-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T2wsUOn0VCQW55IT6GJTooXFLQnFZEH3NbLHQ5Ou+OjeLVlwajw6GeZ1iwaiiTWm 1cBBFIAbBbdEEpHNLs5baQ== 0000950144-01-509275.txt : 20020410 0000950144-01-509275.hdr.sgml : 20020410 ACCESSION NUMBER: 0000950144-01-509275 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 16 FILED AS OF DATE: 20011114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST CAPITAL VI CENTRAL INDEX KEY: 0001162292 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-73368-01 FILM NUMBER: 1791690 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N.E. CITY: ATLANTA STATE: GA ZIP: 30308 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST CAPITAL V CENTRAL INDEX KEY: 0001162294 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-73368-02 FILM NUMBER: 1791692 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N.E. CITY: ATLANTA STATE: GA ZIP: 30308 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST BANKS INC CENTRAL INDEX KEY: 0000750556 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 581575035 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-73368 FILM NUMBER: 1791687 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 BUSINESS PHONE: 4045887711 MAIL ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 S-3 1 g72597s-3.txt SUNTRUST BANKS/SUNTRUST CAPITAL V/SUNTRUST CAP. VI AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 14, 2001 REGISTRATION NO. 333- 333- -01 333- -02 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- SUNTRUST CAPITAL V SUNTRUST CAPITAL VI (Exact name of registrant as specified in its Trust Agreement) DELAWARE EACH TO BE APPLIED FOR (State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.) organization)
SUNTRUST BANKS, INC. (Exact name of registrant as specified in its charter) 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 area code, of registrant's ATLANTA, GEORGIA 30308 principal executive offices) (404) 588-7165 (Name, address, including zip code, and telephone number, including area code, of agent for service)
--------------------- COPIES TO: MARY A. BERNARD SUSAN J. SUTHERLAND KING & SPALDING SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1185 AVENUE OF THE AMERICAS FOUR TIMES SQUARE NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10036 (212) 556-2100 (212) 735-3000
--------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement, 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
- --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS PROPOSED PROPOSED OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF TO BE REGISTERED BE REGISTERED PRICE PER SECURITY OFFERING PRICE REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Preferred securities of SunTrust Capital V........ (1) (2) (1) N/A - --------------------------------------------------------------------------------------------------------------------------------- Preferred securities of SunTrust Capital VI....... (1) (2) (1) N/A - --------------------------------------------------------------------------------------------------------------------------------- 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............................................. $300,000,000 N/A $300,000,000 $75,000 - --------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------
(1) In no event will the aggregate initial offering price of the preferred securities of SunTrust Capital V and SunTrust Capital VI, which we refer to as the Trusts, issued under this registration statement exceed $300,000,000, exclusive of accrued interest and dividends, if any. Subordinated debt securities may be issued and sold by SunTrust Banks, Inc., which we refer to as SunTrust, to a Trust in an aggregate principal amount equal to the aggregate liquidation amount of the preferred securities and common securities issued by such Trust, 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 its assets. (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 preferred securities guarantee and the common securities guarantee 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 Trusts, 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 SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SUBJECT TO COMPLETION, DATED NOVEMBER 14, 2001 PROSPECTUS SUNTRUST BANKS, INC. SUBORDINATED DEBT SECURITIES --------------------- SUNTRUST CAPITAL V SUNTRUST CAPITAL VI PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED BY SUNTRUST BANKS, INC. --------------------- We may offer from time to time preferred securities, and SunTrust Banks, Inc. may offer from time to time subordinated debt securities and guarantees of our preferred securities. We or SunTrust Banks, Inc., as the case may be, will provide the specific terms of these securities as applicable in supplements to this prospectus. You should read this prospectus and the accompanying prospectus supplement carefully before you invest. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. NEITHER THE PREFERRED SECURITIES OFFERED BY US NOR THE SUBORDINATED DEBT SECURITIES OR GUARANTEES OFFERED BY SUNTRUST BANKS, INC. WILL BE SAVINGS ACCOUNTS OR DEPOSITS. THESE SECURITIES WILL NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY. The date of this prospectus is , 2001. ABOUT THIS PROSPECTUS This prospectus is a part of a registration statement that we and SunTrust filed with the SEC using a "shelf" registration process. Under this shelf process, we may sell preferred securities and SunTrust may sell subordinated debt securities and guarantees of our preferred securities in one or more offerings up to a total dollar amount of $300,000,000. This prospectus provides you with a general description of the securities we and SunTrust may sell from time to time. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under the heading "Where You Can Find More Information." We and SunTrust may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. Unless the context requires otherwise, references to (1) the "Trusts," "we," "us," "our," or similar terms are to SunTrust Capital V and SunTrust Capital VI, statutory Delaware business trusts and the issuers of the preferred securities and (2) "SunTrust" are to SunTrust Banks, Inc. and its consolidated subsidiaries. WHERE YOU CAN FIND MORE INFORMATION SunTrust files annual, quarterly and current reports, proxy statements and other information with the SEC. SunTrust's SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document SunTrust files with the SEC at its public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549, 233 Broadway, New York, NY 10279 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. SunTrust's SEC filings are also available at the office of the New York Stock Exchange. For further information on obtaining copies of SunTrust's public filings at the New York Stock Exchange, you should call (212) 656-5060. The SEC allows us to "incorporate by reference" into this prospectus the information SunTrust files with them, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this prospectus and information that SunTrust subsequently files with the SEC will automatically update and supercede information in this prospectus and in other filings with the SEC. We incorporate by reference the documents listed below, which SunTrust has already filed with the SEC, and any future filings SunTrust makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until we and SunTrust sell all the securities offered by this prospectus: - Amendment No. 1 to SunTrust's Annual Report on Form 10-K for the year ended December 31, 2000; - Amendment No. 1 to SunTrust's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001; - SunTrust's Quarterly Reports on Form 10-Q for the quarters ended June 30, 2001 and September 30, 2001; and - SunTrust's Current Reports on Form 8-K dated September 26, 2001, October 10, 2001 and October 11, 2001. 2 You may request a copy of these filings, other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing, at no cost, by writing or calling us at the following address: SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 (404) 658-4879 Attention: Gary Peacock, Jr. Senior Vice President We and SunTrust have also filed a registration statement with the SEC relating to the securities offered by this prospectus. This prospectus is part of the registration statement. You may obtain from the SEC a copy of the registration statement and exhibits that we and SunTrust filed with the SEC when we and SunTrust registered the securities. The registration statement may contain additional information that may be important to you. We have not included or incorporated by reference into this prospectus any separate financial statements of the Trusts. We do not believe that these financial statements would be material to holders of preferred securities because: - SunTrust will own, directly or indirectly, all of the voting securities of the Trusts and it is a reporting company under the Securities Exchange Act of 1934, - the Trusts have no independent operations and exist for the sole purpose of issuing preferred securities and investing the proceeds in SunTrust's subordinated debt securities, and - SunTrust's obligations under the indenture, the declaration of trust, the guarantee of the preferred securities and the subordinated debt securities purchased by each Trust, 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 Guarantees." The Trusts are not and will not be subject to the informational requirements of the Securities Exchange Act of 1934. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND THE APPLICABLE PROSPECTUS SUPPLEMENT. NEITHER WE NOR SUNTRUST HAS AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT INFORMATION. WE AND SUNTRUST ARE ONLY OFFERING THESE SECURITIES IN STATES WHERE THE OFFER IS PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATES ON THE FRONT OF THOSE DOCUMENTS. FORWARD-LOOKING STATEMENTS This prospectus contains forward-looking statements within the meaning of the federal securities laws. We may also make forward-looking statements in reports filed by SunTrust with the SEC that we incorporate by reference in this prospectus or in the accompanying prospectus supplement. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words "believes," "expects," "anticipates," "plans," "estimates" or similar expressions. These statements are based on beliefs and assumptions of SunTrust's management, and on information currently available to SunTrust's management. Forward-looking statements are not guarantees of performance. They involve risks, uncertainties and assumptions. We caution you that a number of important factors could cause actual results to differ 3 materially from those contained in any forward-looking statement. Many of these factors are beyond our and SunTrust's ability to control or predict. Such factors include, but are not limited to, the following: - competitive pressures among depository and other financial institutions may increase significantly; - changes in the interest rate environment may reduce margins; - general economic or business conditions may lead to a deterioration in credit quality or a reduced demand for credit; - legislative or regulatory changes, including changes in accounting standards, may adversely affect the business in which SunTrust is engaged; - changes in the securities markets; and - SunTrust's competitors may have greater financial resources and develop products that enable them to compete more successfully than it does. We and SunTrust believe these forward-looking statements are reasonable; however, undue reliance should not be placed on any forward-looking statements, which are based on current expectations. Further, forward-looking statements speak only as of the date they are made, and neither we nor SunTrust undertakes any obligation to update publicly any of them in light of new information or future events. 4 SUNTRUST BANKS, INC. SunTrust is the ninth largest commercial banking organization in the U.S. with assets of approximately $103.3 billion at September 30, 2001. SunTrust provides a full line of consumer and commercial banking services to more than 5.5 million customers through over 1,100 branches and 2,000 ATMs in Alabama, Florida, Georgia, Maryland, Tennessee, Virginia and the District of Columbia. SunTrust's primary businesses include traditional deposit and credit services as well as trust and investment services. SunTrust also provides, through various subsidiaries, credit cards, mortgage banking, credit-related insurance, discount brokerage and investment banking services. As of September 30, 2001, SunTrust had total deposits of $63.1 billion, discretionary trust assets of $88.2 billion and a mortgage servicing portfolio of $46.9 billion. Under the long-standing policy of the Federal Reserve, a bank holding company is expected to act as a source of financial strength for its subsidiary banks and to commit resources to support these banks. As a result of this policy, SunTrust may be required to commit resources to its subsidiary banks in circumstances where it might not otherwise do so. Because SunTrust is a bank holding company, its rights and the rights of its creditors, including the holders of any of the preferred securities offered by this prospectus, to participate in the distribution and payment of assets of any of its subsidiaries upon the subsidiary's liquidation or recapitalization would be subject to the prior claims of such subsidiary's creditors except to the extent that SunTrust may be a creditor with recognized claims against the subsidiary. SunTrust is incorporated under the laws of the State of Georgia. SunTrust's principal executive offices are located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308. SunTrust's general information telephone number is (404) 588-7711. RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges of SunTrust, which includes its subsidiaries, on a consolidated basis. The ratio of earnings to fixed charges has been computed by dividing: - net income plus all applicable income taxes plus fixed charges, by - fixed charges. Fixed charges represent interest expense, either including or excluding interest on deposits as set forth below, and the portion of net rental expense deemed to be equivalent to interest on long-term debt. Interest expense, other than on deposits, includes interest on long-term debt, federal funds purchased and securities sold under agreements to repurchase, mortgages, commercial paper and other funds borrowed. For 1999, the ratio of earnings to fixed charges has been computed excluding extraordinary gains.
NINE MONTHS ENDED YEAR ENDED DECEMBER 31, SEPTEMBER 30, -------------------------------- -------------- 1996 1997 1998 1999 2000 2000 2001 ---- ---- ---- ---- ---- ----- ----- Including interest on deposits..................... 1.58 1.60 1.54 1.60 1.51 1.52 1.63 Excluding interest on deposits..................... 3.11 2.76 2.33 2.39 2.46 2.52 2.56
We have not presented the ratio of earnings to combined fixed charges including preferred stock dividends of SunTrust because SunTrust did not pay any dividends on any preferred securities during the periods shown in the table above. Accordingly, the ratio of earnings to combined fixed charges including preferred stock dividends would be the same as the ratio of earnings to fixed charges for the periods shown in the table above. 5 THE TRUSTS Each Trust is a statutory business trust formed under Delaware law. Each Trust was created pursuant to a separate certificate of trust, which was filed with the Secretary of State of the State of Delaware, and a declaration of trust executed by SunTrust, as sponsor, and the Trust's trustees. A statutory business trust is a separate legal entity that can be formed for the purposes of holding property. For federal income tax purposes, each Trust is a grantor trust. Each Trust exists for the exclusive purposes of: - issuing its preferred securities and common securities, which represent undivided beneficial interests in its assets, - investing the gross proceeds received from the sale of the preferred securities and common securities in an equal aggregate principal amount of subordinated debt securities of SunTrust, and - engaging in only those other activities necessary, appropriate, convenient or incidental thereto. The public will initially own all of a Trust's preferred securities. SunTrust will own all of a Trust's common securities. When a Trust issues its preferred securities, that Trust's declaration of trust will be amended and restated to set the terms of the preferred securities. The common securities will represent an aggregate liquidation amount equal to at least 3% of a Trust's total capitalization. The preferred securities will represent the remaining approximate 97% of a Trust's total capitalization. The common securities of a Trust will rank equally, and payments will be made on the common securities on a ratable basis, with the preferred securities of the Trust. However, if an event of default under the amended declaration of any Trust exists, the rights of the holders of the common securities of that Trust to receive distributions and payments and upon liquidation, redemption and otherwise will rank junior to the rights of the holders of the preferred securities of that Trust. Pursuant to the amended declaration of a Trust, the Trust will initially have five trustees. Three of the trustees will be employees or officers of SunTrust, which we refer to as the "regular trustees." Bank One, N.A. will serve as institutional trustee under the amended declaration of each Trust. Bank One Delaware, Inc. will act as the Delaware trustee for each Trust. The institutional trustee and the Delaware trustee may at any time be removed or replaced by the holder of the common securities of the applicable Trust. For purposes of compliance with the provisions of the Trust Indenture Act of 1939, Bank One, N.A. will also act as indenture trustee under SunTrust's guarantee of the preferred securities of each Trust, which we refer to as a "guarantee," until replaced by the holder of the common securities of that Trust. The institutional trustee for each Trust will hold title to the subordinated debt securities for the benefit of the Trust and that of the holders of the preferred securities and common securities of that Trust and, so long as the Trust holds the subordinated debt securities, the institutional trustee will have the power to exercise all rights, powers, and privileges of a holder of debentures under the indenture. In addition, the institutional trustee will maintain exclusive control of a segregated non-interest bearing trust account to hold all payments made in respect of the subordinated debt securities for the benefit of the holders of the applicable preferred securities and common securities, which we refer to as the "property account". The property account may be held at the institutional trustee or any paying agent of the institutional trustee. The institutional trustee will make payments of distributions and payments on liquidation, redemption and otherwise to the holders of the applicable preferred securities and common securities out of funds from the property account. Bank One, N.A. will hold the guarantee for the benefit of the holders of the preferred securities of each Trust. SunTrust, as the direct or indirect holder of all the common securities of each Trust, will have the right to appoint, remove or replace any trustee of a Trust and to increase or decrease the number of trustees. SunTrust will pay all fees, expenses, debts and obligations, other than with respect to the preferred securities and common securities, incurred and associated with each Trust and the offering of the preferred securities by either Trust. The principal executive offices of each Trust are located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, and the telephone number of each Trust is 404-588-7711. 6 USE OF PROCEEDS Each Trust will use all proceeds received from the sale of its preferred securities to purchase subordinated debt securities issued by SunTrust. Unless the applicable prospectus supplement states otherwise, SunTrust intends to use the net proceeds from the sale of its subordinated debt securities for general corporate purposes, which may include: - the repayment of long-term indebtedness; - the repayment of short-term indebtedness, including commercial paper; - the purchase of equity securities, including the repurchase by SunTrust of common stock pursuant to its on-going stock repurchase plan; - investments at the holding company level; - investments in, or extensions of credit to, SunTrust's banking and other subsidiaries and other banks and companies engaged in other financial service activities; - possible acquisitions; and - the purchase of trust-originated preferred securities. Until SunTrust uses the proceeds from the sale of any subordinated debt securities, it may temporarily invest the net proceeds in short-term marketable securities. DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES SunTrust may issue subordinated debt securities from time to time in one or more series under the indenture dated as of November 14, 2001 between SunTrust and Bank One, N.A., as debt trustee. We refer to the indenture as supplemented or amended from time to time as the "indenture". The indenture will be qualified under the Trust Indenture Act of 1939. The terms of the subordinated debt securities will include those in the indenture and those made part of the indenture by the Trust Indenture Act. The following summary of the material terms and provisions of the subordinated debt securities is not intended to be complete. You should read the following description together with the indenture to help you understand the terms of the subordinated debt securities. A copy of the indenture has been filed as an exhibit to the registration statement of which this prospectus forms a part. GENERAL The subordinated debt securities will be issued as unsecured debt under the indenture. The indenture does not limit the aggregate principal amount of subordinated debt securities that SunTrust may issue and provides that SunTrust may issue subordinated debt securities from time to time in one or more series pursuant to a supplemental indenture or a resolution of SunTrust's board of directors or a duly appointed committee. If SunTrust issues subordinated debt securities to a Trust in connection with the issuance of preferred securities and common securities by the Trust, the subordinated debt securities may be distributed ratably to the holders of such preferred securities and common securities in connection with the dissolution of the Trust as described in the applicable prospectus supplement. SunTrust will issue only one series of subordinated debt securities to a Trust in connection with a Trust's issuance of its preferred securities and common securities. A prospectus supplement relating to a series of subordinated debt securities being offered will include specific terms relating to the offering. These terms may include some or all of the following: - the title of the subordinated debt securities; - any limit on total principal amount of the subordinated debt securities; 7 - the maturity date or dates on the subordinated debt securities; - the rate or rates of interest on the subordinated debt securities, or the method of determining such rate or rates, if any; - the date or dates from which interest, if any, will accrue; - the date or dates on which interest will be payable, or the method of determining such interest payment date or dates, and the related record dates; - the place or places where the principal of, premium, if any, and any interest will be payable; - the right, if any, to extend the interest payment periods and the duration of such extension; - any redemption dates, prices, rights, obligations and restrictions on the subordinated debt securities; - any mandatory or optional sinking fund, purchase fund or analogous provisions; - the denominations in which the subordinated debt securities will be issuable if other than denominations of $1,000 and integral multiples thereof; - the currency or currency unit in which principal, premium, if any, and interest will be paid if other than U.S. dollars; - any event of default with respect to the subordinated debt securities, if not set forth in the indenture; - the form of the subordinated debt securities, including the form of the certificate of authentication; - any trustee, authenticating or paying agent, warrant agent, transfer agent or registrar with respect to the subordinated debt securities; - whether the subordinated debt securities will be issued as global securities and, in such case, the depositary for such global securities, and certain other matters relating to such global securities; and - any other terms of such series of subordinated debt securities. The indenture does not contain provisions that would afford holders of the subordinated debt securities protection in the event of a highly leveraged transaction, reorganization, restructuring, merger or similar transaction involving SunTrust that may adversely affect such holders. FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT Unless the applicable prospectus supplement states otherwise, SunTrust will issue the subordinated debt securities in fully registered form, without coupons, and in denominations of $1,000 and integral multiples thereof. Holders of subordinated debt securities will not pay any service charge for any registration of transfer or exchange of the subordinated debt securities. SunTrust may, however, require payment of a sum sufficient to cover any tax or other government charge payable in connection with such registration or transfer. Unless the applicable prospectus supplement states otherwise, principal, premium, if any, and interest, will be payable, and the subordinated debt securities will be transferable, at the corporate trust office of the debt trustee as paying and authenticating agent, except that, at SunTrust's option, interest may be paid: - by check mailed to the address of the person entitled to such interest as it appears in the security register, or - by wire transfer to an account maintained by the person entitled to such interest as specified in the applicable security register. 8 BOOK-ENTRY SUBORDINATED DEBT SECURITIES SunTrust may issue subordinated debt securities of a series in whole or in part in the form of one or more global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement. In such case, one or more global securities will be issued in an aggregate denomination equal to the portion of the aggregate principal amount of outstanding subordinated debt securities to be represented by such global security. 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 depositary to its nominee and except in the circumstances described in the applicable prospectus supplement. The specific terms of any depositary arrangement and a description of the depositary will be provided in the applicable prospectus supplement. SUBORDINATION The subordinated debt securities will rank junior to certain of SunTrust's other debt, which may include both senior and subordinated indebtedness for money borrowed, to the extent described in the applicable prospectus supplement. CERTAIN COVENANTS OF SUNTRUST SunTrust will not, and will not permit any of its subsidiaries to: - declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of SunTrust's capital stock; - make any payment of principal, premium, if any, or interest on, or repay, repurchase or redeem any of SunTrust's debt securities that rank equal or junior to the subordinated debt securities; or - make any guarantee payment with respect to any guarantee by SunTrust of debt securities of any of its subsidiaries if such guarantee ranks equal or junior to the subordinated debt securities; if at such time: (1) an event of default exists under the indenture, which we refer to as an "indenture event of default," and SunTrust has not taken reasonable steps to cure the event of default; (2) if such subordinated debt securities are held by the institutional trustee, SunTrust has defaulted on its payment obligations under the guarantee or the guarantee of the common securities of such Trust; or (3) SunTrust has deferred the payment of interest on such subordinated debt securities as permitted under the indenture. The foregoing covenant does not, however, apply to: - dividends, distributions, redemptions, purchases or acquisitions made by SunTrust by issuing its capital stock (or options, warrants or other rights to subscribe for its capital stock), - dividends declared in connection with implementing a shareholders' rights plan, issuing stock under the plan or redeeming or repurchasing rights pursuant to the plan, - payments under the guarantee or guarantee of common securities, - the purchase of fractional shares resulting from a reclassification of SunTrust's capital stock, - the purchase of fractional interests in shares of SunTrust's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, - purchases of common stock related to the issuance of common stock or rights under any of SunTrust's director, officer or employee benefit plans, and 9 - obligations under any of SunTrust's dividend reinvestment or stock purchase plans, For so long as such preferred securities and common securities of a Trust remain outstanding, SunTrust will: - maintain, directly or indirectly, 100% ownership of the common securities of the Trust, - use its commercially reasonable efforts to cause the Trust to remain a grantor trust, and to continue to be classified as a grantor trust for United States federal income tax purposes, and - not to cause or permit the dissolution, winding-up or termination of the Trust except in connection with a distribution of the subordinated debt securities as provided in the amended declaration of the Trust, and certain mergers, consolidations or amalgamations. LIMITATION ON MERGERS AND SALES OF ASSETS SunTrust may not consolidate with, or merge into, any corporation or convey or transfer its properties and assets substantially as an entirety to any person unless: - the successor entity expressly assumes SunTrust's obligations under the indenture, and - after giving effect to the transaction, no indenture event of default exists and no event that with notice or lapse of time would become an indenture event of default has occurred. EVENTS OF DEFAULT, WAIVER AND NOTICE Under the indenture, the following events will constitute an indenture event of default with respect to each series of subordinated debt securities: - SunTrust fails for 30 days to pay any interest on the subordinated debt securities of that series when due; or - SunTrust fails to pay the principal of, or premium, if any, on the subordinated debt securities of that series when due either at maturity, upon redemption, by declaration or otherwise; or - SunTrust fails to perform or materially breaches any other covenant in the indenture for 90 days after written notice to SunTrust by the debt trustee or to the debt trustee and SunTrust by the holders of at least 25% in principal amount of the subordinated debt securities of that series; or - certain events of bankruptcy, insolvency or reorganization relating to SunTrust occur; or - any other indenture event of default provided with respect to such series of subordinated debt securities as described in the related prospectus supplement. The indenture provides that the debt trustee may withhold notice of an indenture event of default to the holders of a series of subordinated debt securities, except a default in payment of principal, premium, if any, or interest on, such subordinated debt securities, if the debt trustee considers it in the interest of such holders to do so. The indenture provides that if an indenture event of default with respect to any series of subordinated debt securities exists, either the debt trustee or the holders of 25% in principal amount of the outstanding subordinated debt securities of the series may declare the principal of all subordinated debt securities of the series to be due and payable immediately. In certain instances, the holders of a majority of the outstanding principal amount of the subordinated debt securities of such series may annul such declaration or waive such defaults, except defaults in payment of principal of, premium, if any, or interest on, the subordinated debt securities. The holders of a majority in the outstanding aggregate principal amount of the subordinated debt securities of any series affected may 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 the holders have offered to the debt trustee reasonable indemnity against expenses and liabilities. The 10 indenture also provides that a holder of any subordinated debt security may 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 or upon repayment or redemption of such subordinated debt security and that this right may not be impaired without such holder's consent. Under the indenture, SunTrust must file annually with the debt trustee a certificate as to the absence of certain defaults under the indenture. AMENDMENT AND MODIFICATION OF THE INDENTURE SunTrust and the debt trustee may, with the consent of the holders of a majority of the outstanding aggregate principal amount of the subordinated debt securities of all affected series, amend or modify the indenture. No amendment or modification may, without the consent of each affected holder: - change the fixed maturity date of any subordinated debt securities, - reduce the principal amount of the subordinated debt securities, - reduce the rate or extend the time of payment of interest on the subordinated debt securities, - make the principal of, premium, if any, or interest on, the subordinated debt securities payable in any coin or currency other than that provided in the subordinated debt securities, - 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, or - reduce the percentage of subordinated debt securities for which the consent of the holders is required for any such modification. If subordinated debt securities of a series are held by a Trust or a trustee, any amendment or modification of the indenture requiring consent as described above will also require the consent of the holders of all or a majority in liquidation amount of the preferred securities and common securities of the applicable Trust, as the case may be. As a result of these pass-through voting rights with respect to amendments and modifications to the indenture, no amendment or modification to the indenture will be effective until the holders of all or a majority in liquidation amount of the preferred securities and common securities consent to the amendment or modification. SATISFACTION AND DISCHARGE The indenture provides that SunTrust may discharge its obligations to holders of any series of subordinated debt securities that either have or will within one year become due and payable by irrevocably depositing with the debt trustee funds in an amount sufficient to pay in full all of the outstanding the subordinated debt securities of such series. In such event, the indenture will no longer be effective with respect to that series, except as to SunTrust's obligations to pay all other sums due with respect to that series, and SunTrust will 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 Bank One, N.A., which serves as the debt trustee, the institutional trustee and the guarantee trustee, has a principal corporate trust office at 153 West 51st Street, New York, New York 10019. SunTrust and its affiliates have normal banking relationships with the debt trustee and its affiliates in the ordinary course of business. 