all purposes as if
authenticated by the Institutional Trustee hereunder. Wherever reference is
made in this Declaration to the authentication and delivery of the Securities
by the Institutional Trustee or the Institutional Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Institutional Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Sponsor and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, or of any State or Territory or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Institutional Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Institutional Trustee and to the Sponsor. The
Institutional Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Sponsor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Institutional
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Sponsor and shall give notice of such appointment in the manner provided
in Section 14.1 to all holders of Securities. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provision of this Section.
The Sponsor agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Institutional
Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
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This is one of the Securities referred to in the within mentioned Declaration.
Dated:
-----------------------
As Institutional Trustee
By:
-----------------------
Authenticating Agent
By:
----------------------
Authorized Officer
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein),
redemption payments and liquidation distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the preferences set forth in their respective terms. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Sums (as defined in the
Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed, to the extent funds
are available for that purpose, to make or cause to be made a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of preferred securities representing, in fully registered form,
beneficial ownership interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Common Securities.")
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
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(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall be the manual or facsimile
signature of any present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any certificate. In case any Regular Trustee
of the Trust who shall have signed (either by manual or facsimile signature)
any of the Securities shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of
such Security, shall be the Regular Trustees of the Trust, although at the date
of the execution and delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the capital of
the Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or
a Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.2 Execution and Delivery of Securities Certificates.
At the time of delivery of the Securities, the Regular
Trustees shall cause Certificates to be authenticated by the Institutional
Trustee on behalf of the Trust and delivered to or upon the written order of
the Trust, signed by two Regular Trustees without further corporate action by
the Sponsor, in authorized denominations.
A Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Institutional Trustee. Such
signature shall be conclusive evidence that the
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Security has been authenticated under this Declaration. The Institutional
Trustee's certificates of authentication shall be substantially in the form set
forth in Exhibits A-1 and A-2.
SECTION 7.3 Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Institutional Trustee Account and shall report the amounts of such
Distributions to the Institutional Trustee and the Regular Trustees. Any
Paying Agent shall have the revocable power to withdraw funds from the
Institutional Trustee Account for the purpose of making the Distributions
referred to above. The Institutional Trustee may revoke such power and remove
the Paying Agent in its sole discretion. The Paying Agent shall initially be
The First National Bank of Chicago, and any co-paying agent chosen by The First
National Bank of Chicago, and reasonably acceptable to the Regular Trustees.
Any Person acting as Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Regular Trustees and the Institu- tional
Trustee. In the event that The First National Bank of Chicago shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority
to act be revoked, the Institutional Trustee shall appoint a successor that is
reasonably acceptable to the Regular Trustees to act as Paying Agent (which
shall be a bank or trust company). Such successor Paying Agent or any
additional Paying Agent shall execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree
with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Holders, will give the Institutional
Trustee notice of any default by the Trust (or any other obligor on the
Securities) in the making of any payment on the Securities and will, at any
time during the continuance of any such default, upon the written request of
the Institutional Trustee, forthwith pay to the Institutional Trustee all sums
so held in trust by such Paying Agent. The Paying Agent shall return all
unclaimed funds to the Institutional Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the
Institutional Trustee. The provisions of Sections 3.10, 3.11 and 10.4 herein
shall also apply to The First National Bank of Chicago in its role as Paying
Agent, for so long as The First National Bank of Chicago shall act as Paying
Agent and, to the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Declaration to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) May _____, 2052;
(ii) upon the bankruptcy of the Sponsor;
(iii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the filing of a
certificate of cancellation with respect to the Trust after having
obtained the consent of a majority in liquidation amount of the
Securities affected thereby voting together as a single class to file
such certificate of cancellation or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iv) upon the liquidation of the Trust in accordance
with the terms of the Securities and the distribution of all of the
Debentures endorsed thereon in exchange for all of the Securities; or
(v) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the Sponsor or the Trust;
(vi) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders in accordance with the terms of the
Securities; or
(vii) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an
event referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware and the Trust
shall terminate.
(c) The provisions of Section 3.10 and Article X shall
survive the dissolution of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) Subject to this Article IX, the Debenture Issuer and
any Affiliate may only transfer Common Securities to an Affiliate; provided
that any such transfer shall be subject to the condition that the transferor
shall have obtained (1) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the
Trustees of a nationally recognized independent tax counsel experienced in such
matters to the effect that such transfer will not (i) cause the Trust to be
treated as issuing a class of interests in the Trust differing from the class
of interests represented by the Common Securities originally issued to the
Debenture Issuer, (ii) result in the Trust's acquiring or disposing of, or
being deemed to have acquired or disposed of, an asset, or (iii) result in or
cause the Trust to be treated as anything other than a grantor trust for United
States Federal income tax purposes and (2) an unqualified written opinion
addressed to the Trust and delivered to the Trustees of a nationally recognized
independent counsel experienced in such matters that such transfer will not
cause the Trust to be an Investment Company or controlled by an Investment
Company.
SECTION 9.2 Transfer of Certificates.
The Institutional Trustee shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 9.9, a register or
registers for the purpose of registering Certificates and transfers and
exchanges of Preferred Securities Certificates (the "Securities Register") in
which, the registrar designated by the Institutional Trustee (the "Securities
Registrar") with the reasonable consent of the Regular Trustees, subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 9.1(c) in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates, which will be effected [without charge] as herein
provided. The First National Bank of Chicago shall be the initial Securities
Registrar.
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Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
9.9, the Regular Trustees or any one of them shall execute, and the
Institutional Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate liquidation amount
dated the date of such authentication.
The Preferred Securities Certificates shall be dated the date
of their authentication.
The Securities Registrar shall not be required to register the
transfer of (i) any Preferred Securities beginning at the opening of business
15 days before the day of mailing of a notice of redemption and ending at the
close of business on the day of such mailing or (ii) any Preferred Securities
selected for redemption except the unredeemed portion of any Preferred Security
being redeemed in part. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate liquidation
amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 9.9.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Securities Registrar
duly executed by the Holder or his or her attorney duly authorized in writing.
Each Preferred Securities Certificate surrendered for registration of transfer
or exchange shall be cancelled and subsequently disposed of by the
Institutional Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange Preferred Securities Certificates.
The provisions of Sections 3.10, 3.11 and 10.4 herein shall
also apply to The First National Bank of Chicago in its role as Securities
Registrar, for so long as The First National Bank of Chicago shall act as
Securities Registrar.
SECTION 9.3 Deemed Security Holders.
The Trustees and the Securities Registrar may treat the Person
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole holder of such Certificate and of the Securities
represented by such Certif-
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icate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust, the
Trustees or the Securities Registrar shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will
be issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC,
the initial Clearing Agency, or its custodian, by, or on behalf of, the Trust.
Such Global Certificates shall initially be registered on the books and records
of the Trust in the name of Cede & Co., the nominee of DTC, and no Preferred
Security Beneficial Owner will receive a definitive Preferred Security
Certificate representing such Preferred Security Beneficial Owner's interests
in such Global Certificates, except as provided in Section 9.7. Unless and
until definitive, fully registered Preferred Security Certificates (the
"Definitive Preferred Security Certificates") have been issued to the Preferred
Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
(b) the Trust, the Trustees, the Securities Registrar and
the Paying Agent shall be entitled to deal with the Clearing Agency
for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred Securities
and the sole holder of the Global Certificates and shall have no
obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial
Owners shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants and the Clearing Agency shall receive
and transmit payments of Distributions on the Global Certificates to
such Clearing Agency Participants. DTC will make book-entry transfers
among the Clearing Agency Participants and receive and
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transmit payments of Distributions on the Global Certificates to such
Clearing Agency Participants; provided, that solely for the purposes
of determining whether the Holders of the requisite amount of
Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Preferred Security Certificates
have not been issued, the Trustees may conclusively rely on, and
shall be protected in relying on, any written instrument (including a
proxy) delivered to the Trustees by the Clearing Agency setting forth
the Preferred Security Beneficial Owners' votes or assigning the right
to vote on any matter to any other Persons either in whole or in part.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the [Preferred
Security] Holders is required under this Declaration, unless and until
Definitive Preferred Security Certificates shall have been issued [to the
Preferred Security Beneficial Owners] pursuant to Section 9.7, the Trustees
shall give all such notices and communications specified herein to be given to
the Preferred Security Holders to the Clearing Agency and, with respect to any
Preferred Security Certificate registered in the name of a Clearing Agency or
the nominee of a Clearing Agency, the Trustees shall, except as set forth
herein, have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services
or is no longer able to properly discharge its functions as securities
depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance or after the Regular Trustees become aware of such
inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with
the Sponsor to terminate the book-entry system through the Clearing
Agency with respect to the Preferred Securities,
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then:
(c) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(d) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration instructions, the Regular
Trustees shall cause Definitive Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the
Trust, or any agents thereof shall be liable for any delay in delivery
of such instructions and each of them may conclusively rely on and
shall be protected in relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Preferred Securities may be listed, or to
conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to
the Institutional Trustee or the Securities Registrar or if the
Institutional Trustee or the Securities Registrar shall receive
evidence to their satisfaction of the destruction, loss or theft of
any Certificate; and
(b) there shall be delivered to the Institutional
Trustee, the Securities Registrar and the Regular Trustees such
security or indemnity as may be required by them to keep each of them
harmless,
then, in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Regular Trustee on behalf of the Trust shall
execute, and upon any Regular Trustee's request, the Institutional Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees, Institutional Trustee or Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
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be imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership interest
in the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 9.9 Maintenance of Office or Agency.
The Institutional Trustee shall designate, with the consent of
the Regular Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Securities may be served.
The Corporate Trust Office of The First National Bank of Chicago is initially
designated the office for such purpose. The Regular Trustees or the
Institutional Trustee shall give prompt written notice to the Sponsor and to
the Holders of any change in the location of the Securities Register or any
such office or agency.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantees and the terms of the Securities, the Sponsor shall
not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of
the Securities which shall be made solely from assets of the Trust;
and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable
for all of the debts and obligations of the Trust (other than with respect to
the Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders of the Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
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SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and, if selected by such Indemnified
Person, has been selected by such Indemnified Person with reasonable care by or
on behalf of the Trust, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3 [Reserved].
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Sponsor Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Sponsor
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
Sponsor Indemnified Person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Trust,
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and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Sponsor Indemnified Person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Trust to procure
a judgment in its favor by reason of the fact that he is or was a
Sponsor Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Sponsor Indemnified Person shall have been adjudged
to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Sponsor Indemnified Person
is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority
vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Holder of the Common Securities.
(iv) Expenses (including attorneys' fees and expenses)
incurred by a Sponsor Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Debenture Issuer in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or
on behalf of such Sponsor Indemnified Person to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this
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Section 10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Sponsor
Indemnified Person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Sponsor
Indemnified Person believed or had reasonable cause to believe his or
her conduct was unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or
Holder of the Common Securities reasonably determine that such person
deliberately breached his or her duty to the Trust or its Common or
Preferred Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Debenture Issuer or Preferred Security Holders of the
Trust or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall be deemed
to be provided by a contract between the Debenture Issuer and each
Sponsor Indemnified Person who serves in such capacity at any time
while this Section 10.4(a) is in effect. Any repeal or modification
of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Sponsor
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his or her
status as such, whether or not the Debenture Issuer would have the
power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or
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merger, so that any person who is or was a director, trustee, officer
or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer,
employee or agent of another entity, shall stand in the same position
under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Sponsor Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(b) The Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Institutional Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and the Delaware
Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, damage, claim or expense including
taxes (other than taxes based on the income of such Fiduciary Indemnified
Person) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration or the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The provisions of this Section 10.4(b) shall survive the
satisfaction and discharge of this Declaration or the resignation or removal of
the Institutional Trustee or the Delaware Trustee, as the case may be.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. None of the Covered Persons,
the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be
obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if pre-
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sented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary)
or to recommend to others any such particular investment or other opportunity.
Any Covered Person, the Delaware Trustee and the Institutional Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fees.
The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their respective negligence
or bad faith.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books and
records of the Trust, together with a copy of this Declaration and a certified
copy of the Certificate of Trust, or
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any amendment thereto, shall at all times be maintained at the principal office
of the Trust and shall be open for inspection for any examination by any Holder
or its duly authorized representative for any purpose reasonably related to its
interest in the Trust during normal business hours.
(b) The Regular Trustees shall cause to be duly prepared
and delivered to each of the Holders of Securities, any annual United States
Federal income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United States
Federal income tax return, on a Form 1041 or such other form required by United
States Federal income tax law, and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of the Trust with any State or
local taxing authority, such returns to be filed as soon as practicable after
the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall be
made directly to the Institutional Trustee Account and no other funds of the
Trust shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust, the Regular Trustees and the Paying Agent shall
comply with all withholding requirements under United States Federal, state and
local law. The Trust shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions.
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To the extent that the Trust is required to withhold and pay over any amounts
to any authority with respect to distributions or allocations to any Holder,
the amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed over-withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or
by any applicable terms of the Securities, this Declaration may be amended only
by a written instrument approved and executed by the Regular Trustees (or, if
there are more than two Regular Trustees a majority of the Regular Trustees);
and
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, also by the
Institutional Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the
Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless the Institutional Trustee shall have first
received:
(A) an Officer's Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the
terms of the Securities); and
(ii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States Federal income
taxation as a grantor trust;
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(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of the
Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment that would adversely affect
the rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the Common Securities
and;
(f) the rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may
be amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration or to make any other provisions with
respect to matters or questions arising under this Declaration, which
shall not be inconsistent with other provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory authority,
which amendment does not have a material adverse effect on the right,
preferences or privileges of the Holders; and
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(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes
as a grantor trust at all times that any Securities are outstanding or
to ensure that the Trust will not be required to register as an
investment company under the Investment Company Act.
(h) The Institutional Trustee and the Delaware Trustee
may, but shall not be obligated to, sign any amendment which affects their
respective rights, powers, duties, obligations or immunities under this
Declaration or otherwise.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration,
the terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of Securities.
Such direction shall be given by delivering to the Regular Trustees one or more
notices in a writing stating that the signing Holders of Securities wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Security Certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities specified
shall be counted for purposes of determining whether the required percentage
set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms
of the Securities, the following provisions shall apply to meetings of Holders
of Securities:
(i) notice of any such meeting shall be given to each
Trustee and all the Holders of Securities having a right to vote
thereat at least seven days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of the Holders
of Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Preferred Securities are
listed or admitted for trading, such vote, consent or approval may be
given at a meeting of the Holders of Securities. Any action that may
be taken at a meeting of the Holders of Securities
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may be taken without a meeting if a consent in writing setting forth
the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of Securities entitled to vote
who have not consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then
listed or trading, otherwise provides, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
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ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking
association with trust powers and authority under the laws of the
United States to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the Institutional
Trustee. The Declaration has been duly executed and delivered by the
Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with or
constitute a breach of the charter or by-laws of the Institutional
Trustee;
(d) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking authority
is required for the execution, delivery or performance by the
Institutional Trustee, of this Declaration; and
(e) it satisfies the qualifications set forth in Section
5.3.
SECTION 13.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the
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date of this Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with corporate power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this
Declaration;
(b) the Delaware Trustee has authorized the performance
of its obligations under the Certificate of Trust and the Declaration.
The Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) no consent, approval or authorization of, or
registration with or notice to, any Delaware banking authority is
required for the execution, delivery or performance by the Delaware
Trustee, of this Declaration;
(d) the Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware; and
(e) it satisfies the qualifications set forth in Section
5.2.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
faxed or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or such other
address as the Trust may give notice of to the Holders of the
Securities and the Institutional Trustee):
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SunTrust Capital I
c/o SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the Delaware Trustee
may give notice of to the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
Attention: Michael J. Majchrzak
Fax: (312) 407-1708
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or such other
address as the Institutional Trustee may give notice of to the Holders
of the Securities):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Fax: (312) 407-1708
(d) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such other
address as the Holder of the Common Securities may give notice to the
Trust):
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
A copy of any notice to the Institutional Trustee or the
Delaware Trustee shall also be sent to the Trust. All such notices shall be
deemed to have been given when received in person, faxed with receipt
confirmed, or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be delivered because of
a changed address of which no notice was given, such notice or other
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document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust and
not as an association taxable as a corporation or partnership. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
--------------------------------------
Raymond D. Fortin, as Regular Trustee
--------------------------------------
Donald T. Heroman, as Regular Trustee
--------------------------------------
Kenneth R. Houghton, as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
----------------------------------
Name:
Title:
SUNTRUST BANKS, INC.,
as Sponsor
By:
-----------------------------
Raymond D. Fortin
Senior Vice President
<PAGE> 71
ANNEX I
TERMS OF
FLOATING RATE PREFERRED SECURITIES
FLOATING RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of __________, 1997 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of three hundred million dollars ($300,000,000) and a liquidation amount
with respect to the assets of the Trust of $1,000 per preferred security, are
hereby designated for the purposes of identification only as "Floating Rate
Preferred Securities" (the "Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Preferred
Securities are listed.
