<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 1998
REGISTRATION NO. 333-
333- -01
333- -02
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
SUNTRUST CAPITAL III
SUNTRUST CAPITAL IV
(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)
303 PEACHTREE STREET, N.E. RAYMOND D. FORTIN, ESQ.
ATLANTA, GEORGIA 30308 SENIOR VICE PRESIDENT
(404) 588-7711 SUNTRUST BANKS, INC.
(Address, including zip code, and telephone number, 303 PEACHTREE STREET, N.E.
including ATLANTA, GEORGIA 30308
area code, of registrant's principal executive offices) (404) 588-7165
(Name, address, including zip code, and telephone number,
including
area code, of agent for service)
</TABLE>
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COPIES TO:
<TABLE>
<C> <C>
MARY A. BERNARD SUSAN J. SUTHERLAND
KING & SPALDING SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1185 AVENUE OF THE AMERICAS 919 THIRD AVENUE
NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10022
(212) 556-2100 (212) 735-3000
</TABLE>
---------------------
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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=================================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER SECURITY OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Preferred Securities of SunTrust Capital III... (1) (2) (1) N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred Securities of SunTrust Capital IV.... (1) (2) (1) N/A
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Guarantees by SunTrust Banks, Inc. of the
above-referenced Preferred Securities......... (3) (3) (3) N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Subordinated debt securities of SunTrust Banks,
Inc........................................... (1) (2) (1) N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Total.......................................... $500,000,000 N/A $500,000,000 $147,500
=================================================================================================================================
</TABLE>
(1) In no event will the aggregate initial offering price of the Preferred
Securities of SunTrust Capital III and SunTrust Capital IV (collectively,
the "Trusts") issued under this Registration Statement exceed $500,000,000,
exclusive of accrued interest and dividends, if any. A like amount of
Subordinated Debt Securities may be issued and sold by SunTrust Banks, Inc.
("SunTrust") to either of the Trusts, in which event such Subordinated Debt
Securities may later be distributed for no additional consideration to the
holders of the Preferred Securities of such Trust upon a dissolution of such
Trust and the distribution of the assets thereof.
(2) The proposed maximum offering price per unit will be determined from time to
time in connection with the issuance of the securities registered hereunder.
(3) Includes the rights of holders of the Preferred Securities of the Trusts
under the Guarantees and certain back-up undertakings, comprising the
obligations of SunTrust to provide certain indemnities in respect of, and
pay and be responsible for certain costs, expenses, debts and liabilities
of, the Trust (other than with respect to such Preferred Securities) and
such obligations of SunTrust as set forth in the Amended and Restated
Declaration of Trust of each Trust and the Indenture, in each case as
further described in the Registration Statement. The Guarantees, when taken
together with SunTrust's obligations under the Subordinated Debt Securities,
the Indenture and the Amended and Restated Declaration of Trust of each
Trust, will provide a full and unconditional guarantee on a subordinated
basis by SunTrust of payments due on the Preferred Securities of each Trust.
No separate consideration will be received for any Guarantee or such back-up
obligations.
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.
================================================================================
<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 FEBRUARY 11, 1998
PROSPECTUS
SUNTRUST BANKS, INC.
SUBORDINATED DEBT SECURITIES
---------------------
SUNTRUST CAPITAL III
SUNTRUST CAPITAL IV
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 III and SunTrust Capital IV (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 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, if any, of
SunTrust 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.
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.
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 OFFERED SECURITIES WILL NOT BE DEPOSITS OR SAVINGS ACCOUNTS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND WILL NOT BE
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The date of this Prospectus is February , 1998
<PAGE> 3
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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus its (i)
Annual Report on Form 10-K for the year ended December 31, 1996, (ii) Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997 and (iii) Current Reports on Form 8-K filed on May 12, 1997
and January 16, 1998.
2
<PAGE> 4
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.
3
<PAGE> 5
THE COMPANY
GENERAL
The Company is a regional bank holding company with three principal
subsidiaries: SunTrust Banks of Florida, Inc., headquartered in Orlando,
Florida; SunTrust Banks of Georgia, Inc., headquartered in Atlanta, Georgia; and
SunTrust Banks of Tennessee, Inc., headquartered in Nashville, Tennessee.
The Company, through its subsidiary banks (the "Subsidiary Banks"),
conducts a broad range of commercial banking activities, including accepting
demand, time and savings deposits, making both 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 securities.
Under the longstanding policy of the Board of Governors of the Federal
Reserve System, 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 bank 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.
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<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- --------------------------------
1997 1996 1996 1995 1994 1993 1992
----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Including interest on deposits...................... 1.60x 1.61x 1.61x 1.61x 1.83x 1.87x 1.58x
Excluding interest on deposits...................... 2.86x 3.41x 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
4
<PAGE> 6
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 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 costs and expenses related to the SunTrust
Capital Trusts and the offering of Trust Securities. No amendment or
modification may be made to the Declaration of a Trust that would adversely
affect the rights, privileges or preferences 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 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.
5
<PAGE> 7
Whenever particular provisions or defined terms in the Indenture are referred to
herein, such provisions or defined terms are incorporated by reference herein.
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.
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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.
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
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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 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)
to use commercially reasonable efforts, consistent with the terms and provisions
of the Declaration of such SunTrust Capital Trust to cause such SunTrust Capital
Trust (a) to remain a grantor trust, except in connection with a distribution of
Subordinated Debt Securities to the holders of the Trust Securities in
liquidation of the SunTrust Capital Trust, the redemption of all of the Trust
Securities of a SunTrust Capital Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such SunTrust Capital
Trust, and (b) to otherwise continue to be classified as a grantor trust and not
an association taxable as a corporation for United States federal income tax
purposes and (iii) not to cause, as sponsor of each SunTrust Capital Trust, or
permit, as holder of the Common Securities, the dissolution, winding-up or
termination of such SunTrust Capital Trust except in connection with a
distribution of the Subordinated Debt Securities as provided in the Declaration
of such SunTrust Capital Trust and in connection with certain mergers,
consolidations or amalgamations.
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
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(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
(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
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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 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 officer's 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
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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 a SunTrust Capital Trust to redeem or purchase such
Preferred Securities pursuant to any sinking fund or analogous provision, or at
the option of the 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
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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, as holder of the
Common Securities, 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."
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.
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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 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
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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.
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
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<PAGE> 16
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 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 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
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<PAGE> 17
(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.
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.
The participation of any affiliate of the Company in the offer and sale of
the Offered Securities will comply with the requirements of Rule 2720 of the
Conduct Rules of the NASD regarding the underwriting by an affiliate of
securities of its parent.
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 LLP, 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, 1997, 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 audited consolidated financial statements incorporated by reference in
this Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said report.
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<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses in connection with the issuance and distribution of the
Offered Securities being registered, other than underwriting compensation, are
as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $147,500
Attorneys' fees and expenses................................ 50,000
Blue Sky fees and expenses.................................. 10,000
Accounting fees and expenses................................ 50,000
Printing and engraving expenses............................. 75,000
Fees and expenses of Trustees............................... 20,000
Paying Agent fees........................................... 10,000
Rating Agency fees.......................................... 80,000
Miscellaneous expenses...................................... 12,500
--------
Total............................................. $455,000
========
</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.
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(6) "Official capacity" means:
(A) When used with respect to a director, the office of director in
a corporation; and
(B) When used with respect to an officer, as contemplated in Code
Section 14-2-857, the office in a corporation held by the officer.
Official capacity does not include service for any other domestic or
foreign corporation or any partnership, joint venture, trust, employee benefit
plan, or other entity.
(7) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative,
or investigative and whether formal or informal.
14-2-851. AUTHORITY TO INDEMNIFY.
(a) Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity, that
such conduct was in the best interests of the corporation;
(B) In all other cases, that such conduct was at least not opposed
to the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the individual had
no reasonable cause to believe such conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a)(1)(B) of this Code section.
(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.
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14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Code Section 14-2-851
unless authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the board of
directors by a majority vote of all the disinterested directors (a majority
of whom shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors appointed by
such a vote;
(2) By 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 or she received an improper
personal benefit.
(c) Where approved or authorized in the manner described in subsection (a)
of this Code section, a corporation may advance or reimburse expenses incurred
in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation of
his or her good faith belief that his or her conduct does not constitute
behavior of the kind described in subsection (b) of this Code section; and
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(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
(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.
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(b) Any provision pursuant to subsection (a) of this Code section shall not
obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation, pertaining to conduct with respect to the
predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of incorporation,
limit any of the rights to indemnification or advance for expenses created by or
pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part does
not limit a corporation's power to indemnify, advance expenses to, or provide or
maintain insurance on behalf of an employee or agent.
ARTICLES OF INCORPORATION AUTHORITY
Article 14 of the Corporation's Articles of Incorporation provides:
In addition to any powers provided by law, in the Bylaws, or
otherwise, the Corporation shall have the power to indemnify any person who
becomes a party or who is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including any action by or in the right of
the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
BYLAW AUTHORITY
Article VII of the Corporation's Bylaws provides:
Section 1. DEFINITIONS. As used in this Article, the term:
(A) "Corporation" includes any domestic or foreign predecessor entity
of this Corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other entity. A "director" is considered to be serving an employee benefit
plan at the Corporation's request if his duties to the Corporation also
impose duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
(C) "Disinterested director" means a director who at the time of a
vote referred to in Section 3(C) or a vote or selection referred to in
Section 4(B), 4(C) or 7(A) is not: (i) a party to the proceeding; or (ii)
an individual who is a party to a proceeding having a familial, financial,
professional, or employment relationship with the director whose
indemnification or advance for expenses is the subject of the decision
being made with respect to the proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on the
director's judgment when voting on the decision being made.
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(D) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise. An "Employee" is considered to be serving an employee
benefit plan at the Corporation's request if his duties to the Corporation
also impose duties on, or otherwise involve services by, him to the plan or
to participants in or beneficiaries of the plan. "Employee" includes,
unless the context requires otherwise, the estate or personal
representative of an employee.
(E) "Expenses" includes counsel fees.
(F) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a
proceeding.
(G) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an
assistant officer, or an individual who, while an Officer of the
Corporation, is or was serving at the Corporation's request as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit
plan, or other entity. An "Officer" is considered to be serving an employee
benefit plan at the Corporation's request if his duties to the Corporation
also impose duties on, or otherwise involve services by, him to the plan or
to participants in or beneficiaries of the plan. "Officer" includes, unless
the context requires otherwise, the estate or personal representative of an
Officer.
(H) "Official capacity" means: (i) when used with respect to a
director, the office of a director in a corporation; and (ii) when used
with respect to an Officer, the office in a corporation held by the
Officer. Official capacity does not include service for any other domestic
or foreign corporation or any partnership, joint venture, trust, employee
benefit plan, or other entity.
(I) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(J) "Proceeding" means any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative
or investigative and whether formal or informal.
Section 2. BASIC INDEMNIFICATION ARRANGEMENT.
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4 in
the specific case that such indemnification is permissible in the
circumstances under this subsection because the individual has met the
standard of conduct set forth in this subsection (A), the Corporation shall
indemnify an individual who is made a party to a proceeding because he is
or was a director or Officer against liability incurred by him in the
proceeding if he conducted himself in good faith and, in the case of
conduct in his official capacity, he reasonably believed such conduct was
in the best interest of the Corporation, or in all other cases, he
reasonably believed such conduct was at least not opposed to the best
interests of the Corporation and, in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for a
purpose he believes in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the proposed indemnitee did not meet the
standard of conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation,
except for reasonable expenses incurred in connection with the proceeding
if it is determined that such person has met the relevant standard of
conduct under
II-7
<PAGE> 25
this section, or (ii) with respect to conduct for which such person was
adjudged liable on the basis that personal benefit was improperly received
by him, whether or not involving action in his official capacity.
Section 3. ADVANCES FOR EXPENSES.
(A) The Corporation may advance funds to pay for or reimburse the
reasonable expenses incurred by a director or Officer who is a party to a
proceeding because he is a director or Officer in advance of final
disposition of the proceeding if: (i) such person furnishes the Corporation
a written affirmation of his good faith belief that he has met the relevant
standard of conduct set forth in subsection 2(A) above or that the
proceeding involves conduct for which liability has been eliminated under
the Corporation's Articles of Incorporation; and (ii) such person furnishes
the Corporation a written undertaking meeting the qualifications set forth
below in subsection 3(B), executed personally or on his behalf, to repay
any funds advanced if it is ultimately determined that he is not entitled
to any indemnification under this Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be an
unlimited general obligation of the director or Officer but need not be
secured and shall be accepted without reference to financial ability to
make repayment.
(C) Authorizations under this Section shall be made: (i) By the Board
of Directors: (a) when there are two or more disinterested directors, by a
majority vote of all disinterested directors (a majority of whom shall for
such purpose constitute a quorum) or by a majority of the members of a
committee of two or more disinterested directors appointed by such a vote;
or (b) when there are fewer than two disinterested directors, by a majority
of the directors present, in which authorization directors who do not
qualify as disinterested directors may participate; or (ii) by the
shareholders, but shares owned or voted under the control of a director who
at the time does not qualify as a disinterested director with respect to
the proceeding may not be voted on the authorization.
Section 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(A) The Corporation shall not indemnify a director or Officer under
Section 2 above unless authorized thereunder and a determination has been
made for a specific proceeding that indemnification of such person is
permissible in the circumstances because he has met the relevant standard
of conduct set forth in subsection 2(A) above; provided, however, that
regardless of the result or absence of any such determination, to the
extent that a director or Officer has been wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party
because he is or was a director or Officer, the Corporation shall indemnify
such person against reasonable expenses incurred by him in connection
therewith.
(B) The determination referred to in subsection 4(A) above shall be
made:
(i) If there are two or more disinterested directors, by the board
of directors by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a
majority of the members of a committee of two or more disinterested
directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (i); or
(2) if there are fewer than two disinterested directors,
selected by the Board of Directors (in which selection directors who
do not qualify as disinterested directors may participate); or
(iii) by the shareholders; but shares owned by or voted under the
control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
II-8
<PAGE> 26
(C) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses of a director or Officer in the
specific case shall be made in the same manner as the determination that
indemnification is permissible, as described in subsection 4(B) above,
except that if there are fewer than two disinterested directors or if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made by those entitled under subsection 4(B)(ii)(2) above to select
counsel.
(D) The Board of Directors, a committee thereof, or special legal
counsel acting pursuant to subsection (B) above or Section 5 below, shall
act expeditiously upon an application for indemnification or advances, and
cooperate in the procedural steps required to obtain a judicial
determination under Section 5 below.
(E) The Corporation may, by a provision in its Articles of
Incorporation or Bylaws or in a resolution adopted or a contract approved
by its Board of Directors or shareholders, obligate itself in advance of
the act or omission giving rise to a proceeding to provide indemnification
or advance funds to pay for or reimburse expenses consistent with this
part. Any such obligatory provision shall be deemed to satisfy the
requirements for authorization referred to in Section 3(C) or Section 4(C).
Section 5. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES. A
director or Officer who is a party to a proceeding because he is a director or
Officer may apply for indemnification or advances for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall order indemnification or advances for expenses if it determines
that:
(i) The director is entitled to indemnification under this part; or
(ii) In view of all the relevant circumstances, it is fair and
reasonable to indemnify the director or Officer or to advance expenses to
the director or Officer, even if the director or Officer has not met the
relevant standard of conduct set forth in subsection 2(A) above, failed to
comply with Section 3, or was adjudged liable in a proceeding referred to
in subsections (i) or (ii) of Section 2(D), but if the director or Officer
was adjudged so liable, the indemnification shall be limited to reasonable
expenses incurred in connection with the proceeding, unless the Articles of
Incorporation of the Corporation or a Bylaw, contract or resolution
approved or ratified by shareholders pursuant to Section 7 below provides
otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
Section 6. INDEMNIFICATION OF OFFICERS AND EMPLOYEES.
(A) Unless the Corporation's Articles of Incorporation provide
otherwise, the Corporation shall indemnify and advance expenses under this
Article to an employee of the Corporation who is not a director or Officer
to the same extent, consistent with public policy, as to a director or
Officer.
(B) The Corporation may indemnify and advance expenses under this
Article to an Officer of the Corporation who is a party to a proceeding
because he is an Officer of the Corporation: (i) to the same extent as a
director; and (ii) if he is not a director, to such further extent as may
be provided by the Articles of Incorporation, the Bylaws, a resolution of
the Board of Directors, or contract except for liability arising out of
conduct that is enumerated in subsections (A)(i) through (A)(iv) of Section
7.
The provisions of this Section shall also apply to an Officer who is also a
director if the sole basis on which he is made a party to the proceeding is an
act or omission solely as an Officer.
Section 7. SHAREHOLDER APPROVED INDEMNIFICATION.
(A) If authorized by the Articles of Incorporation or a Bylaw,
contract or resolution approved or ratified by shareholders of the
Corporation by a majority of the votes entitled to be cast, the Corporation
may indemnify or obligate itself to indemnify a person made a party to a
proceeding, including a
II-9
<PAGE> 27
proceeding brought by or in the right of the Corporation, without regard to
the limitations in other sections of this Article, but shares owned or
voted under the control of a director who at the time does not qualify as a
disinterested director with respect to any existing or threatened
proceeding that would be covered by the authorization may not be voted on
the authorization. The Corporation shall not indemnify a person under this
Section 7 for any liability incurred in a proceeding in which the person is
adjudged liable to the Corporation or is subjected to injunctive relief in
favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or
a knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of
the Georgia Business Corporation Code; or
(iv) for any transaction from which he received an improper
personal benefit.