11 DESCRIPTION OF THE PREFERRED SECURITIES Each trust may issue from time to time one series of preferred securities pursuant to an amended and restated declaration of trust, which we refer to as an "amended declaration". Each amended declaration will be qualified as an indenture under the Trust Indenture Act. The terms of the preferred securities of a Trust will include those in the applicable amended declaration and those made a part of the amended declaration by the Trust Indenture Act. You should read the following description together with the applicable amended declaration to help you understand the terms of the preferred securities. A copy of each amended declaration will be filed as an exhibit to the registration statement of which this prospectus forms a part. GENERAL The terms of the preferred securities issued by either Trust will mirror the terms of the subordinated debt securities purchased by the Trust, which will be described in the applicable prospectus supplement. The prospectus supplement relating to the preferred securities being offered will include specific terms relating to the offering. These terms may include some or all of the following: - the designation of the preferred securities; - the number and the initial public offering price of the preferred securities; - the annual distribution rate, or method of determining such rate, the date or dates upon which such distributions shall be payable and the date or dates from which distributions shall accrue; - whether distributions will be cumulative, and, if so, the date or dates or method of determining the date or dates from which distributions on the preferred securities will be cumulative; - the amount that will be paid out of the assets of such Trust to the holders of preferred securities upon dissolution, winding-up or termination of such Trust; - whether the applicable Trust may redeem the preferred securities and the redemption price and other terms and conditions relative to the redemption rights; - any voting rights; - the terms and conditions, if any, upon which subordinated debt securities may be distributed to holders of preferred securities; - any sinking fund provision; - any conversion rights; - if applicable, any securities exchange upon which the preferred securities will be listed; and - any other relevant rights, preferences, privileges, limitations or restrictions of preferred securities issued by such Trust not inconsistent with the amended declaration or with applicable law. SunTrust will guarantee all preferred securities to the extent set forth below under "Description of the Guarantees." Certain United States federal income tax considerations applicable to any offering of preferred securities will be described in the applicable prospectus supplement. In connection with the issuance of preferred securities by a Trust, the Trust will issue one series of common securities, which will have the terms set forth in the amended declaration. Except for voting rights, the terms of the common securities issued by a Trust will be identical to the terms of the preferred securities issued by such Trust, and the common securities will rank equally, and payments will be made on the common securities on a ratable basis, with the preferred securities. If an event of default under the amended declaration exists, which we refer to as a "declaration event of default," the rights of the holders of the common securities to receive distributions and payments upon liquidation, redemption and otherwise will rank junior to the rights of the holders of the preferred securities. Except in limited circumstances, the 12 common securities will also have the right to vote to appoint, remove or replace any of the trustees of a Trust. SunTrust will own all of the common securities of each Trust. ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES If a declaration event of default exists, the holders of preferred securities of the applicable Trust will rely on the institutional trustee's enforcement of its rights against SunTrust as a holder of the subordinated debt securities issued to such Trust. In addition, the holders of a majority in liquidation amount of the preferred securities of such Trust may 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 amended 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 the applicable preferred securities may institute a legal proceeding directly against SunTrust to enforce the institutional trustee's rights 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 exists due to the failure of SunTrust to make payments on the applicable subordinated securities when due, then a holder of applicable preferred securities may bring a direct action. This means that a holder may directly sue for enforcement of payment to such holder of amounts due on the subordinated debt securities having a principal amount equal to the aggregate liquidation amount of the preferred securities of such holder. Such holder need not first: - direct the institutional trustee to enforce the terms of the subordinated debt securities or - sue SunTrust to enforce the institutional trustee's rights under the subordinated debt securities. In connection with any direct action, SunTrust, as holder of the common securities, will be subrogated to the rights of such holder of preferred securities under the applicable amended declaration to the extent of any payment made by SunTrust to such holder. INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE For information concerning the relationship between SunTrust and Bank One, N.A., the institutional trustee, see "Description of the Subordinated Debt Securities -- The Debt Trustee." DESCRIPTION OF THE GUARANTEES In connection with the issuance by a Trust of any preferred securities, SunTrust will execute and deliver a guarantee for the benefit of the holders from time to time of the preferred securities. Each guarantee will be qualified as an indenture under the Trust Indenture Act. Bank One, N.A., which we refer to as the "guarantee trustee," will act as trustee under each guarantee for purposes of the Trust Indenture Act. The terms of the guarantee will include those in the guarantee and those made a part of the guarantee by the Trust Indenture Act. The following summary of the material terms and provisions of the guarantee is not intended to be complete. You should read the following description together with the guarantee to help you understand the terms of the guarantee. A copy of the guarantee has filed as an exhibit to the registration statement of which this prospectus forms a part. GENERAL Pursuant to each guarantee, SunTrust will irrevocably and unconditionally agree, to the extent set forth in such guarantee, to pay in full, to the holders of the applicable preferred securities, the guarantee payments when due. The following payments, to the extent not paid by the relevant Trust, constitute "guarantee payments": - any accrued and unpaid distributions required to be paid on such preferred securities; - the redemption price with respect to any preferred security called for redemption; and 13 - upon a voluntary or involuntary dissolution, winding-up or termination of the applicable 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 maturity or redemption, the lesser of: (1) the aggregate of the liquidation amount and all accrued and unpaid distributions on such preferred securities to the date of payment, and (2) the amount of assets of such Trust remaining available for distribution to holders of such preferred securities in liquidation of such Trust. The redemption price and liquidation amount will be fixed at the time the preferred securities are issued. SunTrust will guarantee payments of distributions and other payments due on the preferred securities to the extent funds are available therefor. If SunTrust does not make a required payment on the related subordinated debt securities, a Trust will not have sufficient funds to make the related payment on the preferred securities. The guarantee does not cover payments on any preferred securities when the applicable Trust does not have sufficient funds to make such payments. SunTrust's obligation to make a guarantee payment may be satisfied by SunTrust paying or causing the relevant Trust to pay the required amount directly to the holders of preferred securities. The guarantee, when taken together with SunTrust's obligations under the subordinated debt securities, the indenture and the amended declaration, including its obligations as issuer of the subordinated debt securities to pay costs, expenses, debts and liabilities of the Trusts, other than with respect to the preferred securities and common securities, will provide a full and unconditional guarantee, on a subordinated basis, by SunTrust of payments due on the preferred securities. AMENDMENT OF THE GUARANTEES The holders of at least a majority in liquidation amount of the outstanding preferred securities of a Trust may amend the relevant guarantee. No such approval will be required, however, with respect to amendments that do not adversely affect the rights of holders of such preferred securities. The manner of obtaining any such approval will be set forth in the applicable prospectus supplement. SunTrust will also guarantee irrevocably and unconditionally each Trust's obligations with respect to the common securities to the same extent as the guarantees, except that upon an indenture event of default, holders of preferred securities will have priority over holders of common securities with respect to distributions and payments on liquidation, redemption or otherwise. TERMINATION Each guarantee will terminate: - upon full payment of the redemption price of all preferred securities of the applicable Trust, - upon distribution of the subordinated debt securities held by the applicable Trust to the holders of the preferred securities of such Trust, or - upon full payment of the amounts payable upon liquidation in accordance with the applicable amended declaration. Each guarantee will continue to be effective or will be reinstated, as the case may be, if, at any time, any holder of the applicable preferred securities is required to restore payment of any sums paid under such preferred securities or such guarantee. 14 EVENTS OF DEFAULT An event of default under a guarantee will occur if SunTrust fails to perform any of its payment or other obligations under the guarantee. The holders of a majority in liquidation amount of the preferred securities relating to such guarantee have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee in respect of the guarantee or to direct the exercise of any trust or power conferred upon the guarantee trustee under such preferred securities. If the guarantee trustee fails to enforce such guarantee, any holder of preferred securities relating to such guarantee may institute a legal proceeding directly against SunTrust to enforce the guarantee trustee's rights under such guarantee, without first instituting a legal proceeding against the relevant Trust, the guarantee trustee or any other person or entity. Notwithstanding the foregoing, if SunTrust has failed to make a guarantee payment, a holder of preferred securities may directly institute a proceeding against SunTrust to enforce the guarantee for such payment. SunTrust waives any right or remedy to require that any action be brought first against such Trust or any other person or entity before proceeding directly against SunTrust. STATUS OF THE PREFERRED SECURITIES GUARANTEES Unless the applicable prospectus supplement states otherwise, the guarantees will constitute unsecured obligations of SunTrust and will rank: - junior to certain of SunTrust's other liabilities, which may include both senior and subordinated indebtedness for money borrowed, to the extent set forth in the applicable prospectus supplement, - equally with any guarantee entered into by SunTrust in respect of any other Delaware statutory business trust or other similar financing vehicle sponsored by SunTrust, and - senior to all of SunTrust's capital stock and to any guarantee SunTrust has or will enter into in respect of any of SunTrust's capital stock. The terms of the preferred securities provide that each holder, by acceptance of such preferred securities, agrees to the subordination provisions and other terms of the guarantee relating thereto as described in the applicable prospectus supplement. The guarantees will constitute a guarantee of payment and not of collection. A guarantee of payment entitles the guaranteed party to institute a legal proceeding directly against the guarantor to enforce its rights under the guarantee without instituting a legal proceeding against any other person or entity. INFORMATION CONCERNING THE GUARANTEE TRUSTEE The guarantee trustee, prior to the occurrence of a default with respect to a guarantee, undertakes to perform only such duties as are specifically set forth in such guarantee and, after default, will 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 guarantee trustee is under no obligation to exercise any of the powers vested in it by a guarantee at the request of any holder of preferred securities unless offered reasonable indemnity against the costs, expenses and liabilities that might be incurred in connection with such action. For information concerning the relationship between SunTrust and the guarantee trustee, see "Description of the Subordinated Debt Securities -- The Debt Trustee." GOVERNING LAW The guarantees will be governed by and construed in accordance with the laws of the State of New York. 15 EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES AND THE GUARANTEES As set forth in the applicable amended declaration, each Trust exists for the sole purpose of: - issuing its preferred securities and common securities which represent undivided beneficial interests in its assets, - investing the gross proceeds received from the sale of the preferred securities and common securities in an equal aggregate principal amount of subordinated debt securities of SunTrust, and - engaging in only those other activities necessary, appropriate, convenient or incidental thereto. As long as SunTrust makes payments when due on the subordinated debt securities held by a given Trust, such payments will be sufficient to cover payments due on the preferred securities and common securities of such Trust because of the following factors: - the aggregate principal amount of such subordinated debt securities will equal the sum of the aggregate stated liquidation amount of the preferred securities and common securities; - the interest rate and payment dates for the subordinated debt securities will match the distribution rate and payment dates for the preferred securities; and - SunTrust, as issuer of the subordinated debt securities, will pay, and the applicable Trust will not be obligated to pay, directly or indirectly, all costs, expenses, debts, and obligations of the applicable Trust, other than with respect to the preferred securities and common securities. SunTrust will guarantee payments due on the preferred securities to the extent funds are available for these payments, as set forth under "Description of the Guarantees." If SunTrust does not make interest payments on the subordinated debt securities purchased by the applicable Trust, the Trust will not have sufficient funds to pay distributions on its preferred securities. A guarantee does not apply to any payment of distributions when a Trust does not have sufficient funds to pay such distributions. A 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 such Trust. If SunTrust does not make payments on the subordinated debt securities held by a Trust when due, the holders of the preferred securities may direct the institutional trustee to enforce its rights under such subordinated debt securities. If the institutional trustee fails to enforce its rights, 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 exists due to SunTrust's failure to make payments on the subordinated debt securities when due, 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 to the extent of any payment made by SunTrust to such holder in such direct action. Under each guarantee, SunTrust acknowledges that the guarantee trustee shall enforce the guarantee on behalf of the holders of the related preferred securities. If SunTrust does not make payments under a guarantee, the guarantee provides a mechanism whereby the holders of the related preferred securities may direct the guarantee trustee to enforce its rights thereunder. Any holder of preferred securities may institute a legal proceeding directly against SunTrust to enforce the guarantee trustee's rights under the related guarantee without first instituting a legal proceeding against the applicable Trust, the guarantee trustee, or any other person or entity. We 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. See "Description of the Guarantees -- General." 16 PLAN OF DISTRIBUTION We and SunTrust may sell securities: - through underwriters or dealers; - through agents; or - directly to one or more purchasers. Any such underwriters, dealers or agents may include any of SunTrust's broker-dealer subsidiaries, including SunTrust Capital Markets Inc. and SunTrust Securities, Inc. The distribution of the securities may be effected from time to time in one or more transactions: - at a fixed price or prices, which may be changed from time to time; - at market prices prevailing at the time of sale; - at prices related to such prevailing market prices, or - at negotiated prices. For each series of securities, the applicable prospectus supplement will set forth the terms of the offering including: - the initial public offering price; - the names of any underwriters, dealers or agents; - the purchase price of the securities; - the proceeds from the sale of the securities to us and SunTrust; - any underwriting discounts, agency fees, or other compensation payable to underwriters or agents; - any discounts or concessions allowed or reallowed or repaid to dealers; and - the securities exchanges on which the securities will be listed, if any. If we use underwriters in the sale, they will buy the securities for their own account. The underwriters may then resell the securities in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale or thereafter. The obligations of the underwriters to purchase the securities will be subject to certain conditions. The underwriters will be obligated to purchase all the securities offered if they purchase any securities. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. In connection with an offering, underwriters and selling group members and their affiliates may engage in transactions to stabilize, maintain or otherwise affect the market price of the securities in accordance with applicable law. If we use dealers in the sale, we will sell securities to such dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale. If we use agents in the sale, they will use their reasonable best efforts to solicit purchases for the period of their appointment. If we sell directly, no underwriters or agents would be involved. We are not making an offer of securities in any state that does not permit such an offer. Underwriters, dealers and agents that participate in the securities distribution may be deemed to be underwriters as defined in the Securities Act of 1933. Any discounts, commissions, or profit they receive when they resell the securities may be treated as underwriting discounts and commissions under the Securities Act of 1933. We may have agreements with underwriters, dealers and agents to indemnify them against certain civil liabilities, including certain liabilities under the Securities Act of 1933, or to contribute with respect to payments that they may be required to make. We may authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities from us on a future date at a specific price. 17 This type of contract may be made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts. The securities will be new issues of securities with no established trading market and unless otherwise specified in the applicable prospectus supplement, will not be listed on any exchange. It has not presently been established whether the underwriters, if any, of the securities will make a market in the securities. If the underwriters make a market in the securities, such market making may be discontinued at any time without notice. No assurance can be given as to the liquidity of the trading market for the securities. SunTrust's broker-dealer subsidiaries are members of the NASD and may participate in distributions of securities. Accordingly, offerings of securities in which SunTrust's broker-dealer subsidiaries participate will conform with the provisions of Rule 2720 of the Conduct Rules of the NASD. This prospectus, together with any applicable prospectus supplement, may also be used by any of SunTrust's broker-dealer subsidiaries in connection with offers and sales of securities in market-making transactions at negotiated prices related to prevailing market prices at the time of sale. Any of SunTrust's broker-dealer subsidiaries, including SunTrust Capital Markets Inc. and SunTrust Securities, Inc., may act as principal or agent in such transactions. None of SunTrust's broker-dealer subsidiaries has any obligation to make a market in any of the securities and may discontinue any market-making activities at any time without notice, at its sole discretion. Underwriters, dealers or agents may be customers of, engage in transactions with, or perform services for, SunTrust and its subsidiaries in the ordinary course of business. LEGAL MATTERS Unless otherwise stated in the applicable prospectus supplement, the validity of the subordinated debt securities and the guarantees will be passed upon for us and SunTrust by Raymond D. Fortin, Senior Vice President and Secretary of SunTrust, and by King & Spalding. Certain matters of Delaware law relating to the preferred securities, the amended declaration and our creation will be passed upon on our behalf by Skadden, Arps, Slate, Meagher & Flom LLP, special Delaware counsel to both us and SunTrust. The validity of the preferred securities and the subordinated debt securities will be passed upon for agents or underwriters, if any, by Skadden, Arps, Slate, Meagher & Flom LLP. Certain matters relating to United States federal income tax considerations will be passed upon for us and SunTrust by King & Spalding. As of October 31, 2001, Mr. Fortin beneficially owned 6,800 shares of SunTrust's common stock which are unrestricted and 20,800 shares of common stock which are restricted, and held options to purchase 16,400 shares. EXPERTS The audited consolidated financial statements of SunTrust incorporated by reference in this prospectus and elsewhere in the registration statement have been audited by Arthur Andersen LLP, independent auditors, 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. 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 securities being registered, other than underwriting compensation, are as follows: Securities and Exchange Commission registration fee......... $ 75,000 Attorneys' fees and expenses................................ 100,000 Blue sky fees and expenses.................................. 10,000 Accounting fees and expenses................................ 50,000 Trustees' fees and expenses................................. 20,000 Printing and engraving expenses............................. 50,000 Paying agent fees........................................... 10,000 Miscellaneous expenses...................................... 25,000 -------- Total............................................. $340,000 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS PART 5 OF ARTICLE 8 OF THE GEORGIA BUSINESS CORPORATION CODE STATES 14-2-850. PART DEFINITIONS. As used in this part, the term: (1) "Corporation" includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. (2) "Director" or "officer" means an individual who is or was a director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, Trust, employee benefit plan, or other entity. A director or officer is considered to be serving an employee benefit plan at the corporation's request if his or her duties to the corporation also impose duties on, or otherwise involve services by, the director or officer to the plan or to participants in or beneficiaries of the plan. Director or officer includes, unless the context otherwise requires, the estate or personal representative of a director or officer. (3) "Disinterested director" means a director who at the time of a vote referred to in subsection (c) of Code Section 14-2-853 or a vote or selection referred to in subsection (b) or (c) of Code Section 14-2-855 or subsection (a) of Code Section 14-2-856 is not: (A) A party to the proceeding; or (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. II-1 (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)(2)(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 or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her 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. II-2 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. II-3 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 II-4 (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. II-5 (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 SunTrust Banks, Inc.'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 SunTrust Banks, Inc.'