(b) Common Securities. Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
nine million two hundred seventy-nine thousand dollars ($9,279,000) and a
liquidation amount with respect to the assets of the Trust of $1,000 per common
security, are hereby designated for the purposes of identification only as
"Floating Rate Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall be substantially
in the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions.
(a) Each Security will be entitled to receive cumulative
cash distributions payable at the Distribution Rate (as defined herein) as in
effect from time to time applied to the stated liquidation amount of $1,000 per
Security. Distributions
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in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Distribution Rate (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and
any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor.
(b) The Distribution Rate in respect of the Securities will
be a floating rate per annum determined by reference to 3-Month LIBOR,
determined as described below, plus a margin of _____%. "3-Month LIBOR" means
the London, England interbank offered rate for three month U.S. dollar deposits
and with respect to any Distribution Period (as defined below) will be
calculated by The First National Bank of Chicago, as calculation agent (the
"Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Distribution Period (each, a "Determination
Date"), 3-Month LIBOR will be determined on the basis of the offered
rate for deposits of not less than U.S. $1,000,000 for a period of
three months (the "Index Maturity"), commencing on the second Market
Day immediately preceding the commencement of such Distribution
Period, which appears on the display designated as Page 3750 on the
Dow Jones Telerate Service (or such other pages as may replace Page
3750 on that service for the purpose of displaying London, England
interbank offered rates of major banks) ("Telerate Page 3750") as of
11:00 a.m., London, England time on said Determination Date. If no
such offered rate appears, 3-Month LIBOR with respect to such
Distribution Period will be determined as described in (ii) below.
(ii) With respect to a Determination Date on which no such
offered rate appears on Telerate Page 3750 as described in (i) above,
3-Month LIBOR shall be the arithmetic mean, expressed as a percentage,
of the offered rates (unless by its terms such display provides for
only a single rate, in which case a single rate shall be used) for
deposits in U.S. dollars for the Index Maturity which appears on the
display designated as "LIBO" on the Reuters Monitor Money Market Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London, England interbank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London, England time, on such date. If, in turn, at least two
such rates are not displayed on the Reuters Screen LIBO Page at such
time (unless, as aforesaid, only a single rate is required), the
Calculation Agent will obtain from each of four reference banks in
London, England selected by the Calculation Agent ("Reference Banks")
such bank's offered quotation (expressed
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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 (i) and (ii) above, 3-Month LIBOR for such Distribution
Period shall be 3-Month LIBOR as determined on the previous
Determination Date.
The term "Market Day" means any Business Day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York, New
York and London, England.
"Distribution Period" means each period beginning on, and
including, __________, 1997, and ending on, but excluding, the first
Distribution Date (as defined below), and each successive period beginning on,
and including, a Distribution Date and ending on, but excluding, the next
succeeding Distribution Date.
The Distribution Rate for any Distribution Period will at no
time be higher than the maximum rate then permitted by New York law as the same
may be modified by United States law.
All percentages resulting from any calculations referred to
herein will be rounded, if necessary, to the nearest 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
Distribution Rate and inform the Institutional Trustee and the Paying Agent.
Unless otherwise provided by the Institutional Trustee, the Paying Agent will
calculate the amount of distributions payable in respect of the following
Distribution Period (the "Distribution Amount"). The Distribution Amount shall
be calculated by applying the Distribution Rate to the liquidation amount of
each Security outstanding at the commencement of the Distribution Period,
multiplying each such amount by the actual number of days in the Distribution
Period concerned (which actual number of days shall include the first day but
exclude the last day of such Distribution Period) divided by 360 and rounding
the resultant figure to the nearest cent
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(with one-half cent or more being rounded upwards). The determination of the
Distribution Rate by the Calculation Agent and the Distribution Amount by the
Paying Agent will (in the absence of willful default, bad faith or manifest
error) be final, conclusive and binding on all concerned. None of the
Institutional Trustee, the Paying Agent, the Calculation Agent, the Trust or
the Sponsor (or any of their respective officers, directors, agents,
beneficiaries, employees or affiliates) shall have any liability to any person
for (i) the selection of any Reference Bank or (ii) any inability to retain
major banks in the London, England interbank market, in the case of the
Calculation Agent, which is caused by circumstances beyond its reasonable
control.
Upon the request of a holder of a Security, the Calculation
Agent will provide the Distribution Rate then in effect and, if determined, the
Distribution Rate for the next Distribution Period with respect to the
Securities.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of Distributions on the Securities, whether by the Reference Banks
(or any of them) or the Calculation Agent, Institutional Trustee or Paying
Agent, will (in the absence of willful default, bad faith or manifest error) be
binding on the Trust, the Sponsor, the Trustees and all of the holders of the
Preferred Securities, and no liability will (in the absence of willful default,
bad faith or manifest error) attach to the Calculation Agent, Institutional
Trustee or Paying Agent in connection with the exercise or non-exercise by any
of them of their powers, duties and discretion.
(e) Distributions on the Securities will be cumulative,
will accrue from __________, 1997, and will be payable quarterly in arrears, on
the first day of __________, __________, ________ and __________ of each year,
commencing on __________ 1, 1997, except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided that no Extension Period shall end on a day
other than an interest payment date for the Debentures or shall extend beyond
the date of maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Distribution Rate compounded quarterly
during any such Extension Period. At the end of the Extension Period, all
accrued and unpaid Distributions (but only to the extent payments are made in
respect of the Debentures held by the Institutional Trustee and
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to the extent the Institutional Trustee has funds available therefor) will be
payable to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date relating to the
Distribution Date on which the Extension Period ends. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments
of interest by further extending such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity date of
the Debentures. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
(f) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry
only form, the relevant record dates shall be one Business Day prior to the
relevant payment dates which payment dates correspond to the interest payment
dates on the Debentures. Subject to any applicable laws and regulations and
the provisions of the Declaration, each such payment in respect of the
Preferred Securities will be made as described under the heading "Description
of the Preferred Securities -- Book-Entry Only Issuance -- The Depository Trust
Company" in the Prospectus Supplement dated __________, 1997 to the Prospectus
dated __________, 1997 (together, the "Prospectus"), of the Trust included in
the Registration Statement on Form S-3 of the Sponsor, the Trust and certain
other business trusts. The relevant record dates for the Common Securities
shall be the same record date as for the Preferred Securities when the
Preferred Securities are not in book-entry only form. If the Preferred
Securities shall not continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities shall be __________ 15, __________
15, __________ 15 or __________ 15, as the case may be. Payments in respect of
Preferred Securities held in certificated form will be made by check mailed to
the Holder entitled thereto. Distributions payable on any Securities that are
not punctually paid on any Distribution payment date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each
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date on which Distributions are actually payable, a "Distribution Date").
(g) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among the Holders of
the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution
to Holders of Securities after satisfaction of liabilities of creditors an
amount equal to the aggregate of the stated liquidation amount of $1,000 per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such dissolution, winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Distribution Rate of, and
bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in
part, whether at maturity or upon redemption (either at the option of the
Debenture Issuer, in accordance with the Indenture, or pursuant to a Tax Event
or Capital Treatment Event as described below), the proceeds from such
repayment or payment shall be simultaneously applied to redeem Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Debentures so repaid or redeemed at a redemption price of $1,000 per
Security plus an amount equal to accrued and unpaid Distributions thereon at
the date of the redemption, payable in cash (the "Redemption Price"). Holders
will be given not less than 30 nor more than 60 days notice of such redemption.
(b) In the case of an optional redemption, if fewer than
all the outstanding Securities are to be so redeemed, the Common Securities and
the Preferred Securities will be redeemed
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Pro Rata and the Preferred Securities to be redeemed will be as described in
Section 4(f)(ii) below.
(c) Subject to the prior approval of the Federal Reserve if
such approval is then required under applicable law, rules, guidelines or
policies of the Federal Reserve, the Regular Trustees at any time shall have
the right to dissolve the Trust and, after satisfaction of the claims of
creditors, cause the Debentures held by the Institutional Trustee, having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued on unpaid
interest equal to accrued and unpaid distributions on, and having the same
record date for payment as the Securities, to be distributed to the Holders of
the Securities in liquidation of such Holders' interests in the trust on a Pro
Rata basis.
(d) If, at any time, a Tax Event or Capital Treatment
Event (both as defined below) shall occur and be continuing, the Debenture
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days notice, to redeem the Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event or Capital Treatment Event, as
the case may be, (or, if the approval of the Federal Reserve Board is then
required for such redemption, on such later date as promptly as practicable
after such approval is obtained), and, following such redemption, Securities
with an aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed shall be redeemed by the Trust at the Redemption
Price on a Pro Rata basis.
A "Tax Event" means the receipt by the Trust of an opinion of
counsel to the Sponsor experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced 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 the Debentures, (ii) interest payable
by the Sponsor on the Debentures is not, or within 90 days of such opinion,
will not be, deductible by the Sponsor, in whole or in part, for United States
Federal income tax purposes or (iii) the Trust is, or will be within 90 days of
the date of the opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
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A "Capital Treatment Event" means the reasonable determination
by the Sponsor that, as a result of the occurrence of any amendment to, or
change (including any announced 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 date of issuance of the
Preferred Securities under the Declaration, there is more than an insubstantial
risk that the Sponsor will not be entitled to treat an amount equal to the
liquidation amount of the Preferred Securities as "Tier I Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Sponsor.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) The Depository Trust Company
(the "Depository") or its nominee (or any successor Clearing Agency or its
nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates representing Securities,
except for certificates representing Preferred Securities held by the
Depository or its nominee (or any successor Clearing Agency or its nominee),
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on such Securities until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid Distributions have been
paid on all Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(f) The procedure with respect to redemptions and
distributions of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder of Securities to be redeemed or exchanged not fewer
than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Debentures. For purposes of the
calculation of the
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date of redemption or exchange and the dates on which notices are
given pursuant to this Section 4(f)(i), a Redemption/ Distribution
Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders of Securities.
Each Redemption/Distribution Notice shall be addressed to the Holders
of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption
or exchange proceedings with respect to any other Holder.
(ii) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are
to be redeemed, the identification and the total liquidation
amount of the particular Securities to be redeemed; and
(e) that on the redemption date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that Distributions thereon will cease to accrue
on and after said date.
(iii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities registered in the
name of and held of record by the Depository or its nominee (or any
successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to each
Clearing Agency Participant (or Person on whose behalf such nominee
holds such securities) in accordance with the procedures applied by
such agency or nominee.
(iv) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may only be issued if
the Debentures are to be redeemed as set out in this Section 4 (which
notice will be irrevocable), then (A) while the Preferred Securities
are in book-entry only form, with respect to the Preferred Securities,
by 12:00 noon, New York, New York time, on the redemption date,
provided that by 10 a.m. New York, New York time, on that date the
Debenture Issuer has paid the Institutional Trustee
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or other holder of the Institutional Trustee Account a sufficient
amount of cash in connection with the related redemption or maturity
of the Debentures, the Institutional Trustee or the Paying Agent will
deposit irrevocably with the Depository or its nominee (or successor
Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will
give the Depository irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities, and (B)
with respect to Preferred Securities issued in definitive form and
Common Securities, provided that the Debenture Issuer has paid the
Institutional Trustee or the holder of the Institutional Trustee
Account a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Insti- tutional Trustee
or the Paying Agent will pay the relevant Redemption Price to the
Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been
given and funds deposited as required, if applicable, then on and
after the redemption date, Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of
the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or cause to be
registered the transfer of (i) any Securities beginning on the opening
of business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of such
mailing or (ii) any Securities selected for redemption except the
unredeemed portion of any Security being redeemed in part. If any
date fixed for redemption of Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by
the Institutional Trustee or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption date to the
actual date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating
the Redemption Price.
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(v) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in respect of the
Preferred Securities, the Depository or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security Certificates have been
issued, to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.
(vi) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities laws
and banking laws), provided the acquiror is not the Holder of the
Common Securities or the obligor under the Indenture, the Sponsor or
any of its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
(vii) Upon presentation of any Security redeemed in part
only, the Regular Trustee on behalf of the Trust shall execute and the
Institutional Trustee shall authenticate and deliver to the Holder
thereof a new Security in aggregate liquidation amount equal to the
unredeemed portion of the Security so presented and having the same
original issue date, stated maturity and terms.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph and Section 2.6(a), the Holders of a majority in aggregate
liquidation amount of the Preferred Securities, voting separately as a class
may direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture to holders of the
Debentures, including the right to direct the time method and place of
conducting any proceeding for any remedy available to the Debt Trustee, or
exercising any trust or power conferred on the Debt Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.08 of the Base Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due
and payable, or (iv) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent of the holders of the
Debentures would be required, provided, however, that, where
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a consent under the Indenture would require the consent or act of the Holders
of greater than a majority of the Holders in principal amount of Debentures
affected thereby, (a "Super Majority"), the Institutional Trustee may only give
such consent or take such action at the written direction of the Holders of at
least the proportion in liquidation amount of the Preferred Securities which
the relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. The Institutional Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debt
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Preferred Securities
under this paragraph unless the Institutional Trustee has obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that for the purposes of United States Federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
If a Declaration Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a holder
of Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the holders of the Common Securities Holder will be subrogated to the
rights of such holder of Preferred Securities to the extent of any payment made
by the Issuer to such holder of Preferred Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures. Any amount payable pursuant to the Declaration
to any Holder of a Preferred Security shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to such Direct
Action.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of
any meeting at which Holders of Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Preferred Securities. Each
such notice will include a statement setting forth (i) the date of such meeting
or the date by which
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such action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to give, make or take requests, demands, authorizations, directions,
notices, consents, waivers or other actions under any of the circumstances
described in this Declaration, any of the Preferred Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be entitled to give,
make or take any such action and shall, for purposes of such action, be treated
as if they were not outstanding, except that (a) in determining whether any
Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of such Trustee actually knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Securities are owned by the Sponsor or any Affiliate.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration to be
given, made or taken by Holders of Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Institutional Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Declaration and (subject to Section 3.10) conclusive in favor of the
Trustees, if made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also
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constitute sufficient proof of his or her authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any Trustee
receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Preferred Security shall bind
every future Holder of the same Preferred Security and the Holder of every
Preferred Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance thereon, whether
or not notation of such action is made upon such Preferred Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Preferred Security may
do so with regard to all or any part of the liquidation amount of such
Preferred Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Holders of Preferred
Securities and Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee hereunder,
then the determination of such matter by the Institutional Trustee shall be
conclusive with respect to such matter.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c), 7(a) and
(b), or as otherwise required by law and the Declaration, the Holders of the
Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the
I-14
<PAGE> 85
time, method, and place of conducting any proceeding for any remedy available
to the Institutional Trustee, or exercising any trust or power conferred upon
the Institutional Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any remedy available to
the Debt Trustee, or exercising any trust or power conferred on the Debt
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.08 of the Base Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent of the holders of the Debentures would be required, provided that,
where a consent or action under the Indenture would require the consent or act
of the Holders of a Super Majority, the Institutional Trustee may only give
such consent or take such action at the written direction of the Holders of at
least the proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. Pursuant to this Section 6(c), the Institutional
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy available to the
Institutional Trustee or the Debt Trustee as set forth above, the Institutional
Trustee shall not take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of nationally recognized independent tax
counsel experienced in such matters to the effect that for the purposes of
United States Federal income tax the Trust will not be classified as other than
a grantor trust on account of such action. If the Institutional Trustee fails
to enforce its rights under the Declaration, any Holder of Common Securities
may institute a legal proceeding directly against any Person to enforce the
Institutional Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is
I-15
<PAGE> 86
sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration to be
given, made or taken by Holders of Common Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders or in person or by an agent duly appointed in writing, and except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Institutional Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Declaration and (subject to Section 3.10) conclusive in favor of the
Trustees, if made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Common Security shall bind
every future Holder of the same Common Security and the Holder of every Common
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon Common Security.
I-16
<PAGE> 87
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Common Security may do
so with regard to all or any part of the liquidation amount of such Common
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Holders of Common
Securities and the Trustees or among such Holders or Trustees with respect to
the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or
Trustee hereunder, then the determination of such matter by the Institutional
Trustee shall be conclusive with respect to such matter.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of
the Declaration, if any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, privileges, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than as
described in Section 8.1 of the Declaration, then the Holders of Securities
voting together as a single class, will be entitled to vote on such amendment
or proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, affected thereby;
provided, however, that if any amendment or proposal referred to in clause (i)
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee
as the holder of the Debentures is required under the Indenture with respect to
any amendment, modification or termination of the Indenture or the Debentures,
the Institutional Trustee shall request the written direction of the Holders of
the Securities with respect to such amendment, modification or termination and
shall vote with respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities voting together
as a single class; provided, however, that where a consent under the Indenture
would require the consent of the holders of a Super Majority, the Institutional
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount
I-17
<PAGE> 88
of the Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that for the
purposes of United States Federal income tax the Trust will not be classified
as other than a grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default under the Declaration has occurred and is continuing, in which case
any funds available to make such payment shall be paid first to each Holder of
the Preferred Securities pro rata according to the aggregate liquidation amount
of Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate liquidation amount of all Common Securities outstanding. In any
such proration the Trust may make such adjustments as may be appropriate in
order that only Securities in authorized denominations shall be redeemed.