(B) Where approved or authorized in the manner described in subsection
7(A) above, the Corporation may advance or reimburse expenses incurred in
advance of final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the Corporation a written
affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection 7(A)(i)-(iv)
above; and
(ii) the proposed indemnitee furnishes the Corporation a written
undertaking, executed personally, or on his behalf, to repay any
advances if it is ultimately determined that he is not entitled to
indemnification.
Section 8. LIABILITY INSURANCE. The Corporation may purchase and maintain
insurance on behalf of an individual who is a director, officer, employee, or
agent of the Corporation or who, while a director, officer, employee, or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other entity against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee, or agent,
whether or not the Corporation would have power to indemnify him against the
same liability under Section 2 or Section 3 above.
Section 9. WITNESS FEES. Nothing in this Article shall limit the
Corporation's power to pay or reimburse expenses incurred by a person in
connection with his appearance as a witness in a proceeding at a time when he is
not a party.
Section 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or
advances expenses to a director in connection with a proceeding by or in the
right of the Corporation, the Corporation shall report the indemnification or
advance, in writing, to shareholders with or before the notice of the next
shareholders' meeting.
Section 11. SEVERABILITY. In the event that any of the provisions of this
Article (including any provision within a single section, subsection, division
or sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of this Article shall remain
enforceable to the fullest extent permitted by law.
Section 12. INDEMNIFICATION NOT EXCLUSIVE. The rights of indemnification
provided in this Article VII shall be in addition to any rights which any such
director, Officer, employee or other person may otherwise be entitled by
contract or as a matter of law.
II-10
<PAGE> 28
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.
II-11
<PAGE> 29
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 III. (Certificate
of Trust for SunTrust Capital IV, identical except for the
name, will be filed on request.)
4.2 -- Declaration of Trust of SunTrust Capital III. (Declaration
of Trust for SunTrust Capital IV, identical except for the
name, will be filed on request.)
4.3.1* -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Floating Rate
Preferred Securities.
4.3.2 -- Form of Amended and Restated Declaration of Trust to be used
in connection with the issuance of the Fixed Rate Preferred
Securities.
4.4 -- Form of Indenture to be used in connection with the issuance
of Subordinated Debt Securities.
4.5.1* -- Form of Floating Rate Preferred Security (included in
Exhibit 4.3.1).
4.5.2 -- Form of Fixed Rate Preferred Security (included in Exhibit
4.3.2).
4.6.1* -- Form of Floating Rate Subordinated Debt Security (included
in Exhibit 4.9.1).
4.6.2 -- Form of Fixed Rate Subordinated Debt Security (included in
Exhibit 4.9.2).
4.7 -- Form of Common Securities Guarantee.
4.8 -- Form of Preferred Securities Guarantee.
4.9.1* -- Form of Supplemental Indenture to be used in connection with
the issuance by the Company of Floating Rate Subordinated
Debt Securities.
4.9.2 -- Form of Supplemental Indenture to be used in connection with
the issuance by the Company of Fixed Rate Subordinated Debt
Securities.
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 LLP as to
the legality of the Preferred Securities to be issued by the
SunTrust Capital Trusts (including the Consent of such
Counsel).
8.1* -- Form of Tax Opinion of King & Spalding.
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 LLP
(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 III.
25.3 -- Statement of Eligibility of Institutional Trustee under the
Amended and Restated Declaration of Trust of SunTrust
Capital IV.
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 III.
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 IV.
</TABLE>
- ---------------
* To be filed under a Current Report on Form 8-K and incorporated by reference
herein.
II-12
<PAGE> 30
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
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.
II-13
<PAGE> 31
(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-14
<PAGE> 32
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on February 10, 1998.
SUNTRUST BANKS, INC.
By: /s/ JAMES B. WILLIAMS
------------------------------------
James B. Williams
Chairman of the Board
and Chief Executive Officer
SUNTRUST CAPITAL III
By: /s/ DONALD T. HEROMAN
------------------------------------
Donald T. Heroman
Regular Trustee
SUNTRUST CAPITAL IV
By: /s/ DONALD T. HEROMAN
------------------------------------
Donald T. Heroman
Regular Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints JAMES B. WILLIAMS, Chairman of the Board, Chief
Executive Officer and a Director of the Company, L. PHILLIP HUMANN, President
and a Director of the Company, JOHN W. SPIEGEL, Executive Vice President and
Chief Financial Officer of the Company, RAYMOND D. FORTIN, Secretary of the
Company, or any one of them, and any agent for service named in this
Registration Statement and each of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any registration
statements filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended and any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agents or any of them, their or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
II-15
<PAGE> 33
Pursuant to the requirements of the Securities Act of 1933, as amended,
this 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> <C> <C>
/s/ JAMES B. WILLIAMS Chairman of the Board and February 10, 1998
- ----------------------------------------------------- Chief Executive Officer
James B. Williams
/s/ L. PHILLIP HUMANN President and Director February 10, 1998
- -----------------------------------------------------
L. Phillip Humann
/s/ JOHN W. SPIEGEL Executive Vice President and February 10, 1998
- ----------------------------------------------------- Chief Financial Officer
John W. Spiegel
/s/ WILLIAM P. O'HALLORAN Senior Vice President and February 10, 1998
- ----------------------------------------------------- Chief Accounting Officer
William P. O'Halloran
/s/ J. HYATT BROWN Director February 10, 1998
- -----------------------------------------------------
J. Hyatt Brown
/s/ JAMES D. CAMP, JR. Director February 10, 1998
- -----------------------------------------------------
James D. Camp, Jr.
Director February , 1998
- -----------------------------------------------------
Alston D. Correll
/s/ A.W. DAHLBERG Director February 10, 1998
- -----------------------------------------------------
A.W. Dahlberg
/s/ SUMMERFIELD K. JOHNSTON, JR. Director February 10, 1998
- -----------------------------------------------------
Summerfield K. Johnston, Jr.
/s/ DAVID H. HUGHES Director February 10, 1998
- -----------------------------------------------------
David H. Hughes
/s/ JOSEPH L. LANIER, JR. Director February 10, 1998
- -----------------------------------------------------
Joseph L. Lanier, Jr.
/s/ LARRY L. PRINCE Director February 10, 1998
- -----------------------------------------------------
Larry L. Prince
/s/ SCOTT L. PROBASCO, JR. Director February 10, 1998
- -----------------------------------------------------
Scott L. Probasco, Jr.
/s/ R. RANDALL ROLLINS Director February 10, 1998
- -----------------------------------------------------
R. Randall Rollins
</TABLE>
II-16
<PAGE> 1
EXHIBIT 1.1
SunTrust Banks, Inc.
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
The statutory business trust organized under the Business
Trust Act (the "Delaware Act") of the State of Delaware and identified on
Schedule I hereto (the "Trust") and SunTrust Banks, Inc., a Georgia corporation
(the "Company" and, together with the Trust, the "Offerors"), confirm their
agreement with you and each of the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of the Trust's securities identified in Schedule I hereto
(the "Preferred Securities") to be issued under a declaration of trust
identified in Schedule I hereto (the "Declaration") among the Company, the
trustees named therein, including the institutional trustee identified in
Schedule I hereto (the "Institutional Trustee"), and the holders from time to
time of beneficial ownership interests in the assets of the Trust. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has agreed to guarantee irrevocably and
unconditionally the obligations of the Trust with respect to the Preferred
Securities (the "Preferred
<PAGE> 2
Securities Guarantee") pursuant to a Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement") by and between the Company and
The First National Bank of Chicago, as trustee (the "Preferred Guarantee
Trustee") on behalf of the holders of Preferred Securities of the Trust. The
Company has also agreed to guarantee irrevocably and unconditionally the
obligations of the Trust with respect to the Common Securities (the "Common
Securities Guarantee") pursuant to a Common Securities Guarantee Agreement (the
"Common Securities Guarantee Agreement") to the same extent as the Preferred
Securities Guarantee except that upon an event of default under the Indenture,
the holders of Preferred Securities shall have priority over holders of Common
Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
The proceeds from the sale of the Preferred Securities to the
Underwriters together with the proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities" and, together with
the Preferred Securities, the "Trust Securities") will be used by the Trust to
purchase the Company's subordinated debt securities identified in Schedule I
hereto (the "Debentures") to be issued by the Company pursuant to an indenture
identified in Schedule I hereto (the "Base Indenture") between the Company and
the trustee identified in Schedule I hereto (the "Debt Trustee"), as amended by
a supplemental indenture pertaining to the Debentures to be purchased by the
Trust and identified in Schedule I hereto (the "Supplemental Indenture" and,
together with the Base Indenture, the "Indenture").
1. Representations and Warranties. The Offerors jointly
and severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are defined
in paragraph (c) hereof.
(a) If the offering of the Preferred Securities is a
Delayed Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable and, if the offering of the Preferred Securities
is a Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
2
<PAGE> 3
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Preferred Securities. The
Company may have filed one or more amendments thereto, and
may have used a Preliminary Final Prospectus, each of which
has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering
of the Preferred Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Preferred Securities and the
offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective
Date. The Company will next file with the Commission pursuant
to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement
relating to the Preferred Securities and the offering
thereof. As filed, such final prospectus supplement shall
include all required information with respect to the
Preferred Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Offerors have advised
you, prior to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration state-
3
<PAGE> 4
ment (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Preferred Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Preferred Securities in
accordance with Rules 430A and 424(b)(l) or (4), or (y) prior
to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x),
the Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with
respect to the Preferred Securities and the offering thereof.
As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all
Rule 430A Information, together with all other such required
information, with respect to the Preferred Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Offerors have advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
hereinafter defined), the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the Act, the Securi-
4
<PAGE> 5
ties Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date each of the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture did or will comply in
all material respects with the requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act
of the Institutional Trustee, (ii) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the
Guarantee Trustee, (iii) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-l) under the Trust Indenture Act of the Debt Trustee or (iv) the
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that
5
<PAGE> 6
the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the
date hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus
which describes the Preferred Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Preferred
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Preferred Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall
also mean such registration statement as so amended. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A" and "Regulation S-K" refer to such rules or regulation under the
Act. "Rule 430A Information" means information with respect to the
Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incor-
6
<PAGE> 7
porated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in
such registration statement at the effective date thereof with respect
to the securities so offered. Whether the offering of the Preferred
Securities is a Non-Delayed Offering or a Delayed Offering shall be
set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Trust agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the purchase
price set forth in Schedule I hereto the principal amount of the Preferred
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Preferred Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Preferred Securities to be purchased by the Underwriters shall be
7
<PAGE> 8
as set forth in Schedule II hereto less the respective amounts of Contract
Securities (as defined) determined as provided below. Preferred Securities to
be purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Preferred Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Preferred Securities from the Trust
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Offerors may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the principal amount of the
Preferred Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Offerors will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors but, except as the Offerors
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Preferred Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of Preferred
Securities set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Offerors in writing; provided, however, that the
total principal amount of Preferred
8
<PAGE> 9
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five business
days after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and the
Offerors or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer, or certified
or official bank check or checks drawn on or by a New York bank and payable in
such funds as are specified in Schedule I hereto. Delivery of the Underwriters'
Securities shall be made at such location as the Representatives shall
reasonably designate at least one business day in advance of the Closing Date
and payment for the Preferred Securities shall be made at the office specified
in Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than two full business days in advance of the Closing Date.
The Trust agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Agreements of the Offerors. The Offerors jointly and
severally agree with the several Underwriters that:
(a) The Offerors will use their best efforts to cause
the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the
termination
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<PAGE> 10
of the offering of the Preferred Securities, the Offerors will not
file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus unless the Offerors have furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Offerors will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Offerors will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Preferred Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by either of the Offerors of any notification with respect to the
suspension of the qualification of the Preferred Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Offerors will use their best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Preferred Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the
10
<PAGE> 11
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Offerors promptly will (i) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make
generally available to the holders of the Preferred Securities and to
the Representatives an earnings statement or statements of the Company
and its subsidiaries that will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Offerors will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Offerors will arrange for the qualification of
the Preferred Securities for sale under the laws of such jurisdictions
as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities and will arrange for the determination of the
legality of the Preferred Securities for purchase by institutional
investors.
(f) Until the business day following the Closing Date,
the Offerors will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt
11
<PAGE> 12
securities issued or guaranteed by the Company or the Trust (other
than the Preferred Securities, the Preferred Securities Guarantee and
the Debentures).
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Offerors contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Offerors made in any
certificates pursuant to the provisions hereof, to the performance by the
Offerors of their obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Raymond D. Fortin, Senior Vice
President - Legal of the Company, or of other counsel for the Company
satisfactory to the Representatives, dated the Closing Date, to the
effect that:
i) each of the Company, SunTrust Banks of
Florida, Inc., SunTrust Banks of Georgia, Inc., SunTrust
Banks of Tennessee, Inc., SunTrust Bank, Central Florida and
SunTrust Bank, Atlan-
12
<PAGE> 13
ta (individually a "Subsidiary" and collectively the
"Subsidiaries"), has been duly incorporated or organized and
is validly existing as a corporation or banking association in
good standing under the laws of the jurisdiction of its
incorporation or organization, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business; and the Company is duly registered
as a bank holding company under the Bank Holding Company Act
of 1956, as amended;
ii) each of the Declaration, the Preferred
Securities Guarantee Agreement, the Common Securities
Guarantee Agreement, the Base Indenture, the Supplemental
Indenture, the Debentures, this Agreement and any Delayed
Delivery Contract has been duly authorized by the Company;
iii) except as otherwise set forth in the Final
Prospectus, all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned of
record by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
iv) to the knowledge of such counsel, (a) there
is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not ade-
13
<PAGE> 14
quately disclosed in the Final Prospectus; and (b) there is no
contract or other document of a character required to be
described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed
as required; and the statements included or incorporated in
the Final Prospectus describing any legal proceedings or
material contracts or agreements (or provisions thereof)
relating to the Company fairly summarize in all material
respects such proceedings, material contracts or agreements
(or provisions thereof);
v) to the knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Trust, of a character required to be
disclosed in the Registration Statement that is not
adequately disclosed in the Final Prospectus;
vi) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened; and the Registration
Statement and the Final Prospectus (other than the financial
statements and schedules and other financial and statistical
information contained or incorporated therein and the Form T-1
Statements of Eligibility and Qualification filed as exhibits
to the Registration Statement, as to which such counsel need
express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder;
14
<PAGE> 15
vii) no consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation by the Company of the transactions
contemplated herein or in any Delayed Delivery Contract,
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the
Preferred Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
viii) the execution, delivery and performance by
the Company of this Agreement, any Delayed Delivery Contract,
the Declaration, the Preferred Securities Guarantee
Agreement, the Common Securities Guarantee Agreement, the
Base Indenture and the Supplemental Indenture, the
consummation by the Company of the transactions herein and
therein contemplated and the issuance and sale of the
Debentures will not conflict with, result in a breach or
violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any
indenture or other material agreement or instrument known to
such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order or
decree known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
ix) to the knowledge of such counsel, no holder
of securities of the Company has rights to the registration
of such securities under the Registration Statement.
In addition, such counsel shall state that, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the Final
Prospectus, such counsel has no reason to believe that the Registration
Statement (other than the financial statements and schedules and other financial
and statistical information contained or incorporated therein and the Form T-1
Statements of Eligibility and Qualifi-
15
<PAGE> 16
cation filed as exhibits to the Registration Statement, as to which
such counsel need express no belief), at its effective date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus (other
than the financial statements and schedules and other financial and
statistical information contained or incorporated therein, as to which
such counsel need express no belief), as of its issue date and as of
the Closing Date, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Georgia or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, without independent
verification, on certificates of officers of the Company and the Trust
and public officials. Further, in rendering such opinion, such counsel
may state that whenever any opinion with respect to any matters set
forth above is stated to be based upon such counsel's knowledge or to
be given "to such counsel's knowledge" or as "known to such counsel,"
such qualification shall signify that no information has come to the
attention of such counsel that would give such counsel actual current
awareness of the existence or absence of the matter in question.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the
Representatives the opinion of King & Spalding, counsel for the
Company, dated the Closing Date, to the effect that:
i) the Company's authorized equity
capitalization is as set forth in the Final Prospectus; the
Preferred Securities, Common Securities and Debentures
conform in all material respects to the respective
descriptions thereof contained in the Final Prospectus;
ii) the Declaration has been duly executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and
16
<PAGE> 17
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iii) the Preferred Securities Guarantee
Agreement has been duly executed and delivered by the
Company, has been duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies);
iv) the Common Securities Guarantee Agreement
has been duly executed and delivered by the Company and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
v) the Base Indenture and Supplemental
Indenture have each been duly executed and delivered by the
Company, the Base Indenture has been duly qualified under the
Trust Indenture Act, and the Base Indenture and Supplemental
Indenture each constitute a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies); and the Debentures are in the form contemplated by
17
<PAGE> 18
the Base Indenture and Supplemental Indenture and, when
executed and authenticated in accordance with the provisions
of the Base Indenture and Supplemental Indenture and
delivered to and paid for by the Trust, will constitute
legal, valid and binding obligations of the Company (subject,
as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies)
entitled to the benefits of the Base Indenture and
Supplemental Indenture;
vi) this Agreement and any Delayed Delivery
Contract have been duly executed and delivered by the
Company;
vii) the statements in the Final Prospectus
under the captions "Description of the Preferred Securities,"
"Description of the Preferred Securities Guarantee,"
"Description of the Debentures" and "ERISA Considerations,"
and in the Basic Prospectus under the captions "Description
of the Subordinated Debt Securities," "Description of the
Preferred Securities" and "Description of the Preferred
Securities Guarantees," in each case insofar as such
statements constitute summaries of the legal matters or
documents (or provisions thereof) referred to therein, fairly
present the information required to be described with respect
to such legal matters and documents (or provisions thereof)
and fairly summarize in all material respects such legal
matters and documents (or provisions thereof) required to be
so described;
viii) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
18
<PAGE> 19
Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
In rendering such opinion, such counsel may rely (A) upon the
opinion of Raymond D. Fortin, Senior Vice President - Legal of the
Company, or of other counsel for the Offerors satisfactory to the
Representatives, (B) as to matters involving the application of laws,
other than the Delaware General Corporation Law and the laws of the
States of Georgia and New York and of the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (C) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Trust and public officials. References
to the Final Prospectus made in this paragraph (c) include any
supplements thereto at the Closing Date.