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. II-6 (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 II-7 connection with the proceeding if it is determined that such person has met the relevant standard of conduct under this section, or (ii) with respect to conduct for which such person was adjudged liable on the basis that personal benefit was improperly received by him, whether or not involving action in his official capacity. Section 3. ADVANCES FOR EXPENSES. (A) The Corporation may advance funds to pay for or reimburse the reasonable expenses incurred by a director or Officer who is a party to a proceeding because he is a director or Officer in advance of final disposition of the proceeding if: (i) such person furnishes the Corporation a written affirmation of his good faith belief that he has met the relevant standard of conduct set forth in subsection 2(A) above or that the proceeding involves conduct for which liability has been eliminated under the Corporation's Articles of Incorporation; and (ii) such person furnishes the Corporation a written undertaking meeting the qualifications set forth below in subsection 3(B), executed personally or on his behalf, to repay any funds advanced if it is ultimately determined that he is not entitled to any indemnification under this Article or otherwise. (B) The undertaking required by subsection 3(A)(ii) above must be an unlimited general obligation of the director or Officer but need not be secured and shall be accepted without reference to financial ability to make repayment. (C) Authorizations under this Section shall be made: (i) By the Board of Directors: (a) when there are two or more disinterested directors, by a majority vote of all disinterested directors (a majority of whom shall for such purpose constitute a quorum) or 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 II-8 (iii) by the shareholders; but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination. (C) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses of a director or Officer in the specific case shall be made in the same manner as the determination that indemnification is permissible, as described in subsection 4(B) above, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection 4(B)(ii)(2) above to select counsel. (D) The Board of Directors, a committee thereof, or special legal counsel acting pursuant to subsection (B) above or Section 5 below, shall act expeditiously upon an application for indemnification or advances, and cooperate in the procedural steps required to obtain a judicial determination under Section 5 below. (E) The Corporation may, by a provision in its Articles of Incorporation or Bylaws or in a resolution adopted or a contract approved by its Board of Directors or shareholders, 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. II-9 Section 7. SHAREHOLDER APPROVED INDEMNIFICATION. (A) If authorized by the Articles of Incorporation or a Bylaw, contract or resolution approved or ratified by shareholders of the Corporation by a majority of the votes entitled to be cast, the Corporation may indemnify or obligate itself to indemnify a person made a party to a proceeding, including a proceeding brought by or in the right of the Corporation, without regard to the limitations in other sections of this Article, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to any existing or threatened proceeding that would be covered by the authorization may not be voted on the authorization. The Corporation shall not indemnify a person under this Section 7 for any liability incurred in a proceeding in which the person is adjudged liable to the Corporation or is subjected to injunctive relief in favor of the Corporation: (i) for any appropriation, in violation of his duties, of any business opportunity of the Corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for the types of liability set forth in Section 14-2-832 of the Georgia Business Corporation Code; or (iv) for any transaction from which he received an improper personal benefit. (B) Where approved or authorized in the manner described in subsection 7(A) above, the Corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (i) the proposed indemnitee furnishes the Corporation a written affirmation of his good faith belief that his conduct does not constitute behavior of the kind described in subsection 7(A)(i)-(iv) above; and (ii) the proposed indemnitee furnishes the Corporation a written undertaking, executed personally, or on his behalf, to repay any advances if it is ultimately determined that he is not entitled to indemnification. Section 8. LIABILITY INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the Corporation or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against or incurred by him in that capacity or arising from his status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him against the same liability under Section 2 or Section 3 above. Section 9. WITNESS FEES. Nothing in this Article shall limit the Corporation's power to pay or reimburse expenses incurred by a person in connection with his appearance as a witness in a proceeding at a time when he is not a party. Section 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or advances expenses to a director in connection with a proceeding by or in the right of the Corporation, the Corporation shall report the indemnification or advance, in writing, to shareholders with or before the notice of the next shareholders' meeting. Section 11. SEVERABILITY. In the event that any of the provisions of this Article (including any provision within a single section, subsection, division or sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions of this Article shall remain enforceable to the fullest extent permitted by law. II-10 Section 12. INDEMNIFICATION NOT EXCLUSIVE. The rights of indemnification provided in this Article VII shall be in addition to any rights which any such director, Officer, employee or other person may otherwise be entitled by contract or as a matter of law. UNDERWRITING AGREEMENT Pursuant to the form of underwriting agreement, filed as Exhibit 1.1 to this Registration Statement, SunTrust Banks, Inc. has agreed to indemnify the underwriters, if any, against certain liabilities under federal and state securities laws. INSURANCE SunTrust Banks, Inc. 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 trustees to the Trust and certain other persons and provides for the indemnification by the Trust or SunTrust Banks, Inc. of the trustees, their officers, directors and employees and certain other persons. II-11 ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBITS - ------- ----------------------- 1.1 -- Form of Underwriting Agreement. 4.1 -- Certificate of Trust of SunTrust Capital V. (Certificate of Trust for SunTrust Capital VI, identical except for the name, will be filed on request.) 4.2 -- Declaration of Trust of SunTrust Capital V. (Declaration of Trust for SunTrust Capital VI, 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 Trusts (including the Consent of such Counsel). 8.1* -- Form of Tax Opinion of King & Spalding. 12.1 -- Computation of the Ratio 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 V. 25.3 -- Statement of Eligibility of Institutional Trustee under the Amended and Restated Declaration of Trust of SunTrust Capital VI. 25.4 -- Statement of Eligibility of Guarantee Trustee under the Preferred Securities Guarantee of SunTrust for the benefit of the holders of Preferred Securities of SunTrust Capital V (included in Exhibit 25.1). 25.5 -- Statement of Eligibility of Guarantee Trustee under the Preferred Securities Guarantee of SunTrust for the benefit of the holders of Securities of SunTrust Capital VI (included in Exhibit 25.1).
- --------------- * To be filed under a Current Report on Form 8-K and incorporated by reference herein. II-12 ITEM 17. UNDERTAKINGS Each of the undersigned 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 (6) 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. (7) 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. (8) In connection with an underwritten offering, the Trusts hereby undertake to provide to the underwriter, at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. II-14 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 November 13, 2001. SUNTRUST BANKS, INC. By: /s/ L. PHILLIP HUMANN ------------------------------------ L. Phillip Humann Chairman of the Board, President and Chief Executive Officer SUNTRUST CAPITAL V By: /s/ RAYMOND D. FORTIN ------------------------------------ Raymond D. Fortin Regular Trustee SUNTRUST CAPITAL VI By: /s/ RAYMOND D. FORTIN ------------------------------------ Raymond D. Fortin Regular Trustee POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints L. PHILLIP HUMANN, Chairman of the Board, President, Chief Executive Officer and a Director of the Company, JOHN W. SPIEGEL, Vice Chairman and Chief Financial Officer of the Company, RAYMOND D. FORTIN, Senior Vice President and Secretary of the Company, and MARK A. CHANCY, Senior Vice President and Treasurer 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 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.
SIGNATURE TITLE DATE --------- ----- ---- /s/ L. PHILLIP HUMANN Chairman of the Board, November 13, 2001 ------------------------------------------ President, Chief Executive L. Phillip Humann Officer and Director /s/ JOHN W. SPIEGEL Vice Chairman and Chief November 13, 2001 ------------------------------------------ Financial Officer John W. Spiegel /s/ WILLIAM P. O'HALLORAN Senior Vice President and November 13, 2001 ------------------------------------------ Controller (Chief Accounting William P. O'Halloran Officer) /s/ J. HYATT BROWN Director November 13, 2001 ------------------------------------------ J. Hyatt Brown /s/ ALSTON D. CORRELL Director November 13, 2001 ------------------------------------------ Alston D. Correll /s/ DOUGLAS N. DAFT Director November 13, 2001 ------------------------------------------ Douglas N. Daft /s/ A. W. DAHLBERG Director November 13, 2001 ------------------------------------------ A. W. Dahlberg /s/ PATRICIA C. FIRST Director November 13, 2001 ------------------------------------------ Patricia C. First /s/ M. DOUGLAS IVESTER Director November 13, 2001 ------------------------------------------ M. Douglas Ivester /s/ SUMMERFIELD K. JOHNSTON, JR. Director November 13, 2001 ------------------------------------------ Summerfield K. Johnston, Jr. /s/ DAVID H. HUGHES Director November 13, 2001 ------------------------------------------ David H. Hughes /s/ JOSEPH L. LANIER, JR. Director November 13, 2001 ------------------------------------------ Joseph L. Lanier, Jr. /s/ G. GILMER MINOR, III Director November 13, 2001 ------------------------------------------ G. Gilmer Minor, III /s/ LARRY L. PRINCE Director November 13, 2001 ------------------------------------------ Larry L. Prince /s/ R. RANDALL ROLLINS Director November 13, 2001 ------------------------------------------ R. Randall Rollins
II-16
SIGNATURE TITLE DATE --------- ----- ---- /s/ FRANK S. ROYAL, M.D. Director November 13, 2001 ------------------------------------------ Frank S. Royal, M.D. /s/ JAMES B. WILLIAMS Director November 13, 2001 ------------------------------------------ James B. Williams
II-17 EX-1.1 3 g72597ex1-1.txt FORM OF UNDERWRITING AGREEMENT 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 Securities Guarantee") pursuant to a Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee Agreement") by and between the Company and Bank One, N.A., 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. (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 2 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 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, 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 Securities 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 3 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 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 (i) any post-effective amendment thereto becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement as so amended or (ii) the Company files any additional registration statement pursuant to Rule 462(b) of the Act (a "462(b) Registration Statement"), shall include such 462(b) Registration Statement where appropriate. 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 4 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 incorporated 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 liquidation 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 liquidation amounts of Preferred Securities to be purchased by the Underwriters shall be 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 liquidation amount of the Preferred Securities for which Delayed Delivery Contracts are made. Delayed 5 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 liquidation amount set forth in Schedule I hereto and the aggregate liquidation amount of Contract Securities may not exceed the maximum aggregate liquidation 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 liquidation 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 liquidation amount of Contract Securities as the liquidation amount of Preferred Securities set forth opposite the name of such Underwriter bears to the aggregate liquidation 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 liquidation amount of Preferred Securities to be purchased by all Underwriters shall be the aggregate liquidation amount set forth in Schedule II hereto less the aggregate liquidation 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 6 become effective. Prior to the termination 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 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 7 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, provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction. (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 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 and General Counsel of the Company, or of other counsel for the Company satisfactory to the Representatives, dated the Closing Date, to the effect that: 8 (i) each of the Company and SunTrust Bank 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; the Debentures have been duly executed and delivered by the Company; (iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; except as otherwise set forth in the Final Prospectus, all the outstanding shares of capital stock of SunTrust Bank 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 SunTrust Bank 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 adequately 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 9 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; (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. 10 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 Qualification 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 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 constitutes a legal, valid and binding instrument enforceable against the 11 Company in accordance with its terms (subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity); (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 the rights and remedies of creditors generally and to the effect of general principles of equity); (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 the rights and remedies of creditors generally and to the effect of general principles of equity); (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 the rights and remedies of creditors generally and to the effect of general principles of equity); and the Debentures are in the form contemplated by 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 the rights and remedies of creditors generally and to the effect of general principles of equity) 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 Debentures" and "ERISA Considerations," and in the Basic Prospectus under the 12 captions "Description of the Subordinated Debt Securities," "Description of the Preferred Securities" and "Description of the 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 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 and General Counsel 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 13 (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 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 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 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 14 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; (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 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 15 (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 Bank One, N.A., as Institutional Trustee under the Declaration, Preferred Guarantee Trustee under the Preferred Securities Guarantee Agreement and Debt Trustee under the Indenture, and Bank One 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 Closing 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 16 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: (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 17 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 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; (5) 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 18 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 (6) 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 information 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 19 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. 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 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 King & Spalding, counsel for the Company, at 1185 Avenue of the Americas, New York, New York 10036, 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 20 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 any 462(b) Registration Statement, 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 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 second to 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 Section 7(a) or (b), 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 21 (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 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 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 22 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 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 23 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, (iii) a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred, (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis or (v) there shall have occurred a material adverse change in financial, political or economic conditions in the United States or elsewhere, the effect of which, in the case of (iii), (iv) or (v), on U.S. 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. 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 24 acceptance shall represent a binding agreement among the Trust, the Company and the several Underwriters. 25 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. [Representatives of the Underwriters] by ------------------------- Name: Title: For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Date: 26 SCHEDULE I Underwriting Agreement: Underwriting Agreement dated Registration Statement: No. 333-[ ], 333-[ ]-01 and 333-[ ]-02 Trust Issuing Preferred Securities: SunTrust Capital [ ] Declaration Governing Preferred Securities: Amended and Restated Declaration of Trust of SunTrust Capital [ ], 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 [ ] Institutional Trustee under Declaration: Bank One, N.A. Preferred Securities Guarantee Agreement Guaranteeing Preferred Securities: Preferred Securities Guarantee Agreement, dated as of [ ], between the Company and Bank One, N.A., as trustee Guarantee Trustee Under Preferred Securities Guarantee Agreement: Bank One, N.A. Debentures to be Purchased with Proceeds of Trust Securities: ------------------------------------------------ Base Indenture Governing Debentures: Indenture, dated as of November [ ], 2001, between the Company and Bank One, N.A., as trustee (the "Debt Trustee") Supplemental Indenture Governing Debentures: Debt Trustee: Bank One, N.A. Representative(s):
I-1 Title, Purchase Price and Description of Preferred Securities: Title: Liquidation amount: Purchase price: $[ ] per preferred security Sinking fund provisions: Redemption provisions: Other provisions: Closing Date, Time and Location: Closing Date: Time: Location: King & Spalding 1185 Avenue of the Americas New York, New York 10036 Type of Offering: Payment of Funds: Delayed Delivery Arrangements: Fee: . Minimum liquidation amount of each contract: Maximum aggregate liquidation 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:
I-2 SCHEDULE II
Number of Preferred Underwriters Securities to be Purchased Total.................................................. ========
II-1 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"), $__________ liquidation amount of the Trust's [ ] (the "Preferred Securities") offered by the Trust's Prospectus dated [ ] and related Prospectus Supplement dated [ ] receipt of a copy of which is hereby acknowledged, at a purchase price of [ ]% of the liquidation amount thereof, plus accrued distributions, 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 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 liquidation 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 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 liquidation 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. II-2 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. II-3 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: II-4 EX-4.1 4 g72597ex4-1.txt CERTIFICATE OF TRUST EXHIBIT 4.1 CERTIFICATE OF TRUST The undersigned, the trustees of SunTrust Capital V, desiring to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.ss. 3810 et seq., hereby certify as follows: (a) The name of the business trust being formed hereby (the "Trust") is "SunTrust Capital V." (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: Bank One Delaware, Inc. 3 Christina Centre 201 N. Walnut Street Wilmington, DE 19801 (c) This Certificate of Trust shall be effective as of the date of filing. Dated: November 13, 2001 /s/ Raymond D. Fortin ------------------------------- Raymond D. Fortin Regular Trustee /s/ Mark A. Chancy ------------------------------- Mark A. Chancy Regular Trustee /s/ Kenneth R. Houghton ------------------------------- Kenneth R. Houghton Regular Trustee BANK ONE DELAWARE, INC., as Delaware Trustee By:/s/ Sandra L. Caruba ---------------------------- Name: Sandra L. Caruba Title: First Vice President BANK ONE, N.A., as Institutional Trustee By:/s/ Sandra L. Caruba ------------------------------------- Name: Sandra L. Caruba Title: First Vice President SUNTRUST BANKS, INC., as Sponsor By:/s/ Raymond D. Fortin ------------------------------------- Name: Raymond D. Fortin Title: Senior Vice President 2 EX-4.2 5 g72597ex4-2.txt DECLARATION OF TRUST Exhibit 4.2 ================================ DECLARATION OF TRUST SunTrust Capital V Dated as of November 13, 2001 ================================ TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS Section 1.1 Definitions.................................................................................2 ARTICLE II ORGANIZATION Section 2.1 Name........................................................................................4 Section 2.2 Office......................................................................................4 Section 2.3 Purpose.....................................................................................5 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..............................................................7 Section 2.8 Duration of Trust...........................................................................7 Section 2.9 Responsibilities of the Sponsor.............................................................7 Section 2.10 Declaration Binding on Securities Holders...................................................8 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.........................................................................13 ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS SECTION 5.1 Amendments.................................................................................14 Section 5.2 Termination of Trust.......................................................................14 Section 5.3 Governing Law..............................................................................14 Section 5.4 Headings...................................................................................14 Section 5.5 Successors and Assigns.....................................................................15 Section 5.6 Partial Enforceability.....................................................................15 Section 5.7 Counterparts...............................................................................15
DECLARATION OF TRUST OF SUNTRUST CAPITAL V November 13, 2001 DECLARATION OF TRUST ("Declaration") dated and effective as of November 13, 2001 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 (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.ss.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 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. ARTICLE II ORGANIZATION Section 2.1 Name. The Trust created by this Declaration is named "SunTrust Capital V." 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 Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount from the Sponsor, which amount shall constitute the initial trust estate. 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 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 and any registration statement under Rule 462(b) of the Securities Act 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 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 such 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. 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 one or more registration statement on Form S-3 including, without limitation, a registration statement pursuant to Rule 462(b) of the Securities Act, 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. 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 Mark Chancy 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: Bank One Delaware, Inc. Notwithstanding any other provision of this Declaration, the Delaware Trustee shall not be entitled to exercise any 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(a) 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 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 Bank One, N.A., as the trustee meeting the requirements of an eligible trustee of the Trust Indenture Act of 1939, as amended (the "Institutional Trustee"). 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. 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 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 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 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) 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 independent legal counsel in a written opinion, or (3) by the holder(s) of the Common Securities of the Trust. (iv) 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. (v) 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. (vi) 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). (vii) 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. (viii) 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. 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 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 (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. 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/ Mark A. Chancy -------------------------------------------- Mark A. Chancy Regular Trustee /s/ Kenneth R. Houghton -------------------------------------------- Kenneth R. Houghton Regular Trustee BANK ONE DELAWARE, INC., as Delaware Trustee By:/s/ Sandra L. Caruba -------------------------------------------- Name: Sandra L. Caruba Title: First Vice President BANK ONE, N.A., as Institutional Trustee By:/s/ Sandra L. Caruba -------------------------------------------- Name: Sandra L. Caruba Title: First Vice President SUNTRUST BANKS, INC., as Sponsor By:/s/ Raymond D. Fortin -------------------------------------------- Name: Raymond D. Fortin Title: Senior Vice President EXHIBIT A (begins on next page) CERTIFICATE OF TRUST The undersigned, the trustees of SunTrust Capital V, desiring to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.ss. 3810 et seq., hereby certify as follows: (a) The name of the business trust being formed hereby (the "Trust") is "SunTrust Capital V." (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: Bank One Delaware, Inc. 3 Christina Centre 201 N. Walnut Street Wilmington, DE 19801 (c) This Certificate of Trust shall be effective as of the date of filing. Dated: November 13, 2001 ------------------------------------------ Raymond D. Fortin Regular Trustee ------------------------------------------ Mark A. Chancy Regular Trustee ------------------------------------------ Kenneth R. Houghton Regular Trustee BANK ONE DELAWARE, INC., as Delaware Trustee By: --------------------------------------- Name: Sandra L. Caruba Title: First Vice President BANK ONE, N.A., as Institutional Trustee By: --------------------------------------- Name: Sandra L. Caruba Title: First Vice President SUNTRUST BANKS, INC., as Sponsor By: ----------------------------------------- Name: Raymond D. Fortin Title: Senior Vice President EX-4.3.2 6 g72597ex4-3_2.txt FORM OF AMENDED AND RESTATED DECLARATION OF TRUST EXHIBIT 4.3.2 AMENDED AND RESTATED DECLARATION OF TRUST SUNTRUST CAPITAL ___ DATED AS OF ________________ TABLE OF CONTENTS
Page ---- ARTICLE I INTERPRETATION AND DEFINITIONS SECTION 1.1. Definitions............................................................................... 1 ARTICLE II TRUST INDENTURE ACT SECTION 2.1. Trust Indenture Act; Application.......................................................... 8 SECTION 2.2. Lists of Holders of Securities............................................................ 9 SECTION 2.3. Reports by the Institutional Trustee...................................................... 9 SECTION 2.4. Periodic Reports to the Institutional Trustee............................................. 9 SECTION 2.5. Evidence of Compliance with Conditions Precedent.......................................... 9 SECTION 2.6. Events of Default; Waiver................................................................. 10 SECTION 2.7. Event of Default; Notice.................................................................. 12 ARTICLE III ORGANIZATION SECTION 3.1. Name...................................................................................... 12 SECTION 3.2. Office.................................................................................... 13 SECTION 3.3. Issuance of the Securities................................................................ 13 SECTION 3.4. Purchase of Debentures.................................................................... 13 SECTION 3.5. Purpose................................................................................... 13 SECTION 3.6. Authority................................................................................. 14 SECTION 3.7. Title to Property of the Trust............................................................ 14 SECTION 3.8. Powers and Duties of the Regular Trustees................................................. 14 SECTION 3.9. Prohibition of Actions by the Trust and the Trustees...................................... 17 SECTION 3.10. Powers and Duties of the Institutional Trustee............................................ 17 SECTION 3.11. Certain Duties and Responsibilities of the Institutional Trustee.......................... 20 SECTION 3.12. Certain Rights of the Institutional Trustee............................................... 21 SECTION 3.13. Delaware Trustee.......................................................................... 23 SECTION 3.14. Execution of Documents.................................................................... 23 SECTION 3.15. Not Responsible for Recitals or Issuance of Securities.................................... 23 SECTION 3.16. Duration of Trust......................................................................... 24 SECTION 3.17. Mergers................................................................................... 24 ARTICLE IV SPONSOR SECTION 4.1. Sponsor's Purchase of Common Securities................................................... 25 SECTION 4.2. Responsibilities of the Sponsor........................................................... 25 SECTION 4.3. Right to Proceed.......................................................................... 26 ARTICLE V TRUSTEES SECTION 5.1. Number of Trustees........................................................................ 26 SECTION 5.2. Delaware Trustee.......................................................................... 27 SECTION 5.3. Institutional Trustee; Eligibility........................................................ 27 SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware Trustee Generally................. 28