9. Ranking.
The Preferred Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common
Securities except that, if an Event of Default under the Declaration occurs and
is continuing the rights of Holders of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of the Holders of the
Preferred Securities.
10. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
I-18
<PAGE> 89
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request
to the Sponsor at its principal place of business.
I-19
<PAGE> 90
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration and no transfer
of this Preferred Security (other than a transfer of this Preferred Security as
a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]1
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER
OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
SUNTRUST CAPITAL I
Floating Rate Preferred Securities
(liquidation amount $1,000 per Preferred Security)
- -----------------
(1)Insert in Global Certificates only.
A1-1
<PAGE> 91
SUNTRUST CAPITAL I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of three hundred thousand (300,000)
preferred securities of the Trust representing undivided beneficial interests
in the assets of the Trust designated the Floating Rate Preferred Securities
(liquidation amount $1,000 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of __________, 1997, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Preferred Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this _____ day of __________, 1997.
SUNTRUST CAPITAL I
By:
---------------------------------------
Regular Trustee
A1-2
<PAGE> 92
CERTIFICATE OF AUTHENTICATION
This certificate represents the Preferred Securities referred
to in the within-mentioned Declaration.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
-------------------------------
Authorized Officer
A1-3
<PAGE> 93
[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
distributions at the Distribution Rate applied to the stated liquidation amount
of $1,000 per Preferred Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. The Distribution Amount payable for each Distribution Period will be
calculated as provided in the Declaration.
Except as otherwise described below, distributions on the
Preferred Securities will be cumulative, will accrue from __________ and will
be payable quarterly in arrears, on _________ 1, __________ 1, __________ 1 and
__________ 1 of each year, commencing on __________ 1, 1997 to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form,
the relevant record dates shall be one Business Day prior to the relevant
payment dates. If the Preferred Securities shall not continue to remain in
book-entry only form, the relevant record dates for the Preferred Securities
shall be __________ 15, __________ 15, __________ 15 or _________ 15, as the
case may be. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall end on a day other
than an interest payment date for the Debentures or shall extend beyond the
date of the maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Distribution Rate compounded quarterly
during any such Extension Period. At the end of the Extension Period, all
accrued and unpaid Distributions (but only to the extent payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity date of the Debentures.
Upon the termination of any Extension Period and the payment of all amounts
then due, the Debenture Issuer may
A1-4
<PAGE> 94
commence a new Extension Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies
of the Federal Reserve, the Regular Trustees shall have the right at any time
to liquidate the Trust and cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust.
The Preferred Securities shall be redeemable as provided in
the Declaration.
A1-5
<PAGE> 95
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-----------------------
Signature:
------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**:
-----------------------------------
- -----------------
** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 96
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
SUNTRUST CAPITAL I
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
SUNTRUST CAPITAL I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that SunTrust
Banks, Inc. (the "Holder") is the registered owner of nine thousand two hundred
and seventy-nine (9,279) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the Floating Rate
Common Securities (liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are not transferable. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of __________, 1997, as the same may be amended from time
to time (the "Declaration"), including the designation of the terms of the
Common Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Common Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Common Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
THIS SECURITY 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.
A2-1
<PAGE> 97
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ____________, 1997.
SUNTRUST CAPITAL I
By:
---------------------------
Regular Trustee
CERTIFICATE OF AUTHENTICATION
This certificate represents the Common Securities referred to in the
within-mentioned Declaration.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
-----------------------
Authorized Officer
A2-2
<PAGE> 98
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
distributions at the Distribution Rate applied to the stated liquidation amount
of $1,000 per Common Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. The Distribution Amount payable for each Distribution Period will be
calculated as provided in the Declaration.
Except as otherwise described below, distributions on the
Common Securities will be cumulative, will accrue from __________ and will be
payable quarterly in arrears, on ________ 1, __________ 1, __________ 1, and
_________ 1 of each year, commencing on __________ 1, 1997, to Holders of
record on _________ 15, _________ 15, _________ 15 or __________ 15, as the
case may be. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall end on a day other
than an interest payment date for the Debentures or shall extend beyond the
date of the maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Distribution Rate compounded quarterly
during any such Extension Period. At the end of the Extension Period, all
accrued and unpaid Distributions (but only to the extent payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity date of the Debentures.
Upon the termination of any Extension Period and the payment of all amounts
then due, the Debenture Issuer may commence a new Extension Period, subject to
the above requirements.
Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies
of the Federal Reserve, the Regular Trustees shall have the right at any time
to liquidate the Trust and
A2-3
<PAGE> 99
cause the Debentures to be distributed to the holders of the Securities in
liquidation of the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-4
<PAGE> 1
EXHIBIT 4.4
================================================================================
SUNTRUST BANKS, INC.
------------------------------
------------------------------
INDENTURE
DATED AS OF , 1997
-----------
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
AS DEBT TRUSTEE
------------------------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of __________, 1997 between SunTrust Banks, Inc. and The First National Bank of
Chicago, as Debt Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10, 6.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01, 4.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03, 3.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Definitive Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Other Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Office of the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SunTrust Capital Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.02. Business Day Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02 Form of Debt Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.03 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.04 Denomination of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.05. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06. Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. Replacement Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09. Temporary Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . 16
SECTION 3.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.03. Appointments to Fill Vacancies in Debt Trustee's Office . . . . . . . . . . . . . . . . . . . 17
SECTION 3.04. Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05. Certificate to Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.06. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE DEBT TRUSTEE . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.01. Holders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.04. Reports by the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.03. Application of Moneys Collected by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.04. Proceedings by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.05. Proceedings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.06. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.07. Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . . . . . 30
SECTION 5.09. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.10. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
CONCERNING THE DEBT TRUSTEE . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.01. Duties and Responsibilities of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03. No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.04. Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.06. Compensation and Expenses of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence . . . . . . . . . . . . . . . . . . 37
SECTION 6.08. Conflicting Interest of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.09. Eligibility of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.10. Resignation or Removal of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.11. Acceptance by Successor Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.12. Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.13. Limitation on Rights of Debt Trustee as a Creditor . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII
CONCERNING THE HOLDERS . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.01. Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.02. Proof of Execution by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . 45
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SECTION 7.05. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.02. Call of Meetings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures . . . . . . . . . . . 52
SECTION 9.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Debt Trustee . . . . . . 53
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . . . . . 53
SECTION 10.01. Company May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.02. Successor Corporation to be Substituted for Company . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.03. Opinion of Counsel to be Given Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . 55
SECTION 11.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee . . . . 55
SECTION 11.03. Paying Agent to Repay Moneys Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . . . . . . 56
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . . 58
ARTICLE XIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.01. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.02. Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.03. Surrender of Company Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.04. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.06. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.07. Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.08. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.09. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.11. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.12. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.02. Notice of Redemption; Selection of Debt Securities . . . . . . . . . . . . . . . . . . . . . 62
SECTION 14.03. Payment of Debt Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.02. Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 15.04. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 15.05. Debt Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.06. Notice by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.07. Rights of the Debt Trustee; Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 69
SECTION 15.08. Subordination May Not Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
v
<PAGE> 8
THIS INDENTURE, dated as of __________, 1997, between SunTrust
Banks, Inc., a Georgia corporation (the "Company"), and The First National Bank
of Chicago, a national banking association, as trustee (the "Debt Trustee"),
WITNESSETH:
In consideration of the premises, and the purchase of the Debt
Securities by the Holders thereof, the Company covenants and agrees with the
Debt Trustee for the equal and proportionate benefit of the respective Holders
from time to time of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture shall have the respective meanings specified in this
Section 1.01. All other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which
are by reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally
executed. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. Headings are used for convenience of
reference only and do not affect interpretation. The singular includes the
plural and vice versa.
"Affiliate" shall have the meaning given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents of the
Debt Trustee which at the time shall be appointed and acting pursuant to
Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar Federal or State law for the relief of debtors.
<PAGE> 9
"Board of Directors" shall mean either the Board of Directors
of the Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Debt Trustee.
"Business Day" means a day other than (a) a day on which
banking institutions in New York, New York or Chicago, Illinois are authorized
or required by law or executive order to remain closed or (b) a day on which
the Corporate Trust Office of the Debt Trustee is closed for business.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" shall mean the common beneficial ownership
interests in the assets of the applicable SunTrust Capital Trust.
"Common Stock" shall mean the Common Stock, par value $1.00
per share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean SunTrust Banks, Inc., a Georgia
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a written
request or order signed in the name of the Company by the Chairman, the Chief
Executive Officer, the President, a Vice Chairman, a Vice President, the
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Debt Trustee.
"Corporate Trust Office" means, when used with respect to the
Debt Trustee, the Principal Office of the Debt Trustee.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
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<PAGE> 10
"Debt Security" or "Debt Securities" means any Debt Security
or Debt Securities, as the case may be, authenticated and delivered under this
Indenture.
"Debt Trustee" shall mean the Person identified as "Debt
Trustee" in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person acting as Debt Trustee hereunder. The term "Debt
Trustee" as used with respect to a particular series of the Debt Securities
shall mean the trustee with respect to that series.
"Declaration" shall mean, with respect to a SunTrust Capital
Trust, the Declaration of Trust, as amended, of such SunTrust Capital Trust.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set forth in
Section 2.11.
"Definitive Debt Securities" shall mean those securities
issued in fully registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Debt Securities,
The Depository Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, as designated by the Company.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Federal Reserve" shall mean the Board of Governors of the
Federal Reserve System.
"Global Debt Security" shall mean, with respect to any series
of Debt Securities, a Debt Security executed by the Company and delivered by
the Debt Trustee to the Depositary or pursuant to the Depositary's instruction,
all in accordance with this Indenture, which shall be registered in the name of
the Depositary or its nominee.
3
<PAGE> 11
"Holder" shall mean any Person in whose name at the time a
particular Debt Security is registered on the Security Register kept by the
Company or the Debt Trustee for that purpose in accordance with the terms
hereof.
"Indebtedness" shall mean (i) every obligation of the Company
for money borrowed; (ii) every obligation of the Company evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of
the Company; (iv) every obligation of the Company issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Company; (vi) every obligation of the
Company for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
other similar arrangements; and (vii) every obligation of the type referred to
in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Institutional Trustee" shall mean, with respect to a SunTrust
Capital Trust, the trustee acting as such Institutional Trustee under the
Declaration of such SunTrust Capital Trust.
"Interest Payment Date" means, when used with respect to any
series of Debt Securities, the Stated Maturity of an installment of interest on
such Debt Securities.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officer" shall mean any of the Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Financial Officer, the
Secretary or an Assistant Secretary of the Company.
"Officer's Certificate" shall mean a certificate signed by an
Officer and delivered to the Debt Trustee. Each such certificate shall include
the statements provided for in Section 13.06 if and to the extent required by
the provisions thereof.
4
<PAGE> 12
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be an employee of the Company, and who shall be reasonably acceptable
to the Debt Trustee. Each such opinion shall include the statements provided
for in Section 13.06 if and to the extent required by the provisions thereof.
"Other Debt Securities" means all junior subordinated debt
securities issued by the Company from time to time under the Indenture.
The term "outstanding" when used with reference to the Debt
Securities, shall mean, subject to the provisions of Section 7.04, as of any
particular time, all Debt Securities authenticated and delivered by the Debt
Trustee or the Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the Debt
Trustee or the Authenticating Agent or delivered to
the Debt Trustee for cancellation or that have
previously been cancelled;
(b) Debt Securities, or portions thereof, for the payment
or prepayment or redemption of which mon- eys in the
necessary amount shall have been deposited in trust
with the Debt Trustee or with any paying agent (other
than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that, if
such Debt Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such
redemption shall have been given as set forth in
Article XIV or provision satisfactory to the Debt
Trustee shall have been made for giving such notice;
and
(c) Debt Securities in lieu of or in substitution for
which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.08 unless proof satisfactory to the Company
and the Debt Trustee is presented that any such Debt
Securities are held by bona fide holders in due
course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
and as that evidenced by such particular
5
<PAGE> 13
Debt Security; and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Debt Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debt Security.
"Preferred Securities" shall mean the preferred beneficial
ownership interests in the assets of the applicable SunTrust Capital Trust.
"Principal Office of the Debt Trustee", or other similar term,
shall mean the office or offices of the Debt Trustee, at which at any
particular time its corporate trust business shall be administered, and which
at the date hereof are located at c/o First Chicago Trust Company of New York,
14 Wall Street, 8th Floor - Window 2, New York, New York 10005.
"Responsible Officer" shall mean any officer of the Debt
Trustee's Corporate Trust Administration department with direct responsibility
for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Security Register" shall mean the list of Holders provided to
the Debt Trustee pursuant to Section 4.01, or any security register maintained
by a security registrar for the Debt Securities appointed by the Company
following the execution of a supplemental indenture providing for transfer
procedures as provided for in Section 2.06(a).
"Senior Indebtedness" shall mean the principal of, premium, if
any, and interest on, all Indebtedness, whether outstanding on the date of
execution of this Indenture or hereafter created, assumed or incurred, except
Indebtedness that by its terms is expressly stated to be not superior in right
of payment to the Debt Securities or to rank pari passu with the Debt
Securities, and any deferrals, renewals or extensions of such Senior
Indebtedness.
"Stated Maturity" means, when used with respect to any Debt
Security, or any installment of principal thereof or interest thereon, the date
specified in such Debt Security as the fixed date on which principal of such
Debt Security, or such installment of principal or interest, is due and
payable.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting
6
<PAGE> 14
stock of which is owned, directly or indirectly, by such Person or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar entity, at
least a majority of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner. For the purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"SunTrust Capital Trust" shall mean each of SunTrust Capital I
and SunTrust Capital II, each a Delaware statutory business trust, or any other
similar trust created for the purpose of issuing Trust Securities in connection
with the issuance of Debt Securities under this Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended from time to time.
"Trust Securities" shall mean the Common Securities and
Preferred Securities of the applicable SunTrust Capital Trust.
"U.S. Government Obligations" shall mean securities that are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case under clauses (i) or (ii) are not callable or prepayable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
7
<PAGE> 15
SECTION 1.02. Business Day Certificate.
On the date of execution and delivery of this Indenture (with
respect to the remainder of calendar year 1997) and thereafter, within 15 days
prior to the end of each calendar year while this Indenture remains in effect
(with respect to the succeeding calendar years), the Company shall deliver to
the Debt Trustee an Officer's Certificate specifying the days on which banking
institutions or trust companies in New York, New York or Chicago, Illinois are
authorized or obligated by law or executive order to be closed.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution and as
set forth in an Officer's Certificate of the Company or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02 Form of Debt Trustee's Certificate of
Authentication.
The Debt Trustee's Certificate of Authentication on all Debt
Securities shall be in substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
8
<PAGE> 16
The First National Bank of Chicago,
as Debt Trustee
By:
-------------------------------------
Authorized Officer
SECTION 2.03 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of securities of that series from time to time authorized by or pursuant
to a Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Debt Securities of any
series, there shall be established in or pursuant to a Board Resolution of the
Company and set forth in an Officer's Certificate of the Company or established
in one or more indentures supplemental:
(i) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt Securities);
(ii) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant hereto);
(iii) the date of dates on which the principal of and premium, if
any, on the Debt Securities of the series is payable;
(iv) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable or the manner of
determination of such Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(v) the place or places where the principal of, premium, if any,
and any interest on Debt Securities of the series shall be payable;
(vi) the right, if any, to extend the interest payment periods and
the duration of such extension;
9
<PAGE> 17
(vii) the price or prices at which, the period or periods within
which, the event or events giving rise to, and the terms and conditions upon
which Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company, pursuant to any sinking fund or otherwise;
(viii) the obligation, if any, of the Company to redeem or purchase
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, and the period or periods within which, and the terms and conditions
upon which, Debt Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(ix) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the series
shall be issuable;
(x) any Events of Default with respect to the Debt Securities of a
particular series, if not set forth herein;
(xi) the form of the Debt Securities of the series including the
form of the Certificate of Authentication of such series;
(xii) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debt Securities of such
series;
(xiii) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Debt Securities and, in such
case, the Depositary for such Global Debt Security or Global Debt Securities,
and whether beneficial owners of interests in any such Global Debt Securities
may exchange such interests for other Debt Securities of such series in the
manner provided in Section 2.07, and the manner and the circumstances under
which and the place or places where any such exchanges may occur if other than
in the manner provided in Section 2.07, and any other terms of the series
relating to the global nature of the Global Debt Securities of such series and
the exchange, registration or transfer thereof and the payment of any
principal, premium, if any, or interest thereon; and
(xiv) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a
10
<PAGE> 18
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Debt
Trustee at or prior to the delivery of the Officer's Certificate of the Company
setting forth the terms of the series.