(d) The Offerors shall have furnished to the
Representatives the opinion of King & Spalding, special tax counsel
for the Company and the Trust, dated the Closing Date, to the effect
that:
i) the Trust will be classified as a grantor
trust and not as an association taxable as a corporation for
United States federal income tax purposes. As a result, each
beneficial owner of Preferred Securities (a
"Securityholder") will be required to include in its gross
income its pro rata share of the interest income, including
original issue discount, paid or accrued with respect to the
Debentures, whether or not cash is actually distributed to
the Securityholder;
ii) the Debentures will be treated as
indebtedness of the Company for United States federal income
tax purposes; and
iii) the discussion contained in the Final
Prospectus under the caption "United States Federal Income
Taxation" constitutes, in all material respects, a fair and
accurate summary
19
<PAGE> 20
of United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities
under current law.
(e) The Trust shall have furnished to the
Representatives the opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, special Delaware counsel for the Trust, dated the Closing Date,
to the effect that:
i) the Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Act; all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
ii) the Declaration has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid
and binding instrument enforceable against the Regular
Trustees in accordance with its terms (subject, as to
enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iii) under the Delaware Act and the Declaration,
the Trust has the power and authority to (A) execute and
deliver, and to perform its obligations under, this Agreement
and any Delayed Delivery Contract, (B) issue and sell the
Preferred Securities and the Common Securities and (C)
conduct its business as described in the Final Prospectus;
iv) the Preferred Securities have been duly
authorized for issuance by the Trust and are in the form
contemplated by the Declaration and, subject to the
qualifications set forth below, when certificates therefor in
the form examined by such counsel are issued, executed and
authenticated in accordance with the Declaration and
delivered and paid for in accordance with this Agreement and
any Delayed Delivery Contract, will be validly issued, fully
paid
20
<PAGE> 21
and nonassessable undivided beneficial ownership interests in
the assets of the Trust entitled to the benefits of the
Declaration; and the holders of the Preferred Securities will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. Such counsel may bring to the attention of the
Underwriters, however, that the Preferred Securities holders
may be obligated, pursuant to the Declaration, to (i) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred
Securities and the issuance of replacement Preferred
Securities, and (ii) provide security and indemnity in
connection with requests of or directions to the Property
Trustee (as defined) to exercise its rights and powers under
the Declaration. The issuance of the Preferred Securities is
not subject to preemptive or other similar rights under the
Delaware Act or the Declaration;
v) the Common Securities have been duly
authorized for issuance by the Trust and are in the form
contemplated by the Declaration and, subject to the
qualifications set forth below, when certificates therefor in
the form examined by such counsel are issued, delivered and
paid for in accordance with the Declaration, will be validly
issued, fully paid and nonassessable undivided beneficial
ownership interests in the assets of the Trust entitled to
the benefits of the Declaration; and the holders of the
Common Securities will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may
bring to the attention of the Underwriters, however, that the
Common Securities holders may be obligated, pursuant to the
Declaration, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers of Common Securities and the issuance of
replacement Common Securities,
21
<PAGE> 22
and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as
defined) to exercise its rights and powers under the
Declaration. The issuance of the Common Securities is not
subject to preemptive or other similar rights under the
Delaware Act or the Declaration;
vi) this Agreement and any Delayed Delivery
Contract have been duly authorized, executed and delivered
by the Trust;
vii) based on such counsel's review of
Applicable Laws, no Governmental Approval which has not been
obtained or taken and is not in full force and effect is
required to authorize or is required in connection with the
execution or delivery by the Trust of this Agreement or any
Delayed Delivery Contract or the performance by the Trust of
the transactions contemplated hereby and thereby. As used in
this paragraph and the following paragraph, (A) the term
"Applicable Laws" means only the Delaware Business Trust Act,
the General Corporation Law of the State of Delaware and
those laws, rules and regulations of the State of Delaware
which, in such counsel's experience, are ordinarily
applicable to transactions of the type contemplated by this
Agreement and any Delayed Delivery Contract (excluding (1)
federal securities laws and state securities or "blue sky"
laws and (2) any anti-fraud laws), but without such counsel
having made any special investigation with respect to any
other laws, rules or regulations; (B) the term "Governmental
Approval" means any consent, approval, license, authorization
or validation of, or filing, qualification or registration
with, any Governmental Authority pursuant to Applicable Laws;
and (C) the term "Governmental Authority" means any Delaware
legislative, judicial, administrative or regulatory body
under Applicable Laws;
viii) the execution, delivery and performance by
the Trust of this Agreement and any Delayed Delivery
Contract, and the issuance and sale of the Preferred
Securities and the Common
22
<PAGE> 23
Securities by the Trust in accordance with the terms of this
Agreement and the consummation of the other transactions
contemplated hereby, will not (a) violate any Applicable Laws
or (b) conflict with the certificate of trust of the Trust or
the Declaration; and
ix) the Trust is not regulated or required to
be registered as an "investment company" under the Investment
Company Act of 1940, as amended.
(f) The Offerors shall have furnished to the
Representatives the opinion of Pepper, Hamilton & Scheetz, special
Delaware counsel for The First National Bank of Chicago, as
Institutional Trustee under the Declaration, Preferred Guarantee
Trustee under the Preferred Securities Guarantee Agreement and Debt
Trustee under the Indenture, and First Chicago Delaware Inc., as
Delaware Trustee under the Declaration, dated the Closing Date, with
respect to such matters as the Representatives may reasonably require.
(g) The Representatives shall have received from
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Preferred Securities and the
Debentures; with respect to the execution, delivery and performance of
the Declaration, the Preferred Securities Guarantee Agreement, the
Base Indenture and the Supplemental Indenture; and with respect to the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Offerors shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) The Offerors shall have each furnished to the
Representatives their respective certificates, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, and by two or more of the Regular
Trustees of the Trust, respectively, dated the Clos-
23
<PAGE> 24
ing Date, each to the effect that the signers of each such certificate
have carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
i) the representations and warranties of the
Company and the Trust, as the case may be, in this Agreement
are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company and the Trust, as the case may
be, has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
knowledge of the Company and the Trust, as the case may be,
threatened; and
iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries
and of the Trust, as the case may be, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(i) At the Closing Date, Arthur Andersen LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
24
<PAGE> 25
i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
ii) on the basis of a reading of the amounts included or
incorporated in the Registration Statement and the Final Prospectus in
response to Item 301 of Regulation S-K and of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
audit in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive committee of the
Company and its subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came to
their attention which caused them to believe that:
(1) the amounts in the "Selected Historical
Financial Data" included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
corresponding amounts in the audited and unaudited financial
statements from which such amounts were derived;
(2) any unaudited financial statements included
or incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects
with applicable accounting requirements and with the
published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
25
<PAGE> 26
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(3) with respect to the period subsequent to
the date of the most recent financial statements (other than
any capsule information), audited or unaudited, included or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
shareholders' equity of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
included or incorporated in the Registration Statement and
the Final Prospectus to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year (on a consolidated basis), in net interest
income; net interest income after provision for loan losses
or in income before income taxes, or in the total or per
share amount of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
26
<PAGE> 27
iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12.1 to the Registration Statement,
including the information included or incorporated in Items 1, 2, 6, 7
and 11 of the Company's Annual Report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and the information
included in the Company's Quarterly Reports on Form 10-Q, incorporated
in the Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired company
who have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of such statements.
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Arthur Andersen LLP shall have furnished to the Representatives a letter
or letters, dated as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth in the introductory paragraph to
this paragraph (i), in subparagraphs (i) and (ii)(2) above and, to the extent
referring to infor-
27
<PAGE> 28
mation contained in Exchange Act reports incorporated in the
Registration Statement and the Final Prospectus in subparagraphs
(ii)(l) and (iii) above.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (i) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries or of the
Trust the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Preferred Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(m) The Trust shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
28
<PAGE> 29
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Offerors in
writing or by telephone or fax confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the Underwriters, at 919 Third Avenue, New York, New York 10022, on
the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Preferred Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied, because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company or the
Trust to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Preferred Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Preferred Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in
29
<PAGE> 30
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Offerors by or on behalf
of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, the Trust and each of
the Regular Trustees, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Offerors by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Offerors acknowledge that the statements set forth in the last paragraph of the
cover page, under the heading "Underwriting" or "Plan of Distribution" and, if
Schedule I hereto provides for sales of Preferred Securities pursuant to
delayed delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent
30
<PAGE> 31
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which
31
<PAGE> 32
the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Offerors and by the Underwriters from the offering of the Preferred Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Preferred Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Offerors and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Offerors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the
Offerors or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement, each director of the Company and each
Regular Trustee of the Trust shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters' obligations to contribute
32
<PAGE> 33
as provided in this Section 7 shall be several in proportion to their
respective underwriting obligations and not joint.
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Preferred Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Preferred Securities set forth opposite their names in Schedule
II hereto bears to the aggregate amount of Preferred Securities set forth
opposite the names of all the remaining Underwriters) the Preferred Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Preferred
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Preferred Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Preferred Securities, and if such nondefaulting Underwriters do not
purchase all the Preferred Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Offerors. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Offerors and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of and payment for the Preferred Securities,
if prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by federal or Florida,
Georgia, Tennessee or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
33
<PAGE> 34
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Preferred Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of the Trust or its Regular Trustees
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Offerors or any of the officers, directors,
trustees or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Preferred Securities. The provisions
of Sections 6 and 7 hereof shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or faxed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company or the Trust, will
be mailed, delivered or faxed and confirmed to it at 303 Peachtree Street,
N.E., Atlanta, Georgia 30308, attention of the Treasurer.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
34
<PAGE> 35
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof
whereupon this Letter and your acceptance shall represent a binding agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
SunTrust Capital _______
by
---------------------------
Name:
Title:
SunTrust Banks, Inc.
by
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified below.
- -----------------------
by
---------------------
by
----------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
Date:
------------------
35
<PAGE> 36
SCHEDULE I
<TABLE>
<S> <C>
Underwriting Agreement: Underwriting Agreement dated
-------------------
Registration Statement: No. 333-_______, 333-________-
01 and 333-________02
Trust Issuing
Preferred Securities: SunTrust Capital Trust __
Declaration Governing
Preferred Securities: Amended and Restated Declaration
of Trust of SunTrust Capital Trust
__, dated as of ________, _____,
among the Company, the trustees
named therein and the holders from
time to time of beneficial
ownership interests in the
assets of SunTrust Capital
Trust __
Institutional Trustee
under Declaration: The First National Bank of
Chicago
Preferred Securities Guarantee
Agreement Guaranteeing
Preferred Securities: Preferred Securities Guarantee
Agreement, dated as of _______,
_____, between the Company and The
First National Bank of Chicago,
as trustee
Guarantee Trustee Under
Preferred Securities
Guarantee Agreement: The First National Bank of
Chicago
Debentures to be
Purchased with Proceeds
of Trust Securities: ---------------------------
</TABLE>
I-1
<PAGE> 37
<TABLE>
<S> <C>
Base Indenture
Governing Debentures: Indenture, dated as of ______,
1998, between the Company and
The First National Bank of
Chicago, as trustee (the "Debt
Trustee")
Supplemental Indenture
Governing Debentures: _______ Supplemental Indenture,
dated as of _____, between the
Company and the Debt Trustee
Debt Trustee: The First National Bank of
Chicago
Representative(s): _______________________
_______________________
Title, Purchase Price _________ Preferred Securities
and Description of Series
Preferred Securities:
Title:
Liquidation amount: $________________________
Purchase price (including
accrued interest or
amortization, if any): $_________
Sinking fund provisions: _________
Redemption provisions: _____________________
Other provisions: ______________________
Closing Date, Time and Location:
Closing Date: ___________
</TABLE>
I-2
<PAGE> 38
<TABLE>
<S> <C>
Time: ___________
Location: ____________
Type of Offering: ______________
Payment of Funds: _____________
Delayed Delivery Arrangements:
Fee: _______
Minimum principal amount
of each contract: __________
Maximum aggregate principal
amount of all contracts: _______
Modification of items to be
covered by the letter from
Arthur Andersen LLP delivered
pursuant to Section 5(i)
at the Execution Time: [No modification except that
such letter will be delivered
at Closing Time, not Execution
Time.]
</TABLE>
I-3
<PAGE> 39
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount of Preferred
Underwriters Securities to be Purchased
- ------------ -----------------------------
<S> <C>
- ------------------- ............................ $
-----------------
Total................................... $
-----------------
</TABLE>
II-1
<PAGE> 40
SCHEDULE III
Delayed Delivery Contract
----------
[Insert name and address
of lead Representative(s)]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SunTrust
Capital _____ (the "Trust"), and the Trust agrees to sell to the undersigned,
on __________ (the "Delivery Date"), $__________ principal amount of the
Trust's Preferred Securities, Series _____ due __________ (the "Preferred
Securities") offered by the Trust's Prospectus dated __________, 1998 and
related Prospectus Supplement dated __________, _____ receipt of a copy of
which is hereby acknowledged, at a purchase price of _____% of the principal
amount thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from __________ to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Preferred Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City time, on the
Delivery Date to or upon the order of the Trust in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Trust and the undersigned, upon delivery to the undersigned of the
Preferred Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or fax communication addressed to the Trust not less than five full
business days prior to the Delivery Date. If no request is received, the
Preferred Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Preferred
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Preferred Securities on the Delivery Date, and the obligation
of the Trust to sell and deliver Preferred Securities on the Delivery Date,
shall be subject to the conditions (and neither
III-1
<PAGE> 41
party shall incur any liability by reason of the failure thereof) that (l) the
purchase of Preferred Securities to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Trust, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Preferred Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters,
the Trust will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion(s) of counsel
for the Trust delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Preferred Securities, and the obligation of the Trust to cause the Preferred
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Preferred Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Trust's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Trust, it is required that the Trust sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Trust and the undersigned, as of the date first above written, when
such counterpart is so mailed or delivered.
III-2
<PAGE> 42
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
----------------------------------
(Name of Purchaser)
by
--------------------------------
(Signature and Title of Officer)
----------------------------------
(Address)
Accepted:
SunTrust Capital _____
by
----------------------------
Name:
Title:
SunTrust Banks, Inc.
by
----------------------------
Name:
Title:
III-3
<PAGE> 1
Exhibit 4.1
CERTIFICATE OF TRUST
The undersigned, the trustees of SunTrust Capital III,
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 III."
(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: February 10, 1998
/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/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:/s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
<PAGE> 1
EXHIBIT 4.2
================================
DECLARATION OF TRUST
SunTrust Capital III
Dated as of February 10, 1998
================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <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 III
February 10, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
February 10, 1998 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 3.1.
"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 III." 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
4
<PAGE> 7
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
5
<PAGE> 8
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 or quotation
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, if the Sponsor in its sole discretion determines
that such a filing is necessary or appropriate; 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.
6
<PAGE> 9
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) at the sole discretion of the Sponsor, to prepare for
filing by the Trust an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Preferred
Securities;
(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, if the
Sponsor in its sole discretion determines that such a filing is
necessary or appropriate; 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.
7
<PAGE> 10
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
8
<PAGE> 11
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.
9
<PAGE> 12
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
10
<PAGE> 13
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 contemplated 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 termi-
nation of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
11
<PAGE> 14
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 contemplated action or suit by or in the right of the Trust to
procure a judgment in its favor by reason of the fact that he is or was
a 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
12
<PAGE> 15
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.
13
<PAGE> 16
(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.
14
<PAGE> 17
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
15
<PAGE> 18
(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.