i SECTION 5.5. Regular Trustees.......................................................................... 28 SECTION 5.6. [Reserved]................................................................................ 28 SECTION 5.7. Appointment, Removal and Resignation of Trustees.......................................... 28 SECTION 5.8. Vacancies among Trustees.................................................................. 30 SECTION 5.9. Effect of Vacancies....................................................................... 30 SECTION 5.10. Meetings.................................................................................. 30 SECTION 5.11. Delegation of Power....................................................................... 31 SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business............................... 31 SECTION 5.13. Appointment of Authenticating Agent....................................................... 31 ARTICLE VI DISTRIBUTIONS SECTION 6.1. Distributions.............................................................................. 33 ARTICLE VII ISSUANCE OF SECURITIES SECTION 7.1. General Provisions Regarding Securities.................................................... 33 SECTION 7.2. Execution and Delivery of Securities Certificates.......................................... 34 SECTION 7.3. Paying Agent............................................................................... 34 ARTICLE VIII DISSOLUTION OF TRUST SECTION 8.1. Dissolution of Trust....................................................................... 35 ARTICLE IX TRANSFER OF INTERESTS SECTION 9.1. Transfer of Securities..................................................................... 36 SECTION 9.2. Transfer of Certificates................................................................... 36 SECTION 9.3. Deemed Security Holders.................................................................... 37 SECTION 9.4. Book-Entry Interests....................................................................... 37 SECTION 9.5. Notices to Clearing Agency................................................................. 38 SECTION 9.6. Appointment of Successor Clearing Agency................................................... 38 SECTION 9.7. Definitive Preferred Security Certificates................................................. 39 SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates.......................................... 39 SECTION 9.9. Maintenance of Office or Agency............................................................ 40 ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 10.1. Liability.................................................................................. 40 SECTION 10.2. Exculpation................................................................................ 41 SECTION 10.3. [Reserved]................................................................................. 41 SECTION 10.4. Indemnification............................................................................ 41 SECTION 10.5. Outside Businesses......................................................................... 43 SECTION 10.6. Compensation; Fees......................................................................... 44 ARTICLE XI ACCOUNTING SECTION 11.1. Fiscal Year................................................................................ 44 SECTION 11.2. Certain Accounting Matters................................................................. 44 SECTION 11.3. Banking.................................................................................... 45 SECTION 11.4. Withholding................................................................................ 45
ii ARTICLE XII AMENDMENTS AND MEETINGS SECTION 12.1. Amendments................................................................................ 46 SECTION 12.2. Meetings of the Holders; Action by Written Consent........................................ 47 ARTICLE XIII REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE SECTION 13.1. Representations and Warranties of the Institutional Trustee............................... 49 SECTION 13.2. Representations and Warranties of the Delaware Trustee.................................... 49 ARTICLE XIV MISCELLANEOUS SECTION 14.1. Notices................................................................................... 50 SECTION 14.2. Governing Law............................................................................. 51 SECTION 14.3. Intention of the Parties.................................................................. 52 SECTION 14.4. Headings.................................................................................. 52 SECTION 14.5. Successors and Assigns.................................................................... 52 SECTION 14.6. Partial Enforceability.................................................................... 52 SECTION 14.7. Counterparts.............................................................................. 52 ANNEX I TERMS OF SECURITIES....................................................................... I-1 EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE.................................................... A1-1 EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE................................................ ...... A2-1
iii CROSS-REFERENCE TABLE*
Section of Trust Indenture Act Section of of 1939, as amended Declaration - ------------------- ----------- 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)
- -------------- * This Cross-Reference Table does not constitute part of this Declaration as executed and shall not affect the interpretation of any of its terms or provisions. iv AMENDED AND RESTATED DECLARATION OF TRUST OF SUNTRUST CAPITAL ___ AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and effective as of _____________, 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 November __, 2001 (the "Original Declaration"), and a Certificate of Trust filed with the Secretary of State of the State of Delaware on November __, 2001 (the "Certificate of Trust"), for the principal purposes of issuing and selling the Securities (as defined herein) and investing the proceeds thereof in certain Debentures (as defined herein) of the Debenture Issuer (as defined herein); WHEREAS, as of the date hereof, no Securities have been issued; and WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and restate each and every term and provision of the Original Declaration. NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a business trust under the Business Trust Act, that the Original Declaration be amended and restated in its entirety as provided herein and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the Securities, subject to the provisions of this Declaration. 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; (f) a reference to the singular includes the plural and vice versa; and (g) the following terms have the meaning given to them in this Section 1.1(g): "10% in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of 10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Base Indenture" means the Indenture dated as of November __, 2001, 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 (i) 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 (ii) 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 (i) any amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political subdivision thereof or therein or other governmental agency or regulatory authority, or (ii) any official administrative pronouncement or 2 action or judicial decision interpreting or applying such laws or regulations, which, in the case of either clause (i) or (ii) is effective or is announced on or after _________________, 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 1 Capital" (or the then equivalent thereof) under the risk-based 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 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 _________________. "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 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 or any successor body. "Common Securities" has the meaning specified in Section 7.1.(a). "Common Securities Guarantee" means the guarantee agreement to be dated as of _________________ of the Sponsor in respect of the Common Securities. "Common Security Certificate" means a definitive certificate in fully registered form representing a Common Security substantially in the form of Exhibit A-2. "Corporate Trust Office" means (i) when used with respect to the Institutional Trustee, the principal corporate trust office the Institutional Trustee located in New York, New York which on the date of this Declaration is 153 West 51st Street, New York, New York 10019 - 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: (i) any officer, director, shareholder, partner, member, representative, employee or agent of the Trust or the Trust's Affiliates; (ii) any other director, stockholder, employee, representative or agent of the Debenture Issuer or any of its Affiliates; and (iii) any Holder of Securities. 3 "Debenture Issuer" means SunTrust Banks, Inc., a Georgia corporation, or any successor entity resulting from any consolidation, amalgamation, merger or other business combination. "Debentures" means the series of Debentures to be issued by the Debenture Issuer under the Indenture and purchased by the Trust, and to be held by the Institutional Trustee. "Debt Trustee" means Bank One, N.A., a national banking association formerly known as The First National Bank of Chicago, 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). "Dissolution Event" has the meaning set forth in Section 8.1(a). "Distribution" has the meaning set forth in Section 6.1. "DTC" means The Depository Trust Company, the initial Clearing Agency. "Event of Default" or "Declaration Event of Default" in respect of the Securities means an Event of Default (as defined in the Base Indenture) has occurred and is continuing in respect of the Debentures. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation. "Federal Reserve Board" means the Board of Governors of the Federal Reserve System. "Fiduciary Indemnified Person" has the meaning set forth in Section 10.4(b). "Fiscal Year" has the meaning set forth in Section 11.1. "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. 4 "Institutional Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3(a). The initial Institutional Trustee shall be Bank One, N.A., as set forth in Section 5.3(e). "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. "Investment Company Event" means that the Trust shall have received an opinion of counsel experienced in practice under the Investment Company Act which states that, as a result of the occurrence of an amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political subdivision thereof or therein or any other governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after _________________. "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 Securities of the holder thereof to whom Debentures are distributed. "Liquidation Distribution" has the meaning set forth in Section 3 of Annex I. "List of Holders" has the meaning set forth in Section 2.2(a). "Majority in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class. "Officer's Certificate" means, with respect to any Person, a certificate signed by an Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include: (i) a statement that the officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto; 5 (ii) a brief statement of the nature and scope of the examination or investigation undertaken by the officer in rendering the Officer's Certificate; (iii) 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 (iv) 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, 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 _________________, 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. "Property Account" has the meaning set forth in Section 3.10(c). "Quorum" means a majority of the Regular Trustees or, if there are only two Regular Trustees, both of them. "Redemption Price" has the meaning set forth in Section 4(b) of Annex I. "Redemption/Distribution Notice" has the meaning set forth in Section 4(g) of Annex I. "Regular Trustee" has the meaning set forth in Section 5.1(b). 6 "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 in 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 (i) any Regular Trustee; (ii) any Affiliate of any Regular Trustee; (iii) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (iv) 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). "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 experienced in such matters to the effect that, as a result of (i) any amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political 7 subdivision or taxing authority thereof or therein, or (ii) any official administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment, change, pronouncement, action or decision is effective or is announced or occurs on or after ___________________, there is, in case of either clause (i) or (ii), more than an insubstantial risk that (A) 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 interest accrued or received on the Debentures, (B) 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 (C) 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 _________________ among the Trust, the Sponsor and _________________________________ (as representatives of the several underwriters named therein), providing for the offering and sale of the Preferred Securities to the public. ARTICLE II TRUST INDENTURE ACT SECTION 2.1. Trust Indenture Act; Application. (a) This Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable, be governed by such provisions. (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. 8 (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, however, that if the record date is the day immediately preceding a Distribution Date (as defined in Annex I hereto), then such List of Holders shall be provided on the day of such Distribution Date; provided further that, neither the Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if acting in such capacity), provided that the Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Institutional Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. SECTION 2.3. Reports by the Institutional Trustee. Within 60 days after May 15 of each year (commencing May _____), 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 of the Trust Indenture Act (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 9 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 this 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 this Declaration may only be waived by the vote of the Holders of at least the proportion in aggregate liquidation amount of the Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding; or (iii) requires the consent or vote of each holder of Debentures to be waived under the Indenture, then the Event of Default under this 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, (i) 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 10 Institutional Trustee, or (ii) 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: (A) is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided below in this Section 2.6(b), the Event of Default under this Declaration shall also not be waivable; or (B) 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 this Declaration as provided below in this Section 2.6(b), the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in aggregate liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding; provided further, that each Holder of Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Common Securities and its consequences until all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated, and until such Events of Default have been so cured, waived or otherwise eliminated, the Institutional Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Securities. In the event that an Event of Default with respect to the Preferred Securities is waived by the Holders of Preferred Securities as provided in this Declaration, the Holders of Common Securities agree that such waiver shall also constitute the waiver of such Event of Default with respect to the Common Securities for all purposes under this Declaration without any further act, vote or consent of the Holders of the Common Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Common Securities or impair any right consequent thereon. (c) The right of any Holder of Securities to receive payment of Distributions on the Securities in accordance with this Declaration and the terms of the Securities set forth in Annex I on or after the respective payment dates therefor, or to institute suit for the enforcement of any such payment on or after such payment dates, shall not be impaired without the consent of such Holder. (d) A waiver of an Event of Default under the Indenture by the Institutional Trustee at the direction of the Holders of the Preferred Securities, constitutes a waiver of the corresponding Event of Default under this Declaration. The foregoing provisions of this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such 11 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, (i) notice of all such defaults with respect to the Securities, unless such defaults have been cured before the giving of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Event of Default as defined in the Indenture, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein) and (ii) any notice of default received from the Debt Trustee with respect to the Debentures, which notice from the Institutional Trustee to the Holders shall state that an Event of Default under the Indenture also constitutes an Event of Default with respect to the Securities; provided that, except for a default in the payment of principal of (or premium, if any) or interest on any of 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 this 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. 12 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 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, a Global Certificate, 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 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. 13 SECTION 3.6. Authority. Subject to the limitations provided in this Declaration and to the specific duties of the Institutional Trustee, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust and any action taken by the Institutional Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration. SECTION 3.7. Title to Property of the Trust. Except as provided in Section 3.10 with respect to the Debentures and the Property 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 registration statement on Form S-3 prepared by the Sponsor, including any amendments thereto and any registration statement under Rule 462(b) of the Securities Act, and a registration statement under Rule 462(b) of the Securities Act, 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; 14 (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, 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 Trustees deem 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, an Investment Company 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, Investment Company Event or Capital Treatment Event; (f) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Holders of Common Securities as to such actions and applicable record dates; (g) to take all actions and perform such duties as may be required of the Regular Trustees pursuant to the terms of the Securities; (h) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 3.10(e), the Institutional Trustee has the exclusive power to bring such Legal Action; (i) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (j) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act; 15 (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 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; (o) 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; (p) to take any action, not inconsistent with this Declaration or with applicable law, that the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust as set out in this Section 3.8, including, but not limited to: (i) causing the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Trust to be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation or a partnership; and (iii) cooperating with the Debenture Issuer to ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax purposes, provided that such action does not adversely affect the interests of the Holders; and (q) 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. 16 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; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities; (vii) incur any indebtedness for borrowed money; or (viii) other than as provided in this Declaration or Annex I, (A) direct the time, method and place of exercising any trust or power conferred upon the Debt Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Debentures shall be due and payable, or (D) consent to any amendment, modification or 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 tax counsel experienced in such matters to the effect that as a result of such action, the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. 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 17 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 "Property 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 Property Account and make or cause to be made payments to the Holders of the Preferred Securities and Holders of the Common Securities from the Property Account in accordance with Section 6.1. Funds in the Property Account shall be held uninvested until disbursed in accordance with this Declaration. The Property Account shall be maintained with Bank One, N.A. in its trust department so long as Bank One, N.A. is a Paying Agent; if Bank One, N.A. is not a Paying Agent, the Property 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 Bank One, N.A. in connection with the administration of the Property Account, unless such acts or omissions were taken or made at the express instructions of the Institutional Trustee. The Sponsor shall cause Bank One, N.A. to (i) promptly advise the Institutional Trustee of all deposits and withdrawals from the Property Account and of any failure by Bank One, N.A. 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 Property Account and (iii) permit the Institutional Trustee to have access to Bank One, N.A.'s records with respect to the Property Account upon reasonable request therefor; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent the Debentures are redeemed or mature; (iii) upon written notice of distribution issued by the Regular Trustees in accordance with the terms of the Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Debentures to Holders of Securities upon the occurrence of certain special events (as may be defined in the terms of the Securities) arising from a change in law or a change in legal interpretation or other specified circumstances pursuant to the terms of the Securities; and (iv) have the legal power to exercise all of the rights, powers and privileges of a holder of the Debentures under the Indenture and, if an Event of Default occurs and is continuing, the Institutional Trustee, subject to Section 2.6, shall, for the benefit of the Holders of the Securities, enforce its rights as holder of the Debentures under the Indenture, 18 subject to the rights of the Holders of the Preferred Securities pursuant to the terms of this Declaration, the Business Trust Act and the Trust Indenture Act. (d) The Institutional Trustee shall take all actions and perform such duties as may be specifically required of the Institutional Trustee pursuant to the terms of the Securities. (e) The Institutional Trustee may take any Legal Action that arises out of or in connection with an Event of Default of which a Responsible Officer of the Institutional Trustee has knowledge or the Institutional Trustee's duties and obligations under this Declaration or the Trust Indenture Act and if such Institutional Trustee shall have failed to take such Legal Action after a written request from a Holder of the Preferred Securities, then such Holder of the Preferred Securities may take such Legal Action, to the same extent as if such Holders of Preferred Securities held a principal amount of Debentures equal to the liquidation amount of such Preferred Securities, without first proceeding against the Institutional Trustee or the 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 Debenture 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 the 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. 19 (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, which must be acceptable to the Regular Trustees, subject to Section 317(b) of the Trust Indenture Act. (j) The Institutional Trustee shall give prompt written notice to the Holders of the Securities of any notice received by it from the Debenture Issuer of its election to defer payments of interest on the Debentures by extending the interest payment period with respect thereto. (k) Subject to this Section 3.10, the Institutional Trustee shall have none of the duties, liabilities, powers or the authority of the Regular Trustees set forth in Section 3.8. The Institutional Trustee must exercise the powers set forth in this Section 3.10 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.5, and the Institutional Trustee shall not take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.5. SECTION 3.11. Certain Duties and Responsibilities of the Institutional Trustee. (a) The Institutional Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Declaration and in the Securities and no implied covenants shall be read into this Declaration against the Institutional Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Institutional Trustee has actual knowledge, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Declaration, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (b) No provision of this Declaration shall be construed to relieve the Institutional Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Institutional Trustee shall be determined solely by the express provisions of this Declaration and in the 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 20 (B) in the absence of bad faith on the part of the Institutional Trustee, the Institutional Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Institutional Trustee and conforming to the requirements of this Declaration; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Institutional Trustee, the Institutional Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Declaration; (ii) the Institutional Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Institutional Trustee, unless it shall be proved that the Institutional Trustee was negligent in ascertaining the pertinent facts; (iii) the Institutional Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation amount of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under this Declaration; (iv) no provision of this Declaration shall require the Institutional Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Declaration or indemnity reasonably satisfactory to the Institutional Trustee against such risk or liability is not reasonably assured to it; and (v) the Institutional Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Debentures and the Property 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; (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; 21 (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, 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 22 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 accordance with, such instructions. (b) No provision of this Declaration shall be deemed to impose any duty or obligation on the Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Institutional Trustee shall be construed to be a duty. SECTION 3.13. Delaware Trustee. Notwithstanding any other provision of this Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Trustees (except as required under the Business Trust Act) described in this Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Business Trust Act. SECTION 3.14. Execution of Documents. Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act with respect to the Certificate of Trust or otherwise provided herein, any Regular Trustee is authorized to execute on behalf of the Trust any documents that the Regular Trustees have the power and authority to execute pursuant to this Declaration. SECTION 3.15. Not Responsible for Recitals or Issuance of Securities. The recitals contained in this Declaration and the Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration, the Debentures or the Securities. 23 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 to, a trust organized as such under the laws of any state; provided that: (i) such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Trust under the Securities; or (B) substitutes for the Securities other securities having substantially the same terms as the Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Securities rank with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) the Debenture Issuer expressly acknowledges a trustee of the Successor Entity that possesses the same powers and duties as the Institutional Trustee as the holder of the Debentures; (iii) the Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which the Preferred Securities are then 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; 24 (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); (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; and (C) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease the Trust (or the Successor Entity) will continue to be classified as a grantor trust for United States federal income tax purposes; and (viii) the Sponsor guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Preferred Securities Guarantee and the Common Securities Guarantee. (c) Notwithstanding Section 3.17(b), the Trust shall not, except with the consent of Holders of 100% in liquidation amount of the Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if in the opinion of a nationally recognized independent tax counsel experienced in such matters, 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: 25 (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 or on another appropriate form, and a registration statement under Rule 462(b) of the Securities Act, including any pre-effective or post-effective amendments thereto, in relation to the Preferred Securities; (b) to determine the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) at the sole discretion of the Sponsor, to prepare for filing by the Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities; and (d) to prepare for filing by the Trust with the Commission a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto, 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. 