SECTION 2.04 Denomination of Debt Securities.
The Debt Securities of each series shall be issuable as registered
Debt Securities without coupons and in such denominations as shall be specified
as contemplated by Section 2.03. Subject to Section 2.03(ix), the Debt
Securities of such series shall be issuable in the denominations of $1,000 and
any integral multiple thereof. The Debt Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as the officers of the Company executing the same may determine with the
approval of the Debt Trustee as evidenced by the execution and authentication
thereof.
SECTION 2.05. Execution and Authentication.
Two Officers shall sign the Debt Securities for the Company by
manual or facsimile signature. If an Officer whose signature is on a Debt
Security no longer holds that office at the time the Debt Security is
authenticated, the Debt Security shall nevertheless be valid.
A Debt Security shall not be valid until authenticated by the
manual signature of the Debt Trustee. The signature of the Debt Trustee shall
be conclusive evidence that the Debt Security has been authenticated under this
Indenture. The form of Debt Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as set forth in Exhibit A
hereto.
SECTION 2.06. Global Debt Security.
(a) A Global Debt Security with respect to any series 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.
(b) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or the Depositary has
ceased to be a clearing agency registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case
may be, the Company will execute, and the Debt Trustee, upon receipt of a
Company Order, will authenticate and make available for delivery the Definitive
Debt Securities, in authorized denominations, and
11
<PAGE> 19
in an aggregate principal amount equal to the principal amount of the Global
Debt Security, in exchange for such Global Debt Security. If there is an Event
of Default, the Depositary shall have the right to exchange the Global Debt
Securities for Definitive Debt Securities. In addition, the Company may at any
time determine that the Debt Securities of any series shall no longer be
represented by a Global Debt Security. In the event of such an Event of
Default or such a determination, the Company shall execute, and subject to
Section 2.06, the Debt Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company and a Company Order, will
authenticate and make available for delivery the Definitive Debt Securities of
such series, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debt Security in exchange for such
Global Debt Security. Upon the exchange of the Global Debt Security for such
Definitive Debt Securities, in authorized denominations, the Global Debt
Security shall be cancelled by the Debt Trustee. Such Definitive Debt
Securities issued in exchange for the Global Debt Security shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Debt Trustee. The Debt Trustee shall deliver such Definitive Debt
Securities to the Depositary for delivery to the Persons in whose names such
Definitive Debt Securities are so registered.
SECTION 2.07. Transfer and Exchange.
To permit registrations of transfers and exchanges, the
Company shall execute and the Debt Trustee shall authenticate Definitive Debt
Securities and Global Debt Securities at the request of the Security Registrar.
All Definitive Debt Securities and Global Debt Securities issued upon any
registration of transfer or exchange of Definitive Debt Securities or Global
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Debt Securities or Global Debt Securities surrendered upon such
registration of transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
The Company shall not be required to (i) issue, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
prepayment or any notice of selection of Debt Securities of such series for
prepayment under Article XIV hereof and ending at the close of business on the
day of such mailing; or (ii) register the transfer of or
12
<PAGE> 20
exchange any Debt Security of such series so selected for prepayment in whole
or in part, except the unredeemed portion of any Debt Security being prepaid in
part.
Prior to due presentment for the registration of a transfer of
any Debt Security, the Debt Trustee, the Company and any agent of the Debt
Trustee or the Company may deem and treat the Person in whose name any Debt
Security is registered as the absolute owner of such Debt Security for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Debt Securities, and none of the Debt Trustee, the Company and any agents
of the Debt Trustee or the Company shall be affected by notice to the contrary.
SECTION 2.08. Replacement Debt Securities.
If any mutilated Debt Security is surrendered to the Debt
Trustee, or the Company and the Debt Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security, and there
is delivered to the Company and the Debt Trustee such security or indemnity as
may be required by each of them to save each of them harmless, then the Company
shall issue and the Debt Trustee shall authenticate a replacement Debt Security
if the Debt Trustee's requirements for replacements of Debt Securities are met.
An indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Debt Trustee and the Company to protect the Company,
the Debt Trustee, any agent thereof or any authenticating agent from any loss
that any of them may suffer if a Debt Security is replaced. The Company or the
Debt Trustee may charge for its expenses in replacing a Debt Security.
Every replacement Debt Security is an obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Debt Securities duly issued hereunder.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of Definitive Debt Securities of any
series, the Company may execute, and upon receipt of a Company Order the Debt
Trustee shall authenticate and make available for delivery, temporary Debt
Securities of such series that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the Definitive Debt Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Debt Securities may
determine, as conclusively evidenced by their execution of such Debt
Securities.
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If temporary Debt Securities of any series are issued, the
Company shall cause Definitive Debt Securities to be prepared without
unreasonable delay. The Definitive Debt Securities of such series shall be
printed, lithographed or engraved, or provided by any combination thereof, or
in any other manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the officers executing such
Definitive Debt Securities. After the preparation of Definitive Debt
Securities of such series, the temporary Debt Securities of such series shall
be exchangeable for Definitive Debt Securities upon surrender of such temporary
Debt Securities at the office or agency maintained by the Company for such
purpose pursuant to Section 3.02 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute, and the Debt Trustee shall authenticate and
make available for delivery, in exchange therefor the same aggregate principal
amount of Definitive Debt Securities of such series of authorized
denominations. Until so exchanged, the temporary Debt Securities shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Debt Securities.
SECTION 2.10. Cancellation.
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Debt Trustee, be delivered to the Debt
Trustee. All Debt Securities so delivered or surrendered directly to the Debt
Trustee for any such purpose shall be promptly cancelled by it. The Company
may at any time, deliver to the Debt Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder that the Company
may have acquired in any manner whatsoever, and all Debt Securities so
delivered shall be promptly cancelled by the Debt Trustee. No Debt Security
shall be authenticated in lieu of or in exchange for any Debt Security
cancelled as provided in this Section, except as expressly permitted by this
Indenture or such Debt Securities. All cancelled Debt Securities or coupons
held by the Debt Trustee shall be disposed of by the Debt Trustee in accordance
with its customary procedures and the Debt Trustee shall deliver a certificate
of such disposition to the Company. The Company may not issue new Debt
Securities to replace Debt Securities that have been prepaid or paid or that
have been delivered to the Debt Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant regular record
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date by virtue of having been such Holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (a) or clause (b)
below:
(a) The Company may make payment of any Defaulted Interest on
Debt Securities of any series to the Persons in whose names such Debt
Securities (or their respective Predecessor Debt Securities) are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Debt Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Debt Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Debt Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Debt Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Debt
Trustee of the notice of the proposed payment. The Debt Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Holder at his or her address as it appears in the Security Register,
not less than 10 days prior to such special record date. Notice of
the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Debt Securities (or
their respective Predecessor Debt Securities) are registered on such
special record date and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on
any Debt Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Debt
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Debt
Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Debt Trustee.
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SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Debt Trustee shall use
"CUSIP" numbers in notices of prepayment as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a prepayment and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
prepayment shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Debt Trustee of any change in the CUSIP
numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities that it will duly and punctually pay or cause to be
paid the principal of, premium, if any, and interest on the Debt Securities of
such series at the place, at the respective times and in the manner provided
herein and established with respect to such Debt Securities. Except as may be
provided in a supplemental indenture hereto with respect to any series of Debt
Securities, each installment of interest on such Debt Securities may be paid by
mailing checks for such interest payable to the order of the Holder entitled
thereto as they appear in the Security Register.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any Debt Securities of any series remain
outstanding, the Company will maintain (or cause to be maintained) in New York,
New York an office or agency where the Debt Securities of such series may be
presented for payment, an office or agency where the Debt Securities of such
series may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or
upon the Company in respect of the Debt Securities of such series or of this
Indenture may be served. The Company will give to the Debt Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company
in a notice to the Debt Trustee, any such office or agency for all of the above
purposes shall be the Principal Office of the Debt Trustee. In case the
Company shall fail to maintain any such office or agency in New York, New York,
or shall fail to give
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such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Principal Office of the Debt Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside New York, New
York, where the Debt Securities may be presented for payment, registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain any such office or agency in New York, New York, for the purposes
above mentioned. The Company will give to the Debt Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Debt
Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Debt Trustee, will appoint, in the manner provided in Section
6.10, a Debt Trustee, so that there shall at all times be a Debt Trustee
hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Debt Trustee with respect to the Debt
Securities of any series, it will cause such paying
agent to execute and deliver to the Debt Trustee an
instrument in which such agent shall agree with the
Debt Trustee, subject to the provision of this
Section 3.04,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of,
premium, if any, or interest on the Debt
Securities of such series (whether such sums
have been paid to it by the Company or by any
other obligor on the Debt Securities) in
trust for the benefit of the Holders thereof;
and
(2) that it will give the Debt Trustee notice of
any failure by the Company (or by any other
obligor on the Debt Securities of such
series) to make any payment of the principal
of, premium, if any, or interest on the Debt
Securities of such series when the same shall
be due and payable.
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(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal of,
premium, if any, or interest on the Debt Securities
of any series, set aside, segregate and hold in trust
for the benefit of the Holders a sum sufficient to
pay such principal, premium or interest so becoming
due and will notify the Debt Trustee of any failure
to take such action and of any failure by the Company
(or by any other obligor under the Debt Securities)
to make any payment of the principal of, premium, if
any, or interest on the Debt Securities of such
series when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and discharge
with respect to the Debt Securities of any series
hereunder, or for any other reason, pay or cause to
be paid to the Debt Trustee all sums held in trust
for such Debt Securities by the Debt Trustee or any
paying agent hereunder, as required by this Section
3.04, such sums to be held by the Debt Trustee upon
the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust
as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Debt Trustee.
The Company will deliver to the Debt Trustee on or before 120
days after the end of each fiscal year of the Company, so long as Debt
Securities of any series are outstanding hereunder, an Officer's Certificate,
one of the signers of which shall be the principal executive, principal
financial or principal accounting officer of the Company, stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof. For purposes of this
Section 3.05, default shall be determined without regard to any period of grace
or requirement of notice provided for herein.
SECTION 3.06. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Debt Trustee, unless otherwise stated, the
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Company shall pay to the Debt Trustee all amounts accrued and owing to the date
of such termination, removal or resignation.
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE DEBT TRUSTEE
SECTION 4.01. Holders' Lists.
So long as Debt Securities of any series are outstanding
hereunder, the Company covenants and agrees that it will furnish or cause to be
furnished to the Debt Trustee:
(a) on a semi-annual basis on each alternating regular
record date for the Debt Securities of such series a
list, in such form as the Debt Trustee may reasonably
require, of the names and addresses of the Holders as
of such record date; and
(b) at such other times as the Debt Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form
and content as of a date not more than 15 days prior
to the time such list is furnished, except that no
such lists need be furnished so long as the Debt
Trustee is in possession thereof by reason of its
acting as registrar for the Debt Securities.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Debt Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to
the names and addresses of the Holders (1) contained
in the most recent list furnished to it as provided
in Section 4.01 or (2) received by it in the capacity
of registrar for the Debt Securities of such series
(if so acting) hereunder. The Debt Trustee may
destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more Holders (hereinafter referred
to as "applicants") apply in writing to the Debt
Trustee and furnish to the Debt Trustee reasonable
proof that each such applicant has owned a Debt
Security for a period of at least six months
preceding the date of such application, and such
application states that the applicants desire to
communicate with other Holders or with Holders of
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all Debt Securities of such series with respect to
their rights under this Indenture and is accompanied
by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the
Debt Trustee shall within 5 Business Days after the
receipt of such application, at its election, either:
(1) afford such applicants access to the
information preserved at the time by
the Debt Trustee in accordance with
the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the
approximate number of Holders of all
Debt Securities of such series,
whose names and addresses appear in
the information preserved at the
time by the Debt Trustee in
accordance with the provisions of
subsection (a) of this Section 4.02,
and as to the approximate cost of
mailing to such Holders the form of
proxy or other communication, if
any, specified in such application.
If the Debt Trustee shall elect not to afford
such applicants access to such information, the Debt
Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and
address appear in the information preserved at the
time by the Debt Trustee in accordance with the
provisions of subsection (a) of this Section 4.02, a
copy of the form of proxy or other communication
which is specified in such request with reasonable
promptness after a tender to the Debt Trustee of the
material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of
mailing, unless within five Business Days after such
tender, the Debt Trustee shall mail to such
applicants and file with the Commission, together
with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the
Debt Trustee, such mailing would be contrary to the
best interests of the Holders of such series of Debt
Securities or all Debt Securities of such series, as
the case may be, or would be in violation of
applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections
specified in the written statement so filed, shall
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enter an order refusing to sustain any of such
objections or if, after the entry of an order
sustaining one or more of such objections, the
Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained
have been met and shall enter an order so declaring,
the Debt Trustee shall mail copies of such material
to all such Holders with reasonable promptness after
the entry of such order and the renewal of such
tender; otherwise the Debt Trustee shall be relieved
of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder, by receiving and holding Debt
Securities, agrees with the Company and the Debt
Trustee that neither the Company nor the Debt Trustee
nor any paying agent shall be held accountable by
reason of the disclosure of any such information as
to the names and addresses of the Holders in
accordance with the provisions of subsection (b) of
this Section 4.02, regardless of the source from
which such information was derived, and that the Debt
Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03. Reports by the Company.
So long as Debt Securities of any series are outstanding
hereunder:
(a) The Company covenants and agrees to file with the
Debt Trustee, within 15 days after the date on which
the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies
of such portions of any of the foregoing as said
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information,
documents or reports pursuant to either of such
sections, then to provide to the Debt Trustee, such
of the supplementary and periodic information,
documents and reports which would have been required
pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national
securities exchange as may be prescribed from time to
time in such rules and regulations.
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(b) The Company covenants and agrees to file with the
Debt Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to
time by said Commission, such additional information,
documents and reports with respect to compliance by
the Company with the conditions and covenants
provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail
to all Holders, as the names and addresses of such
Holders appear upon the Security Register, within 30
days after the filing thereof with the Debt Trustee,
such summaries of any information, documents and
reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 4.03 as
may be required by rules and regulations prescribed
from time to time by the Commission.
(d) Delivery of such reports, information and documents
to the Debt Trustee is for informational purposes
only and the Debt Trustee's receipt of such shall not
constitute constructive notice of any information
contained therein or determinable from information
contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the
Debt Trustee is entitled to rely exclusively on
Officer's Certificates).
SECTION 4.04. Reports by the Debt Trustee.
So long as Debt Securities of any series are outstanding
hereunder:
(a) The Debt Trustee shall transmit to Holders such
reports concerning the Debt Trustee and its ac- tions
under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Debt
Trustee shall, within sixty days after each December
31, commencing December 31, 1997, deliver to Holders
a brief report, dated as of such December 31, which
complies with the provisions of Section 313(a) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Debt
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Trustee with each stock exchange, if any, upon which
the Debt Securities are listed, with the Commission
and with the Company. The Company will promptly
notify the Debt Trustee when the Debt Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder with respect to Debt Securities of a
particular series (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular series or specifically deleted or modified in a
supplemental indenture (or Board Resolution) under which such series of Debt
Securities is issued or in the form of Debt Securities for such series:
(a) default in the payment of any interest on the Debt
Securities of that series or any Other Debt
Securities when due, and continuance of such default
for a period of 30 days; provided, however
, that a valid extension of an interest payment
period by the Company in accordance with the terms
hereof shall not constitute a default in the payment
of interest for this purpose; or
(b) default in the payment of any principal of or
premium, if any, on the Debt Securities of that
series or any Other Debt Securities when due whether
at maturity, upon prepayment, by declaration of
acceleration of maturity or otherwise; or
(c) default in the performance, or breach, of any
covenant or warranty of the Company with respect to
that series contained in such Debt Securities or
otherwise established with respect to that series of
Debt Securities pursuant to Section 2.01 or contained
in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with and
other than a covenant or warranty set forth in terms
of any particular series of Debt Securities
established or contem-
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plated in this Indenture), and continuance of such
default or breach for a period of 90 days after there
has been given, by registered or certified mail, to
the Company by the Debt Trustee or to the Company and
the Debt Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Debt
Securities a written notice specifying such default
or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the
Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or
for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case
under any such law, or shall consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the
Company or of any substantial part of its property,
or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its
debts as they become due.