16
<PAGE> 19
Exhibit 4.2
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. Houghton
Regular Trustee
FIRST CHICAGO DELAWARE INC., as
Delaware Trustee
By:/s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:/s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
SUNTRUST BANKS, INC., as Sponsor
By:/s/ Raymond D. Fortin
--------------------------------
Raymond D. Fortin
Senior Vice President
17
<PAGE> 20
EXHIBIT A
(begins on next page)
<PAGE> 21
CERTIFICATE OF TRUST
The undersigned, the trustees of SunTrust Capital III,
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 III."
(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: February 10, 1998
/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/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:/s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
<PAGE> 1
- --------------------------------------------------------------------------------
EXHIBIT 4.3.2
AMENDED AND RESTATED DECLARATION
OF TRUST
SUNTRUST CAPITAL __
Dated as of _______ __ , _____
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1 Definitions.......................................................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application..................................................... 11
SECTION 2.2 Lists of Holders of Securities....................................................... 11
SECTION 2.3 Reports by the Institutional Trustee................................................. 12
SECTION 2.4 Periodic Reports to the Institutional Trustee........................................ 12
SECTION 2.5 Evidence of Compliance with Conditions Precedent..................................... 12
SECTION 2.6 Events of Default; Waiver............................................................ 12
SECTION 2.7 Event of Default; Notice............................................................. 14
ARTICLE III
ORGANIZATION
SECTION 3.1 Name................................................................................. 15
SECTION 3.2 Office............................................................................... 15
SECTION 3.3 Issuance of the Trust Securities..................................................... 15
SECTION 3.4 Purchase of Debentures............................................................... 16
SECTION 3.5 Purpose.............................................................................. 16
SECTION 3.6 Authority............................................................................ 16
SECTION 3.7 Title to Property of the Trust....................................................... 17
SECTION 3.8 Powers and Duties of the Regular Trustees............................................ 17
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.......................................... 25
SECTION 3.13 Delaware Trustee..................................................................... 27
SECTION 3.14 Execution of Documents............................................................... 27
SECTION 3.15 Not Responsible for Recitals or Issuance of Securities............................... 28
SECTION 3.16 Duration of Trust.................................................................... 28
SECTION 3.17 Mergers.............................................................................. 28
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV
SPONSOR
SECTION 9.1 Transfer of Securities............................................................... 41
SECTION 4.1 Sponsor's Purchase of Common Securities.............................................. 30
SECTION 4.2 Responsibilities of the Sponsor...................................................... 30
SECTION 4.3 Right to Proceed..................................................................... 31
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees................................................................... 31
SECTION 5.2 Delaware Trustee..................................................................... 31
SECTION 5.3 Institutional Trustee; Eligibility................................................... 32
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.................................................................... 33
SECTION 5.5 Regular Trustees..................................................................... 33
SECTION 5.6 [Reserved]........................................................................... 33
SECTION 5.7 Appointment, Removal and Resignation of Trustees..................................... 33
SECTION 5.8 Vacancies among Trustees............................................................. 35
SECTION 5.9 Effect of Vacancies.................................................................. 35
SECTION 5.10 Meetings............................................................................. 35
SECTION 5.11 Delegation of Power.................................................................. 36
SECTION 5.12 Merger, Conversion, Consolidation or Succession to
Business............................................................................. 36
SECTION 5.13 Appointment of Authenticating Agent.................................................. 36
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions........................................................................ 38
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.............................................. 38
SECTION 7.2 Execution and Delivery of Securities Certificates.................................... 39
SECTION 7.3 Paying Agent......................................................................... 40
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust................................................................. 40
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities............................................................... 41
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 9.2 Transfer of Certificates............................................................. 42
SECTION 9.3 Deemed Security Holders.............................................................. 43
SECTION 9.4 Book-Entry Interests................................................................. 43
SECTION 9.5 Notices to Clearing Agency........................................................... 44
SECTION 9.6 Appointment of Successor Clearing Agency............................................. 45
SECTION 9.7 Definitive Preferred Security Certificates........................................... 45
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.................................... 46
SECTION 9.9 Maintenance of Office or Agency...................................................... 46
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability............................................................................ 46
SECTION 10.2 Exculpation.......................................................................... 47
SECTION 10.3 [Reserved]........................................................................... 47
SECTION 10.4 Indemnification...................................................................... 47
SECTION 10.5 Outside Businesses................................................................... 50
SECTION 10.6 Compensation; Fees................................................................... 51
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.......................................................................... 51
SECTION 11.2 Certain Accounting Matters........................................................... 51
SECTION 11.3 Banking.............................................................................. 52
SECTION 11.4 Withholding.......................................................................... 52
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments........................................................................... 53
SECTION 12.2 Meetings of the Holders; Action by Written Consent................................... 54
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee.......................... 56
SECTION 13.2 Representations and Warranties of the Delaware Trustee............................... 57
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.............................................................................. 58
SECTION 14.2 Governing Law........................................................................ 59
SECTION 14.3 Intention of the Parties............................................................. 59
SECTION 14.4 Headings............................................................................. 59
SECTION 14.5 Successors and Assigns............................................................... 59
SECTION 14.6 Partial Enforceability............................................................... 60
SECTION 14.7 Counterparts......................................................................... 60
ANNEX I TERMS OF FIXED RATE PREFERRED SECURITIES
FIXED RATE COMMON 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
- ------------------- -----------
<C> <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 ____
_______ __ , 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of _______ __, 1998, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial ownership interests in SunTrust Capital ___ (the "Trust"), a
statutory business trust under the Business Trust Act (as defined herein), to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established the Trust pursuant to a
Declaration of Trust dated _______ __ , 1998 (the "Original Declaration"), and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on _______ __, 1998, 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 Securi ties, 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 deter
mined) of all outstanding Securities of the relevant class.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the sum of (i) the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date calculated on
the third Business Day preceding the redemption date plus (ii) if such
redemption date occurs on or prior to _______ __, ____, ____%, and, if such
redemption date occurs after _______ __, ____ but prior to _____________, ____%.
2
<PAGE> 9
"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.
"Base Indenture" means the Indenture dated as of _______ __ , 1998,
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.
"Capital Treatment Event" means the reasonable determination by the
Sponsor that, as a result of any amendment to, or change (including any
announced proposed change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision thereof or therein, or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the Preferred Securities under the
Declaration, there is more than an insubstantial risk that the Sponsor will not
be entitled to treat an amount equal to the liquidation amount of the Preferred
Securities as "Tier I Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve Board, as then in effect
and applicable to the Sponsor.
"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
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registered a Global Certificate and which shall undertake to effect book-entry
transfers and pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Date of Delivery" under the Underwriting
Agreement, which is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any corresponding provision of any Federal tax statute enacted
after the date of this Declaration, as such specific 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 _______ __, 1998 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.
"Comparable Treasury Issue" means, with respect to any redemption
date, the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the remaining term of the Debentures from the
redemption date through ____________ that would be utilized, at the time of
selection in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining term of the
Debentures from the redemption date through _____________. If no United States
Treasury security has a maturity which is within a period from three months
before to three months after _____________, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Adjusted Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such redemption date, as set forth in the most
recent weekly statistical release (or any successor release) published by the
Federal Reserve Board and designated "H.15 (519)" or (ii) if such
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release (or any successor release) is not published or does not contain such
prices during the week preceding such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (b) if the
Debt Trustee obtains fewer than three such Reference Treasury Quotations, the
average of all such quotations.
"Corporate Trust Office" means (i) when used with respect to the
Institutional Trustee, the principal corporate trust office of an Affiliate of
the Institutional Trustee located in New York, New York which on the date of
this Declaration is c/o First Chicago Trust Company of New York, 14 Wall Street,
8th Floor-Window 2, New York, New York 10005 - Attention: Corporate Trust
Administration, and (ii) when used with respect to the Debt Trustee, the
Principal Office of the Debt Trustee as defined in the Base Indenture.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the Trust's
Affiliates; (b) any other director, stockholder, employee, representative or
agent of the Debenture Issuer or any of its Affiliates; and (c) any Holder of
Securities.
"Debenture Issuer" means SunTrust Banks, Inc., a Georgia corporation,
or any successor entity resulting from any consolidation, amalgamation, merger
or other busi ness combination.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and purchased by the Trust, and to be held
by the Institutional Trustee.
"Debt Trustee" means The First National Bank of Chicago, a national
banking association, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"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.
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"Event of Default" or "Declaration Event of Default" in respect of the
Securities means an Event of Default (as defined in the Base Indenture) has
occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Sponsor Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Base Indenture together with the supplement
thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.10(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.8(h).
"Like Amount" means (i) with respect to a redemption of Securities,
Securities having a liquidation amount equal to the principal amount of
Debentures to be repaid in accordance with their terms and (ii) with respect to
a distribution of Debentures upon the liquidation of the Trust, Debentures
having a principal amount equal to the liquidation amount of the Trust
Securities of the holder thereof to whom Debentures are distributed.
"Liquidation Distribution" has the meaning set forth in Section 3 of
Annex I.
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"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.
"Make-Whole Amount" shall mean an amount equal to the greater of (i)
100% of the principal amount of the Debentures being redeemed and (ii) the sum
of the present values of the remaining scheduled payments of principal, premium
and interest thereon through _____________ discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate.
"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 investi
gation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Original Declaration" has the meaning set forth in the preamble
hereof.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust,
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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 ______ __ , 1998, 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.
"Quotation Agent" means ____________________ and its respective
successors; provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Debenture Issuer shall substitute therefor another Primary
Treasury Dealer.
"Redemption Price" has the meaning set forth in Section 4 of Annex I.
"Redemption/Distribution Notice" has the meaning set forth in Section
4(a) of Annex I.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debt Trustee after consultation
with the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Debt Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debt Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
"Regular Trustee" has the meaning set forth in Section 5.1(a).
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"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, when used with respect to the
Institutional Trustee, any officer assigned to the Corporate Trust Office of the
Institutional 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 Institutional Trustee
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.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule or regulation.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section 9.2.
"Securities Registrar" has the meaning set forth Section 9.2.
"Sponsor" means SunTrust Banks, Inc., a Georgia corporation, or any
successor entity resulting from any merger, consolidation, amalgamation or other
business combination.
"Sponsor Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b).
"Successor Entity" has the meaning set forth in Section 3.17(b)
"Successor Institutional Trustee" has the meaning set forth in Section
3.10(g)(ii).
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"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" means the receipt by the Trust of an opinion of counsel to
the Sponsor that is experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Declaration, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Debentures, (ii) interest payable
by the Sponsor on the Debentures is not, or within 90 days of the date 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 such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"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
_______ __, 1998 among the Trust, the Sponsor and [Underwriter] [and other
representatives, as representatives of the several underwriters named therein],
providing for the offering and sale of the Preferred Securities to the public.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Institutional Trustee, to the extent permitted by applicable law
and/or the rules and regulations of the Commission, shall be the only Trustee
that is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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.
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SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year (commencing May 1998), the
Institutional Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Institutional Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act, such compliance
certificate to be delivered annually on or before 120 days after the end of each
fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by 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
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(iii) requires the consent or vote of each holder of Debentures to be
waived under the Indenture, then the Event of Default under the Declaration
may only be waived by each Holder of Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Preferred Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee,
including the right to direct the Institutional Trustee to exercise the remedies
available to it as a holder of the Debentures.
(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;
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provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. In the event that an Event of Default with
respect to the Preferred Securities is waived by the Holders of Preferred
Securities as provided in this Declaration, the Holders of Common Securities
agree that such waiver shall also constitute the waiver of such Event of Default
with respect to the Common Securities for all purposes under this Declaration
without any further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising there from 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 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
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therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures or in the payment of any
sinking fund installment established for the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Institutional Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities; and provided further, that in the case of any default of the
character specified in Section 5.01(c) of the Base Indenture, no such notice to
Holders shall be required to be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) so long as the Institutional Trustee is a Paying Agent, a default
under Sections 5.01(a) and 5.01(b) of the Base Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "SunTrust Capital __," as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o SunTrust Banks,
Inc., 303 Peachtree Street, N.E., Atlanta, Georgia, 30308-3201. On ten Business
Days written notice to the Holders, the Regular Trustees may designate another
principal office.
SECTION 3.3 Issuance of the Trust Securities.
On _______ __, ____, the Sponsor, on behalf of the Trust and pursuant to
the Original Declaration, executed and delivered the Underwriting Agreement. On
the Closing Date, the Regular Trustees, on behalf of the Trust, shall execute
and deliver (i) to [the underwriters], in accordance with the Underwriting
Agreement, [two] [a] Global Certificates, registered in the name of the nominee
of the initial Clearing Agency as specified in Section 9.4, representing in the
aggregate _______ Preferred Securities having an aggregate
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liquidation amount of $___________, against receipt of the aggregate purchase
price for such Preferred Securities of $___________ and (ii) to the Sponsor, a
certificate representing _____ Common Securities, registered in the name of the
Sponsor, having an aggregate liquidation amount of $_________, against receipt
of the aggregate purchase price for such Common Securities of $_________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date, the Regular Trustees, on behalf of the Trust, shall
purchase from the Sponsor with the proceeds received by the Trust from the sale
of the Securities on such date pursuant to Section 3.5, Debentures, registered
in the name of the Institutional Trustee and having an aggregate principal
amount equal to $___________, and, in satisfaction of the purchase price for
such Debentures, the Regular Trustees, on behalf of the Trust, shall deliver or
cause to be delivered to the Sponsor the sum of $___________.
SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Preferred Securities and use the proceeds from such sale to acquire the
Debentures issued under the Indenture having an aggregate liquidation amount of
the Preferred Securities so issued and sold; (b) to enter into such agreements
and arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all actions and exercise such discretion as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or State securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; (c) to issue
and sell Common Securities to the Debenture Issuer for cash and use the proceeds
of such sale to purchase as trust assets an equal aggregate principal amount of
Debentures issued under the Indenture; and (d) except as otherwise limited
herein, to engage in only those other activities necessary, or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Institutional Trustee, the Regular Trustees shall have exclusive
and complete authority to carry out the purposes of the Trust. An action taken
by the Regular Trustees in accordance with their powers shall constitute the
act of and serve to bind the Trust and any action taken by the Institutional
Trustee on behalf of the Trust in accordance with its powers shall constitute
the act of and serve to bind the Trust. In dealing with the Trustees acting on
behalf of the Trust, no Person shall be required to inquire into the authority
of the Trustees
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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;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing or quotation upon
notice of issuance of any Preferred Securities, but if and only if
the Sponsor has so instructed the Regular Trustees to make such
filing;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor,
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relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, but if and only if the Sponsor
has so instructed the Regular Trustees to make such filing;
(v) execute and enter into the Underwriting Agreement providing
for the sale of the Preferred Securities; and
(vi) to execute and file any agreement, certificate or other
document which such Regular Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire as trust assets the Debentures with the proceeds of the
sale of the Preferred Securities and the Common Securities; provided,
however, that the Regular Trustees shall cause legal title to the
Debentures to be held of record in the name of the Institutional Trustee
for the benefit of the Holders of the Preferred Securities and the Holders
of Common Securities;
(d) to cause the Trust to enter into such agreements and arrangements
as may be necessary or desirable in connection with the sale of Preferred
Securities to the initial purchasers thereof and the consummation thereof,
and to take all action, and exercise all discretion, as may be necessary or
desirable in connection with the consummation thereof;
(e) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event or a Capital Treatment Event;
provided that the Regular Trustees shall consult with the Sponsor and the
Institutional Trustee before taking or refraining to take any action in
relation to any such Tax Event or Capital Treatment Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(g) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.10(e), the Institutional
Trustee has the exclusive power to bring such Legal Action;
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(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;
(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
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(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.
Subject to this Section 3.8, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.10.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.8 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the Trust
that are not specifically required by this Declaration to be taken by any other
Trustee.
SECTION 3.9 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust to not, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
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(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 Inden ture, (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 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
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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) 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 inter
pretation 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 liqui-
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dation amount of such Preferred Securities, without first proceeding against the
Institutional Trustee or the Trust; provided, however, that if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder of the
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities held by such Holder
(a "Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the Holders of
the Common Securities will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Institutional Trustee for the benefit of the Holders of
the Securities, will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Institutional
Trustee or its agents or their creditors.
(g) The Institutional Trustee shall continue to serve as a
Trustee until:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a successor Institutional Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7 (a "Successor
Institutional Trustee").
(h) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(i) The Institutional Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Institutional Trustee, after
consultation with the Regular Trustees, at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Institutional
Trustee, subject to Section 317(b) of the Trust Indenture Act.
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(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 Securities and the Institutional Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Declaration and in the Securities, and
no implied covenants or obligations shall be read into this
Declaration or the Securities against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to
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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 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;
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(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
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section 3.12(a)(v) shall
be taken to relieve the Institutional Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vi) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(vii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents,
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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 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 require ments 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
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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.
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;
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(iii) to the extent the Preferred Securities are listed on any
national securities exchange or with another organization for listing or
quotation, the Preferred Securities or any Successor Securities shall be so
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Preferred Securities are then so listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with respect to
any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor the
Successor Entity will be required to register as an Investment
Company;
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the
Preferred Securities Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.17(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets
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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.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date, the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount at least equal to 3% of the capital
of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) at the sole discretion of the Sponsor, to prepare for filing by
the Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) at the sole discretion of the Sponsor, to prepare for filing by
the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance of any Preferred Securities; and
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto, if the Sponsor in its sole discretion
determines that such a filing is necessary or appropriate; and
(e) to negotiate the terms of the Underwriting Agreement providing for
the sale of the Preferred Securities.