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 26 Trustee who is an employee or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and (3) one Trustee shall be the Institutional Trustee for so long as this Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements. SECTION 5.2. Delaware Trustee. If required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural person who is a resident of the State of Delaware; or (b) if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, provided that, if the Institutional Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Institutional Trustee shall also be the Delaware Trustee and Section 3.13 shall have no application. The initial Delaware Trustee shall be Bank One 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 Fifty 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. 27 (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 Bank One, N.A. (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. (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, Mark Chancy 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. (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: 28 (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. (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 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. 29 (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 resignation 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 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 30 unanimous written consent of the Regular Trustees. Notwithstanding the foregoing, any action which may be taken at a meeting of the Regular Trustees (or a committee thereof) may be taken pursuant to a unanimous written consent of the Regular Trustees (or committee thereof), the execution of such consent to be deemed a waiver by such Regular Trustee of any prior notice required in connection with such action. In the event there is only one Regular Trustee, any and all action of such Regular Trustee shall be evidenced by a written consent of such Regular Trustee. SECTION 5.11. Delegation of Power. (a) Any Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 3.8, including any registration statement or amendment thereto filed with the Commission, or making any other governmental filing; 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 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 31 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. 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 32 ARTICLE VI DISTRIBUTIONS SECTION 6.1. Distributions. Holders shall receive Distributions (as defined herein), redemption payments and liquidation distributions in accordance with the applicable terms of the relevant Holder's Securities. Distributions shall be made on the Preferred Securities and the Common Securities in accordance with the preferences set forth in their respective terms. If and to the extent that the Debenture Issuer makes a payment of interest (including Compounded Interest (as defined in the Indenture) and Additional Sums (as defined in the Indenture)), premium and/or principal on the Debentures held by the Institutional Trustee (the amount of any such payment being a "Payment Amount"), the Institutional Trustee shall and is directed, to the extent funds are available for that purpose, to make or cause to be made a distribution (a "Distribution") of the Payment Amount to Holders. ARTICLE VII ISSUANCE OF SECURITIES SECTION 7.1. General Provisions Regarding Securities. (a) The Regular Trustees shall on behalf of the Trust issue one class of preferred securities representing, in fully registered form, beneficial ownership interests in the assets of the Trust having such terms as are set forth in Annex I (the "Preferred Securities") and one class of common securities representing beneficial ownership interests in the assets of the Trust having such terms as are set forth in Annex I (the "Common Securities.") The Trust shall issue no securities or other interests in the assets of the Trust other than the Preferred Securities and the Common Securities. (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 this Declaration any such person was not such a Regular Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, 33 and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Securities may be listed, or to conform to usage. (c) The consideration received by the Trust for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust. (d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued shall be deemed to be validly issued, fully paid and non-assessable. (e) Every Person, by virtue of having become a Holder or a Preferred Security Beneficial Owner in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration. SECTION 7.2. Execution and Delivery of Securities Certificates. At the time of delivery of the Securities, the Regular Trustees shall cause Certificates to be authenticated by the Institutional Trustee on behalf of the Trust and delivered to or upon the written order of the Trust, signed by a Regular Trustee 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 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 Property 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 Property 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 Bank One, N.A., and any co-paying agent chosen by Bank One, N.A., 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 Bank One, N.A. 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 Holders 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 34 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 Bank One, N.A. in its role as Paying Agent, for so long as Bank One, N.A. 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 (each, a "Dissolution Event"): (i) _________________; (ii) the bankruptcy of the Sponsor; (iii) 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) 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; (v) 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. 35 (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. (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. Bank One, N.A. 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 36 transferee or transferees, one or more new Preferred Securities Certificates in authorized denominations of a like aggregate liquidation amount dated the date of such authentication. The Preferred Securities Certificates shall be dated the date of their authentication. The Securities Registrar shall not be required to register the transfer of (i) any Preferred Securities beginning at the opening of business 15 days before the day of mailing of a notice of redemption and ending at the close of business on the day of such mailing or (ii) any Preferred Securities selected for redemption except the unredeemed portion of any Preferred Security being redeemed in part. At the option of a Holder, Preferred Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate liquidation amount upon surrender of the Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 9.9. Every Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Securities Registrar duly executed by the Holder or his or her attorney duly authorized in writing. Each Preferred Securities Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Institutional Trustee in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of Preferred Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Preferred Securities Certificates. The provisions of Sections 3.10, 3.11 and 10.4 herein shall also apply to Bank One, N.A. in its role as Securities Registrar, for so long as Bank One, N.A. 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 37 Certificate representing such Preferred Security Beneficial Owner's interests in such Global Certificates, except as provided in Section 9.7. Unless and until definitive, fully registered Preferred Security Certificates (the "Definitive Preferred Security Certificates") have been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7: (a) the provisions of this Section 9.4 shall be in full force and effect; (b) the Trust, the Trustees, the Securities Registrar and the Paying Agent shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of the Preferred Securities and the sole holder of the Global Certificates and shall have no obligation to the Preferred Security Beneficial Owners; (c) to the extent that the provisions of this Section 9.4 conflict with any other provisions of this Declaration, the provisions of this Section 9.4 shall control; and (d) the rights of the Preferred Security Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Preferred Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants and the Clearing Agency shall receive and transmit payments of Distributions on the Global Certificates to such Clearing Agency Participants. DTC will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of Distributions on the Global Certificates to such Clearing Agency Participants; provided, that solely for the purposes of determining whether the Holders of the requisite amount of Preferred Securities have voted on any matter provided for in this Declaration, so long as Definitive Preferred Security Certificates have not been issued, the Trustees may conclusively rely on, and shall be protected in relying on, any written instrument (including a proxy) delivered to the Trustees by the Clearing Agency setting forth the Preferred Security Beneficial Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part. SECTION 9.5. Notices to Clearing Agency. Whenever a notice or other communication to the Preferred Security Holders is required under this Declaration, unless and until Definitive Preferred Security Certificates shall have been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such notices and communications specified herein to be given to the Preferred Security Holders to the Clearing Agency and, with respect to any Preferred Security Certificate registered in the name of a Clearing Agency or the nominee of a Clearing Agency, the Trustees shall, except as set forth herein, have no notice obligations to the Preferred Security Beneficial Owners. SECTION 9.6. Appointment of Successor Clearing Agency. If any Clearing Agency elects to discontinue its services as securities depositary with respect to the Preferred Securities or is no longer able to properly discharge its functions, the Regular Trustees may, in their sole discretion, appoint a successor Clearing Agency with respect to such Preferred Securities. 38 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; (b) at any time the Clearing Agency ceases to be a clearing agency registered under the Exchange Act; (c) 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; or (d) an Event of Default relative to the Debentures has occurred and is continuing, then: (e) Definitive Preferred Security Certificates shall be prepared by the Regular Trustees on behalf of the Trust with respect to such Preferred Securities; and (f) upon surrender of the Global Certificates by the Clearing Agency, accompanied by registration instructions, the Regular Trustees shall cause Definitive Certificates to be delivered to Preferred Security Beneficial Owners in accordance with the instructions of the Clearing Agency. Neither the Trustees nor the Trust, or any agents thereof shall be liable for any delay in delivery of such instructions and each of them may conclusively rely on and shall be protected in relying on, said instructions of the Clearing Agency. The Definitive Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Preferred Securities may be listed, or to conform to usage. SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated Certificates should be surrendered to the Institutional Trustee or the Securities Registrar or if the Institutional Trustee or the Securities Registrar shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and (b) there shall be delivered to the Institutional Trustee, the Securities Registrar and the Regular Trustees such security or indemnity as may be required by them to keep each of them harmless, 39 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 Bank One, N.A. is initially designated the office for such purpose. The Regular Trustees or the Institutional Trustee shall give prompt written notice to the Sponsor and to the Holders of any change in the location of the Securities Register or any such office or agency. ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 10.1. Liability. (a) Except as expressly set forth in this Declaration, the Securities Guarantees and the terms of the Securities, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities which shall be made solely from assets of the Trust; and (ii) be required to pay to the Trust or to any Holder of Securities any deficit upon dissolution of the Trust or otherwise. (b) The 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. 40 SECTION 10.2. Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and, if selected by such Indemnified Person, has been selected by such Indemnified Person with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid. SECTION 10.3. [Reserved]. SECTION 10.4. Indemnification. (a) (i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Sponsor Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees and expenses) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any 41 claim, issue or matter as to which such Sponsor Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Sponsor Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Holder of the Common Securities. (iv) Expenses (including attorneys' fees and expenses) incurred by a Sponsor Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Sponsor Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this 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 42 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 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 43 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 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. 44 (b) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities, any annual United States federal income tax information statement, required by the Code, containing such information with regard to the Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Regular Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust. (c) The Regular Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Regular Trustees on behalf of the Trust with any state or local taxing authority, such returns to be filed as soon as practicable after the end of each Fiscal Year of the Trust. SECTION 11.3. Banking. The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided, however, that all payments of funds in respect of the Debentures held by the Institutional Trustee shall be made directly to the Property Account and no other funds of the Trust shall be deposited in the Property 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 Property 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. 45 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; 46 (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; (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) conform to any change in Rule 3a-5 or written change in interpretation or application of Rule 3a-5 by any legislative body, court, government agency or regulatory authority, which amendment does not have a material adverse effect on the right, preferences or privileges of the Holders; and (v) 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 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. 47 (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; (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. 48 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 this Declaration has been duly authorized by all necessary corporate action on the part of the Institutional Trustee. This 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; (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; 49 (b) the Delaware Trustee has authorized the performance of its obligations under the Certificate of Trust and this Declaration. This Declaration under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) no consent, approval or authorization of, or registration with or notice to, any Delaware banking authority is required for the execution, delivery or performance by the Delaware Trustee, of this Declaration; (d) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware; and (e) it satisfies the qualifications set forth in Section 5.2. ARTICLE XIV MISCELLANEOUS SECTION 14.1. Notices. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered, faxed or mailed by first class mail, as follows: (a) if given to the Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to the Holders of the Securities and the Institutional Trustee): SunTrust Capital ___ c/o SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3201 Attention: Treasurer Fax: (404) 724-3749 50 (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): Bank One Delaware, Inc. 3 Christina Center 201 N. Walnut Street Wilmington, DE 19801 Attention: Legal Department/First USA Fax: (312) 732-5144 (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): Bank One, N.A. 153 West 51st Street New York, NY 10019 Attention: Corporate Trust Administration Fax: (212) 373-1383 (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. 51 SECTION 14.3. Intention of the Parties. It is the intention of the parties hereto that the Trust be classified for United States Federal income tax purposes as a grantor trust and not as an association taxable as a corporation or partnership. The provisions of this Declaration shall be interpreted to further this intention of the parties. SECTION 14.4. Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. SECTION 14.5. Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether 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. 52 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 ------------------------------------------- Mark Chancy, as Regular Trustee ------------------------------------------- Kenneth R. Houghton, as Regular Trustee BANK ONE DELAWARE, INC., as Delaware Trustee By: ---------------------------------------- Name: Title: BANK ONE, N.A., as Institutional Trustee By: ---------------------------------------- Name: Title: SUNTRUST BANKS, INC., as Sponsor By: ---------------------------------------- 53 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 _________________________________ ($_______________) and a liquidation amount with respect to the assets of the Trust of $____ per preferred security, are hereby designated for the purposes of identification only as "_______________" (the "Preferred Securities"). The Preferred Security Certificates evidencing the Preferred Securities shall be substantially in the form of Exhibit A-1 to the Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Preferred Securities are listed. (b) Common Securities. Common Securities of the Trust with an aggregate liquidation amount with respect to the assets of the Trust of _________________________________ ($________________) and a liquidation amount with respect to the assets of the Trust of $___ 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 $____ per Security. Distributions in arrears for more than one quarterly period will bear interest thereon at the rate of ________% per annum compounded quarterly (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. "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 by (i) applying the distribution rate of _______% 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 amount of distributions payable for any partial Distribution Period will be computed on the basis of the actual number of days elapsed during any such 30-day month. 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 quarterly 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 20 consecutive quarterly 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, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of ______% per annum compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor) will be payable to the Holders of the Securities in whose names the Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. A-2 (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 the close of business on the Business Day next preceding the relevant payment dates. 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 -- Payment of Distributions" 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 the close of business on the _____________, _____________, _____________ and _____________ immediately preceding the relevant Distribution Date, whether or not a Business Day. (f) 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"). (g) In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among the Holders of the Securities. 3. Liquidation Distribution Upon Dissolution. In the event of a Dissolution Event, the Holders of the Securities on the date of such Dissolution Event 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 $_____ 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 Event, 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. A-3 If, upon any such Dissolution Event, 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; provided, however, that if at the time of such Dissolution Event an Event of Default under the Declaration shall have occurred and be continuing, the rights of Holders of Common Securities to payment in respect of the Liquidation Distribution shall be subordinated to the rights to payment of the Holders of the Preferred Securities. 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 (iii) 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. (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 a redemption price of $____ per Security, plus an amount equal to accrued and unpaid Distributions thereon to the date of the redemption (the "Redemption Price"). The Redemption Price shall be paid in cash. 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(g)(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 quarterly Distribution periods terminating on or before the date of redemption. A-4 (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 Redemption Price. (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 at the Redemption Price. (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 the Redemption Price. (f) Investment Company 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 Investment Company 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 Investment Company 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 at the Redemption Price. (g) Procedure. The procedure with respect to redemptions and distributions of Debentures shall be as follows: (i) Notice of any redemption of, or notice of distribution of Debentures in exchange for, the Securities (a "Redemption/Distribution Notice") will be given by the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Debentures. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 4(g)(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 A-5 respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) All notices of redemption shall state: (a) the redemption date; (b) the Redemption Price; (c) the CUSIP number; (d) if fewer than all the outstanding Securities are to be redeemed, the identification and the total liquidation amount of the particular Securities to be redeemed; and (e) that on the redemption date the Redemption Price will become due and payable upon each such Security to be redeemed and that Distributions thereon will cease to accrue on and after said date. (iii) In the event that fewer than all the outstanding Securities are to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from each Holder of Preferred Securities, it being understood that, in respect of Preferred Securities registered in the name of and held of record by the Depository or its nominee (or any successor Clearing Agency or its nominee) or any nominee, the distribution of the proceeds of such redemption will be made to each Clearing Agency Participant (or Person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. (iv) If Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice, which notice may only be issued if the Debentures are to be redeemed as set out in this Section 4 (which notice will be irrevocable), then (A) while the Preferred Securities are in book-entry only form, with respect to the Preferred Securities, by 12:00 noon, New York, New York time, on the redemption date, provided that by 10 a.m. New York, New York time, on that date the Debenture Issuer has paid the Institutional Trustee or other holder of the Property 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 Property 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 prior to the A-6 close of business on 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 (A) in respect of the Preferred Securities, to 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, by private agreement or otherwise. (vii) Upon presentation of any Security redeemed in part only, the Regular Trustee on behalf of the Trust shall execute and the Institutional Trustee shall authenticate and deliver to the Holder thereof a new Security in aggregate liquidation amount equal to the unredeemed portion of the Security so presented and having the same original issue date, stated maturity and terms. 5. Voting Rights - Preferred Securities. (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Preferred Securities will have no voting rights. (b) Subject to the requirements set forth in this paragraph and Section 2.6(a) of the Declaration, 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 A-7 any remedy available to the Institutional Trustee, or direct the exercising of 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 direct the exercising of 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 aggregate 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 Debenture Issuer to such Holder of Preferred Securities in such Direct Action. Except as provided in the preceding sentences, the Holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Debentures. Any amount payable pursuant to the Declaration to any Holder of a Preferred Security shall be reduced by the amount of any corresponding payment such Holder has directly received pursuant to such Direct Action. Any approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution A-8 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 the 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 the 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 the Declaration and (subject to Section 3.10 of the Declaration) 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 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. A-9 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) and (c) and 7(a) and (b), or as otherwise required by law and the Declaration, the Holders of the Common Securities will have no voting rights. (b) The Holders of the Common Securities are entitled, in accordance with Article V of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. (c) Subject to Section 2.6 of the Declaration and only after the Event of Default with respect to the Preferred Securities has been cured, waived, or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in liquidation amount of the Common Securities, voting separately as a class, may direct the 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 aggregate 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 A-10 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. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by the 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 the Declaration and (subject to Section 3.10 of the Declaration) 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 A-11 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. (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 aggregate 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 A-12 that for the purposes of United States federal income tax the Trust will not be classified as other than a grantor trust on account of such action. 8. Pro Rata. A reference in these terms of the Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding unless, in relation to a payment, an Event of Default under the Declaration has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Preferred Securities pro rata according to the aggregate liquidation amount of Preferred Securities held by the relevant Holder relative to the aggregate liquidation amount of all Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder relative to the aggregate liquidation amount of all Common Securities outstanding. In any such proration the Trust may make such adjustments as may be appropriate in order that only Securities in authorized denominations shall be redeemed. 9. Ranking. The Preferred Securities rank pari passu with the Common Securities and payment thereon shall be made Pro Rata with the Common Securities except that, if an Event of Default under the Declaration occurs and is continuing the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Preferred Securities. 10. Acceptance of Securities Guarantee and Indenture. Each Holder of Preferred Securities and Common Securities, by the acceptance thereof, agrees to the provisions of the Preferred Securities Guarantee and the Common Securities Guarantee, respectively, including the subordination provisions therein and to the provisions of the Indenture. 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. A-13 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. Certificate Number Number of Preferred Securities CUSIP NO. ___________ Certificate Evidencing Preferred Securities of SUNTRUST CAPITAL ___ "------------" (liquidation amount $____ 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 $_____ 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. A-1-2 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: BANK ONE, N.A., as Institutional Trustee By: ------------------------ Authorized Officer A-1-3 [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 $_____ per Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly 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 quarterly 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 the close of business on the Business Day next preceding 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 the close of business on the _______________, _______________, _______________ or _______________ immediately preceding the relevant Distribution Date, whether or not a Business Day. 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 20 consecutive quarterly 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, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of _____% per annum, compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor) will be payable to the Holders of the Securities in whose names the Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Debentures. Upon the termination of any Extension Period and the payment of all 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 Sponsor 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 Preferred Securities shall be redeemable as provided in the Declaration. A-1-4 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. 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 ____ _____% Common Securities (liquidation amount $____ 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 _____% Common Securities (liquidation amount $____ 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. 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: ---------------------------------- Name: Regular Trustee CERTIFICATE OF AUTHENTICATION This certificate represents the Common Securities referred to in the within-mentioned Declaration. Dated: BANK ONE, N.A., as Institutional Trustee By: -------------------------------------- Authorized Officer A-2-2 [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 $_____ per Common Security. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly 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 quarterly in arrears on the _____ day of ______________, ______________, ______________ and ______________ of each year, commencing on ___________________ to Holders of record on the close of business on the ______________, ______________, ______________ or ______________ immediately preceding the relevant Distribution Date, whether or not a Business Day. 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 20 consecutive quarterly 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, quarterly Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of ____% per annum compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor) will be payable to the Holders of the Securities in whose names the Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Debentures. Upon the termination of any Extension Period and the payment of all 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 Sponsor 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. A-2-3 EX-4.4 7 g72597ex4-4.txt FORM OF INDENTURE EXHIBIT 4.4 ================================================================================ SUNTRUST BANKS, INC. ---------------------------------- ---------------------------------- INDENTURE Dated as of November [ ], 2001 ---------------------------------- Bank One, N.A. AS DEBT TRUSTEE ---------------------------------- SUBORDINATED DEBT SECURITIES ================================================================================ TIE-SHEET of provisions of Trust Indenture Act of 1939 with Indenture dated as of November ________________, 2001 between SunTrust Banks, Inc. and Bank One, N.A., as Debt Trustee:
ACT SECTION INDENTURE SECTION 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
- -------------- THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED. TABLE OF CONTENTS*
Page ---- ARTICLE I DEFINITIONS SECTION 1.01. Definitions............................................................. 1 Affiliate............................................................... 1 Authenticating Agent.................................................... 1 Bankruptcy Law.......................................................... 1 Board of Directors...................................................... 1 Board Resolution........................................................ 2 Business Day............................................................ 2 Commission.............................................................. 2 Common Securities....................................................... 2 Common Stock............................................................ 2 Company................................................................. 2 Company Request......................................................... 2 Corporate Trust Office.................................................. 2 Custodian............................................................... 2 Debt Security........................................................... 2 Debt Trustee............................................................ 2 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.................................................................. 3 Indebtedness............................................................ 3 Indenture............................................................... 4 Institutional Trustee................................................... 4 Interest Payment Date................................................... 4 Mortgage................................................................ 4 Officer................................................................. 4 Officer's Certificate................................................... 4 Opinion of Counsel...................................................... 4 Other Debt Securities................................................... 4 The term outstanding.................................................... 4 Person.................................................................. 5 Predecessor Debt Security............................................... 5 Preferred Securities.................................................... 5
i Principal Office of the Debt Trustee.................................... 5 Responsible Officer..................................................... 5 Securities Act.......................................................... 5 Security Register....................................................... 5 Senior Indebtedness..................................................... 6 Stated Maturity......................................................... 6 Subsidiary.............................................................. 6 SunTrust Capital Trust.................................................. 6 Trust Indenture Act..................................................... 6 Trust Securities........................................................ 6 U.S. Government Obligations............................................. 6 SECTION 1.02. Business Day Certificate................................................ 7 ARTICLE II DEBT SECURITIES SECTION 2.01. Forms Generally......................................................... 7 SECTION 2.02. Form of Debt Trustee's Certificate of Authentication.................... 7 SECTION 2.03. Amount Unlimited; Issuable in Series.................................... 8 SECTION 2.04. Denomination of Debt Securities......................................... 9 SECTION 2.05. Execution and Authentication............................................ 10 SECTION 2.06. Global Debt Security.................................................... 10 SECTION 2.07. Transfer and Exchange................................................... 11 SECTION 2.08. Replacement Debt Securities............................................. 11 SECTION 2.09. Temporary Debt Securities............................................... 12 SECTION 2.10. Cancellation............................................................ 12 SECTION 2.11. Defaulted Interest...................................................... 13 SECTION 2.12. CUSIP Numbers........................................................... 14 ARTICLE III PARTICULAR COVENANTS OF THE COMPANY SECTION 3.01. Payment of Principal, Premium and Interest............................... 14 SECTION 3.02. Offices for Notices and Payments, etc.................................... 14 SECTION 3.03. Appointments to Fill Vacancies in Debt Trustee's Office.................. 15 SECTION 3.04. Provision as to Paying Agent............................................. 15 SECTION 3.05. Certificate to Debt Trustee.............................................. 16 SECTION 3.06. Payment Upon Resignation or Removal...................................... 16 ARTICLE IV HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE DEBT TRUSTEE SECTION 4.01. Holders' Lists........................................................... 17 SECTION 4.02. Preservation and Disclosure of Lists..................................... 17 SECTION 4.03. Reports by the Company................................................... 19 SECTION 4.04. Reports by the Debt Trustee.............................................. 20 ARTICLE V REMEDIES OF THE DEBT TRUSTEE AND HOLDERS ON EVENT OF DEFAULT SECTION 5.01. Events of Default......................................................... 21 SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor...................... 23 SECTION 5.03. Application of Moneys Collected by Debt Trustee........................... 25 SECTION 5.04. Proceedings by Holders.................................................... 25
ii SECTION 5.05. Proceedings by Debt Trustee................................................ 26 SECTION 5.06. Trustee May File Proofs of Claim........................................... 26 SECTION 5.07. Remedies Cumulative and Continuing......................................... 27 SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders..... 27 SECTION 5.09. Notice of Defaults......................................................... 28 SECTION 5.10. Undertaking to Pay Costs................................................... 29 ARTICLE VI CONCERNING THE DEBT TRUSTEE SECTION 6.01. Duties and Responsibilities of Debt Trustee................................ 29 SECTION 6.02. Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 6.01: ....................................................... 31 SECTION 6.03. No Responsibility for Recitals, etc........................................ 32 SECTION 6.04. Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt Securities....................................... 33 SECTION 6.05. Moneys to be Held in Trust................................................. 33 SECTION 6.06. Compensation and Expenses of Debt Trustee.................................. 33 SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence................... 34 SECTION 6.08. Conflicting Interest of Debt Trustee....................................... 35 SECTION 6.09. Eligibility of Debt Trustee................................................ 35 SECTION 6.10. Resignation or Removal of Debt Trustee..................................... 35 SECTION 6.11. Acceptance by Successor Debt Trustee....................................... 37 SECTION 6.12. Succession by Merger, etc.................................................. 38 SECTION 6.13. Limitation on Rights of Debt Trustee as a Creditor......................... 39 SECTION 6.14. Authenticating Agents...................................................... 39 ARTICLE VII CONCERNING THE HOLDERS SECTION 7.01. Action by Holders.......................................................... 40 SECTION 7.02. Proof of Execution by Holders.............................................. 41 SECTION 7.03. Who Are Deemed Absolute Owners............................................. 41 SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding.................... 41 SECTION 7.05. Revocation of Consents; Future Holders Bound............................... 42 ARTICLE VIII HOLDERS' MEETINGS SECTION 8.01. Purposes of Meetings....................................................... 42 SECTION 8.02. Call of Meetings by Debt Trustee........................................... 43 SECTION 8.03. Call of Meetings by Company or Holders..................................... 43 SECTION 8.04. Qualifications for Voting.................................................. 43 SECTION 8.05. Regulations................................................................ 43 SECTION 8.06. Voting..................................................................... 44 ARTICLE IX AMENDMENTS SECTION 9.01. Without Consent of Holders................................................. 44 SECTION 9.02. With Consent of Holders.................................................... 46 SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures..... 47
iii SECTION 9.04. Notation on Debt Securities................................................ 48 SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Debt Trustee........................................................... 48 ARTICLE X CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE SECTION 10.01. Company May Consolidate, etc., on Certain Terms........................... 48 SECTION 10.02. Successor Corporation to be Substituted for Company........................ 49 SECTION 10.03. Opinion of Counsel to be Given Debt Trustee................................ 49 ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE SECTION 11.01. Discharge of Indenture..................................................... 50 SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee........................................................ 50 SECTION 11.03. Paying Agent to Repay Moneys Held.......................................... 51 SECTION 11.04. Return of Unclaimed Moneys................................................. 51 SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations........... 51 ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations................ 53 ARTICLE XIII MISCELLANEOUS PROVISIONS SECTION 13.01. Successors................................................................. 54 SECTION 13.02. Official Acts by Successor Corporation.................................. 54 SECTION 13.03. Surrender of Company Powers................................................ 54 SECTION 13.04. Addresses for Notices, etc................................................. 54 SECTION 13.05. Governing Law.............................................................. 54 SECTION 13.06. Evidence of Compliance with Conditions Precedent........................... 55 SECTION 13.07. Business Days.............................................................. 55 SECTION 13.08. Trust Indenture Act to Control............................................. 55 SECTION 13.09. Table of Contents, Headings, etc........................................... 55 SECTION 13.10. Execution in Counterparts.................................................. 56 SECTION 13.11. Separability............................................................... 56 SECTION 13.12. Assignment................................................................. 56 ARTICLE XIV REDEMPTION OF DEBT SECURITIES SECTION 14.01. Applicability of Article................................................... 56 SECTION 14.02. Notice of Redemption; Selection of Debt Securities......................... 56 SECTION 14.03. Payment of Debt Securities Called for Redemption........................... 57 ARTICLE XV SUBORDINATION OF DEBT SECURITIES SECTION 15.01. Agreement to Subordinate................................................... 58 SECTION 15.02. Default on Senior Indebtedness............................................. 58 SECTION 15.03. Liquidation; Dissolution; Bankruptcy....................................... 59 SECTION 15.04. Subrogation................................................................ 60
iv SECTION 15.05. Debt Trustee to Effectuate Subordination................................... 61 SECTION 15.06. Notice by the Company...................................................... 61 SECTION 15.07. Rights of the Debt Trustee; Holders of Senior Indebtedness................. 62 SECTION 15.08. Subordination May Not Be Impaired.......................................... 63 TESTIMONIUM....................................................................... 79 SIGNATURES ....................................................................... 79 EXHIBIT A ........................................................................ A-1
v THIS INDENTURE, dated as of November________ , 2001, between SunTrust Banks, Inc., a Georgia corporation (the "Company"), and Bank One, N.A., a national banking association, as trustee (the "Debt Trustee"), WITNESSETH: In consideration of the premises, and the purchase of the Debt Securities by the Holders thereof, the Company covenants and agrees with the Debt Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Debt Securities, as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by reference therein defined in the Securities Act, shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term "generally accepted accounting principles" means such accounting principles as are generally accepted at the time of any computation. The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Headings are used for convenience of reference only and do not affect interpretation. The singular includes the plural and vice versa. "Affiliate" shall have the meaning given to that term in Rule 405 under the Securities Act or any successor rule thereunder. "Authenticating Agent" shall mean any agent or agents of the Debt Trustee which at the time shall be appointed and acting pursuant to Section 6.14. "Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar Federal or State law for the relief of debtors. "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. "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 2 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. "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 3 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. "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 4 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 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 153 West 51st Street, New York, New York 10019. "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 5 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 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 V and SunTrust Capital VI, 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 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 6 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. SECTION 1.02. Business Day Certificate. On the date of execution and delivery of this Indenture (with respect to the remainder of calendar year 2001) 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. 7 Bank One, N.A., 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; (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 8 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 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. 9 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 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 10 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 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 11 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. 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 12 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 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 13 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. 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 such notice of the location 14 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. (b) If the Company shall act as its own paying agent, it will, on or before each due date of 15 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 Company shall pay to the Debt Trustee all amounts accrued and owing to the date of such termination, removal or resignation. 16 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 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 17 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 18 upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the 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. 19 (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, 2001, 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 Trustee with each stock exchange, if 20 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 contemplated in this Indenture), and continuance of such default or breach for a period of 90 days after there has 21 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 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 22 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 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. 23 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 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. 24 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: 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 25 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, 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, 26 (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 (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 27 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) 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 protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the 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 28 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 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 29 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 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 proceeding 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. 30 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 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; 31 (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 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 32 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 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 33 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. 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; 34 (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 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. 35 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. (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 36 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 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, 37 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 appointment 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. 38 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 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 39 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. 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. 40 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 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 41 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: (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 42 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. 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. 43 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 representatives 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. 44 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 permitting 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; 45 (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; to qualify or maintain qualification of this Indenture under the Trust Indenture Act; or (g) to make any change that does not adversely affect the rights of any such Holder in any material respect. 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 46 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. 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. 47 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 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 as then in effect) satisfactory in form to the Debt 48 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 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 49 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. 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. 50 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. 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 51 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 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 52 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, 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. 53 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 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, Bank One, N.A., 153 West 51st Street, New York, New York 10019, 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. 54 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 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. 55 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 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 56 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 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 redeemed by the Company at the applicable Redemption Price, together with interest accrued thereon to 57 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 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). 58 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 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 59 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. 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. 60 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 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 61 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 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 62 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 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. 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. 63 SUNTRUST BANKS, INC. By: --------------------------------------- Name: Title: Bank One, N.A., as Debt Trustee By: --------------------------------------- Name: Title: 64 EX-4.7 8 g72597ex4-7.txt FORM OF COMMON SECURITIES GUARANTEE Exhibit 4.7 - -------------------------------------------------------------------------------- COMMON SECURITIES GUARANTEE AGREEMENT SUNTRUST CAPITAL __ DATED AS OF __________________ - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND INTERPRETATION.................................................................1 SECTION 1.1 DEFINITIONS AND INTERPRETATION......................................................1 ARTICLE II GUARANTEE.....................................................................................3 SECTION 2.1 GUARANTEE...........................................................................3 SECTION 2.2 WAIVER OF NOTICE AND DEMAND.........................................................4 SECTION 2.3 OBLIGATIONS NOT AFFECTED............................................................4 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....................................................6 SECTION 3.1 LIMITATION OF TRANSACTIONS..........................................................6 SECTION 3.2 SUBORDINATION.......................................................................6 SECTION 3.3 PARI PASSU GUARANTEES...............................................................6 ARTICLE IV TERMINATION...................................................................................7 SECTION 4.1 TERMINATION.........................................................................7 ARTICLE V MISCELLANEOUS..................................................................................7 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
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 _____________ 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. ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Common Securities Guarantee, unless the context otherwise requires: 1 (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 Guarantee 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; (f) a reference to the singular includes the plural and vice versa; and (g) the following terms have the meaning given to them in this Section 1.1(g): "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 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 2 rights of Holders of Preferred Securities to receive guarantee payments pursuant to the Preferred Securities Guarantee. "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Common Securities. "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. "Preferred Securities" means the securities representing preferred beneficial ownership interests in the assets of the Issuer. "Senior Indebtedness" shall mean the principal of, premium, if any, and interest on, all Indebtedness, whether outstanding on the date of execution of this Common 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. 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. 3 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 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. 4 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 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. 5 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, 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 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 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 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 THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first above written. SUNTRUST BANKS, INC. By: ----------------------------------- Name: Title: 9 EX-4.8 9 g72597ex4-8.txt FORM OF PREFERRED SECURITIES GUARANTEE Exhibit 4.8 - -------------------------------------------------------------------------------- PREFERRED SECURITIES GUARANTEE AGREEMENT SUNTRUST CAPITAL __ DATED AS OF _____________________ - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND INTERPRETATION.................................................................1 SECTION 1.1 DEFINITIONS AND INTERPRETATION...................................................1 ARTICLE II TRUST INDENTURE ACT...........................................................................5 SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.................................................5 SECTION 2.2 LISTS OF HOLDERS OF SECURITIES...................................................6 SECTION 2.3 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE.......................................6 SECTION 2.4 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE..................................6 SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.................................6 SECTION 2.6 EVENTS OF DEFAULT; WAIVER .......................................................6 SECTION 2.7 EVENT OF DEFAULT; NOTICE.........................................................7 SECTION 2.8 DISCLOSURE OF INFORMATION........................................................7 SECTION 2.9 CONFLICTING INTERESTS............................................................7 ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE.....................................7 SECTION 3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.............................7 SECTION 3.2 CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE....................................9 SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF PREFERRED SECURITIES GUARANTEE.....11 ARTICLE IV PREFERRED GUARANTEE TRUSTEE..................................................................11 SECTION 4.1 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY........................................11 SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE TRUSTEE.............12 ARTICLE V GUARANTEE.....................................................................................13 SECTION 5.1 GUARANTEE.......................................................................13 SECTION 5.2 WAIVER OF NOTICE AND DEMAND.....................................................13 SECTION 5.3 OBLIGATIONS NOT AFFECTED........................................................13 SECTION 5.4 RIGHTS OF HOLDERS...............................................................14 SECTION 5.5 GUARANTEE OF PAYMENT............................................................15 SECTION 5.6 SUBROGATION.....................................................................15 SECTION 5.7 INDEPENDENT OBLIGATIONS.........................................................15 ARTICLE VI LIMITATION OF TRANSACTIONS, SUBORDINATION....................................................15 SECTION 6.1 LIMITATION OF TRANSACTIONS......................................................15 SECTION 6.2 SUBORDINATION...................................................................16 SECTION 6.3 PARI PASSU GUARANTEES...........................................................16 ARTICLE VII TERMINATION.................................................................................16 SECTION 7.1 TERMINATION.....................................................................16 ARTICLE VIII INDEMNIFICATION............................................................................17