If an Event of Default with respect to Debt Securities of a
particular series at the time outstanding occurs and is continuing, then in
every such case the Debt Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding may declare the principal amount of all Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Debt Trustee if given by the Holders of the outstanding Debt
Securities of such series), and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the Debt Securities of a
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the
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moneys due shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Debt Trustee a sum sufficient to
pay (A) all matured installments of interest upon all the Debt Securities of
that series and the principal of and premium, if any, on any and all Debt
Securities of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
specified in the Debt Securities of such series to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover compensation due
to the Debt Trustee and each predecessor Debt Trustee, their respective agents,
attorneys and counsel, pursuant to Section 6.06, and (ii) any and all Events of
Default under this Indenture, other than the non-payment of the principal of
the Debt Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the Holders of a
majority in aggregate principal amount of the Debt Securities of that series
then outstanding, by written notice to the Company and to the Debt Trustee, may
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Debt Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Debt Trustee, then and in every
such case the Company, the Debt Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Debt Trustee and the Holders shall
continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default;
Suit Therefor.
The Company covenants that (a) in case default shall be made
in the payment of any installment of interest upon any of the Debt Securities
of a series as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the Debt
Securities of a series as and when the same shall have become due and payable,
whether at maturity of the Debt Securities of such series or upon prepayment or
by declaration or otherwise, then, upon demand of the Debt Trustee, the Company
will pay to the Debt Trustee, for the benefit of the Holders, the whole amount
that then shall have become due and payable on all
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such Debt Securities of such series for principal of, premium, if any, or
interest or both, as the case may be, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities of such series are
held by the Trust or a trustee of such trust, without duplication of any other
amounts paid by the Trust or a trustee in respect thereof) upon the overdue
installments of interest at the rate borne by the Debt Securities of such
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including a reasonable compensation
to the Debt Trustee, its agents, attorneys and counsel, and any other amount
due to the Debt Trustee pursuant to Section 6.06.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Debt Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on the Debt Securities of such series and collect in the
manner provided by law out of the property of the Company or any other obligor
on the Debt Securities of such series, wherever situated, the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Debt
Securities of any series under Title 11, United States Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities of such series, or to the creditors or property of the Company
or such other obligor, the Debt Trustee, irrespective of whether the principal
of the Debt Securities of a series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Debt
Trustee shall have made any demand pursuant to the provisions of this Section
5.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debt Securities of
such series and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Debt Trustee (including any claim for amounts due to
the Debt Trustee pursuant to 6.06) and of the Holders allowed in such judicial
proceedings relative to the Company or any other obligor on the Debt
Securities, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and
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regulations, to vote on behalf of the Holders in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders to
make such payments to the Debt Trustee, and, in the event that the Debt Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Debt Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Debt Trustee, each predecessor Debt Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the Debt
Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to authorize the
Debt Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Debt Securities of any series or the rights of any Holder or to
authorize the Debt Trustee to vote in respect of the claim of any Holder in any
such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities of any series, may be prosecuted
and enforced by the Debt Trustee without the possession of any of the Debt
Securities of such series, or the production thereof on any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Debt Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Debt Securities of such series.
In any proceedings brought by the Debt Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Debt Trustee shall be a party) the Debt Trustee shall be held to
represent all the Holders, and it shall not be necessary to make any Holders
parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Debt
Trustee.
Any moneys collected by the Debt Trustee shall be applied in
the following order, at the date or dates fixed by the Debt Trustee for the
distribution of such moneys, upon presentation of the Debt Securities of the
series in respect of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
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First: To the payment of costs and expenses of collection
applicable to the Debt Securities of such series and all other amounts due to
the Debt Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XV;
Third: In case the principal of the outstanding Debt
Securities of such series in respect of which moneys have been collected shall
not have become due and be unpaid, to the payment of the amounts then due and
unpaid upon Debt Securities of such series for principal of, premium, if any,
and interest on the Debt Securities of such series, in respect of which or for
the benefit of which money has been collected, ratably, without preference of
priority of any kind, according to the amounts due on the Debt Securities of
such series for principal, premium, if any, and interest, respectively; and
Fourth: To the Person or Persons entitled thereto.
SECTION 5.04. Proceedings by Holders.
No Holder of Debt Securities of any series shall have any
right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such Holder previously shall have
given to the Debt Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided, (ii) the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of such
series then outstanding shall have made written request upon the Debt Trustee
to institute such action, suit or proceeding in its own name as Debt Trustee
hereunder and shall have offered to the Debt Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby, (iii) the Debt Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action, suit or proceeding, and (iv) no direction inconsistent with such
written request has been given to the Debt Trustee during such 60-day period by
the Holders of a majority in principal amount of the outstanding Debt
Securities of such series, it being understood and intended, and being
expressly covenanted by the taker and Holder of every Debt Security of such
series with every other taker and Holder and the Debt Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture,
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except in the manner herein provided and for the equal, ratable and common
benefit of all Holders.
Notwithstanding any other provisions in this Indenture,
however, the right of any Holder to receive payment of the principal of,
premium, if any, and interest on such Debt Security of such series, on or after
the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.05. Proceedings by Debt Trustee.
In case an Event of Default occurs with respect to Debt
Securities of any series and is continuing, the Debt Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Debt Trustee shall
deem most effectual to protect and enforce any of such rights, either by suit
in equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Debt
Trustee by this Indenture or by law.
SECTION 5.06. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Debt Securities of any series or the property of the Company or of such
other obligor or their creditors, the Debt Trustee (irrespective of whether the
principal of any such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Debt
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect
of such Debt Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Debt
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Debt Trustee, its agents
and counsel and any other amounts due the Debt Trustee under Section
6.06) and of the Holders allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Debt Trustee, and in the event that the Debt Trustee
shall consent to the making of such payments directly to the Holders of such
Debt Securities, to pay to the Debt Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Debt
Trustee, its agents and counsel, and any other amounts due the Debt Trustee
under Section 6.06.
Nothing herein contained shall be deemed to authorize the Debt
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities of any series or the rights of any Holder thereof, or to
authorize the Debt Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.07. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Debt
Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the
Debt Trustee or the Holders, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Debt Securities of any
series, and no delay or omission of the Debt Trustee or of any Holder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Debt Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Debt Trustee or
by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of
Defaults by Majority of Holders.
Subject to the provisions of any supplemental indenture
hereto, the Holders of a majority in aggregate principal amount of the Debt
Securities of any series 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
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Section 6.01) 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 of Debt Securities of such series
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 of any series, the
Holders of a majority in aggregate principal amount of the Debt Securities of
such series at the time outstanding may on behalf of the Holders of all of the
Debt Securities of such series 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 of such series (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 Debt Security affected. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Debt Trustee and the Holders of Debt Securities of such
series 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 this Section 5.08,
said default or Event of Default shall for all purposes of such series of Debt
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.09. Notice of Defaults.
(a) The Debt Trustee, within 90 days after the occurrence of
a Default with respect to a series of Debt Securities known to the Debt
Trustee, shall mail to all Holders, as the names and addresses of such Holders
appear upon the Security Register, notice of all Defaults known to the Debt
Trustee, unless such Default shall have been cured before the giving of such
notice (the term "Default" for the purpose of this Section 5.09 being hereby
defined to be any of the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.01, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.01); and provided that, except in the case of default in the payment
of the principal of, premium, if any, or interest on any series of Debt
Securities, the Debt Trustee shall be pro-
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tected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or Responsible
Officers of the Debt Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders thereof; and provided further,
that in the case of any default of the character specified in Section 5.01(c),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof.
(b) Within five Business Days after the occurrence of any
Event of Default known to the Debt Trustee, the Debt Trustee shall transmit
notice of such Event of Default to all Holders of the affected series of Debt
Securities as their names and addresses appear on the Security Register, unless
such Event of Default shall have been cured or waived.
SECTION 5.10. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder by his or
her acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Debt Trustee for any action
taken or omitted by it as Debt Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.10 shall not apply to any suit
instituted by the Debt Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal
amount of any series of Debt Securities outstanding, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of, premium,
if any, or interest on any such Debt Security against the Company on or after
the same shall have become due and payable.
ARTICLE VI
CONCERNING THE DEBT TRUSTEE
SECTION 6.01. Duties and Responsibilities of Debt
Trustee.
With respect to the Holders of Debt Securities of any series
issued hereunder, the Debt Trustee, prior to the occurrence of an Event of
Default with respect to such series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in
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this Indenture. In case any such Event of Default has occurred (which has not
been cured or waived), the Debt Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve
the Debt Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to any series of Debt Securities and after
the curing or waiving of all Events of Default with
respect to such series which may have occurred,
(1) the duties and obligations of the Debt
Trustee shall be determined solely by the
express provisions of this Indenture, and the
Debt Trustee shall not be liable except for
the performance of such duties and
obligations as are specifically set forth in
this Indenture; and
(2) in the absence of bad faith on the part of
the Debt Trustee, the Debt Trustee may con-
clusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Debt Trustee and conforming to the
requirements of this Indenture; but, in the
case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Debt Trustee, the Debt Trustee shall be under
a duty to examine the same to determine
whether or not they conform to the
requirements of this Indenture;
(b) the Debt Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Responsible Officers, unless it shall be proved
that the Debt Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Debt Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders
pursuant to Section 5.08, relating to the time,
method and place of conducting any pro-
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ceeding for any remedy available to the Debt Trustee,
or exercising any trust or power conferred upon the
Debt Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Debt Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Debt Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, note,
debenture or other paper or document believed by it
to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein may be sufficiently
evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be
evidenced to the Debt Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary
of the Company;
(c) the Debt Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall
be full and complete authorization and protection in
respect of any action taken or suffered omitted by it
hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Debt Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders of any series of Debt Securities,
pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Debt Trustee
reasonable and sufficient security or indemnity
against the costs, expenses and
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liabilities which may be incurred therein or thereby;
(e) the Debt Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by
it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
nothing contained herein shall, however, relieve the
Debt Trustee of the obligation, upon the occurrence
of an Event of Default (that has not been cured or
waived), to exercise such of the rights and powers
vested in it by this Indenture, and to use the same
degree of care and skill in their exercise, as a
prudent person would exercise or use under the
circumstances in the conduct of his or her own
affairs;
(f) the Debt Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount
of any outstanding series of Debt Securities;
provided, however, that if the payment within a
reasonable time to the Debt Trustee of the costs,
expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the
opinion of the Debt Trustee, not rea- sonably assured
to the Debt Trustee by the security afforded to it by
the terms of this Indenture, the Debt Trustee may
require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) the Debt Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Debt
Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or
attorney appointed by it with due care;
(h) the Debt Trustee shall not be charged with knowledge
of any Default or Event of Default with respect to a
series of Debt Securities unless (1) such default is
a default under Sections 5.01(a) and 5.01(b) of this
Indenture, (2) a Responsible Officer shall have
actual knowledge of such Default or Event of Default
or (3) written notice of such Default or Event of
Default shall have been given to the Debt Trustee by
the Company or any
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other obligor on the Debt Securities or by any
Holder; and
(i) the Debt Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith,
without negligence or wilful misconduct and believed
by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in any series of Debt
Securities (except in the certificate of authentication of the Debt Trustee or
the Authenticating Agent) shall be taken as the statements of the Company, and
the Debt Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Debt Trustee and the Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of any
series of Debt Securities. The Debt Trustee and the Authenticating Agent shall
not be accountable for the use or application by the Company of any Debt
Securities or the proceeds of any Debt Securities authenticated and delivered
by the Debt Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Debt Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May Own
Debt Securities.
The Debt Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any registrar for any series of Debt Securities,
in its individual or any other capacity, may become the owner or pledgee of
such Debt Securities with the same rights it would have if it were not Debt
Trustee, Authenticating Agent, paying agent, transfer agent or registrar for
any such Debt Securities.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Debt Trustee or any paying agent with respect to any series of
Debt Securities shall, until used or applied as herein provided, be held in
trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Debt Trustee and
any paying agent shall be under no liability with respect to any series of Debt
Securities for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company. So long as no Event of Default
with respect to any series of Debt Securities shall have occurred and be
continuing, all interest allowed on any such moneys relating to such series of
Debt
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Securities shall be paid from time to time upon the written order of the
Company, signed by the Chairman of the Board of Directors, the President or a
Vice President or the Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Debt Trustee.
The Company, as issuer of Debt Securities under this
Indenture, covenants and agrees to pay to the Debt Trustee from time to time,
and the Debt Trustee shall be entitled to, such compensation as shall be agreed
to in writing between the Company and the Debt Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and the Company will pay or reimburse the Debt Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Debt Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify each of the
Debt Trustee or any predecessor Debt Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any and all
loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Debt Trustee) incurred without negligence or bad
faith on the part of the Debt Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 6.06 to compensate and
indemnify the Debt Trustee and to pay or reimburse the Debt Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debt Securities of any series upon all property and funds held or
collected by the Debt Trustee as such, except funds held in trust for the
benefit of the Holders of particular Debt Securities of any series.
When the Debt Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or Section
5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation
or removal of the Debt Trustee and the defeasance or other termination of this
Indenture.
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SECTION 6.07. Officer's Certificate and Opinion of Counsel
as Evidence.
Upon any application or request by the Company to the Debt
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Debt Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need by furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Officer's
Certificate required by Section 3.05) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 6.08. Conflicting Interest of Debt Trustee.
If the Debt Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Debt Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Debt Trustee.
The Debt Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission authorized under
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such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000) and subject to
supervision or examination by Federal, State, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 6.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Debt Trustee.
In case at any time the Debt Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, the Debt
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10. Resignation or Removal of Debt Trustee.
(a) The Debt Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with
respect to one or more or all series of Debt
Securities by giving written notice of such
resignation to the Company and by mailing notice
thereof to the Holders of the affected series of Debt
Securities at their addresses as they shall appear on
the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the
applicable series by written instrument, in
duplicate, one copy of which instrument shall be
delivered to the resigning Debt Trustee and one copy
to the successor trustee. If no successor trustee
shall have been so appointed and shall have accepted
such appointment within 60 days after the mailing of
such notice of resignation to the affected Holders,
the resigning Debt Trustee may petition any court of
competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona
fide holder of a Debt Security of any affected series
for at least six months may, subject to the
provisions of Section 5.10, on behalf of himself and
all others similarly situated, petition any such
court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a
successor trustee.
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(b) In case at any time any of the following shall occur:
(1) the Debt Trustee shall fail to comply with
the provisions of Section 6.08 after written
request therefor by the Company or by any
Holder who has been a bona fide holder of a
Debt Security of any affected series for at
least six months, or
(2) the Debt Trustee shall cease to be eligible
in accordance with the provisions of Section
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Holder, or
(3) the Debt Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Debt Trustee
or of its property shall be appointed, or any
public officer shall take charge or control
of the Debt Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the
Debt Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the Debt Trustee so
removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.10, any Holder
who has been a bona fide holder of a Debt Security of
any affected series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Debt Trustee and the appointment of a
successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and
prescribe, remove the Debt Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Debt Securities of any series at the
time outstanding may at any time remove the Debt
Trustee with respect to that series and nominate a
successor trustee, which shall be deemed appointed as
successor trustee unless within 10 days after such
nomination the Company objects thereto, or if no
successor trustee shall have been so appointed and
shall have accepted appointment within 30 days after
such removal, in which case the Debt Trustee
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so removed or any Holder of a Debt Security of such
series, upon the terms and conditions and otherwise
as in subsection (a) of this Section 6.10 provided,
may petition any court of competent jurisdiction for
an appointment of a successor trustee.
(d) Any resignation or removal of the Debt Trustee and
appointment of a successor trustee pursuant to any of
the provisions of this Section 6.10 shall become
effective only upon the acceptance of such
appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11. Acceptance by Successor Debt Trustee.
Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring trustee
thereunder. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6.11, the Company shall mail notice of the succession
of such trustee hereunder to the Holders of the affected series of Debt
Securities at their addresses as they shall appear on the Security Register.
If the Company fails to mail such notice within 10 days after the acceptance of
appoint-
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ment by the successor trustee, the successor trustee shall cause such notice to
be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Debt Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Debt Trustee shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Debt Trustee, shall be the successor of the
Debt Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case, at the time such successor to the Debt Trustee shall
succeed to the trusts created by this Indenture, Debt Securities of any series
shall have been authenticated but not delivered, any such successor to the Debt
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Debt Securities so authenticated; and in case at that time any
Debt Securities of any series shall not have been authenticated, any successor
to the Debt Trustee may authenticate such Debt Securities either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which such Debt
Securities or this Indenture elsewhere provides that the certificate of
authentication of the Debt Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Debt
Trustee or authenticate Debt Securities in the name of any predecessor Debt
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.13. Limitation on Rights of Debt Trustee as a
Creditor.