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SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a
Direct Action as set forth in Section 3.10(e) hereto.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased only by, and Trustees may be approved, removed or
replaced only by, the vote of the Holders of a majority in liquidation
amount of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; provided, however, that, the number of
Trustees shall in no event be less than two (2); provided further that (1)
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware;
(2) there shall be at least one Trustee who is an employee or officer of,
or is affiliated with the Sponsor (a "Regular Trustee"); and (3) one
Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law,
provided that, if the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.13 shall have no application.
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The initial Delaware Trustee shall be First Chicago Delaware Inc.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee that shall act as Institutional
Trustee, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The First National Bank of
Chicago.
(f) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent as provided in Section 12.2.
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(g) No amendment may be made to this Article V that would change any right
with respect to the number, existence or appointment and removal of Trustees,
except with the consent of each Holder of Common Securities.
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be Raymond D. Fortin, Donald T. Heroman
and Kenneth R. Houghton.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one of such Regular Trustees.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.8; and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.8.
SECTION 5.6 [Reserved].
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or removed without
cause at any time except during an event of default:
(i) until the issuance of any Securities, by written instrument executed
by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities.
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(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.
(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.
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(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Institutional Trustee or Successor Delaware Trustee, as the case may
be.
(f) The Sponsor shall provide notice to the Institutional Trustee of any
registration or removal of a Regular Trustee.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.7, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Regular Trustee, meetings of the Regular Trustees
may be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meeting of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less 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
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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 govern mental filing (including, without
limitation, the Registration Statement); and
(b) the Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be 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
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issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 9.2, and Securities so authenticated shall be entitled to
the benefits of this Declaration and shall be valid and obligatory for all
purposes as if authenticated by the Institutional Trustee hereunder. Wherever
reference is made in this Declaration to the authentication and delivery of the
Securities by the Institutional Trustee or the Institutional Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Institutional Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Sponsor and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Institutional Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Institutional Trustee and to the Sponsor. The Institutional
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Sponsor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Institutional Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Sponsor and shall give notice 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.
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If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Institutional Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
-------------------------
As Institutional Trustee
By: -------------------------
As Authenticating Agent
By: -------------------------
Authorized Officer
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein), redemption
payments and liquidation distributions in accordance with the applicable terms
of the relevant Holder's Securities. Distributions shall be made on the
Preferred Securities and the Common Securi ties 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 beneficial ownership interests in the
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assets of the Trust having such terms as are set forth in Annex I (the "Common
Securities.") The Trust shall issue no securities or other interests in the
assets of the Trust other than the Preferred Securities and the Common
Securities.
(b) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual or facsimile signature of any
present or any future Regular Trustee. Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity of any certificate. In case any Regular Trustee of the Trust who shall
have signed (either by manual or facsimile signature) any of the Securities
shall cease to be such Regular Trustee before the Certificates so signed shall
be delivered by the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to be such Regular
Trustee; and any Certificate may be signed on behalf of the Trust by such
persons who, at the actual date of execution of such Security, shall be the
Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trust ee.
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 Securi
ties 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 Security has been authenticated under this
Declaration. The Institutional Trustee's
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certificates of authentication shall be substantially in the form set forth in
Exhibits A-1 and A-2.
SECTION 7.3 Paying Agent.
The Paying Agent shall make Distributions to Holders from the Institutional
Trustee Account and shall report the amounts of such Distributions to the
Institutional Trustee and the Regular Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Institutional Trustee Account for the
purpose of making the Distributions referred to above. The Institutional Trustee
may revoke such power and remove the Paying Agent in its sole discretion. The
Paying Agent shall initially be The First National Bank of Chicago, and any
co-paying agent chosen by The First National Bank of Chicago, and reasonably
acceptable to the Regular Trustees. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Regular
Trustees and the Institutional Trustee. In the event that The First National
Bank of Chicago shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Institutional Trustee shall
appoint a successor that is reasonably acceptable to the Regular Trustees to
act as Paying Agent (which shall be a bank or trust company). Such successor
Paying Agent or any additional Paying Agent shall execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustees that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Holders, will give the
Institutional Trustee notice of any default by the Trust (or any other obligor
on the Securities) in the making of any payment on the Securities and will, at
any time during the continuance of any such default, upon the written request of
the Institutional Trustee, forthwith pay to the Institutional Trustee all sums
so held in trust by such Paying Agent. The Paying Agent shall return all
unclaimed funds to the Institutional Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the
Institutional Trustee. The provisions of Sections 3.10, 3.11 and 10.4 herein
shall also apply to The First National Bank of Chicago in its role as Paying
Agent, for so long as The First National Bank of Chicago shall act as Paying
Agent and, to the extent applicable, to any other Paying Agent appointed
hereunder. Any reference in this Declaration to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the earliest of:
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(i) _______ __, 2053;
(ii) upon the bankruptcy of the Sponsor;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the filing of a certificate of
cancellation with respect to the Trust after having obtained the consent of
a majority in liquidation amount of the Securities affected thereby voting
together as a single class to file such certificate of cancellation or the
revocation of the Sponsor's charter and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iv) upon the liquidation of the Trust in accordance with the terms
of the Securities and the distribution of all of the Debentures endorsed
thereon in exchange for all of the Securities; or
(v) upon the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor or the Trust;
(vi) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware and the Trust
shall terminate.
(c) The provisions of Section 3.10 and Article X shall survive the
dissolution of the Trust.
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.
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(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Debenture Issuer and any Affiliate may
only transfer Common Securities to an Affiliate; provided that any such transfer
shall be subject to the condition that the transferor shall have obtained (1)
either a ruling from the Internal Revenue Service or an unqualified written
opinion addressed to the Trust and delivered to the Trustees of a nationally
recognized independent tax counsel experienced in such matters to the effect
that such transfer will not (i) cause the Trust to be treated as issuing a class
of interests in the Trust differing from the class of interests represented by
the Common Securities originally issued to the Debenture Issuer, (ii) result in
the Trust's acquiring or disposing of, or being deemed to have acquired or
disposed of, an asset, or (iii) result in or cause the Trust to be treated as
anything other than a grantor trust for United States Federal income tax
purposes and (2) an unqualified written opinion addressed to the Trust and
delivered to the Trustees of a nationally recognized independent counsel
experienced in such matters that such transfer will not cause the Trust to be an
Investment Company or controlled by an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Institutional Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 9.9, a register or registers for the
purpose of registering Certificates and transfers and exchanges of Preferred
Securities Certificates (the "Securities Register") in which, the registrar
designated by the Institutional Trustee (the "Securities Registrar") with the
reasonable consent of the Regular Trustees, subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
9.1(c) in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates, which will be
effected without charge to the Holders as herein provided. The First National
Bank of Chicago shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 9.9, the
Regular Trustees or 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
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(ii) any Preferred Securities selected for redemption except the unredeemed
portion of any Preferred Security being redeemed in part. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate liquidation amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 9.9.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his or her attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Institutional
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange Preferred Securities
Certificates.
The provisions of Sections 3.10, 3.11 and 10.4 herein shall also apply to
The First National Bank of Chicago in its role as Securities Registrar, for so
long as The First National Bank of Chicago shall act as Securities Registrar.
SECTION 9.3 Deemed Security Holders.
The Trustees and the Securities Registrar may treat the Person in whose
name any Certificate shall be registered on the books and records of the Trust
as the sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust, the
Trustees or the Securities Registrar shall have actual or other notice thereof.
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
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"Definitive Preferred Security Certificates") have been issued to the Preferred
Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees, the Securities Registrar and the Paying
Agent shall be entitled to deal with the Clearing Agency for all purposes
of this Declaration (including the payment of Distributions on the Global
Certificates and receiving approvals, votes or consents hereunder) as the
Holder of the Preferred Securities and the sole holder of the Global
Certificates and shall have no obligation to the Preferred Security
Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of Distributions on the
Global Certificates to such Clearing Agency Participants; provided, that
solely for the purposes of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in
this Declaration, so long as Definitive Preferred Security Certificates
have not been issued, the Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy)
delivered to the Trustees by the Clearing Agency setting forth the
Preferred Security Beneficial Owners' votes or assigning the right to vote
on any matter to any other Persons either in whole or in part.
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.
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SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services or is
no longer able to properly discharge its functions as securities
depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance or after the Regular Trustees become aware of such
inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book-entry system through the Clearing Agency
with respect to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular
Trustees shall cause Definitive Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the
Trust, or any agents thereof shall be liable for any delay in delivery
of such instructions and each of them may conclusively rely on and
shall be protected in relying on, said instructions of 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.
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SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Institutional Trustee or the Securities Registrar or if the
Institutional Trustee or the Securities Registrar shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Institutional Trustee, the
Securities Registrar and the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute,
and upon any Regular Trustee's request, the Institutional Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees, Institutional Trustee or Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 9.9 Maintenance of Office or Agency.
The Institutional Trustee shall designate, with the consent of
the Regular Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Securities may be served.
The Corporate Trust Office of The First National Bank of Chicago is initially
designated the office for such purpose. The Regular Trustees or the
Institutional Trustee shall give prompt written notice to the Sponsor and to the
Holders of any change in the location of the Securities Register or any such
office or agency.
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:
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(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts
and obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care by or on
behalf of the Trust, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence 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,
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whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Trust) by reason of the fact that he
is or was a Sponsor Indemnified Person against expenses (including
attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Sponsor Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Sponsor Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
contemplated action or suit by or in the right of the Trust to procure
a judgment in its favor by reason of the fact that he is or was a
Sponsor Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Sponsor Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific case upon a
determination that indemnification of the Sponsor Indemnified 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 investiga-
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tive action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Sponsor
Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture
Issuer as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Regular
Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Sponsor Indemnified Person acted in
bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Sponsor Indemnified Person believed or
had reasonable cause to believe his or her conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Holder of the Common Securities
reasonably determine that such person deliberately breached his or her
duty to the Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Debenture Issuer or Preferred Security Holders of the
Trust or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Debenture Issuer and each Sponsor
Indemnified Person who serves in such capacity at any time while this
Section 10.4(a) is in effect. Any repeal or modification of this
Section 10.4(a) shall not affect any rights or obligations then
existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Sponsor
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his or her
status as such, whether or not the Debenture Issuer would have the
power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was
a director, trustee, officer or employee of such
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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 presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent
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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 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
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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. 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.
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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;
(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;
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(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities and;
(f) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove Trustees shall not
be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration or
to make any other provisions with respect to matters or questions arising
under this Declaration, which shall not be inconsistent with other
provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority, which amendment does not have a
material adverse effect on the rights, preferences or privileges of the
Holders; and
(v) to modify, eliminate or add to any provisions of this Declaration
to such extent as shall be necessary to ensure that the Trust will be
classified for United States Federal income tax purposes as a grantor trust
at all times that any Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under the
Investment Company Act.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the
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terms of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in liquidation amount of such
class of Securities. Such direction shall be given by delivering to the Regular
Trustees one or more notices in a writing stating that the signing Holders of
Securities wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Security Certificates held by the Holders
of Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to each Trustee and all
the Holders of Securities having a right to vote thereat at least seven days
and not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote, consent
or approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting shall
be returned to the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall 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;
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(iii) each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of the Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association with
trust powers and authority under the laws of the United States to execute
and deliver, and to carry out and perform its obligations under the terms
of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws 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 bylaws of the Institutional Trustee;
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<PAGE> 63
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of this
Declaration; and
(e) it satisfies the qualifications set forth in Section 5.3.
SECTION 13.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Delaware Trustee has authorized the performance of its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration with or
notice to, any Delaware banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration;
(d) the Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware; and
(e) it satisfies the qualifications set forth in Section 5.2.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, faxed or mailed
by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities and the Institutional
Trustee):
SunTrust Capital __
c/o SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (404) 724-3749
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
Attention: Michael J. Majchrzak
Fax: (302) 407-1708
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Fax: (312) 407-1708
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(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Trust):
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3201
Attention: Treasurer
Fax: (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 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
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<PAGE> 66
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 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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<PAGE> 67
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
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<PAGE> 68
ANNEX I
TERMS OF
FIXED RATE PREFERRED SECURITIES
FIXED RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of _______ __ , ____ (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
_______________________ dollars ($___________) and a liquidation amount with
respect to the assets of the Trust of $1,000 per preferred security, are hereby
designated for the purposes of identification only as "___________________" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Preferred Securities may be listed.
(b) Common Securities. Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
___________________________ dollars ($___________) and a liquidation amount with
respect to the assets of the Trust of $1,000 per common security, are hereby
designated for the purposes of identification only as "_____________________"
(the "Common Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Each Security will be entitled to receive cumulative cash
distributions payable at the rate of ____% per annum applied to the stated
liquidation amount of $1,000 per Security. Distributions in arrears for more
than one semi-annual period will bear interest thereon at the rate of ____% per
annum compounded semi-annually (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
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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.
"Distribution Period" means each period beginning on, and including,
_______ __, ____, and ending on, but excluding, the first Distribution Date (as
defined below), and each successive period beginning on, and including, a
Distribution Date and ending on, but excluding, the next succeeding Distribution
Date.
(b) Unless otherwise provided by the Institutional Trustee, the Paying
Agent will calculate the amount of distributions payable in respect of each
Distribution Period (the "Distribution Amount"). The Distribution Amount shall
be calculated (i) by applying the distribution rate of ___% to the liquidation
amount of each Security outstanding at the commencement of the Distribution
Period and (ii) on the basis of a 360-day year consisting of twelve 30-day
months and rounding the resulting figure to the nearest cent (with one-half cent
or more being rounded upwards). The determination of 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.
(c) 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 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 Institutional Trustee or Paying Agent
in connection with the exercise or non-exercise by any of them of their powers,
duties and discretion.
(d) Distributions on the Securities will be cumulative, will accrue
from _______ __, ____, and will be payable semi-annually in arrears, on the ____
day of _______ and _______ of each year, commencing on _______ __, ____ except
as otherwise described below. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
at any time and from time to time on the Debentures for a period not exceeding
10 consecutive semi-annual periods (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a day other than an interest
payment date for the Debentures or shall extend beyond the date of maturity of
the Debentures. As a consequence of any Extension Period, Distributions will
also be deferred. During any Extension Period, semi-annual Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at a rate of ____% per annum compounded semi-annually 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
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Distribution Date on which the Extension Period ends. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments of
interest by further extending such Extension Period; provided that such
Extension Period together with all such previous and further extensions within
such Extension Period may not exceed 10 consecutive semi-annual periods or
extend beyond the maturity date of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
(e) 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 _______ __ , ____ to the Prospectus dated _______ __, ____
(together, the "Prospectus"), of the Trust included in the Registration
Statement on Form S-3 of the Sponsor, the Trust and certain other business
trusts. The relevant record dates for the Common Securities shall be the same
record date as for the Preferred Securities when the Preferred Securities are
not in book-entry only form. If the Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Preferred
Securities shall be _______ __ and _______ __, as the case may be. Payments in
respect of Preferred Securities held in certificated form will be made by check
mailed to the Holder entitled thereto. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which Distributions are actually
payable, a "Distribution Date").
(f) 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,
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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 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) Distribution of Securities. Subject to the prior approval of the
Federal Reserve Board if such approval is then required under applicable law,
rules, guidelines or policies of the Federal Reserve Board, the Regular Trustees
at any time shall have the right to dissolve the Trust and, after satisfaction
of the claims of creditors, cause the Debentures held by the Institutional
Trustee having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of ____% per annum of, having 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.
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 distribution rate of ____% per annum of, and accrued and
unpaid interest equal to accrued and unpaid Distributions on, such Securities
until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
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(b) Redemption -- General. Upon the repayment of the Debentures in
whole or in part, whether at maturity or upon redemption, the proceeds from such
repayment or redemption shall simultaneously be applied to redeem a Like Amount
of Securities at the applicable Redemption Prices set forth below. Holders will
be given not less than 30 nor more than 60 days notice of such redemption. If
fewer than all the outstanding Securities are to be so redeemed, the Common
Securities and the Preferred Securities will be redeemed Pro Rata and the
Preferred Securities to be redeemed will be as described in Section 4(f)(ii)
below. 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
semi-annual Distribution periods terminating on or before the date of
redemption.
(c) Optional Redemption After , . Subject to the prior approval of the
Federal Reserve Board, if such approval is then required under applicable law,
rules, guidelines or policies, the Debenture Issuer shall have the right to
redeem the Debentures, in whole or in part, from time to time, on or after
_______ __, ____ and, following any such redemption, a Like Amount of Securities
shall be redeemed by the Trust at the following Redemption Prices (expressed as
a percentage of the liquidation amount of the Trust Securities being redeemed)
plus accrued and unpaid Distributions to the redemption date, if redeemed during
the 12-month period commencing on _______ __ of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Period Price
- ------ -----------
<S> <C>
[ ]........................................... [ ]%
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
[ ]........................................... [ ]
</TABLE>
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(d) Tax Event Redemption. Subject to the prior approval of the Federal
Reserve Board, if such approval is then required under applicable law, rules,
guidelines or policies, if at any time a Tax Event shall occur and be
continuing, the Debenture Issuer shall have the right to redeem the Debentures,
in whole, but not in part, for cash within 90 days following the occurrence of
such Tax Event (or, if the approval of the Federal Reserve Board is then
required for such redemption, on such later date as promptly practicable after
such approval is obtained) and, following such redemption, all of the Securities
shall be redeemed by the Trust (i) if such redemption occurs prior to _______
__, ____, at a Redemption Price equal to the Make-Whole Amount plus accrued and
unpaid Distributions thereon to the redemption date and (ii) if such redemption
occurs on or after _______ __, ____, at the applicable Redemption Price
specified in clause (c) above plus accrued and unpaid Distributions thereon to
the redemption date.