SECTION 8.1 EXCULPATION.....................................................................17 SECTION 8.2 INDEMNIFICATION.................................................................17 SECTION 8.3 COMPENSATION AND REIMBURSEMENT..................................................17 ARTICLE IX MISCELLANEOUS................................................................................18 SECTION 9.1 SUCCESSORS AND ASSIGNS..........................................................18 SECTION 9.2 AMENDMENTS......................................................................18 SECTION 9.3 NOTICES.........................................................................18 SECTION 9.4 BENEFIT.........................................................................19 SECTION 9.5 GOVERNING LAW...................................................................19
iii 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 Bank One, N.A., 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 _________________ 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. ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Preferred Securities Guarantee, unless the context otherwise requires: (a) Capitalized terms used in this Preferred Securities Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1 or in the Declaration, as the case may be; (b) a term defined anywhere in this Preferred Securities Guarantee has the same meaning throughout; (c) all references to "the Preferred Securities Guarantee" or "this Preferred Securities Guarantee" are to this Preferred Securities Guarantee as modified, supplemented or amended from time to time; (d) all references in this Preferred Securities Guarantee to Articles and Sections are to Articles and Sections of this Preferred Securities Guarantee, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Preferred Securities Guarantee, unless otherwise defined in this Preferred Securities Guarantee or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the following terms have the meaning given to them in this Section 1.1(g): "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. "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 153 West 51st Street, New York, New York 10019 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. 2 "Debentures" means the series of junior subordinated debt securities of the Guarantor designated the ____________________________________" 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 under the Indenture has occurred and is continuing, the rights of holders of the Common Securities to receive payments under the 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 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 3 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 November __, 2001, among the Guarantor (the "Debenture Issuer") and Bank One, N.A., as trustee, and any indenture supplemental thereto pursuant to which certain subordinated debt securities of the Debenture Issuer are to be issued to the Institutional Trustee of the Issuer. "Majority in liquidation amount of the Securities" means, except as provided by the Trust Indenture Act, a vote by Holder(s) of outstanding Preferred Securities, voting separately as a class, who are the record owners of Preferred Securities representing more than 50% of the liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Preferred Securities. "Officer's Certificate" means, with respect to any Person, a certificate signed by an Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Preferred Securities Guarantee (other than pursuant to Section 314(a)(4) of the Trust Indenture Act) shall include: (a) a statement that the officer signing the Officer's Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by the officer in rendering the Officer's Certificate; (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. 4 "Preferred Guarantee Trustee" means Bank One, N.A., 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. "Responsible Officer" means, when used with respect to the Preferred Guarantee Trustee, any officer assigned to the Corporate Trust Office of the Preferred Guarantee Trustee, including any managing director, vice president, assistant vice president, senior trust officer, trust officer, assistant treasurer, assistant secretary or any other officer of the Preferred Guarantee Trustee, customarily performing functions similar to those performed by any of the above designated officers, and also, with respect to a particular corporate trust matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "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. 5 (c) The application of the Trust Indenture Act to this Preferred Securities Guarantee shall not affect the nature of the Preferred Securities as equity securities representing beneficial ownership interests in the assets of the Issuer. SECTION 2.2 Lists of Holders of Securities. (a) The Guarantor shall provide the Preferred Guarantee Trustee with a list, in such form as the Preferred Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders"), (i) within 14 days after each record date for payment of Distributions as of such record date, and (ii) at any other time within 30 days of receipt by the Guarantor of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Preferred Guarantee Trustee provided, that the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The Preferred Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Preferred Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Preferred Guarantee Trustee. Within 60 days after May 15 of each year (commencing _____________), 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 . 6 The Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Preferred Securities Guarantee, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. SECTION 2.7 Event of Default; Notice. (a) The Preferred Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default actually known to a Responsible Officer of the Preferred Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notices of all such Events of Default, unless such defaults have been cured before the giving of such notice, provided, that, the Preferred Guarantee Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Preferred Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Preferred Securities. (b) The Preferred Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Preferred Guarantee Trustee shall have received written notice thereof from the Guarantor or a Holder, or a Responsible Officer of the Preferred Guarantee Trustee charged with the 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. ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee. 7 (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 Preferred Guarantee 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 Preferred Guarantee Trustee or its agents or their creditors. (e) The Preferred Guarantee Trustee shall not resign as a Trustee unless a Successor Preferred Guarantee Trustee has been appointed and accepted that appointment in accordance with Article IV. (f) No provision of this Preferred Securities Guarantee shall be construed to relieve the Preferred Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Preferred Guarantee Trustee shall be determined solely by the express provisions of this Preferred Securities Guarantee, and the Preferred Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are 8 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 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. 9 (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 here-under, the Preferred Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor. (iv) The Preferred Guarantee Trustee may consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees. The Preferred Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Preferred Securities Guarantee from any court of competent jurisdiction. (v) The Preferred Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Preferred Securities Guarantee at the request or direction of any Holder, unless such Holder shall have provided to the Preferred Guarantee Trustee such security and indemnity, reasonably satisfactory to the Preferred Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Preferred Guarantee Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Preferred Guarantee Trustee; provided that, nothing contained in this Section 3.2(a)(v) 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 10 action. No third party shall be required to inquire as to the authority of the Preferred Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Preferred Securities Guarantee, both of which shall be conclusively evidenced by the Preferred Guarantee Trustee's or its agent's taking such action. (viii) Whenever in the administration of this Preferred Securities Guarantee the Preferred Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Preferred Guarantee Trustee (i) may request instructions from the Holders of a Majority in liquidation amount of the Preferred Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions. (b) No provision of this Preferred Securities Guarantee shall be deemed to impose any duty or obligation on the Preferred Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Preferred Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Preferred Guarantee Trustee shall be construed to be a duty. SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities Guarantee. The recitals contained in this Preferred Securities Guarantee shall be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee does not assume any responsibility for their correctness. The Preferred Guarantee Trustee makes no representation as to the validity or sufficiency of this Preferred Securities Guarantee. 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 11 Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then, for the purposes of this Section 4.1(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Preferred Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). (c) If the Preferred Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof. SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee. (a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor. (b) The Preferred Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Preferred Guarantee Trustee and delivered to the Guarantor. (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 12 prescribing such notice, if any, as it may deem proper, appoint a Successor Preferred Guarantee Trustee. ARTICLE V GUARANTEE SECTION 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders. SECTION 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Preferred Securities Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.3 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Preferred Securities Guarantee shall in 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 13 the Holders pursuant to the terms of the Preferred Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. 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 direct the Preferred Guarantee Trustee to exercise any trust or power conferred upon the Preferred Guarantee Trustee under this Preferred Securities Guarantee; provided, however, that, subject to Section 3.1, the Preferred Guarantee Trustee shall have the right to decline to follow any such direction if the Preferred Guarantee Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Preferred Guarantee Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Preferred Guarantee Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceeding so directed would involve the Preferred Guarantee Trustee in personal liability. (c) If the Preferred Guarantee Trustee fails to enforce such Preferred Securities Guarantee, any Holder may institute a legal proceeding directly against the Guarantor to enforce the Preferred Guarantee Trustee's rights under this Preferred 14 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. 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, 15 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. 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. 16 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, 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 provisions 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 17 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 Preferred Guarantee Trustee. Such lien shall survive the termination of this Preferred Securities Guarantee. ARTICLE IX MISCELLANEOUS SECTION 9.1 Successors and Assigns. All guarantees and agreements contained in this Preferred Securities Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Preferred Securities then outstanding. SECTION 9.2 Amendments. Except with respect to any changes that do not adversely affect the rights of Holders (in which case no consent of Holders will be required), this Preferred Securities Guarantee may only be amended with the prior approval of the Holders of at least a Majority in liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all the outstanding Preferred Securities. The provisions of the Declaration with respect to consents to amendments thereof (whether at a meeting or otherwise) of Holders of the Securities shall apply to the giving of such approval. SECTION 9.3 Notices. All notices provided for in this Preferred Securities Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, faxed or mailed by first class mail, as follows: 18 (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): Bank One, N.A. 153 West 51st Street New York, NY 10019 Attention: Corporate Trust Administration Fax: (212) 373-1383 (b) If given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders and the Preferred Guarantee Trustee): SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3201 Attention: Treasurer Fax: (404) 724-3749 (c) If given to any Holder, at the address set forth on the books and records of the Issuer. All such notices shall be deemed to have been given when received in person, faxed with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 9.4 Benefit. This Preferred Securities Guarantee is solely for the benefit of the Holders and, subject to Section 3.1(a), is not separately transferable from the Preferred Securities. SECTION 9.5 Governing Law. THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 19 THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year first above written. SUNTRUST BANKS, INC., as Guarantor By: --------------------------------- Name: Title: BANK ONE, N.A., as Preferred Guarantee Trustee By: --------------------------------- Name: Title: 20 EX-4.9.2 10 g72597ex4-9_2.txt FORM OF SUPPLEMENTAL INDENTURE Exhibit 4.9.2 =============================================================================== _____ SUPPLEMENTAL INDENTURE BETWEEN SUNTRUST BANKS, INC. AND BANK ONE, N.A. DATED AS OF __________ _____ =============================================================================== TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS Section 1.1. Definition of Terms.........................................................................1 ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES Section 2.1. Designation and Principal Amount............................................................4 Section 2.2. Maturity....................................................................................4 Section 2.3. Form and Payment............................................................................4 Section 2.4. Global Debenture............................................................................5 Section 2.5. Interest....................................................................................6 ARTICLE III REDEMPTION OF THE DEBENTURES Section 3.1. Tax Event Redemption........................................................................7 Section 3.2. Capital Treatment Event of Redemption.......................................................7 Section 3.3. Investment Company Event of Redemption......................................................7 Section 3.4. Optional Redemption by Company..............................................................8 Section 3.5. No Sinking Fund.............................................................................8 ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD Section 4.1. Extension of Interest Payment Period........................................................8 Section 4.2. Notice of Extension.........................................................................9 ARTICLE V EXPENSES Section 5.1. Payment of Expenses.........................................................................9 Section 5.2. Payment Upon Resignation or Removal........................................................10 ARTICLE VI FORM OF DEBENTURE Section 6.1. Form of Debenture..........................................................................10
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES Section 7.1. Original Issue of Debentures...............................................................10 ARTICLE VIII COVENANTS Section 8.1. Limitation on Dividends....................................................................10 Section 8.2. Covenants as to the Trust..................................................................11 ARTICLE IX MISCELLANEOUS Section 9.1. Ratification of Indenture..................................................................11 Section 9.2. Acknowledgment of Rights...................................................................11 Section 9.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders.....................12 Section 9.4. Debt Trustee Not Responsible for Recitals..................................................13 Section 9.5. Governing Law..............................................................................13 Section 9.6. Separability...............................................................................13 Section 9.7. Counterparts...............................................................................13
ii _____ SUPPLEMENTAL INDENTURE, dated as of ____________________ (the "_____ SUPPLEMENTAL INDENTURE"), between SunTrust Banks, Inc., a Georgia corporation (the "COMPANY"), and Bank One, N.A., as trustee (the "DEBT TRUSTEE"), under the Indenture dated as of November __, 2001 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, in the Debentures; 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, 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; 2 (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; Federal Reserve Board; Preferred Securities; Preferred Securities Guarantee; Preferred Security Certificate; Property Account, Regular Trustees; and Underwriting Agreement; (g) the following terms have the meanings given to them in this Section 1.1(g): "ADDITIONAL SUMS" shall have the meaning set forth in Section 2.5(e). "CAPITAL TREATMENT EVENT" means the reasonable determination by the Company that, as a result of (i) any amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political subdivision thereof or therein or other governmental agency or regulatory authority, or (ii) any official administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which, in case of either clause (i) or (ii), is effective or is announced on or after ______________________, 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 1 Capital" (or the then equivalent thereof) under the risk-based capital adequacy guidelines of the Federal Reserve Board, as then in effect and applicable to the Company. "COMPOUNDED INTEREST" shall have the meaning set forth in Section 4.1. "DEBENTURES" shall have the meaning set forth in the preamble of this _____ 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. "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. 3 "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(d). "INTEREST PERIOD" means each period beginning on, and including, ___________________, 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. "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. "INVESTMENT COMPANY EVENT" means that the Trust shall have received an opinion of counsel experienced in practice under the Investment Company Act which states that, as a result of the occurrence of an amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political subdivision thereof or therein or any other governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after ____________________. "MATURITY DATE" shall mean ____________________. "NON BOOK-ENTRY PREFERRED SECURITIES" shall have the meaning set forth in Section 2.4(a)(ii). "OTHER GUARANTEES" means all guarantees issued or to be issued by the Company with respect to capital securities (if any) and issued to other trusts to be established by the Company (if any), in each case similar to the Trust. "PAYING AGENT" shall mean the Debt Trustee or any Person authorized by the Debt Trustee to calculate the amount of interest payable on the Debentures in respect of each Interest Period. "REDEMPTION PRICE" shall mean, with respect to any redemption of the Debentures pursuant to Article III hereof, an amount in cash equal to 100% of the principal amount of Debentures to be redeemed plus any accrued and unpaid interest thereon, including Compounded Interest and Additional Sums, if any, to the date of such redemption. "SECURITY REGISTRAR" shall have the meaning set forth in Section 2.3. 4 "TAX EVENT" means the receipt by the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of (i) any amendment to, or change (including any announced proposed change) in, the laws or regulations of the United States or any political subdivision or taxing authority thereof or therein, or (ii) any official administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment, change, pronouncement, action or decision is effective or is announced or occurs on or after ____________________, there is, in case of either clause (i) or (ii), more than an insubstantial risk that (A) 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 interest accrued or received on the Debentures, (B) 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 (C) 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. "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 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; 5 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 Bank One, N.A., the Debt Trustee, as registrar for the Debentures (the "SECURITY REGISTRAR"). Notwithstanding the foregoing, so long as the Holder of any Debentures is the Institutional Trustee, the payment of the principal of, premium, if any, and interest (including Compounded Interest and Additional Sums, if any) on such Debentures held by the Institutional Trustee will be made at such place and to such account as may be designated by the Institutional Trustee. SECTION 2.4. GLOBAL DEBENTURE. (a) In connection with a Dissolution Event, (i) the Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee in exchange for a global Debenture in an aggregate principal amount equal to the aggregate principal amount of all outstanding Debentures (a "GLOBAL DEBENTURE"), to be registered in the name of the Depositary, or its nominee, and delivered by the Debt Trustee to or upon the order of the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Regular Trustees. The Company upon any such presentation shall execute a Global Debenture in such aggregate principal amount and deliver the same to the Debt Trustee for authentication and delivery in accordance with the Indenture. Payments on the Debentures issued as a Global Debenture will be made to the Depositary; and (ii) if any Preferred Securities are held in non book-entry certificated form, the Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee and any Preferred Security Certificate which represents Preferred Securities other than Preferred Securities held by the Clearing Agency or its nominee ("NON BOOK-ENTRY PREFERRED SECURITIES") will be deemed to represent beneficial interests in Debentures presented to the Debt Trustee by the Institutional Trustee having an aggregate principal amount equal to the aggregate liquidation amount of the Non Book-Entry Preferred Securities until such Preferred Security Certificates are presented to the Security Registrar for transfer or reissuance at which time such Preferred Security Certificates will be cancelled and a Debenture, registered in the name of the holder of the Preferred Security Certificate or the transferee of the holder of such Preferred Security Certificate, as the case may be, with an aggregate principal amount equal to the aggregate liquidation amount of the Preferred Security Certificate cancelled, will be executed by the Company and delivered to the Debt Trustee for authentication and delivery in accordance with the Indenture. Upon the issuance of such Debentures, Debentures with an equivalent aggregate principal amount that were presented by the Institutional Trustee to the Debt Trustee will be deemed to have been cancelled. 6 (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 quarterly, payable (subject to the provisions of Article IV) quarterly in arrears on the __ day if __________, __________, __________ 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 close of business on the _______, ________, _________ and ___________ immediately preceding the relevant Interest Payment Date, whether or not a Business Day. (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 amount of interest payable for any partial Interest Period will be computed on the basis of the actual number of days elapsed during any such 30-day month. The determination of the amount of interest payable by 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 interest on the Debentures, whether by the Debt Trustee or Paying Agent, will (in the absence of willful 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 willful 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"). 7 (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. (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 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 Redemption Price. SECTION 3.3. INVESTMENT COMPANY 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 Investment Company 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 Investment Company Event (or, if the approval of the 8 Federal Reserve Board is then required for such redemption, on such later date as promptly as practicable after such approval is obtained) at the Redemption Price. SECTION 3.4. OPTIONAL REDEMPTION BY COMPANY. (a) Subject to the prior approval of the Federal Reserve Board, if such approval is then required under applicable law, rules, guidelines or policies, the 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 Redemption Price. (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. SECTION 3.5. 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 20 consecutive quarterly periods (the "EXTENSION PERIOD"), during which Extension Period no interest shall be due and payable; provided that no Extension Period shall end on a date other than an Interest Payment Date or extend beyond the Maturity Date. To the extent permitted by applicable law, interest, the payment of which has been deferred because of the extension of the interest payment period pursuant to this Section 4.1, will bear interest thereon at a rate of ____% per annum compounded quarterly for each quarterly period of the Extension Period ("COMPOUNDED INTEREST"). At the end of the Extension Period, the Company shall pay all interest accrued and unpaid on the Debentures, including any Additional Sums and Compounded Interest (together, "DEFERRED INTEREST") that shall be payable to the Holders in whose names the Debentures are registered in the Security Register on the record date relating to the Interest Payment Date on which the Extension Period ends. Before the termination of any Extension Period, the Company may further defer payments of interest by further extending such 9 period, provided that such period, together with all such previous and further extensions within such Extension Period, shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity Date of the Debentures. Upon the termination of any Extension Period and the payment of all Deferred Interest then due, the Company may commence a new Extension Period, subject to the foregoing requirements. No interest shall be due and payable during an Extension Period, except at the end thereof. Compounded Interest shall be treated as interest for all purposes under the Indenture. SECTION 4.2. NOTICE OF EXTENSION. (a) If the Institutional Trustee is the only registered Holder at the time the Company selects an Extension Period, the Company shall give written notice to the Regular Trustees, the Institutional Trustee and the Debt Trustee of its selection of such Extension Period five Business Days before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Trust are payable, or (ii) the date the Trust is required to give notice of the record date, or the date such Distributions are payable, to any national securities exchange or interdealer quotation system or to holders of the Preferred Securities issued by the Trust, but in any event at least five Business Days before such record date. (b) If the Institutional Trustee is not the only Holder at the time the Company selects an Extension Period, the Company shall give the Holders and the Debt Trustee written notice of its selection of such Extension Period at least 10 Business Days before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the Company is required to give notice of the record or payment date of such interest payment to any national securities exchange or interdealer quotation system or to the Holders. (c) The quarterly period in which any notice is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20 quarterly periods permitted in the maximum Extension Period permitted under Section 4.1. ARTICLE V EXPENSES SECTION 5.1. PAYMENT OF EXPENSES. In connection with the offering, sale and issuance of the Debentures to the Trust and in connection with the sale of the Trust Securities by the Trust, the Company, in its capacity as borrower with respect to the Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Debentures and the Trust Securities and the compensation of the Debt Trustee in accordance with the provisions of Section 6.06 of the Indenture; (b) pay all costs and expenses relating to the organization, operation and dissolution of the Trust. 