The Debt Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Debt Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
required thereby.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents with respect to
a series of Debt Securities appointed by the Debt Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the
authentication and delivery of Debt Securities of any such series issued upon
exchange or transfer thereof as fully to all intents and purposes
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as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver such Debt Securities; provided, that the Debt Trustee
shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of Debt
Securities of any such series. Any such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States or of any State or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by Federal, State, territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14 without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Debt Trustee and to the Company. The Debt
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Debt Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating Agent eligible
under this Section 6.14, shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all Holders as the names
and addresses of such Holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein.
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The Company, as borrower, agrees to pay to any Authenticating
Agent from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the directions of the Debt Trustee.
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.
Whenever in this Indenture it is provided that the Holders of
a specified percentage in aggregate principal amount of the Debt Securities of
any series may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Holders in
person or by agent or proxy appointed in writing, or (b) by the record of such
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article VIII, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of such
Holders.
If the Company shall solicit from the Holders of Debt
Securities of any series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, as evidenced
by an Officer's Certificate, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding Debt
Securities of any series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Debt Securities of any such series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Holders of Debt Securities of any
such series on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
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SECTION 7.02. Proof of Execution by Holders.
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Holder or his or her agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Debt Trustee or in such manner as shall
be satisfactory to the Debt Trustee. The ownership of Debt Securities shall be
proved by the Security Register or by a certificate of the Security Registrar.
The Debt Trustee may require such additional proof of any matter referred to in
this Section as it shall deem necessary.
The record of any Holders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Debt Security of any series, the Company, the Debt Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any registrar for the Debt
Securities of any such series may deem the person in whose name such Debt
Security shall be registered upon the Security Register to be, and may treat
him as, the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to any applicable
provisions of any supplement hereto) interest on such Debt Security and for all
other purposes; and neither the Company nor the Debt Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any
registrar for the Debt Securities of any such series shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his or her order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the Holders of the requisite aggregate
principal amount of Debt Securities of any series have concurred in any
direction, consent or waiver under this Indenture, Debt Securities of such
series which are owned by the Company or any other obligor on the Debt
Securities of such series or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Debt Securities shall be disregarded and deemed not to
be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debt Trustee shall be protected in relying
on
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any such direction, consent or waiver, only Debt Securities which a Responsible
Officer of the Debt Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 7.04 if the
pledgee shall establish to the satisfaction of the Debt Trustee the pledgee's
right to vote such Debt Securities and that the pledgee is not the Company or
any such other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any such other obligor. In the case of a dispute as to such right, any
decision by the Debt Trustee taken upon the advice of counsel shall be full
protection to the Debt Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Debt Trustee, as provided in Section 7.01, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action, any
Holder (or Holder of any Debt Security issued in whole or in part in exchange
or substitution therefor), subject to Section 7.01, of a Debt Security the
serial number of which is shown by the evidence to be included in the group of
Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Debt Trustee at its principal office and upon
proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Debt Security (or so far as concerns the principal amount
represented by any exchanged or substituted Debt Security). Except as
aforesaid any such action taken by any Holder shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security,
and of any Debt Security issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Holders of Debt Securities of any series may be
called at any time and from time to time pursuant to the provisions of this
Article VIII for any of the following purposes:
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(a) to give any notice to the Company or to the Debt
Trustee, or to give any directions to the Debt
Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Debt
Securities of such series pursuant to any of the
provisions of Article V;
(b) to remove the Debt Trustee with respect to such
series and nominate a successor trustee pursuant to
the provisions of Article VI;
(c) to consent to the execution of an indenture or
indentures supplemental hereto with respect to such
series pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or
on behalf of the Holders of Debt Securities of such
series of any specified aggregate principal amount of
such Debt Securities under any other provision of
this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Debt Trustee.
The Debt Trustee may at any time call a meeting of Holders of
Debt Securities of any series to take any action specified in Section 8.01, to
be held at such time and at such place in New York, New York, as the Debt
Trustee shall determine. Notice of every meeting of such Holders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to such Holders at their
addresses as they shall appear on the Security Register. Such notice shall be
mailed not less than 20 nor more than 60 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of
the Board of Directors, or the Holders of at least 10% in aggregate principal
amount of the Debt Securities of any particular series then outstanding, shall
have requested the Debt Trustee to call a meeting of Holders of Debt Securities
of such series, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Debt Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Holders may determine the time and the place in New
York, New York for such meeting and may call such meeting to take any action
authorized in Section 8.01, by mailing notice thereof as provided in Section
8.02.
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SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of any series
of Debt Securities a Person shall (a) be a Holder of one or more Debt
Securities of such series or (b) a Person appointed by an instrument in writing
as proxy by any such Holder. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Debt
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Debt Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders, in regard to proof of the holding of Debt Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Debt Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 8.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Holder or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Debt Securities of the affected series held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Debt Security challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Debt Securities of the
affected series held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting
of Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may
be adjourned from time to time by a majority of those present, and the meeting
may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of such Holders or of their representa-
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tives by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 8.02. The record shall show the
serial numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Debt Trustee to be preserved
by the Debt Trustee, the latter to have attached thereto the ballots voted at
the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Debt Trustee may from time to time and at
any time amend this Indenture, without the consent of the Holders of Debt
Securities of any affected series then outstanding, for one or more of the
following purposes:
(a) to evidence the succession of another Person to the
Company, or successive successions, and the
assumption by the successor Person of the covenants,
agreements and obligations of the Company pursuant to
Article X hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the
protection of the Holders of the Debt Securities of
such series as the Board of Directors and the Debt
Trustee shall consider to be for the protection of
such Holders, and to make the occurrence, or the
occurrence and continuance, of a default in any of
such additional covenants, restrictions or conditions
a default or an Event of Default with respect to such
series of Debt Securities permit-
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ting the enforcement of all or any of the remedies
provided in this Indenture as herein set forth;
provided, however, that in respect of any such
additional covenant, restriction or condition such
amendment may provide for a particular period of
grace after default (which period may be shorter or
longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available
to the Debt Trustee upon such default;
(c) to provide for the issuance under this Indenture of
Debt Securities of any series in coupon form
(including Debt Securities registrable as to
principal only) and to provide for exchangeability of
such Debt Securities with the Debt Securities of such
series issued hereunder in fully registered form and
to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental
indenture which may be defective or inconsistent with
any other provision contained herein or in any
supplemental indenture, or to make such other
provisions in regard to matters or questions arising
under this Indenture; provided that any such action
shall not materially adversely affect the interests
of the Holders of Debt Securities of such series;
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to such series of Debt Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions and all other
matters required pursuant to this Indenture or
otherwise necessary, desirable or appropriate in
connection with the issuance of such series of Debt
Securities; provided that any such action shall not
materially adversely affect the interests of the
Holders of such series of Debt Securities;
(g) to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
(h) to make any change that does not adversely affect the
rights of any such Holder in any material respect.
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The Debt Trustee is hereby authorized to join with the Company
in the execution of any supplemental indenture to effect such amendment, to
make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Debt Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the Debt
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions
of this Section 9.01 may be executed by the Company and the Debt Trustee
without the consent of the Holders of Debt Securities of the series affected at
the time outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Holders.
With the consent (evidenced as provided in Section 7.01) of
the Holders of a majority in aggregate principal amount of the Debt Securities
of all series at the time outstanding affected by such amendment (voting as one
class), the Company, when authorized by a Board Resolution, and the Debt
Trustee may from time to time and at any time amend this Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of any such series; provided, however, that no such
amendment shall, without the consent of the Holders of each Debt Security of
each series then outstanding and affected thereby (i) change the Maturity Date
of any such Debt Security, or reduce the rate or extend the time of payment of
interest thereon (except as contemplated by Article XVI), or reduce the
principal amount thereof, or reduce any amount payable on prepayment thereof,
or make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that provided in such Debt Securities, or impair or
affect the right of any Holder thereof to institute suit for payment thereof,
or (ii) reduce the aforesaid percentage of Debt Securities of any series, the
Holders of which are required to consent to any such amendment to this
Indenture, provided, however, that if any series of Debt Securities are held by
an Institutional Trustee of a SunTrust Capital Trust, such amendment shall not
be effective until the holders of a majority in liquidation amount of Trust
Securities of such SunTrust Capital Trust shall have consented to such
amendment; provided, further, that if the consent of the Holders of each
outstanding Debt Security of any series is required, such amendment shall not
be effective until each holder of the Trust Securities of such SunTrust Capital
Trust owning such Debt Securities shall have consented to such amendment.
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Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture effecting
such amendment, and upon the filing with the Debt Trustee of evidence of the
consent of the affected Holders as aforesaid, the Debt Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Debt Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Debt Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Promptly after the execution by the Company and the Debt
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Debt Trustee shall transmit by mail, first class postage prepaid,
a notice, prepared by the Company, setting forth in general terms the substance
of such supplemental indenture, to the Holders of the affected series of Debt
Securities as their names and addresses appear upon the Security Register. Any
failure of the Debt Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of Holders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article IX shall comply with the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Debt Trustee,
the Company and the Holders of Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture affecting such series
pursuant to the provisions of this Article IX may bear a notation in form
approved by the Debt Trustee as to any
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matter provided for in such supplemental indenture. If the Company or the Debt
Trustee shall so determine, new Debt Securities of such series so modified as
to conform, in the opinion of the Debt Trustee and the Board of Directors, to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Debt Trustee
or the Authenticating Agent and delivered in exchange for the Debt Securities
of such series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished to Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in any Debt Securities
of any series shall prevent (i) any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company, as the
case may be), or successive consolidations or mergers in which the Company or
its successor or successors, as the case may be, shall be a party or parties,
or (ii) prevent any sale, conveyance, transfer or lease of the property of the
Company, or its successor or successors as the case may be, as an entirety, or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company, or its successor or successors, as the case may be)
authorized to acquire and operate the same; provided, that (a) the Company is
the surviving Person, or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) upon any such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal
of, premium, if any and interest on the Debt Securities of each series then
outstanding according to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act
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as then in effect) satisfactory in form to the Debt Trustee executed and
delivered to the Debt Trustee by the Person formed by such consolidation, or
into which the Company shall have been merged, or by the Person which shall
have acquired such property, as the case may be, and (c) after giving effect to
such consolidation, merger, sale, conveyance, transfer or lease, no Default or
Event of Default with respect to any series of Debt Securities shall have
occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted for
Company.
In case of any such consolidation, merger, conveyance or
transfer and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Debt Trustee and satisfactory in form
to the Debt Trustee, of the obligation of due and punctual payment of the
principal of, premium, if any, and interest on all of the Debt Securities and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the Company thereupon shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. Such successor Person thereupon may
cause to be signed, and may issue either in its own name or in the name of
SunTrust Banks, Inc., any or all of the Debt Securities of any series issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Debt Trustee or the Authenticating Agent; and, upon the order
of such successor Person instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Debt Trustee or
the Authenticating Agent shall authenticate and deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company to the Debt Trustee or the Authenticating Agent for authentication, and
any Debt Securities which such successor Person thereafter shall cause to be
signed and delivered to the Debt Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.01
and 6.02, may receive an Opinion of Counsel and/or an Officer's Certificate as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or lease, and any
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assumption, permitted or required by the terms of this Article X complies with
the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Debt Trustee for
cancellation all Debt Securities of any series theretofore authenticated (other
than any Debt Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced as provided in Section 2.08) and
not theretofore cancelled, or (b) all the Debt Securities of any series
outstanding hereunder not theretofore cancelled or delivered to the Debt
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
prepayment within one year under arrangements satisfactory to the Debt Trustee
for the giving of notice of prepayment, and the Company shall deposit with the
Debt Trustee, in trust, an amount in cash or U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof sufficient to pay on
the Maturity Date or upon prepayment all of the Debt Securities of such series
(other than any such Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced as provided in Section 2.08) not
theretofore cancelled or delivered to the Debt Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to the
Maturity Date or prepayment date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of, premium, if any, or
interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 11.04, or (2) paid to any State or to
the District of Columbia pursuant to its unclaimed property or similar laws,
and if in either case the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Indenture shall cease to be of
further effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01,
3.02, 3.05, 6.06, 6.10 and 11.04 hereof, which shall survive until such Debt
Securities shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04
shall survive, and the Debt Trustee, on demand of the Company accompanied by
any Officer's Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture; the Company, however, hereby agrees to
reimburse the Debt Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Debt Trustee in connection with this Indenture or the
Debt Securities.
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SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Debt
Trustee.
Subject to the provisions of Section 11.04, all moneys and
U.S. Government Obligations deposited with the Debt Trustee pursuant to
Sections 11.01 or 11.05 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company if
acting as its own paying agent), to the Holders of the particular series of
Debt Securities for the payment of which such moneys or U.S. Government
Obligations have been deposited with the Debt Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Debt Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.01 or 11.05 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Debt
Securities of the affected series.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all
moneys then held by any paying agent of the Debt Securities of any series
(other than the Debt Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Debt Trustee, and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debt Trustee or any
paying agent for payment of the principal of, premium, if any, or interest on
any Debt Securities of any series and not applied but remaining unclaimed by
the Holders thereof for two years after the date upon which the principal of,
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Debt Trustee
or such paying agent on written demand; and the Holder of any such Debt
Securities shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect and all liability of the Debt Trustee or such
paying agent with respect to such moneys shall thereupon cease.
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SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as
defined below) from its obligations with respect to any series of Debt
Securities on the 91st day after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Debt Trustee or the
Defeasance Agent (as defined below) as trust funds in
trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
the Debt Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations, maturing
as to principal and interest at such times and in
such amounts as will insure the availability of cash,
or (iii) a combination of (i) and (ii), sufficient,
in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Debt Trustee and the
Defeasance Agent, if any, to pay and discharge each
installment of principal of, premium, if any, and
interest on the outstanding Debt Securities of such
series on the dates such installments of principal,
premium or interest are due;
(2) if the Debt Securities of such series are then listed
on any national securities exchange, the Company
shall have delivered to the Debt Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to
the effect that the exercise of the option under this
Section 11.05 would not cause such Debt Securities to
be delisted from such exchange;
(3) no Default or Event of Default with respect to the
Debt Securities of such series shall have occurred
and be continuing on the date of such deposit; and
(4) the Company shall have delivered to the Debt Trustee
and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income,
gain or loss for United States Federal income tax
purposes as a result of the exercise of the option
under this Section 11.05 and will be subject to
United States Federal income tax on the same amount
and in the same manner and at the same
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times as would have been the case if such option had
not been exercised.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Debt Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of the
Debt Securities of such series to receive, from the trust fund described in
clause (1) above, payment of the principal of, premium, if any, and interest on
such Debt Securities when such payments are due; (B) the Company's obligations
with respect to such Debt Securities under Sections 2.07, 2.08, 5.02 and 11.04;
and (C) the rights, powers, trusts, duties and immunities of the Debt Trustee
hereunder.
"Defeasance Agent" means another financial institution which
is eligible to act as Debt Trustee hereunder and which assumes all of the
obligations of the Debt Trustee necessary to enable the Debt Trustee to act
hereunder. In the event such a Defeasance Agent is appointed pursuant to this
Section, the following conditions shall apply:
(1) The Debt Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's rights
and responsibilities;
(2) The Defeasance Agent shall provide verification to
the Debt Trustee acknowledging receipt of sufficient
money and/or U. S. Government Obligations to meet the
applicable conditions set forth in this Section
11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of, premium, if
any, or interest on any Debt Security of any series, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture, or in any
Debt Security of any series, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
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stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person to the Company, either directly or through
the Company or any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations of the
Company, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, shareholders, officers or directors,
as such of the Company or any successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities of any series or coupons, or implied therefrom; and that
any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities of any series or coupons, or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of such Debt Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to the Debt Trustee
may surrender any of the powers
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reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Debt Trustee or by the
Holders on the Company may be given or served by being deposited postage
prepaid by first class mail, registered or certified mail, overnight courier
service or conformed telecopy addressed (until another address is filed by the
Company with the Debt Trustee for the purpose) to the Company at 303 Peachtree
Street, N.E., Atlanta, Georgia, 30308-3201, Attention: Treasurer. Any notice,
direction, request or demand by any Holder to or upon the Debt Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of the Debt Trustee, The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, IL 60670-0126,
Attention: Corporate Trust Administration (unless another address is provided
by the Debt Trustee to the Company for such purpose). Any notice or
communication to a Holder shall be mailed by first class mail to his or her
address shown on the Security Register.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the Debt
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Debt Trustee an Officer's Certificate stating that
in the opinion of the signers all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Debt Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (except certificates delivered pursuant
to Section 3.05) shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
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investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of,
premium, if any, or interest on the Debt Securities will not be a Business Day,
the payment of such principal of, premium, if any, or interest on the Debt
Securities need not be made on such date but may be made on the next succeeding
Business Day, with the same force and effect as if made on the date of payment
and no interest shall accrue for the period from and after such date, except
that if such next succeeding Business Day falls in the next succeeding calendar
year, then 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.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This 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.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities 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 Indenture or of
the Debt Securities, but this Indenture and the Debt Securities shall be
construed as if
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such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of
its respective rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES
SECTION 14.01. Applicability of Article.