(e) Capital Treatment Event Redemption. Subject to the prior approval
of the Federal Reserve Board, if such approval is then required under applicable
law, rules, guidelines or policies, if at any time a Capital Treatment Event
shall occur and be continuing, the Debenture Issuer shall have the right to
redeem the Debentures, in whole, but not in part, for cash within 90 days
following the occurrence of such Capital Treatment Event (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, all of the Securities shall be redeemed by the Trust at a
Redemption Price equal to 100% of the liquidation amount of such Securities plus
accrued and unpaid Distributions thereon to the redemption date.
(f) Procedure. The procedure with respect to redemptions and distribu-
tions of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect
to any other Holder.
(ii) All notices of redemption shall state:
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(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 or other holder of the Institutional Trustee Account a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Institutional Trustee or the Paying Agent
will deposit irrevocably with the Depository or its nominee (or successor
Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give the
Depository irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities, and (B) with respect to
Preferred Securities issued in definitive form and Common Securities,
provided that the Debenture Issuer has paid the Institutional Trustee or the
holder of the Institutional Trustee Account a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Institutional Trustee or the Paying Agent will pay the relevant Redemption
Price to the Holders of such Securities by check mailed to the address of
the relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then on and after
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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.
(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.
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5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph and Section
2.6(a), the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture to holders of the Debentures, including the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Debt Trustee, or exercising any trust or power conferred on the
Debt Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.08 of the Base Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent of the holders of the Debentures would be required, provided, however,
that, where a consent under the Indenture would require the consent or act of
the Holders of greater than a majority of the Holders in principal amount of
Debentures affected thereby, (a "Super Majority"), the Institutional Trustee may
give such consent or take such action only at the written direction of the
Holders of at least the proportion in liquidation amount of the Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the Institutional Trustee
or the Debt Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Preferred
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the rights of the holders of the Common Securities Holder will be
subrogated to the rights of such holder of Preferred Securities to the extent
of any payment made by the Issuer to such holder of Preferred Securities in such
Direct Action. Except as
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<PAGE> 77
provided in the preceding sentences, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to the holders of
the Debentures. Any amount payable pursuant to the Declaration to any Holder of
a Preferred Security shall be reduced by the amount of any corresponding payment
such Holder has directly received pursuant to such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
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.
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<PAGE> 78
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Preferred Security shall bind every future
Holder of the same Preferred Security and the Holder of every Preferred Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Preferred Security.
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
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<PAGE> 79
Holders of a Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method and place of conducting
any proceeding for any remedy available to the Debt Trustee, or exercising any
trust or power conferred on the Debt Trustee with respect to the Debentures,
(ii) waive any past default and its consequences that is waivable under Section
5.08 of the Base Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent of the holders of the Debentures would be
required, provided that, where a consent or action under the Indenture would
require the consent or act of the Holders of a Super Majority, the Institutional
Trustee may give such consent or take such action only at the written direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 6(c),
the Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debt Trustee as set forth above,
the Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Common Securities under this paragraph unless
the Institutional Trustee has obtained an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that for the
purposes of United States Federal income tax the Trust will not be classified as
other than a grantor trust on account of such action. If the Institutional
Trustee fails to enforce its rights under the Declaration, any Holder of Common
Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
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<PAGE> 80
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Common Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders or in
person or by an agent duly appointed in writing, and except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.10) conclusive in favor of the Trustees,
if made in the manner provided herein.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Common Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Common Security shall bind every future Holder
of the same Common Security and the Holder of every Common Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon Common Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Common Security may do so with
regard to all or any part of the liquidation amount of such Common Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders of Common Securities and
the Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee hereunder, then the
determination of such matter by the Institutional Trustee shall be conclusive
with respect to such matter.
7. Amendments to Declaration and Indenture.
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<PAGE> 81
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any amendment that would
adversely affect the rights, privileges or preferences of any Holder of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of Securities, voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, affected thereby;
provided, however, that if any amendment or proposal referred to in clause (i)
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the holder
of the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of a Super Majority, the Institutional Trustee may
give such consent only at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the
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<PAGE> 82
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.
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.
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<PAGE> 83
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Book-Entry Security within the meaning of
the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.] (1)
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT ACCOUNT OR OTHER
OBLIGATION OF ANY BANK OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY.
- --------
(1) Insert in Global Certificates only.
A1-1
<PAGE> 84
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
SUNTRUST CAPITAL ____
____% ________________________
(liquidation amount $1,000 per Security)
SUNTRUST CAPITAL ____, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of ______________ (____________) preferred
securities of the Trust representing beneficial ownership interests in the
assets of the Trust designated the ____% __________________________ (liquidation
amount $1,000 per 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 _______ __, ____, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
A1-2
<PAGE> 85
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of __________, ____.
SUNTRUST CAPITAL __
By:
-------------------------------------
Name:
Regular Trustee
CERTIFICATE OF AUTHENTICATION
This certificate represents the Preferred Securities referred to in the
within-mentioned Declaration.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By:
---------------------------------
Authorized Officer
<PAGE> 86
[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
Distributions at a rate of ____% per annum applied to the stated liquidation
amount of $1,000 per Preferred Security. Distributions in arrears for more than
one semi-annual period will bear interest thereon compounded semi-annually at a
rate of ____% per annum (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 semi-annually in arrears on the ____ day of _______ and _______ of each
year, commencing on _______ __, ____ to the Holders thereof as they appear on
the books and records of the Trust on the relevant record dates. While the
Preferred Securities remain in book-entry only form, the relevant record dates
shall be one Business Day prior to the relevant payment dates. If the Preferred
Securities shall not continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities shall be _______ __ and _______ __, as
the case may be. The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period
at any time and from time to time for a period not exceeding 10 consecutive
semi-annual periods (each an "Extension Period"), provided that no Extension
Period shall end on a day other than an interest payment date for the Debentures
or shall extend beyond the date of the maturity of the Debentures. As a
consequence of any Extension Period, Distributions will also be deferred. During
any Extension Period, semi-annual Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at a rate of ____%
per annum, compounded semi-annually during any such Extension Period. At the end
of the Extension Period, all accrued and unpaid Distributions (but only to the
extent payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor) will be payable to the Holders of the Securities in whose names the
Securities are registered in the Security Register on the record date relating
to the Distribution Date on which the Extension Period ends. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period together with all such previous and further extensions
within such Extension Period may not exceed 10 consecutive semi-annual periods
or extend beyond the maturity date of the Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve Board if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve Board, the Regular Trustees shall have the right at any time
to dissolve and liquidate the Trust and cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust.
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<PAGE> 87
The Preferred Securities shall be redeemable as provided in the Declaration.
A1-5
<PAGE> 88
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> 89
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK
OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
SUNTRUST CAPITAL __
____% ___________________________
(liquidation amount $1,000 per Common Security)
SUNTRUST CAPITAL __, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that SunTrust Banks,
Inc. (the "Holder") is the registered owner of __________________ (______)
common securities of the Trust representing beneficial ownership interests in
the assets of the Trust designated the ____% ________________________________
____________ (liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are not transferable. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of _______ __, ____, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
A2-1
<PAGE> 90
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ____ ___, ____.
SUNTRUST CAPITAL __
By:
-------------------------------------
Raymond D. Fortin
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
<PAGE> 91
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
Distributions at a rate of ____% per annum applied to the stated liquidation
amount of $1,000 per Common Security. Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually at a rate
of ____% per annum (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 semi-annually in arrears on the ____ day of _______ and _______ of each
year, commencing on _______ __, ____, to Holders of record on _______ __ or
_______ __, as the case may be. The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the
interest payment period at any time and from time to time for a period not
exceeding 10 consecutive semi-annual periods (each an "Extension Period"),
provided that no Extension Period shall end on a day other than an interest
payment date for the Debentures or shall extend beyond the date of the maturity
of the Debentures. As a consequence of any Extension Period, semi-annual
Distributions will also be deferred. During any Extension Period, semi-annual
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at a rate of ____% per annum compounded
semi-annually during any such Extension Period. At the end of the Extension
Period, all accrued and unpaid Distributions (but only to the extent payments
are made in respect of the Debentures held by the Institutional Trustee and to
the extent the Institutional Trustee has funds available therefor) will be
payable to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date relating to the
Distribution Date on which the Extension Period ends. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments of
interest by further extending such Extension Period; provided that such
Extension Period together with all such previous and further extensions within
such Extension Period may not exceed 10 consecutive semi-annual periods or
extend beyond the maturity date of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve Board if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve Board, the Regular Trustees shall have the right at any time
to dissolve and liquidate the Trust and cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE> 1
EXHIBIT 4.4
================================================================================
SUNTRUST BANKS, INC.
----------------------------------
----------------------------------
INDENTURE
Dated as of _________, ____
----------------------------------
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 ________________, 1998 between SunTrust Banks, Inc. and The First National
Bank of Chicago, as Debt Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C> <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
</TABLE>
- -------------------------------
THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED.
<PAGE> 3
EXHIBIT 4.4
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS
<S> <C>
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
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Debt Security or Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 Officer of the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
- ----------
* This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
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
SECTION 4.01. Holders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
ii
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<TABLE>
<CAPTION>
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<S> <C>
SECTION 4.04. Reports by the Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
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
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 . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence. . . . . . . . . . . . . . . . . . 38
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.13. Limitation on Rights of Debt Trustee as a Creditor . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
iii
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<TABLE>
<CAPTION>
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<S> <C>
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.02. Proof of Execution by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding . . . . . . . . . . . . . . . . . . 45
SECTION 7.05. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
HOLDERS' MEETINGS
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
AMENDMENTS
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
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
</TABLE>
iv
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<TABLE>
<CAPTION>
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<S> <C>
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
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 . . . 56
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 . . . . . . . . . . . . . 57
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . 58
ARTICLE XIII
MISCELLANEOUS PROVISIONS
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES
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
</TABLE>
v
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<S> <C>
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.05. Debt Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . 68
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>
vi
<PAGE> 9
THIS INDENTURE, dated as of ________ , 1998, 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"),
W I T N E S S E T H :
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.
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"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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"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.
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"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.
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"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 moneys 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
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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
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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
III and SunTrust Capital IV, 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.
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SECTION 1.02. Business Day Certificate.
On the date of execution and delivery of this Indenture (with
respect to the remainder of calendar year 1998) 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.
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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;
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(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
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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
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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 this
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
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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
provided in this Indenture 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, unless exempted from such reporting
requirements by the 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 actions
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, 1998, 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 if and 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
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 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 reasonably 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 with respect to any series of Debt Securities 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
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any such moneys relating to such series of Debt 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 $50,000,000 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 that 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 or quoted on a
quotation system, 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 or quotation system;
(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 to 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 _____
Dated as of _______ __, ____
=====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
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. Subordination.................................................. 6
SECTION 3.3. Pari Passu Guarantees.......................................... 6
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.................................................... 7
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 _______ __, ____, 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 ____, a Delaware business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of _______ __, ____, 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] [fixed 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
as 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" means 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 (i)
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 payment 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, (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 and (g) obligations under any of the
Guarantor's dividend reinvestment or stock purchase 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 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 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 ____
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 ____
Dated as of _________, ____
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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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............. 7
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............................... 8
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... 9
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.......... 11
SECTION 3.3. Not Responsible for Recitals or Issuance
of Preferred Securities Guarantee...................... 13
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility............... 13
SECTION 4.2 Appointment, Removal and Resignation of
Preferred Guarantee Trustee............................ 14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.............................................. 15
SECTION 5.2 Waiver of Notice and Demand............................ 15
SECTION 5.3 Obligations Not Affected............................... 15
SECTION 5.4 Rights of Holders...................................... 16
SECTION 5.5 Guarantee of Payment................................... 17
</TABLE>
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<TABLE>
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SECTION 5.6 Subrogation............................................ 17
SECTION 5.7 Independent Obligations................................ 17
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions............................. 18
SECTION 6.2 Subordination.......................................... 18
SECTION 6.3 Pari Passu Guarantees.................................. 19
ARTICLE VII
TERMINATION
SECTION 7.1 Termination............................................ 19
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation............................................ 19
SECTION 8.2 Indemnification........................................ 20
SECTION 8.3 Compensation and Reimbursement......................... 20
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................. 21
SECTION 9.2 Amendments............................................. 21
SECTION 9.3 Notices................................................ 21
SECTION 9.4 Benefit................................................ 22
SECTION 9.5 Governing Law.......................................... 22
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of _______ __, ____, 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 ____, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _______ __, ____, 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] [fixed
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 Secur-
ities 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 an
Affiliate 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, (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] [_____%], 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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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.
"Indebtedness" shall mean (i) every obligation of the Guarantor for
money borrowed; (ii) every obligation of the Guarantor- 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 Guarantor with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Guarantor; (iv) every obligation of the Guarantor- 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 Guarantor; (vi) every obligation of the
Guarantor 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 Guarantor has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"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 _______ __, 1998, 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
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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;
(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
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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.
"Senior Indebtedness" shall mean the principal of, premium, if any,
and interest on, all Indebtedness, whether outstanding on the date of execution
of this Preferred Securities Guarantee 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 Debentures or to rank pari passu with the
Debentures, and any deferrals, renewals or extensions of such Senior
Indebtedness.
"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.
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
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(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 May 15 of each year (commencing May 1998), 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.
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
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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
administration 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.
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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 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
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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 conforming 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
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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.
(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
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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, 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
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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.
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
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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.
(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.
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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 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
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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.
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,
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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, reimbursement 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.
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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 payment 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, (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 and (g) obligations under any of the Guarantor's dividend
reinvestment or stock purchase 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.
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<PAGE> 22
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 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,
19
<PAGE> 23
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 of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith.
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 for collection by the Guarantee Trustee. Such lien shall
survive the termination of this Preferred Securities Guarantee.
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<PAGE> 24
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):
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
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<PAGE> 25
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.
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<PAGE> 26
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 4.9.2
_______ SUPPLEMENTAL INDENTURE
BETWEEN
SUNTRUST BANKS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
DATED AS OF ____________, ____
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.1. Definition of Terms......................................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount............................................ 7
SECTION 2.2. Maturity.................................................................... 8
SECTION 2.3. Form and Payment............................................................ 8
SECTION 2.4. Global Debenture............................................................ 9
SECTION 2.5. Interest.................................................................... 10
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption........................................................ 12
SECTION 3.2. Capital Treatment Event of Redemption....................................... 12
SECTION 3.3. Optional Redemption by Company.............................................. 12
SECTION 3.4. No Sinking Fund............................................................. 14
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period........................................ 14
SECTION 4.2. Notice of Extension......................................................... 15
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses......................................................... 15
SECTION 5.2. Payment Upon Resignation or Removal......................................... 16
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture........................................................... 16
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
PAGE
----
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures................................................ 16
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends..................................................... 17
SECTION 8.2. Covenants as to the Trust................................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture................................................... 18
SECTION 9.2. Acknowledgment of Rights.................................................... 19
SECTION 9.3. Direction of Proceedings and Waiver of
Defaults by Majority of Holders............................................. 19
SECTION 9.4. Debt Trustee Not Responsible for
Recitals.................................................................... 20
SECTION 9.5. Governing Law............................................................... 21
SECTION 9.6. Separability................................................................ 21
SECTION 9.7. Counterparts................................................................ 21
</TABLE>
ii
<PAGE> 4
_________ SUPPLEMENTAL INDENTURE, dated as of _________, ____ (the
"_______________ Supplemental Indenture") between SunTrust Banks, Inc., a
Georgia corporation (the "Company"), and The First National Bank of Chicago, as
trustee (the "Debt Trustee"), under the Indenture dated as of ____________, ____
between the Company and the Debt Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Debt
Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be known
as its ____% _________________ (the "Debentures"), the form and substance of
such Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Indenture and this _______ Supplemental Indenture;
WHEREAS, SunTrust Capital __________, a Delaware statutory business trust
(the "Trust"), has offered to the public $ ______ aggregate liquidation amount
of its ____ % __________________ (the "Preferred Securities"), representing
beneficial ownership interests in the assets of the Trust, and proposes to
invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of $ ______ aggregate liquidation
amount of its Common Securities; and
WHEREAS, the Company has requested that the Debt Trustee execute and
deliver this _______ Supplemental Indenture pursuant to Sections 2.03 and 9.01
of the Indenture and all requirements necessary to make this _______
Supplemental Indenture a valid and binding instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Debt Trustee, the valid and binding
obligations of the Company, have been performed,
<PAGE> 5
and the execution and delivery of this _______ Supplemental Indenture has been
duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase of the Debentures by the
Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Debentures and the additional terms,
provisions and conditions thereof, the Company covenants and agrees with the
Debt Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
_______ Supplemental Indenture;
(b) a term defined anywhere in this _______ Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
________ Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the Declaration:
Business Day; Clearing Agency; Common Securities; Delaware Trustee; Direct
Action; Distribution; Institutional Trustee Account; Preferred Securities;
Preferred Securities Guarantee; Preferred Security Certificate; Regular
Trustees; and Underwriting Agreement;
(g) the following terms have the meanings given to them in this Section
1.1(g):
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<PAGE> 6
"Additional Sums" shall have the meaning set forth in Section 2.5(e).