Debt Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and,
except as otherwise specified as contemplated by Section 2.03 for Debt
Securities of any series, in accordance with this Article.
SECTION 14.02. Notice of Redemption; Selection of Debt
Securities.
In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of the Debt Securities of any
series in accordance with their terms, it shall fix a date for redemption and
shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the Holders of Debt Securities of
such series to be so redeemed as a whole or in part at their last addresses as
the same appear on the Security Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security of any series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number
of the Debt Securities of such series to be redeemed, the date fixed for
redemption, the redemption price at which the Debt Securities of such series
are to be redeemed (or the method by
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which such redemption price is to be calculated), the place or places of
payment that payment will be made upon presentation and surrender of the Debt
Securities of such series, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debt Securities of a series are to be redeemed,
the notice of redemption shall specify the numbers of the Debt Securities of
such series to be redeemed. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of such series in principal amount equal to the
portion thereof that has not been redeemed will be issued.
By 10:00 a.m. New York, New York time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Debt Trustee or with one or more paying agents an
amount of money sufficient to redeem on the redemption date all the Debt
Securities so called for redemption at the appropriate Redemption Price,
together with accrued interest to the date fixed for redemption.
The Company will give the Debt Trustee notice not less than 45
days prior to the redemption date (unless a shorter notice is acceptable to the
Trustee) as to the aggregate principal amount of Debt Securities to be redeemed
and the Debt Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof be
redeemed.
SECTION 14.03. Payment of Debt Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02, the Debt Securities or portions of Debt Securities of any series with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
Redemption Price, together with interest accrued to the date fixed for
redemption (subject to the rights of Holders at the close of business on a
regular record date in respect of an Interest Payment Date occurring on or
prior to the redemption date), and on and after said date (unless the Company
shall default in the payment of such Debt Securities at the Redemption Price,
together with interest accrued to said date) interest on such Debt Securities
or portions of Debt Securities so called for redemption shall cease to accrue.
On presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be
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redeemed by the Company at the applicable Redemption Price, together with
interest accrued thereon to the date fixed for redemption (subject to the
rights of Holders on the close of business on a regular record date in respect
of an Interest Payment Date occurring on or prior to the redemption date).
Upon presentation of any Debt Security of a series redeemed in
part only, the Company shall execute and the Debt Trustee shall authenticate
and make available for delivery to the Holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of such series of authorized
denominations, in principal amount equal to the portion of the Debt Security so
presented that has not been redeemed.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Debt
Securities issued hereunder likewise covenants and agrees, that the Debt
Securities shall be issued subject to the provisions of this Article XV; and
each Holder, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if
any, and interest on all Debt Securities issued hereunder shall, to the extent
and in the manner hereinafter set forth, be subordinated and junior in right of
payment to all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence
of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case,
no payment shall be made by the Company with respect to the principal
(including redemption payments) of, premium, if any, or interest on the Debt
Securities of any series or any other amounts which may be due on such Debt
Securities pursuant to the terms hereof or otherwise).
In the event of the acceleration of the maturity of the Debt
Securities of any series, then no payment shall be made by
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the Company with respect to the principal (including redemption payments) of,
premium, if any, or interest on such Debt Securities (including any other
amounts which may be due on such Debt Securities pursuant to the terms hereof
or otherwise) until the holders of all Senior Indebtedness outstanding at the
time of such acceleration shall receive payment in full of such Senior
Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment
shall be received by the Debt Trustee when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Debt Trustee in writing within 90 days
of such payment of the amounts then due and owing on such Senior Indebtedness,
and only the amounts specified in such notice to the Debt Trustee shall be paid
to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Indebtedness of the Company shall
first be paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account of the
principal of, premium, if any, or interest on such Debt Securities of any
series (including any other amounts which may be due on such Debt Securities
pursuant to the terms hereof or otherwise); and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, which the Holders or the Debt Trustee would be
entitled to receive from the Company, except for the provisions of this Article
XV, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders or by the Debt Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such
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Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Debt Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character prohibited by
the foregoing, whether in cash, property or securities, shall be received by
the Debt Trustee before all Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of such Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Debt Securities of any series to the payment of
Senior Indebtedness that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the sale, conveyance, transfer or lease of
its property as an entirety, or substantially as an entirety, to another Person
upon the terms and conditions provided for in Article X of this Indenture shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 15.03 if such other Person shall, as a part of such
consolidation, merger, sale, conveyance, transfer or lease, comply with the
conditions stated in Article X of this Indenture. Nothing in Section 15.02 or
in this Section 15.03 shall apply to claims of, or payments to, the Debt
Trustee under or pursuant to Section 6.06 of this Indenture.
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SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of Debt Securities of any series shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of, premium, if
any, and interest on the Debt Securities of such series shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to
which the Holders or the Debt Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions
of this Article XV to or for the benefit of the holders of such Senior
Indebtedness by Holders or the Debt Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the
Holders, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XV
are and are intended solely for the purposes of defining the relative rights of
the Holders, on the one hand, and the holders of such Senior Indebtedness on
the other hand.
Nothing contained in this Article XV or elsewhere in this
Indenture or in the Debt Securities of any series is intended to or shall (i)
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the Holders of Debt Securities of any series,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of Debt Securities of any series the principal of, premium, if any,
and interest on such Debt Securities as and when the same shall become due and
payable in accordance with their terms, or (ii) affect the relative rights of
such Holders and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Debt Trustee or any such Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Debt Trustee, subject to the provisions of
Article VI of this Indenture, and the Holders of Debt Securities of any series
shall be entitled to conclusively rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation
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trustee, agent or other Person making such payment or distribution, delivered
to the Debt Trustee or to such Holders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.05. Debt Trustee to Effectuate Subordination.
Each Holder by such Holder's acceptance thereof authorizes and
directs the Debt Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Debt Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Debt Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Debt Trustee in
respect of the Debt Securities of any series pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture, the Debt Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Debt Trustee in respect of the Debt Securities
of any series pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Debt Trustee shall have received written notice
thereof from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and before the receipt of any such written notice, the
Debt Trustee, subject to the provisions of Article VI of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Debt Trustee shall not have received the notice provided
for in this Section 15.06 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Debt Security), then, anything herein contained to the
contrary notwithstanding, the Debt Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Debt Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled to conclusively rely on a
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written notice delivered to it by a Person representing himself to be a holder
of Senior Indebtedness of the Company (or a trustee on behalf of such holder),
as the case may be, to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or holders.
In the event that the Debt Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution pursuant
to this Article XV, the Debt Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Debt Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XV, and, if such
evidence is not furnished, the Debt Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Debt Trustee and the Holders shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Debt Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.07. Rights of the Debt Trustee; Holders of
Senior Indebtedness.
The Debt Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Debt
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Debt Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debt Trustee. The
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Debt Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Debt Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Holders, the Company or any
other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or
payments to, the Debt Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company, as the case may be, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company,
as the case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Debt Trustee or
the Holders of Debt Securities of any series, without incurring responsibility
to such Holders and without impairing or releasing the subordination provided
in this Article XV or the obligations hereunder of such Holders to the holders
of such Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case may be, and
any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
SUNTRUST BANKS, INC.
By:
-------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Debt Trustee
By:
-------------------------------------
Name:
Title:
71
<PAGE> 1
EXHIBIT 4.7
====================================
COMMON SECURITIES GUARANTEE AGREEMENT
SunTrust Capital I
Dated as of __________, 1997
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Page
<S> <C> <C>
SECTION 1.1 Definitions Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 3.1. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
TERMINATION
SECTION 4.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.4. Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
<PAGE> 3
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"),
dated as of __________, 1997, is executed and delivered by SunTrust Banks,
Inc., a Georgia corporation (the "Guarantor"), for the benefit of the Holders
(as defined herein) from time to time of the Common Securities (as defined
herein) of SunTrust Capital I, a Delaware business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of __________, 1997, among the Trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of beneficial ownership interests in the assets of the Issuer, the
Issuer may issue up to $__________ aggregate liquidation amount of its floating
rate common securities (the "Common Securities") representing beneficial
ownership interests in the assets of the Issuer and having the terms set forth
in Annex I to the Declaration;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Preferred Securities Guarantee") in substantially
identical terms to this Common Securities Guarantee for the benefit of the
holders of the Preferred Securities (as defined herein), except that if an
Event of Default (as defined in the Indenture), has occurred and is continuing,
the rights of Holders of the Common Securities to receive Guarantee Payments
under this Common Securities Guarantee are subordinated to the rights of
holders of Preferred Securities to receive Guarantee Payments under the
Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Common Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Common
Securities Guarantee for the benefit of the Holders.
<PAGE> 4
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions Interpretation
In this Common Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Common Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1 or in the Declaration,
as the case may be;
(b) Terms defined in the Declaration as at the date of
execution of this Common Securities Guarantee have the same meaning
when used in this Common Securities Guarantee unless otherwise defined
in this Common Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities Guarantee"
or "this Common Securities Guarantee" are to this Common Securities
Guarantees modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to
Articles and Sections are to Articles and Sections of this Common
Securities Guarantee unless otherwise specified; and
(f) a reference to the singular includes the plural and
vice versa.
"Distributions" means the periodic distributions and other
payments payable to Holders of Common Securities in accordance with the terms
of the Common Securities set forth in Annex I to the Declaration.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Common Securities, but if
and only to the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), but if and only to the extent the Issuer
has funds available therefor, with respect to any Common Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Common
2
<PAGE> 5
Securities or the redemption of all the Common Securities upon the maturity or
redemption of the Debentures as provided in the Declaration), the lesser of (a)
the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Common Securities to the date of payment, but if and only
to the extent the Issuer has funds available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution"). If
an event of default under the Indenture has occurred and is continuing, the
rights of Holders of the Common Securities to receive Guarantee Payments under
this Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Common Securities.
"Preferred Securities" mean the securities representing
preferred beneficial ownership interests in the assets of the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 2.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Common Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.3. Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Common Securities Guarantee shall in no
3
<PAGE> 6
way be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Common
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures or any extension of the maturity date of the
Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Common Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 2.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
4
<PAGE> 7
SECTION 2.4. Rights of Holders
The Guarantor expressly acknowledges that any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Common Securities Guarantee, without first instituting a
legal proceeding against the Issuer or any other person or entity.
SECTION 2.5. Guarantee of Payment
This Common Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 2.6. Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders
by the Guarantor under this Common Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Common Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Common Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 2.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 3.1. Limitation of Transactions
So long as any Common Securities remain outstanding, if (i)
the Guarantor shall be in default with respect to its Guarantee Payments or
other obligations hereunder, or (ii) there shall have occurred an event of
default under the Indenture that has not been cured or waived, then the
Guarantor shall not (a) declare or pay any dividends or distributions on, or
prepay, pur-
5
<PAGE> 8
chase, acquire or make a liquidation payment with respect to, any
shares of the Guarantor's capital stock, (ii) make any payment of principal of,
or interest or premium, if any, on, or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu in all respects with, or
junior in right of payment to, the Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities
of any subsidiary of the Guarantor 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 Guarantor 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 shareholders' rights plan, or the issuance of stock under
any such shareholders' rights 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 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 and (f) purchases of common
stock related to the issuance of common stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees or any of
the Guarantor's dividend reinvestment plans).
SECTION 3.2. Subordination
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, including the Debentures
and all Senior Indebtedness, except those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock now or hereafter issued by
the Guarantor and to any guarantee now or hereafter entered into by the
Guarantor in respect of any of its capital stock.
SECTION 3.3. Pari Passu Guarantees
The obligations of the Guarantor under this Common Securities
Guarantee shall rank pari passu with the obligations of the Guarantor under any
similar Common Securities Guarantee (as defined in the Indenture) now or
hereafter entered into by the Guarantor in respect of any other trust or
similar financing vehicle sponsored by the Guarantor.
6
<PAGE> 9
ARTICLE IV
TERMINATION
SECTION 4.1. Termination
This Common Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Common Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Common Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Common Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if, at any time, any Holder must restore
payment of any sum paid under the Common Securities or under this Common
Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Common Securities then outstanding.
SECTION 5.2. Amendments
Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Common Securities Guarantee may only be amended with the prior
approval of the Holders of at least a majority in liquidation amount of all the
outstanding Common Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities shall apply
to the giving of such approval.
SECTION 5.3. Notices
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, faxed or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Regular
Trustee at the Issuer's mailing address set forth below (or such other
address as the Issuer may give notice of to the Holders):
7
<PAGE> 10
SunTrust Capital I
c/o SunTrust Banks, Inc. 303
Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(b) if given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders):
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(c) if given to any Holder, at the address set forth on
the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, faxed with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 5.4. Benefit
This Common Securities Guarantee is solely for the benefit of
the Holders and is not separately transferable from the Common Securities.
SECTION 5.5. Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8
<PAGE> 11
THIS COMMON SECURITIES GUARANTEE is executed as of the day and
year first above written.
SUNTRUST BANKS, INC.
By:
-------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.8
====================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
SunTrust Capital I
Dated as of __________, 1997
====================================
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.3 Reports by the Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.9 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . 8
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities Guarantee . . . . . . . . 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee . . . . . . . . . . . . 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE> 3
<TABLE>
Page
-----
<S> <C> <C>
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 8.3 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of __________, 1997, is executed and delivered by
SunTrust Banks, Inc., a Georgia corporation (the "Guarantor"), and The First
National Bank of Chicago, as trustee (the "Preferred Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of SunTrust Capital I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of __________, 1997, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of beneficial ownership interests in the assets of the Issuer, the
Issuer may issue up to $__________ aggregate liquidation amount of its __%
floating rate preferred securities (the "Preferred Securities") representing
beneficial ownership interests in the assets of the Issuer and having the terms
set forth in Annex I to the Declaration, of which $__________ aggregate
liquidation amount of the Preferred Securities are being issued on the date
hereof.
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay
to the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event
of Default (as defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
<PAGE> 5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1 or in the Declaration, as the case may
be;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections
of this Preferred Securities Guarantee, unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means a day other than (a) a day on which
banking institutions in New York, New York or Chicago, Illinois are authorized
or required by law or executive order to remain closed or (b) a day on which
the Institutional Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debt Trustee is closed for business.
"Common Securities" means the securities representing common
beneficial ownership interests in the assets of the Issuer.
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<PAGE> 6
"Corporate Trust Office" means (i) when used with respect to
the Preferred Guarantee Trustee, the principal corporate trust office of the
Preferred Guarantee Trustee located in New York, New York, which on the date of
this Preferred Securities Guarantee is c/o First Chicago Trust Company of New
York, 14 Wall Street, 8th Floor - Window 2, New York, New York, 10005 -
Attention: Corporate Trust Administration Department, (ii) when used with
respect to the Debt Trustee, its Principal Corporate Trust Office as defined in
the Indenture, and (iii) when used with respect to the Institutional Trustee,
its Corporate Trust Office as defined in the Declaration.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the Floating Rate Junior Subordinated
Deferrable Interest Debentures due __________, held by the Institutional
Trustee (as defined in the Declaration) of the Issuer.
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the
terms of the Preferred Securities set forth in Annex I to the Declaration.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Preferred Securities, but if
and only to the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), but if and only to the extent the Issuer
has funds available therefor, with respect to any Preferred Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Preferred
Securities or the redemption of all the Preferred Securities upon the maturity
or redemption of the Debentures as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, but if and
only to the extent the Issuer shall have funds available therefor, and (b) the
amount of assets of the Issuer remaining available for distribution to Holders
in liquidation of the Issuer (in either case, the "Liquidation Distribution").
If an event of default
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<PAGE> 7
under the Indenture has occurred and is continuing, the rights of holders of
the Common Securities to receive payments under the Common Securities Guarantee
Agreement are subordinated to the rights of Holders of Preferred Securities to
receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee,
any Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of __________, 1997,
among the Guarantor (the "Debenture Issuer") and The First National Bank of
Chicago, as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued
to the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of
outstanding Preferred Securities, voting separately as a class, who are the
record owners of Preferred Securities representing more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in rendering
the Officer's Certificate;
4
<PAGE> 8
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means The First National Bank of
Chicago, until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Property Trustee" means the Person acting as Property Trustee
under the Declaration.
"Responsible Officer" means, when used with respect to the
Preferred Guarantee Trustee, any officer assigned to the Corporate Trust Office
of the Preferred Guarantee Trustee, including any managing director, vice
president, assistant vice president, senior trust officer, trust officer,
assistant treasurer, assistant secretary or any other officer of the Preferred
Guarantee Trustee, customarily performing functions similar to those performed
by any of the above designated officers, and also, with respect to a particular
corporate trust matter, any other officer, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Common Securities and the
Preferred Securities.