"Adjusted Treasury Rate" means, with respect to any redemption date, the
sum of (i) the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date calculated on
the third Business Day preceding the redemption date plus (ii) if such
redemption date occurs on or prior to _____, _____, _____%, and, if such
redemption date occurs after _____, _____ but prior to _____, _____, _____%.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the Preferred Securities under the
Declaration, there is more than an insubstantial risk that the Company will not
be entitled to treat an amount equal to the liquidation amount of the Preferred
Securities as "Tier I Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company.
"Capital Treatment Event Redemption Price" means 100% of the principal
amount of the Debentures being redeemed plus accrued and unpaid interest
thereon, including Compounded Interest, if any, to the redemption date.
"Comparable Treasury Issue" means, with respect to any redemption date, the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Debentures from the redemption
date through _____, _____ that would be utilized, at the time of selection in
accordance with
3
<PAGE> 7
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Debentures from the
redemption date through _____, _____ . If no United States Treasury security has
a maturity which is within a period from three months before to three months
after _____, _____, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Adjusted
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the most recent
weekly statistical release (or any successor release) published by the Federal
Reserve Board and designated "H.15 (519)" or (ii) if such release (or any
successor release) is not published or does not contain such prices during the
week preceding such Business Day, (a) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Debt Trustee
obtains fewer than three such Reference Treasury Quotations, the average of all
such Quotations.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Debentures" shall have the meaning set forth in the preamble of this
________ Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust, dated as of _________, ____, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Depositary", with respect to the Debentures, means The Depository Trust
Company or such other successor Clearing Agency for the Preferred Securities.
4
<PAGE> 8
"Dissolution Event" means the liquidation of the Trust pursuant to the
Declaration and the distribution of the Debentures held by the Institutional
Trustee to the holders of the Trust Securities issued by the Trust pro rata in
accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4(a)(i).
"Interest Payment Date" shall have the meaning set forth in Section 2.5(e).
"Interest Period" means each period beginning on, and including, ______,
1998, and ending on, but excluding, the first Interest Payment Date, and each
successive period beginning on, and including, an Interest Payment Date and
ending on, but excluding, the next succeeding Interest Payment Date.
["Make-Whole Amount" shall mean an amount equal to the greater of (i) 100%
of the principal amount of the Debentures being redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal, premium and
interest thereon through _____, _____ discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate.]
"Maturity Date" shall mean _____, _____.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a)(ii).
5
<PAGE> 9
"Optional Redemption" means a redemption pursuant to Section 3.3.
"Optional Redemption Price" has the meaning set forth in Section 3.3(a).
"Other Guarantees" means all guarantees issued or to be issued by the
Company with respect to capital securities (if any) and issued to other trusts
to be established by the Company (if any), in each case similar to the Trust.
"Quotation Agent" means __________ and its respective successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Debenture
Issuer shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debt Trustee after consultation
with the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Debt Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debt Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
"Security Registrar" shall have the meaning set forth in Section 2.3.
"Tax Event" means the receipt by the Trust of an opinion of counsel to the
Company that is experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced proposed change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing
6
<PAGE> 10
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Declaration, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Company on
the Debentures is not, or within 90 days of the date of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes or (iii) the Trust is, or will be within 90 days of the date
of such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Tax Event Redemption Price" means, with respect to a redemption following
a Tax Event, (i) if a redemption occurs prior to _____, _____, a price equal to
the [Make-Whole Amount] plus accrued and unpaid interest, including Compounded
Interest and Additional Sums, if any, to the redemption date and (ii) if a
redemption occurs on or after _____, ______, the applicable Optional Redemption
Price plus accrued and unpaid interest, including Compounded Interest and
Additional Sums, if any, to the redemption date.
"Trust" shall have the meaning set forth in the preamble of this _______
Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the Common
Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated the "___%
____________________, _____", limited in aggregate principal amount to $ _____,
which amount shall be as set forth in any written order
7
<PAGE> 11
of the Company for the authentication and delivery of Debentures pursuant to
Section 2.05 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal of, premium, if
any, and interest on (including Compounded Interest and Additional Sums, if any)
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Company maintained for such purpose as set forth in the Indenture; provided,
however, that payment of interest with respect to Debentures (other than a
Global Debenture) may be made at the option of the Company (i) by check mailed
to the Holder at such address as shall appear in the Security Register or (ii)
by transfer to an account maintained by the Person entitled thereto, provided
that proper transfer instructions have been received in writing by the relevant
record date. The Company selects each of New York, New York and Chicago,
Illinois as a place of payment where the principal of (and premium, if any) and
interest on the Debentures are payable as specified in accordance herewith, and
hereby appoints The First National Bank of Chicago, the Debt Trustee, as
registrar for the Debentures (the "Security Registrar"). Notwithstanding the
foregoing, so long as the Holder of any Debentures is the Institutional Trustee,
the payment of the principal of, premium, if any, and interest (including
Compounded Interest and Additional Sums, if any) on such Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
8
<PAGE> 12
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Debt Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Debentures (a "Global Debenture"), to be
registered in the name of the Depositary, or its nominee, and delivered by
the Debt Trustee to or upon the order of the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to
the Debt Trustee for authentication and delivery in accordance with the
Indenture. Payments on the Debentures issued as a Global Debenture will be
made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Debt Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests in
Debentures presented to the Debt Trustee by the Institutional Trustee
having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until such Preferred
Security Certificates are presented to the Security Registrar for transfer
or reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Debt Trustee for authentication and delivery in accordance
with the Indenture. Upon the issuance
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<PAGE> 13
of such Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Institutional Trustee to the Debt Trustee
will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at a rate of _____% per annum from
_____, ____ until the principal thereof becomes due and payable, and on any
overdue principal at a rate of _____% per annum and (to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at a rate of _____% per annum, compounded semi-annually, payable
(subject to the provisions of Article IV) semi-annually in arrears on the _____
day of _____ and _____ of each year commencing on _____, _____ , to the Person
in whose name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of any Debentures of which the Institutional Trustee is the
Holder or in the case of a Global Debenture, shall be the close of business on
the Business Day next preceding that Interest Payment Date (as defined below).
Notwithstanding the foregoing sentence, if the Debentures are no longer in
book-entry only form, except if the Debentures are held by the Institutional
Trustee, the record dates shall be the _____ and _____ prior to the applicable
Interest Payment Date.
(b) Unless otherwise provided by the Debt Trustee, the Paying Agent will
calculate the amount of interest payable on the Debentures in respect of each
Interest Period. The amount of interest payable for any Interest Period will be
computed on the basis of a 360-day year consisting of twelve 30-day months and
rounding the resulting figure to the nearest cent (with one-half cent or more
being rounded upwards). The determination of the amount of interest payable by
Paying Agent will (in the absence of wilful default, bad faith or manifest
10
<PAGE> 14
error) be final, conclusive and binding on all concerned.
(c) All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Debentures, whether by the Debt Trustee or Paying Agent, will
(in the absence of wilful default, bad faith or manifest error) be binding on
the Trust, the Company, the Debt Trustee and all of the holders of the
Debentures, and no liability will (in the absence of wilful default, bad faith
or manifest error) attach to the Debt Trustee or Paying Agent in connection with
the exercise or non-exercise by any of them of their powers, duties and
discretion.
(d) In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which interest is actually
payable, an "Interest Payment Date").
(e) If a Tax Event has occurred and is continuing while the Institutional
Trustee is the Holder of any Debentures, and the Trust or the Institutional
Trustee is required to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any case, the Company will pay
such additional sums ("Additional Sums") on the Debentures held by the
Institutional Trustee, as shall be required so that the net amounts received and
retained by the Trust and the Institutional Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the amounts
the Trust and the Institutional Trustee would have received had the Trust and
the Institutional Trustee not been subject to such taxes, duties, assessments or
other government charges as a result of such Tax Event. Additional Sums shall be
treated as interest for all purposes under the Indenture.
11
<PAGE> 15
(f) All percentages resulting from any calculations referred to in this
_______ Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption.
Subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies,
if at any time a Tax Event shall occur and be continuing, the Company shall have
the right upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures, in whole, but not in part, for cash within 90 days following the
occurrence of such Tax Event (or, if the approval of the Federal Reserve Board
is then required for such redemption, on such later date as promptly practicable
after such approval is obtained) at the Tax Event Redemption Price.
SECTION 3.2. Capital Treatment Event of Redemption.
Subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies,
if at any time a Capital Treatment Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more 60 days' notice, to
redeem the Debentures, in whole, but not in part, for cash within 90 days
following the occurrence of such Capital Treatment Event (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) at the Capital
Treatment Event Redemption Price.
SECTION 3.3. Optional Redemption by Company.
(a) Subject to the prior approval of the Board of Governors of the Federal
Reserve System, if such approval is then required under applicable law, rules,
guidelines or policies, the
12
<PAGE> 16
Company shall have the right to redeem the Debentures, in whole or in part, from
time to time, on or after _____, _____, upon not less than 30 nor more than 60
days' notice at the following redemption prices (expressed as a percentage of
the principal amount of the Subordinated Debentures being redeemed) plus accrued
and unpaid interest thereon, including Compounded Interest, if any, to the
redemption date (in any such case, an "Optional Redemption Price"), if redeemed
during the 12-month period commencing on _____ of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Period Price
------ ----------
<S> <C>
_____ _____%
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ _____
_____ and thereafter _____
</TABLE>
(b) If the Debentures are only partially redeemed pursuant to this Section
3.3, the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Security Registrar; provided, that if at the time of redemption
the Debentures are registered as a Global Debenture, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(c) If a partial redemption of the Debentures would result in the delisting
of the Preferred Securities issued by the Trust from any national securities
exchange or interdealer quotation system or other organization on which the
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures in whole.
13
<PAGE> 17
SECTION 3.4. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time and from time to time during the term of the
Debentures, to defer payments of interest on the Debentures by extending the
interest payment period of such Debentures for a period not exceeding 10
consecutive semi-annual periods (the "Extension Period"), during which Extension
Period no interest shall be due and payable; provided that no Extension Period
shall end on a date other than an Interest Payment Date or extend beyond the
Maturity Date. To the extent permitted by applicable law, interest, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1 will bear interest thereon at a rate of
_____% per annum compounded semi-annually for each semi-annual period of the
Extension Period ("Compounded Interest"). At the end of the Extension Period,
the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Sums and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders in whose names the Debentures
are registered in the Security Register on the record date relating to the
Interest Payment Date on which the Extension Period ends. Before the termination
of any Extension Period, the Company may further defer payments of interest by
further extending such period, provided that such period, together with all such
previous and further extensions within such Extension Period, shall not exceed
10 consecutive semi-annual periods or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extension Period and the payment of all
Deferred Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. Compounded Interest
14
<PAGE> 18
shall be treated as interest for all purposes under the Indenture.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the time
the Company selects an Extension Period, the Company shall give written notice
to the Regular Trustees, the Institutional Trustee and the Debt Trustee of its
selection of such Extension Period five Business Days before the earlier of (i)
the next succeeding date on which Distributions on the Trust Securities issued
by the Trust are payable, or (ii) the date the Trust is required to give notice
of the record date, or the date such Distributions are payable, to any national
securities exchange or interdealer quotation system or to holders of the
Preferred Securities issued by the Trust, but in any event at least five
Business Days before such record date.
(b) If the Institutional Trustee is not the only Holder at the time the
Company selects an Extension Period, the Company shall give the Holders and the
Debt Trustee written notice of its selection of such Extension Period at least
10 Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to any national securities exchange or
interdealer quotation system or to the Holders.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extension Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Trust and in connection with the sale of the Trust Securities by the Trust, the
15
<PAGE> 19
Company, in its capacity as borrower with respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures and the compensation of the Debt Trustee in accordance with
the provisions of Section 6.6;
(b) pay all costs and expenses relating to the organization and operation
of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this ________ Supplemental Indenture or the Indenture
or the removal or resignation of the Debt Trustee, unless otherwise stated, the
Company shall pay to the Debt Trustee all amounts accrued under Section 6.06 of
the Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
The Debentures and the Debt Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms set forth in Exhibit A
hereto.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________ may, upon
execution of this _________ Supplemental Indenture, be executed by the Company
and deliv-
16
<PAGE> 20
ered to the Debt Trustee for authentication as provided in Sections 2.03 and
2.05 of the Indenture.
ARTICLE VIII
COVENANTS
SECTION 8.1. Limitation on Dividends.
The Company will not, and will not permit any subsidiary to, (i) declare or
pay any dividends or distributions on, or prepay, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal of, premium, if any, or interest on or repay,
repurchase or redeem any debt securities of the Company (including Other Debt
Securities) that rank pari passu with, or junior in right of payment to, the
Debentures or (iii) make any guarantee payment with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company(including
Other Guarantees) if such guarantee ranks pari passu with, or junior in right of
payment to, the Debentures (other than (a) dividends, distributions,
redemptions, purchases or acquisitions made by the Company by way of issuance of
its capital stock (or options, warrants or other rights to subscribe therefor),
(b) any declaration of a dividend in connection with the implementation of a
shareholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Preferred Securities Guarantee or Common Securities
Guarantee, (d) the purchase of fractional interests in shares resulting from a
reclassification of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (f) purchases of Common Stock related to the issuance of Common Stock
or rights under any of the Company's benefit plans for its directors, officers
or employees and (g) obligations under any dividend reinvestment plan or stock
purchase plan of the Company), if at such time (1) there shall have occurred any
event of which the Company has actual knowledge that (a) with the giving of
notice, or the lapse of time, or both, would constitute an Event of Default
hereunder and (b) in respect of which the Company shall not have taken
17
<PAGE> 21
reasonable steps to cure, (2) if such Debentures are held by the Institutional
Trustee, the Company shall be in default with respect to its payment obligations
under the Preferred Securities Guarantee or Common Securities Guarantee or (3)
the Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such Extension
Period shall be continuing.
SECTION 8.2. Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee of such trust
in connection with the issuance of Trust Securities by the Trust, for so long as
such Trust Securities remain outstanding, the Company (i) will maintain 100%
direct or indirect ownership of the Common Securities of the Trust; provided,
however, that any successor of the Company, permitted pursuant to Article X of
the Indenture, may succeed to the Company's ownership of such Common Securities,
(ii) will use commercially reasonable efforts to cause the Trust (a) to remain a
grantor trust, except in connection with a distribution of Debentures to the
holders of Trust Securities in liquidation of the Trust, the redemption of all
of the Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be classified as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes and (iii) will not
cause, as sponsor of the Trust, or permit, as holder of the Common Securities,
the dissolution, winding-up or termination of the Trust, except in connection
with a distribution of the Debentures as provided in the Declaration and in
connection with certain mergers, consolidations or amalgamations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this _______ Supplemental Indenture, is
in all respects ratified and confirmed, and this ________ Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
18
<PAGE> 22
SECTION 9.2. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debentures held by the
Trust or a trustee thereof, if the Institutional Trustee of such Trust fails to
enforce its rights under this ________ Supplemental Indenture or the Indenture
as the Holder of the Debentures held as the assets of SunTrust Capital _______,
any holder of Preferred Securities may institute legal proceedings directly
against the Company to enforce such Institutional Trustee's rights under this
_______ Supplemental Indenture or the Indenture without first instituting any
legal proceedings against such Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Company to
pay principal of, premium, if any, or interest on the Debentures when due, the
Company acknowledges that a holder of Preferred Securities may institute a
Direct Action for enforcement of payment to such holder of the principal of,
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Debentures.
SECTION 9.3. Direction of Proceedings and Waiver of Defaults by Majority of
Holders.
The Holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Debt Trustee, or exercising any trust or power conferred on the Debt Trustee;
provided, however, that (subject to the provisions of Section 6.01 of the
Indenture) the Debt Trustee shall have the right to decline to follow any such
direction if the Debt Trustee shall determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction or if
the Debt Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debt Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
19
<PAGE> 23
Debt Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Debt Securities, the Holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding may on behalf of
the Holders of all of the Debt Securities waive any past default or Event of
Default and its consequences except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debt Securities (unless such
default has been cured and a sum sufficient to pay all matured installments of
principal, premium, if any, and interest due otherwise than by acceleration has
been deposited with the Debt Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
Holder of each Debenture affected; provided, however, that if the Debt
Securities are held by the Institutional Trustee, such waiver or modification to
such waiver shall not be effective until the holders of a majority in aggregate
liquidation amount of Trust Securities shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the Holder
of each outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities shall have consented to such waiver.
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this ________ Supplemental Indenture and the Indenture and
the Company, the Debt Trustee and the Holders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted by
Section 5.08 of the Indenture, said default or Event of Default shall for all
purposes of the Debt Securities and the Indenture be deemed to have been cured
and to be not continuing.
SECTION 9.4. Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the Debt
Trustee, and the Debt Trustee assumes no responsibility for the correctness
thereof. The Debt Trustee makes no representation as to the validity or
sufficiency of this ________ Supplemental Indenture.
20
<PAGE> 24
SECTION 9.5. Governing Law.
This ________ Supplemental Indenture and each Debenture shall be construed
in accordance with and governed by the laws of the State of New York.
SECTION 9.6. Separability.
In case any one or more of the provisions contained in this _________
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this ___________
Supplemental Indenture or of the Debentures, but this ____________ Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.7. Counterparts.
This __________ Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
21
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this _______
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
SUNTRUST BANKS, INC.
By: _________________________________
Name:
Title:
Attest:
By: _____________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Debt Trustee
By: __________________________________
John R. Prendiville
Vice President
Attest:
By: _____________________________
Name:
Title:
22
<PAGE> 26
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a
Book-Entry Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
A-1
<PAGE> 27
No. __________ CUSIP No. __________
SUNTRUST BANKS, INC.
________%, __________
SUNTRUST BANKS, INC., a Georgia corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to SunTrust Capital _____, or
registered assigns, the principal sum of $___________ on __________, _____, and
to pay interest on said principal sum from ___________, __________, or from the
most recent interest payment date to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth herein) in arrears
on the _____ day of ________ and December of each year commencing _____, _____,
at a rate of _____% per annum until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, at a rate of
_____% per annum and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at a rate of _____% per annum compounded semi-annually. The amount of
interest payable on any Interest Payment Date (as defined below) shall be
calculated as provided in the Indenture. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date (each
date on which interest is actually payable, an "Interest Payment Date"). The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Debt Securities,
as defined in said Indenture) is registered at the close of business on _______
the regular record date for such interest installment, which shall be, except if
the Debentures are held by the Institutional Trustee, the close of business on
the and _________ prior to the applicable Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered
A-2
<PAGE> 28
Holders on such regular record date and may be paid to the Person in whose name
this Debenture (or one or more Predecessor Debt Securities) is registered at the
close of business on a special record date to be fixed by the Debt Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation system on which
the Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on this Debenture shall be payable at the office or agency of the
Debt Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made, at the option of the Company, by check mailed to the registered Holder at
such address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than ten days prior to the
date of payment. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of,
premium, if any, and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debt Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder or creditor upon said provisions.
A-3
<PAGE> 29
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Debt Trustee.
THIS DEBENTURE IS NOT A SAVINGS ACCOUNT DEPOSIT OR OTHER OBLIGATION OF ANY
BANK OR A NONBANK SUBSIDIARY THEREOF, AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
SUNTRUST BANKS, INC.
By: _________________________________
Name:
Title:
Attest:
By: _____________________________
Name:
Title:
A-4
<PAGE> 30
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Debt Trustee
By: _____________________________
Authorized Officer
Dated: __________________________
A-5
<PAGE> 31
(FORM OF REVERSE OF DEBENTURE)
This Debt Security is one of a duly authorized series of debt securities of
the Company (herein sometimes referred to as the "Debentures"), all issued or to
e issued in one or more series under and pursuant to an Indenture, dated as of
__________ , __________ duly executed and delivered between the Company and The
First National Bank of Chicago, as Debt Trustee (the "Debt Trustee"), as
supplemented by the Supplemental Indenture, dated as of __________, __________
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Debt Trustee, the Company
and the Holders of the Debentures. By the terms of the Indenture, Debt
Securities are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Indenture. This
Debenture is one of the series designated on the face hereof and is limited in
aggregate principal amount as specified in said ________ Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or Capital Treatment
Event, the Company shall have the right, subject to certain conditions set forth
in the Indenture, to redeem this Debenture in whole, but not in part, at the Tax
Event Redemption Price or Capital Treatment Event Redemption Price, as the case
may be, within 90 days following the occurrence of such Tax Event or Capital
Treatment Event (or, if the prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") is then required, on such
later date as promptly as practicable after such approval is obtained). In
addition, the Company shall have the right to redeem this Debenture, in whole or
in part, from time to time on or after __________, __________ , at the Optional
Redemption Price. Any redemption pursuant to this paragraph will be made upon
not less than 30 days nor more than 60 days notice. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Security Registrar; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures beneficially held by each Debenture
holder to be redeemed in accordance with its procedures.
A-6
<PAGE> 32
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by the Company
shall be subject to the prior approval of the Federal Reserve Board, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve Board.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Debt
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of all series
affected (acting as one class), to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities;
provided, however, that no such supplemental indenture shall without the consent
of the Holders of the outstanding Debentures affected thereby (i) change the
Maturity Date, or reduce the rate or extend the time of payment of interest
(except as contemplated by Section 4.1 of the _______ Supplemental Indenture),
or reduce the principal amount thereof, or reduce any amount payable on
prepayment thereof, or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that in which any Debenture
(or premium, if any, thereon) or the interest thereon is payable according to
its terms, or impair or affect the right of any Holder to institute suit for
payment thereof; or (ii) reduce the percentage in principal amount of the
outstanding Debentures, the Holders of which are required to consent to any such
amendment to the ________ Supplemental Indenture; provided, however, that if the
Debentures are held by the Institutional Trustee of the Trust, such amendment
shall not be effective until the holders of a majority in liquidation amount of
Trust Securities shall have consented to such amendment; provided, further, that
if the consent of the Holder of each outstanding
A-7
<PAGE> 33
Debenture is required, such amendment shall not be effective until each holder
of the Trust Securities shall have consented to such amendment. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of any series affected
thereby, on behalf of all of the Holders of the Debt Securities of such series,
to waive any past default in the performance of any of the covenants contained
in the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Debt Securities of such series.
Any such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time and from time to time during the term of the
Debentures, to defer payments of interest on this Debenture by extending the
interest payment period of this Debenture for a period not exceeding 10
consecutive semi-annual periods (an "Extension Period") during which Extension
Period no interest shall be due and payable; provided that no Extension Period
shall end on a date other than an Interest Payment Date or extend beyond the
Maturity Date. Before the termination of any Extension Period, the Company may
further defer payments of interest by further extending such period, provided
that such period, together with all such previous and further extensions within
such Extension Period, shall not exceed 10 consecutive semi-annual periods or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and the payment of all accrued and unpaid interest and including any Additional
Sums and Compounded Interest then due, the Company may commence a new Extension
Period, subject to the foregoing requirements.
A-8
<PAGE> 34
The Company will not (i) declare or pay any dividends or distributions on,
or prepay, purchase, acquire, or make a liquidation payment with respect to, any
of the Company's capital stock, (ii) make any payment of principal of, premium,
if any, or interest on or repay, repurchase or redeem any debt securities of the
Company (including Other Debt Securities) that rank pari passu with, or junior
in right of payment to, the Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any Subsidiary
of the Company (including Other Guarantees) if such guarantee ranks pari passu
with or junior in right of payment to the Debentures (other than (a) dividends,
distributions, redemptions, purchases or acquisitions made by the Company by way
of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock under
any such plan in the future, or the prepayment or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities Guarantee, (d) the
purchase of fractional interests in shares resulting from a reclassification of
the Company's capital stock, (e) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, (f)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees and (g) obligations under any dividend reinvestment plan or stock
purchase plan of the Company), if at such time (1) there shall have occurred any
event of which the Company has actual knowledge that (a) with the giving of
notice, or the lapse of time, or both would constitute an Event of Default and
(b) in respect of which the Company shall not have taken reasonable steps to
cure, (2) if such Debentures are held by the Institutional Trustee, the Company
shall be in default with respect to its payment obligations under the Preferred
Securities Guarantee or Common Securities Guarantee or (3) the Company shall
have given notice of its selection of an Extension Period and shall not have
rescinded such notice or such Extension Period and such Extension Period shall
be continuing.
Subject to the prior approval of the Federal Reserve Board if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve Board, the Company will have the right at any time to liquidate
the
A-9
<PAGE> 35
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Debt Trustee in New
York, New York, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor Window 2, New York, New York 10005 accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar duly executed by the registered Holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Debt Trustee, any paying agent and the Security Registrar may
deem and treat the registered holder hereof as the owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and (subject to Section 2.5 of the __________ Supplemental Indenture)
interest due hereon and for all other purposes, and neither the Company nor the
Debt Trustee nor any paying agent nor any Security Registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
A-10
<PAGE> 36
The Debentures are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
A-11
<PAGE> 1
EXHIBIT 5.1
February 11, 1998
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 (the "Registration Statement") filed today by the Company,
SunTrust Capital III, a Delaware statutory business trust ("Trust III") and
SunTrust Capital IV, a Delaware statutory business trust ("Trust IV" and,
together with Trust III, the "Trusts"; and the Trusts, together with the
Company, the "Registrants") under the Securities Act of 1933, as amended, 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 the
<PAGE> 2
SunTrust Banks, Inc.
February 11, 1998
Page 2
- -------------------
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 LLP LETTERHEAD]
February 11, 1998
SunTrust Capital III
SunTrust Capital IV
c/o SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Re: SunTrust Banks, Inc.
SunTrust Capital III
SunTrust Capital IV
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to SunTrust Capital
III and SunTrust Capital IV (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. ss.ss. 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, filed by the Company and the SunTrust Trusts with the
Securities and Exchange Commission (the "Commission") on February 11, 1998 under
the Securities Act of 1933, as amended (the "Act") (such Registration Statement,
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"),
<PAGE> 2
SunTrust Capital III
SunTrust Capital IV
SunTrust Banks, Inc.
February 11, 1998
Page 2
each such Declaration being among the Company, as sponsor 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 February
10, 1998; (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 photo static 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 III
SunTrust Capital IV
SunTrust Banks, Inc.
February 11, 1998
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.
Members of our firm are admitted to the bar in the State of
Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
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
there to; 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, will be validly issued, fully
paid and nonassessable,
<PAGE> 4
SunTrust Capital III
SunTrust Capital IV
SunTrust Banks, Inc.
February 11, 1998
Page 4
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 LLP
<PAGE> 1
EXHIBIT 12.1
SUNTRUST BANKS, INC.
Ratio of Earnings to Fixed Charges
(In thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30 Year Ended December 31
------------------------ --------------------------------------
1997 1996 1996 1995 1994
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
RATIO 1 - INCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 503,353 $ 435,590 $ 903,200 $ 825,925 $ 781,965
Fixed charges 837,057 718,850 1,476,392 1,363,702 946,283
---------- ---------- ---------- ---------- ----------
Total $1,340,410 $1,154,440 $2,379,592 $2,189,627 $1,728,248
========== ========== ========== ========== ==========
Fixed charges:
Interest on deposits 566,898 537,828 1,083,035 988,725 704,803
Interest on funds purchased 155,445 110,417 245,502 239,080 122,055
Interest on other short-term borrowings 43,315 26,676 48,264 54,843 42,519
Interest on long-term debt 63,631 36,661 85,031 68,114 63,119
Portion of rents representative of the
interest factor (1/3) of rental expense 7,768 7,268 14,560 12,940 13,787
---------- ---------- ---------- ---------- ----------
Total $ 837,057 $ 718,850 $1,476,392 $1,363,702 $ 946,283
========== ========== ========== ========== ==========
Earnings to fixed charges 1.60x 1.61x 1.61x 1.61x 1.83x
RATIO 2 - EXCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 503,353 $ 435,590 $ 903,200 $ 825,925 $ 781,965
Fixed charges 270,159 181,022 393,357 374,977 241,480
---------- ---------- ---------- ---------- ----------
Total $ 773,512 $ 616,612 $1,296,557 $1,200,902 $1,023,445
========== ========== ========== ========== ==========
Fixed charges:
Interest on funds purchased 155,445 110,417 245,502 239,080 122,055
Interest on other short-term borrowings 43,315 26,676 48,264 54,843 42,519
Interest on long-term debt 63,631 36,661 85,031 68,114 63,119
Portion of rents representative of the
interest factor (1/3) of rental expense 7,768 7,268 14,560 12,940 13,787
---------- ---------- ---------- ---------- ----------
Total $ 270,159 $ 181,022 $ 393,357 $ 374,977 $ 241,480
========== ========== ========== ========== ==========
Earnings to fixed charges 2.86x 3.41x 3.30x 3.20x 4.24x
<CAPTION>
Year Ended December 31
------------------------
1993 1992
---------- ----------
<S> <C> <C>
RATIO 1 - INCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 700,662 $ 575,768
Fixed charges 804,281 988,111
---------- ----------
Total $1,504,943 $1,563,879
========== ==========
Fixed charges:
Interest on deposits 632,307 832,372
Interest on funds purchased 87,900 87,038
Interest on other short-term borrowings 21,623 7,027
Interest on long-term debt 48,839 48,560
Portion of rents representative of the
interest factor (1/3) of rental expense 13,612 13,114
---------- ----------
Total $ 804,281 $ 988,111
========== ==========
Earnings to fixed charges 1.87x 1.58x
RATIO 2 - EXCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 700,662 $ 575,768
Fixed charges 171,974 155,739
---------- ----------
Total $ 872,636 $ 731,507
========== ==========
Fixed charges:
Interest on funds purchased 87,900 87,038
Interest on other short-term borrowings 21,623 7,027
Interest on long-term debt 48,839 48,560
Portion of rents representative of the
interest factor (1/3) of rental expense 13,612 13,114
---------- ----------
Total $ 171,974 $ 155,739
========== ==========
Earnings to fixed charges 5.07x 4.70x
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 31, 1997
incorporated by reference in SunTrust Banks, Inc.'s Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 10, 1998
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
SUNTRUST BANKS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1575035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
SUNTRUST BANKS, INC. and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION> C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)...................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c).............................. 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D).................................. 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 277,105 10.
11. Other assets (from Schedule RC-F).................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11)............................. 2170 56,108,875 12.
</TABLE>
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)..................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing........................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing........................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less................. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years ...................................................... A547 379,893 16.b
. c. With a remaining maturity of more than three years ........... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23
24. Common stock...................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 .......................... RCFD 6724 N/A. M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
---
--------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
SUNTRUST CAPITAL III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE TO BE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES OF SUNTRUST CAPITAL III
(TITLE OF INDENTURE SECURITIES)
1
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
SunTrust Capital III and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
-----------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).............. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)....................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................. RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses.......................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve.............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)............................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)................................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 277,105 10.
11. Other assets (from Schedule RC-F)..................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).............................. 2170 56,108,875 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)..................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing........................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing........................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less.................. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years ...................................................... A547 379,893 16.b
. c. With a remaining maturity of more than three years ........... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23
24. Common stock...................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 .......................... RCFD 6724 N/A. M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----
----------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
SUNTRUST CAPITAL IV
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE TO BE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES OF SUNTRUST CAPITAL IV
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between SunTrust
Capital IV and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)...................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c).............................. 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D).................................. 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 277,105 10.
11. Other assets (from Schedule RC-F).................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11)............................. 2170 56,108,875 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)..................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing........................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing........................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less.................. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year
through three years .............................................. A547 379,893 16.b
c. With a remaining maturity of more than three years ............ A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23
24. Common stock...................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 ........................... RCFD 6724 N/A. M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE> 1
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----
---------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------
SUNTRUST BANKS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1575035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES OF
SUNTRUST CAPITAL III
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between SunTrust
Banks, Inc. and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.0/3/6/1/8
------------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1).. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)........................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B,
column A)................................................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule
RC-B, column D)........................................... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under
agreements to resell...................................... 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C)...................................... RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses.............. RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve.................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c).................. 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)....................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases).. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M).............. 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)................. 2130 77,115 8.
9. Customers' liability to this bank on acceptances
outstanding............................................... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M).................... 2143 277,105 10.
11. Other assets (from Schedule RC-F)......................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).................. 2170 56,108,875 12.
</TABLE>
- --------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................. RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing......................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)........................... RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing...................................... RCFN 6631 352,399 13.b.1
(2) Interest-bearing......................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)...................... RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years .................................................... A547 379,893 16.b
c. With a remaining maturity of more than three years ......... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding......... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)........................... RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G).......................... RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................. RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................... RCFD 3838 0 23
24. Common stock.................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock)........ RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves....................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............. RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)............... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 .............................. RCFD 6724 N/A M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit
work accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE> 1
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
---
----------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
SUNTRUST BANKS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1575035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES OF
SUNTRUST CAPITAL IV
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between SunTrust Banks,
Inc. and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN -------------
THOUSANDS RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1)............ 0081 4,499,157 1.a.
b. Interest-bearing balances(2)..................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................... RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses........................ RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve............................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)............................. 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)................................. 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)............ 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)...................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding........ 2155 614,921 9.
10. Intangible assets (from Schedule RC-M).............................. 2143 277,105 10.
11. Other assets (from Schedule RC-F)................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11)............................ 2170 56,108,875 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)..................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing........................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing........................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)....................... RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less................. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years ..................................................... A547 379,893 16.b
. c. With a remaining maturity of more than three years .......... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23
24. Common stock...................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 .......................... RCFD 6724 N/A. M.1
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<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
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