5
<PAGE> 9
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions.
(b) If and to the extent that any provision of this
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
(c) The application of the Trust Indenture Act to this
Preferred Securities Guarantee shall not affect the nature of the Preferred
Securities as equity securities representing beneficial ownership interests in
the assets of the Issuer.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee
Trustee with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders"), (i) within 14 days after each record date for payment of
Distributions as of such record date, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Guarantee Trustee provided, that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after December 15 of each year, the Preferred
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the other requirements of Section 313
of the Trust Indenture Act.
6
<PAGE> 10
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act, provided that such compliance certificate shall be
delivered on or before 120 days after the end of each fiscal year of the
Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given
in the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice, provided, that,
the Preferred Guarantee Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Preferred Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Preferred Guarantee
Trustee shall have received written notice thereof from the Guarantor or a
Holder, or a Responsible Officer of the Preferred Guarantee Trustee charged
with the administra-
7
<PAGE> 11
tion of the Declaration shall have obtained actual knowledge
thereof.
SECTION 2.8 Disclosure of Information
The disclosure of information as to the names of the Holders
of the Preferred Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted that does not specifically refer to Section 312 of the Trust
Indenture Act, nor shall the Preferred Guarantee Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 2.9 Conflicting Interests
The Declaration shall be deemed to be specifically described
in this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by
the Preferred Guarantee Trustee for the benefit of the Holders, and the
Preferred Guarantee Trustee shall not transfer its right, title and interest in
this Preferred Securities Guarantee to any Person except a Holder exercising
his or her rights pursuant to Section 5.4(c) hereof or to a Successor Preferred
Guarantee Trustee on acceptance by such Successor Preferred Guarantee Trustee
of its appointment to act as Successor Preferred Guarantee Trustee. The right,
title and interest of the Preferred Guarantee Trustee shall automatically vest
in any Successor Preferred Guarantee Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered in connection with the appointment of such Successor
Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee has occurred and is
continuing, the Preferred Guarantee Trustee shall enforce this Preferred
Securities Guarantee for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all
8
<PAGE> 12
Events of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Preferred Securities Guarantee,
and no implied covenants shall be read into this Preferred Securities Guarantee
against the Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) This Preferred Securities Guarantee and all moneys
received by the Property Trustee hereunder in respect of the Guarantee Payments
will not be subject to any right, charge, security interest, lien or claim of
any kind in favor of, or for the benefit of, the Guarantee Trustee or its
agents or their creditors.
(e) The Preferred Guarantee Trustee shall not resign as a
Trustee unless a Successor Preferred Guarantee Trustee has been appointed and
accepted that appointment in accordance with Article IV.
(f) No provision of this Preferred Securities Guarantee
shall be construed to relieve the Preferred Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of
the Preferred Guarantee Trustee, the Preferred Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Preferred Guarantee Trustee and con-
9
<PAGE> 13
forming to the requirements of this Preferred Securities
Guarantee; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
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<PAGE> 14
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by
an Officer's Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Preferred
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(v) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Preferred Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of an Event of
Default (that has not been cured or waived), of its obligation to
exercise the rights and powers vested in it by this Preferred
Securities Guarantee, and to use the same degree of care and skill in
this exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(vi) The Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees,
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<PAGE> 15
custodians or attorneys, and the Preferred Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent, nominee, custodian or attorney appointed with due care by it
hereunder.
(vii) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders, and the signature of
the Preferred Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Preferred Guarantee
Trustee's or its agent's taking such action.
(viii) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such
instructions.
(b) No provision of this Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Preferred Guarantee Trustee shall be construed to
be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Guarantee
Trustee does not assume any responsibility for their correctness. The
Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Preferred Securities Guarantee.
12
<PAGE> 16
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any state or territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee
(a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
13
<PAGE> 17
(c) The Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee Trustee
may resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Preferred Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Preferred
Guarantee Trustee and delivered to the Guarantor and the resigning Preferred
Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation, the
Preferred Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in
14
<PAGE> 18
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities (other
than an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the extension
of any interest payment period on the Debentures or any extension of the
maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
15
<PAGE> 19
SECTION 5.4 Rights of Holders
(a) The Issuer expressly acknowledges that (i) this
Preferred Securities Guarantee will be deposited with the Preferred Guarantee
Trustee to be held for the benefit of the Holders and (ii) the Preferred
Guarantee Trustee has the right to enforce this Preferred Securities Guarantee
on behalf of the Holders.
(b) The Holders of a Majority in liquidation amount of
the Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee, including the giving
of directions to the Preferred Guarantee Trustee, or exercising any trust or
power conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; provided, however, that, subject to Section 3.1, the
Preferred Guarantee Trustee shall have the right to decline to follow any such
direction if the Preferred Guarantee Trustee shall determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Preferred Guarantee Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Preferred Guarantee 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 proceeding so
directed would involve the Preferred Guarantee Trustee in personal liability.
(c) If the Preferred Guarantee Trustee fails to enforce
such Preferred Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Preferred Guarantee
Trustee's rights under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other person or entity.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders
by the Guarantor under this Preferred Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reim-
16
<PAGE> 20
bursement or other agreement, in all cases as a result of payment under this
Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if
there shall have occurred an Event of Default that has not been cured or
waived, then the Guarantor shall not and it shall 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 shares of the
Guarantor's capital stock, (ii) make any payment of principal of, or interest
or premium, if any, on, or repay, repurchase or redeem any debt securities of
the Guarantor that rank pari passu in all respects with, or junior in right of
payment to, the Debentures or (iii) make any guarantee payments with respect to
any guarantee by the Guarantor of debt securities of any subsidiary of the
Guarantor 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 Guarantor 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 shareholders' rights plan, or the issuance of stock under
any such shareholders' rights plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under this
Preferred Securities Guarantee or the Common Securities Guarantee, (d) the
purchase of fractional 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 and (f)
purchases of common stock related to the issuance
17
<PAGE> 21
of common stock or rights under any of the Guarantor's benefit plans for its
directors, officers or employees or any of the Guarantor's dividend
reinvestment plans).
SECTION 6.2 Subordination
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all Senior Indebtedness and (ii) senior to all capital
stock now or hereafter issued by the Guarantor and to any guarantee now or
hereafter entered into by the Guarantor in respect of any of its capital stock.
SECTION 6.3 Pari Passu Guarantees
The obligations of the Guarantor under this Preferred
Securities Guarantee shall rank pari passu with the obligations of the
Guarantor under any similar Preferred Securities Guarantee (as defined in the
Indenture) now or hereafter entered into by the Guarantor in respect of any
other trust or any other similar financing vehicle sponsored by the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate (i) upon
full payment of the Redemption Price of all Preferred Securities, (ii) upon
distribution of the Debentures to the Holders of the Preferred Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if, at any time, any Holder must restore
payment of any sum paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on
18
<PAGE> 22
such Indemnified Person by this Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Preferred Securities Guarantee or the earlier resignation
or removal of the Preferred Guarantee Trustee.
SECTION 8.3 Compensation and Reimbursement
The Guarantor agrees:
(1) to pay to the Preferred Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder in such
amounts as the Guarantor and the Preferred Guarantee Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust); and
(2) to reimburse the Preferred Guarantee Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Preferred Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and disbursements or its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith.
19
<PAGE> 23
The obligations of the Guarantor under this Section 8.3 shall
survive the termination of this Preferred Securities Guarantee or the earlier
resignation or removal of the Preferred Guarantee Trustee.
To secure the Guarantor's payment obligations in this Section
and in Section 8.2, the Guarantor and the Holders agree that the Preferred
Guarantee Trustee shall have a lien prior to the Preferred Securities on all
money or property held or collection by the Guarantee Trustee. Such lien shall
survive the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Preferred Securities.
The provisions of the Declaration with respect to consents to amendments
thereof (whether at a meeting or otherwise) of Holders of the Securities shall
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, faxed or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders and the
Guarantor):
20
<PAGE> 24
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Fax: (312) 407-1708
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders and the Preferred Guarantee Trustee):
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(c) If given to any Holder, at the address set forth on
the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, faxed with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
21
<PAGE> 25
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
SUNTRUST BANKS, INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Preferred Guarantee Trustee
By:
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
May 6, 1997
SunTrust Banks, Inc.
303 Peachtree Street N.E.
Atlanta, Georgia 30308
Ladies and Gentlemen:
We have acted as counsel to SunTrust Banks, Inc., a Georgia
corporation (the "Company"), in connection with the registration pursuant to a
Registration Statement on Form S-3 (File Nos. 333-25381/-01/-02) (the
"Registration Statement") filed by the Company, SunTrust Capital I, a Delaware
statutory business trust ("Trust I") and SunTrust Capital II, a Delaware
statutory business trust ("Trust II" and, together with Trust I, the "Trusts",
and the Trusts, together with the Company, the "Registrants") of (i) preferred
securities representing beneficial ownership interests in the assets of each
Trust (the "Preferred Securities") to be issued by the Trusts, (ii)
subordinated debt securities consisting of debentures, notes or other evidences
of indebtedness to be issued by the Company (the "Subordinated Debt
Securities") and (iii) the unconditional and irrevocable guarantee of the
obligations of each Trust under the Preferred Securities to be issued by the
Trusts (the "Guarantees").
In our capacity as such counsel, we have reviewed (i) the Registration
Statement, (ii) the form of Indenture (the "Indenture") to be entered into by
the Company and The First National Bank of Chicago, as trustee (the "Trustee"),
relating to the Subordinated Debt Securities and filed as an exhibit to the
Registration Statement and (iii) the form of Preferred Securities Guarantee
Agreement (the "Guarantee Agreement") to be entered into by the Company and the
Trustee, as Guarantee Trustee, relating to the Guarantees and filed as an
exhibit to the Registration Statement. We have also reviewed such matters of
law and examined original, certified, conformed or photographic copies of such
other documents, records, agreements and certificates as we have deemed
necessary as a basis for the opinions hereinafter expressed. In such review,
we have assumed the genuineness of signatures on all documents submitted to us
as originals, the conformity to original documents of all copies submitted to
us as certified, conformed or photographic copies, and, as to certificates of
public officials, we have assumed the same to be accurate and to have been
given properly. We have relied, as to the matters set forth therein, on
certificates of public officials, and we have assumed the same to have been
properly given and to be accurate.
We have assumed that the execution and delivery of, and the
performance of all obligations under, the Indenture and the Guarantee Agreement
have been duly authorized by all requisite action by each party thereto, and
that such documents, when executed and delivered by the parties thereto, will
have been duly executed and delivered by the parties thereto, and will be valid
and binding agreements of the parties thereto (other than
<PAGE> 2
SunTrust Banks, Inc.
May 6, 1997
Page 2
the Company) enforceable against the parties thereto (other than the Company)
in accordance with their respective terms.
This opinion is limited in all respects to the laws of the State of
New York, and no opinion is expressed with respect to the laws of any other
jurisdiction or any effect that such laws may have on the opinions expressed
herein. This opinion is limited to the matters stated herein, and no opinion
is implied or may be inferred beyond the matters expressly stated herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Subordinated Debt Securities to be issued under
the Indenture, when the definitive terms and provisions thereof have
been duly established and when duly executed and delivered by the
Company and authenticated by the Trustee in accordance with the
Indenture and delivered to and paid for by the purchasers thereof,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject, as to the enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
2. The Guarantees to be issued pursuant to the Guarantee
Agreement, when the Guarantee Agreement has been duly executed and
delivered by the Company and the Trustee, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the enforcement of remedies,
to bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally, general equitable principles
and the discretion of courts in granting equitable remedies.
.
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 included in the Registration Statement. 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.
Very truly yours,
/s/ King & Spalding
-------------------
<PAGE> 1
EXHIBIT 5.2
[SKADDEN, ARPS, SLATE, MEAGHER & FLOM (DELAWARE) LETTERHEAD]
May 6, 1997
SunTrust Capital I
SunTrust Capital II
c/o SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Re: SunTrust Banks, Inc.
SunTrust Capital I
SunTrust Capital II
Registration Statement on Form S-3
(Registration No. 333-25381/-01/-02)
------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to SunTrust Capital
I and SunTrust Capital II (each, a "SunTrust Trust" and, together, the
"SunTrust Trusts"), each a statutory business trust created under the Business
Trust Act of the State of Delaware (12 Del. C. Section Section 3801, et seq.),
and SunTrust Banks, Inc. (the "Company"), a corporation organized under the
laws of the State of Georgia, in connection with the preparation of the
Registration Statement on Form S-3 (Registration No. 333-25381/-01/-02), filed
by the Company and the SunTrust Trusts with the Securities and Exchange
Commission (the "Commission") on April 17, 1997 under the Securities Act of
1933, as amended (the "Act"), and Amendment No. 1 thereto, to be filed with the
Commission on May 6, 1997 (such Registration Statement, as so amended, being
hereinafter referred to as the "Registration Statement"), in connection with
the registration of preferred securities (the "Preferred Securities") of the
SunTrust Trusts, and certain other securities.
The Preferred Securities of each SunTrust Trust are to be
issued pursuant to an Amended and Restated Declaration of Trust of such
SunTrust Trust (each, a "Declaration" and, collectively, the "Declarations"),
each such Declaration being among the Company, as sponsor
<PAGE> 2
SunTrust Capital I
SunTrust Captial II
SunTrust Banks, Inc.
May 6, 1997
Page 2
of the Trust, First Chicago Delaware Inc., as Delaware trustee (the "Delaware
Trustee"), The First National Bank of Chicago, as institutional trustee (the
"Institutional Trustee"), and Raymond D. Fortin, Donald T. Heroman and Kenneth
R. Houghton, as regular trustees (together, the "Regular Trustees").
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act. Capitalized
terms used but not otherwise defined herein have the meanings ascribed to them
in the Registration Statement.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement; (ii) the certificate of trust of each of the SunTrust
Trusts (each, a "Certificate of Trust" and, collectively, the "Certificates of
Trust") filed with the Secretary of State of the State of Delaware on April 16,
1997; (iii) the form of the Declaration of each of the SunTrust Trusts
(including the designation of the terms of the Preferred Securities of such
SunTrust Trust annexed thereto); and (iv) the form of the Preferred Securities
of each of the SunTrust Trusts. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed, or to be executed, by parties other than the SunTrust
Trusts, we have assumed that such parties had, or will have, the power,
corporate or other, to enter into and perform all obligations thereunder and
have also
<PAGE> 3
SunTrust Capital I
SunTrust Capital II
SunTrust Banks, Inc.
May 6, 1997
Page 3
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and that such
documents constitute valid and binding obligations of such parties. In
addition, we have assumed that the Declaration of each SunTrust Trust and the
Preferred Securities of such SunTrust Trust when executed will be in
substantially the forms reviewed by us. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers,
trustees and other representatives of the Company, the SunTrust Trusts and
others.
We do not express any opinion as to the laws of any
jurisdiction other than the laws of the State of Delaware.
Based on and subject to the foregoing and to the other
assumptions, qualifications and limitations set forth herein, we are of the
opinion that when (i) the Registration Statement becomes effective; (ii) the
Declaration of each SunTrust Trust has been duly executed and delivered by the
parties thereto; (iii) if the Preferred Securities are to be sold pursuant to a
firm commitment underwritten offering, the underwriting agreement with respect
to the Preferred Securities being sold has been duly authorized, executed and
delivered by the Company, the relevant SunTrust Trust and the other parties
thereto; and (iv) the terms of the Preferred Securities of each SunTrust Trust
have been duly established in accordance with the Declaration of such SunTrust
Trust and such Preferred Securities have been duly executed and authenticated
in accordance with the Declaration of such SunTrust Trust and delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, the
Preferred Securities of each SunTrust Trust will have been duly authorized for
issuance and, when issued and sold in accordance with the applicable
underwriting agreement or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement,
<PAGE> 4
SunTrust Capital I
SunTrust Capital II
SunTrust Banks, Inc.
May 6, 1997
Page 4
will be validly issued, fully paid and nonassessable, representing undivided
beneficial ownership interests in the assets of such SunTrust Trust; and the
holders of such 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. We bring
to your attention, however, that the holders of Preferred Securities of each
SunTrust Trust may be obligated, pursuant to the Declaration of such SunTrust
Trust, to (i) provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers of Preferred Securities
and (ii) provide security and indemnity in connection with the requests of or
directions to the Institutional Trustee of such SunTrust Trust to exercise its
rights and powers under the Declaration of such SunTrust Trust.
We hereby consent to the use of our name under the heading
"Legal Matters" in the prospectus which forms a part of the Registration
Statement. We also hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder. This opinion is
expressed as of the date hereof unless otherwise expressly stated and we
disclaim any undertaking to advise you of any subsequent changes in the facts
stated or assumed herein or of any subsequent changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate,
-------------------------
Meagher & Flom (Delaware)