10 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 delivered to the Debt Trustee for authentication as provided in Sections 2.03 and 2.05 of the Indenture. ARTICLE VIII COVENANTS SECTION 8.1. LIMITATION ON DIVIDENDS. The Company will not, and will not permit any Subsidiary to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (ii) make any payment of principal of, or 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 11 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 with the giving of notice, or the lapse of time, or both, would constitute an Event of Default (as defined in the Indenture) and 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. 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. 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 12 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 Debentures at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred on the Debt Trustee; provided, however, that (subject to the provisions of Section 6.01 of the Indenture) the Debt Trustee shall have the right to decline to follow any such direction if the Debt Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Debt Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Debt Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceedings so directed would involve the Debt Trustee in personal liability. Prior to any declaration accelerating the maturity of the Debentures, the Holders of a majority in aggregate principal amount of the Debentures at the time outstanding may on behalf of the Holders of all of the Debentures 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 Debentures (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 Debentures 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 Debentures and the Indenture be deemed to have been cured and to be not continuing. 13 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. 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. 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: BANK ONE, N.A., AS DEBT TRUSTEE By: ------------------------------------- Name: Title: Attest: By: ----------------------------------------- Name: Title: S-1 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 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 __ day of _______, _______, _______, and _______ or from the most recent interest payment date to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on the ______________________ 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 quarterly. The amount of interest payable on any Interest Payment Date (as defined below) shall be calculated as provided in the Indenture. In the event that any date on which interest is payable on this Debenture is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day that is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which interest is actually payable, an "Interest Payment Date"). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Debt Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be, if the Debentures are not in book-entry only form, except if the Debentures are held by the Institutional Trustee, the close of business on the __________, ___________, ___________, and ______________ immediately preceding the relevant Interest Payment Date, whether or not a Business Day. In the case of a Global Debenture or any Debentures of which the Institutional Trustee is the Holder, such regular record date shall be the close of business on the Business Day next preceding the applicable Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such regular record date and may be paid to the Person in whose name this Debenture (or one or more Predecessor Debt Securities) is registered at the close of business on a special record date to be fixed by the Debt Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders not less than 10 days prior to such special record date, or may 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 A-2 Additional Sums, if any) on this Debenture shall be payable at the office or agency of the Debt Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made, at the option of the Company, by check mailed to the registered Holder at such address as shall appear in the Security Register or by wire transfer to an account designated by a Holder in writing not less than ten days prior to the date of payment. Notwithstanding the foregoing, so long as the Holder of this Debenture is the Institutional Trustee, the payment of the principal of, premium, if any, and interest on this Debenture will be made at such place and to such account as may be designated by the Institutional Trustee. The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Debt Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Debt Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder or creditor upon said provisions. This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred to, or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Debt Trustee. THIS DEBENTURE IS NOT A SAVINGS 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. A-3 IN WITNESS WHEREOF, the Company has caused this instrument to be executed. SUNTRUST BANKS, INC. By: ------------------------------------ Name: Title: Attest: By: ---------------------------------- Name: Title: CERTIFICATE OF AUTHENTICATION This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture. Bank One, N.A., as Debt Trustee By: ---------------------------------- Authorized Officer Dated: ------------------------------- A-4 (FORM OF REVERSE OF DEBENTURE) This Debt Security is one of a duly authorized series of debt securities of the Company (herein sometimes referred to as the "Debentures"), all issued or to be issued in one or more series under and pursuant to an Indenture, dated as of ___________________, duly executed and delivered between the Company and Bank One, N.A., 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, Investment Company Event or Capital Treatment Event, the Company shall have the right, subject to certain conditions set forth in the Indenture, to redeem this Debenture in whole, but not in part, at the Redemption Price within 90 days following the occurrence of such Tax Event, Investment Company Event or Capital Treatment Event (or, if the prior approval of 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 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. 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 A-5 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 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 20 consecutive quarterly 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 20 consecutive quarterly 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-6 The Company will not, and will not permit any Subsidiary to (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (ii) make any payment of principal of, or 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 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 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 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, 153 West 51st Street, New York, New York 10019, 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. A-7 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. The Debentures are issuable only in registered form without coupons in denominations of $_______ 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-8 EX-5.1 11 g72597ex5-1.txt OPINION OF KING AND SPALDING EXHIBIT 5.1 November 14, 2001 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 filed today with the Securities and Exchange Commission (the "Registration Statement") by the Company, SunTrust Capital V, a Delaware statutory business trust ("Trust V"), and SunTrust Capital VI, a Delaware statutory business trust ("Trust VI") and together with Trust V, the "Trusts," and 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 by the Company 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 Bank One, N.A., 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. SunTrust Banks, Inc. November 14, 2001 Page 2 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, in substantially the same form as they have been provided to us, and will be valid and binding agreements of the parties thereto (other than the Company) enforceable against the parties thereto (other than the Company) in accordance with their respective terms. This opinion is limited in all respects to the laws of the State of New York, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. Based upon and subject to the foregoing, we are of the opinion that: 1. The Subordinated Debt Securities to be issued under the Indenture, when the definitive terms and provisions thereof have been duly established and when duly executed and delivered by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the purchasers thereof, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to the enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity. 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 the rights and remedies of creditors generally and to the effect of general principles of equity. 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. SunTrust Banks, Inc. November 14, 2001 Page 3 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 EX-5.2 12 g72597ex5-2.txt OPINION OF SKADDEN, ARPS, SLATE, MEAGHER, FLOM LLP EXHIBIT 5.2 [SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP LETTERHEAD] November 14, 2001 SunTrust Capital V SunTrust Capital VI c/o SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 Re: SunTrust Banks, Inc. SunTrust Capital V SunTrust Capital VI Registration Statement on Form S-3 Ladies and Gentlemen: We have acted as special Delaware counsel to SunTrust Capital V and SunTrust Capital VI (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 November 14, 2001 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"), each such Declaration being among the Company, as sponsor of the Trust, Bank One Delaware Inc., as Delaware trustee (the "Delaware Trustee"), Bank One, N.A., as institutional trustee (the "Institutional Trustee"), and Raymond D. Fortin, Mark Chancy 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 November 13, 2001; (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 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 2 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, 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 3 EX-12.1 13 g72597ex12-1.txt COMPUTATION OF THE RATIO OF EARNINGS EXHIBIT 12.1 SUNTRUST BANKS, INC. Ratio of Earnings to Fixed Charges (In thousands)
Nine Months Ended Sept 30 For the Year Ended December 31, --------------------- --------------------------------------------------------- 2001 2000 2000 1999 1998 1997 1996 --------- --------- --------- --------- --------- --------- --------- INCLUDING INTEREST ON DEPOSITS Earnings: Income before income taxes and extraordinary items 1,560,303 1,439,934 1,919,556 1,695,657 1,498,306 1,499,599 1,265,942 Fixed charges 2,484,374 2,744,912 3,764,603 2,841,964 2,773,877 2,479,633 2,185,047 --------- --------- --------- --------- --------- --------- --------- Total 4,044,677 4,184,846 5,684,159 4,537,621 4,272,183 3,979,232 3,450,989 ========= ========= ========= ========= ========= ========= ========= Fixed charges: Interest on deposits 1,486,464 1,796,753 2,452,919 1,626,132 1,644,229 1,627,417 1,585,707 Interest on funds purchased 365,126 473,672 651,235 749,561 634,086 461,724 356,879 Interest on other short-term borrowings 54,617 66,742 97,903 79,521 127,800 133,814 81,683 Interest on long-term debt 549,680 386,854 534,924 359,538 340,664 230,509 134,530 Portion of rents representative of the interest factor 28,487 20,891 27,622 27,212 27,098 26,169 26,248 --------- --------- --------- --------- --------- --------- --------- Total 2,484,374 2,744,912 3,764,603 2,841,964 2,773,877 2,479,633 2,185,047 ========= ========= ========= ========= ========= ========= ========= Earnings to fixed charges 1.63x 1.52x 1.51x 1.60x 1.54x 1.60x 1.58x EXCLUDING INTEREST ON DEPOSITS Earnings: Income before income taxes and extraordinary items 1,560,303 1,439,934 1,919,556 1,695,657 1,498,306 1,499,599 1,265,942 Fixed charges 997,910 948,159 1,311,684 1,215,832 1,129,648 852,216 599,340 --------- --------- --------- --------- --------- --------- --------- Total 2,558,213 2,388,093 3,231,240 2,911,489 2,627,954 2,351,815 1,865,282 ========= ========= ========= ========= ========= ========= ========= Fixed charges: Interest on funds purchased 365,126 473,672 651,235 749,561 634,086 461,724 356,879 Interest on other short-term borrowings 54,617 66,742 97,903 79,521 127,800 133,814 81,683 Interest on long-term debt 549,680 386,854 534,924 359,538 340,664 230,509 134,530 Portion of rents representative of the interest factor 28,487 20,891 27,622 27,212 27,098 26,169 26,248 --------- --------- --------- --------- --------- --------- --------- Total 997,910 948,159 1,311,684 1,215,832 1,129,648 852,216 599,340 ========= ========= ========= ========= ========= ========= ========= Earnings to fixed charges 2.56x 2.52x 2.46x 2.39x 2.33x 2.76x 3.11x
EX-23.1 14 g72597ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement, of our report dated February 13, 2001, included in SunTrust Banks, Inc.'s Form 10-K/A for the year ended December 31, 2000, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Atlanta, Georgia November 14, 2001 EX-25.1 15 g72597ex25-1.txt STATEMENT OF ELIGIBILITY OF DEBT TRUSTEE 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) ---------------------------- BANK ONE, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 36-0899825 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE, NATIONAL ASSOCIATION 1 BANK ONE PLAZA CHICAGO, ILLINOIS 60670 ATTN: SANDRA L. CARUBA, FIRST VICE PRESIDENT (312) 336-9436 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ============================ SUNTRUST BANKS, INC. (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) GEORGIA 58-1575053 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 303 PEACHTREE STREET, N.E. 30308 ATLANTA, GEORGIA (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) DEBT SECURITIES AND GUARANTEES OF TRUST PREFERRED SECURITIES OF SUNTRUST CAPITAL V AND SUNTRUST CAPITAL VI (TITLE OF INDENTURE SECURITIES) 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. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, 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 7th day of November, 2001. BANK ONE, NATIONAL ASSOCIATION, TRUSTEE By /s/ Sandra L. Caruba ------------------------------ Sandra L. Caruba First Vice President (*) Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT November 7, 2001 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen:: In connection with the qualification of an indenture between SunTrust Banks, Inc. and Bank One, National Association, 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, BANK ONE, NATIONAL ASSOCIATION By /s/ Sandra L. Caruba ---------------------------- Sandra L. Caruba First Vice President EXHIBIT 7 BANK ONE, NA - ----------------------------------------- Legal Title of Bank CHICAGO - ----------------------------------------- City IL 60670 - ----------------------------------------- State Zip Code Transmitted to EDS as 0145123 on 08/14/01 at 09:51:53 CST FDIC Certificate Number - 03618 CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2001 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
Dollar Amounts in Thousands RCFD Bill/Mil/Thou ----------------------- ---- ------------- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ............... 0081 10,110,003 1.a b. Interest-bearing balances (2) ........................................ 0071 1,998,859 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 23,932,421 2.b 3. Federal funds sold and securities purchased under agreement to resell .... 1350 19,525,969 3 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale ....................................... 5369 55,386 4.a b. Loans and leases, net of unearned income ............................. B528 77,065,438 4.b c. LESS: Allowance for loan and lease losses ............................ 3123 1,931,234 4.c d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) ............................................... B529 75,134,204 4.d 5. Trading assets (from Schedule RC-D) ...................................... 3545 3,978,185 5 6. Premises and fixed assets (including capitalized leases) ................. 2145 748,205 6 7. Other real estate owned (from Schedule RC-M) ............................. 2150 11,079 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ................................................... 2130 401,512 8 9. Customers' liability to this bank on acceptances outstanding ............. 2155 275,403 9 10. Intangible assets ........................................................ a. Goodwill ............................................................. 3163 447,558 10.a b. Other Intangible assets (from Schedule RC-M) ......................... 0426 3,844 10.b 11. Other assets (from Schedule RC-F) ........................................ 2160 5,670,527 11 12. Total assets (sum of items 1 through 11) ................................. 2170 142,293,155 12
- ----------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. BANK ONE, NA FFEC 031 Legal Title of Bank RC-2 Transmitted to EDS as 0145123 on 08/14/01 at 09:51:59 CST 12 FDIC Certificate Number - 03618 SCHEDULE RC -- CONTINUED
Bil Mil Thou -------------- Dollar Amounts in Thousands - -------------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from RCON Schedule RC-E, part I) .................................................................. 2200 56,795,188 13.a (1) Noninterest-bearing(1) ................................ 6631 20,269,584 13.a.1 (2) Interest-bearing ...................................... 6636 36,525,624 13.a.2 b. In foreign offices, Edge and Agreement subsidiaries and IBFs RCFN (from Schedule RC-E, part II) ............................. 2200 33,279,360 13.b (1) Noninterest-bearing ................................... 6631 685,406 13.b.1 (2) Interest-bearing ...................................... 6636 32,593,954 RCFD 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase .............................................................................. 2800 9,121,123 14 15. Trading liabilities (from Schedule RC-D) ................................................... 3548 3,365,890 15 16. OTHER BORROWED MONEY (INCLUDES MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER CAPITALIZED LEASES) (FROM SCHEDULE RC-M): ................................ 3190 20,125,897 16 17. Not applicable 18. Bank's liability on acceptances executed and outstanding .................................. 2920 276,403 18 19. Subordinated notes and debentures(2) ...................................................... 3200 3,851,152 19 20. Other liabilities (from Schedule RC-G) .................................................... 2930 6,982,395 20 21. Total liabilities (sum of items 13 through 20) ............................................ 2948 133,796,408 21 22. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES............................................. 3000 2,600 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ............................................. 3838 0 23 24. Common stock .............................................................................. 3230 200,858 24 25. Surplus (exclude all surplus related to preferred stock) .................................. 3839 5,493,189 25 26. a. Retained earnings ...................................................................... 3632 2,913,064 26.a b. ACCUMULATED OTHER COMPREHENSIVE INCOME(3) .............................................. B530 (112,964) 26.b 27. OTHER EQUITY CAPITAL COMPONENTS(4) ........................................................ A130 0 27 28. Total equity capital (sum of items 23 through 27) ......................................... 3210 8,494,147 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22 and 28) ..... 3300 142,293,155 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 RCFD Number auditors as of any date during 2000 ........................................................ 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank conducted with generally accepted auditing standards by a certified in accordance with generally accepted auditing public accounting firm which submits a report on the bank standards by a certified public accounting firm 2 = Independent audit of the bank's parent holding company (may be required by state chartering authority) conducted in accordance with generally accepted auditing 5 = Directors' examination of the bank performed by standards by a certified public accounting firm which other external auditors (may be required by state submits a report on the consolidated holding company (but chartering authority) not on the bank separately) 6 = Review of the bank's financial statements by 3 = ATTESTATION ON BANK MANAGEMENT'S ASSERTION ON THE external auditors EFFECTIVENESS OF THE BANK'S INTERNAL CONTROL OVER FINANCIAL 7 = Compilation of the bank's financial statements by REPORTING BY A CERTIFIED PUBLIC ACCOUNTING FIRM external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work
- --------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. (3) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (4) Includes treasury stock and unearned Employee Stock Ownership Plan shares. EX-25.2 16 g72597ex25-2.txt STATEMENT OF ELIGIBILITY OF INSTITUTIONAL TRUSTEE 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) ---------------------------- BANK ONE, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 36-0899825 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE, NATIONAL ASSOCIATION 1 BANK ONE PLAZA CHICAGO, ILLINOIS 60670 ATTN: SANDRA L. CARUBA, FIRST VICE PRESIDENT (312) 336-9436 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ----------------------------- SUNTRUST CAPITAL V (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) DELAWARE APPLIED FOR (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 303 PEACHTREE STREET, N.E. 30308 ATLANTA, GEORGIA (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) TRUST PREFERRED SECURITIES (TITLE OF INDENTURE SECURITIES) 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. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, 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 7th day of November, 2001. BANK ONE, NATIONAL ASSOCIATION, TRUSTEE By /s/ Sandra L. Caruba --------------------------- Sandra L. Caruba First Vice President * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT November 7, 2001 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen:: In connection with the qualification of an amended and restated trust agreement between SunTrust Capital V and Bank One, National Association, 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, BANK ONE, NATIONAL ASSOCIATION By /s/ Sandra L. Caruba ------------------------- Sandra L. Caruba First Vice President EXHIBIT 7 BANK ONE, NA - ----------------------------------------- Legal Title of Bank CHICAGO - ----------------------------------------- City IL 60670 - ----------------------------------------- State Zip Code Transmitted to EDS as 0145123 on 08/14/01 at 09:51:53 CST FDIC Certificate Number - 03618 CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2001 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
Dollar Amounts in Thousands RCFD Bill/Mil/Thou ----------------------- ---- ------------- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ............... 0081 10,110,003 1.a b. Interest-bearing balances (2) ........................................ 0071 1,998,859 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 23,932,421 2.b 3. Federal funds sold and securities purchased under agreement to resell .... 1350 19,525,969 3 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale ....................................... 5369 55,386 4.a b. Loans and leases, net of unearned income ............................. B528 77,065,438 4.b c. LESS: Allowance for loan and lease losses ............................ 3123 1,931,234 4.c d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) ............................................... B529 75,134,204 4.d 5. Trading assets (from Schedule RC-D) ...................................... 3545 3,978,185 5 6. Premises and fixed assets (including capitalized leases) ................. 2145 748,205 6 7. Other real estate owned (from Schedule RC-M) ............................. 2150 11,079 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ................................................... 2130 401,512 8 9. Customers' liability to this bank on acceptances outstanding ............. 2155 275,403 9 10. Intangible assets ........................................................ a. Goodwill ............................................................. 3163 447,558 10.a b. Other Intangible assets (from Schedule RC-M) ......................... 0426 3,844 10.b 11. Other assets (from Schedule RC-F) ........................................ 2160 5,670,527 11 12. Total assets (sum of items 1 through 11) ................................. 2170 142,293,155 12
- ----------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. BANK ONE, NA FFEC 031 Legal Title of Bank RC-2 Transmitted to EDS as 0145123 on 08/14/01 at 09:51:59 CST 12 FDIC Certificate Number - 03618 SCHEDULE RC -- CONTINUED
Bil Mil Thou -------------- Dollar Amounts in Thousands - -------------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from RCON Schedule RC-E, part I) .................................................................. 2200 56,795,188 13.a (1) Noninterest-bearing(1) ................................ 6631 20,269,584 13.a.1 (2) Interest-bearing ...................................... 6636 36,525,624 13.a.2 b. In foreign offices, Edge and Agreement subsidiaries and IBFs RCFN (from Schedule RC-E, part II) ............................. 2200 33,279,360 13.b (1) Noninterest-bearing ................................... 6631 685,406 13.b.1 (2) Interest-bearing ...................................... 6636 32,593,954 RCFD 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase .............................................................................. 2800 9,121,123 14 15. Trading liabilities (from Schedule RC-D) ................................................... 3548 3,365,890 15 16. OTHER BORROWED MONEY (INCLUDES MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER CAPITALIZED LEASES) (FROM SCHEDULE RC-M): ................................ 3190 20,125,897 16 17. Not applicable 18. Bank's liability on acceptances executed and outstanding .................................. 2920 276,403 18 19. Subordinated notes and debentures(2) ...................................................... 3200 3,851,152 19 20. Other liabilities (from Schedule RC-G) .................................................... 2930 6,982,395 20 21. Total liabilities (sum of items 13 through 20) ............................................ 2948 133,796,408 21 22. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES............................................. 3000 2,600 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ............................................. 3838 0 23 24. Common stock .............................................................................. 3230 200,858 24 25. Surplus (exclude all surplus related to preferred stock) .................................. 3839 5,493,189 25 26. a. Retained earnings ...................................................................... 3632 2,913,064 26.a b. ACCUMULATED OTHER COMPREHENSIVE INCOME(3) .............................................. B530 (112,964) 26.b 27. OTHER EQUITY CAPITAL COMPONENTS(4) ........................................................ A130 0 27 28. Total equity capital (sum of items 23 through 27) ......................................... 3210 8,494,147 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22 and 28) ..... 3300 142,293,155 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 RCFD Number auditors as of any date during 2000 ........................................................ 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank conducted with generally accepted auditing standards by a certified in accordance with generally accepted auditing public accounting firm which submits a report on the bank standards by a certified public accounting firm 2 = Independent audit of the bank's parent holding company (may be required by state chartering authority) conducted in accordance with generally accepted auditing 5 = Directors' examination of the bank performed by standards by a certified public accounting firm which other external auditors (may be required by state submits a report on the consolidated holding company (but chartering authority) not on the bank separately) 6 = Review of the bank's financial statements by 3 = ATTESTATION ON BANK MANAGEMENT'S ASSERTION ON THE external auditors EFFECTIVENESS OF THE BANK'S INTERNAL CONTROL OVER FINANCIAL 7 = Compilation of the bank's financial statements by REPORTING BY A CERTIFIED PUBLIC ACCOUNTING FIRM external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work
- --------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. (3) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (4) Includes treasury stock and unearned Employee Stock Ownership Plan shares. EX-25.3 17 g72597ex25-3.txt STATEMENT OF ELIGIBILITY OF INSTITUTIONAL TRUSTEE 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) ---------------------------- BANK ONE, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 36-0899825 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE, NATIONAL ASSOCIATION 1 BANK ONE PLAZA CHICAGO, ILLINOIS 60670 ATTN: SANDRA L. CARUBA, FIRST VICE PRESIDENT (312) 336-9436 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ----------------------------- SUNTRUST CAPITAL VI (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) DELAWARE APPLIED FOR (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 303 PEACHTREE STREET, N.E. 30308 ATLANTA, GEORGIA (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) TRUST PREFERRED SECURITIES (TITLE OF INDENTURE SECURITIES) 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. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, 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 7th day of November, 2001. BANK ONE, NATIONAL ASSOCIATION, TRUSTEE By /s/ Sandra L. Caruba ---------------------------- Sandra L. Caruba First Vice President * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Household Finance Corporation filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-33240). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT November 7, 2001 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen:: In connection with the qualification of an amended and restated trust agreement between SunTrust Capital VI and Bank One, National Association, 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, BANK ONE, NATIONAL ASSOCIATION By /s/ Sandra L. Caruba ----------------------- Sandra L. Caruba First Vice President EXHIBIT 7 BANK ONE, NA - ----------------------------------------- Legal Title of Bank CHICAGO - ----------------------------------------- City IL 60670 - ----------------------------------------- State Zip Code Transmitted to EDS as 0145123 on 08/14/01 at 09:51:53 CST FDIC Certificate Number - 03618 CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2001 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
Dollar Amounts in Thousands RCFD Bill/Mil/Thou ----------------------- ---- ------------- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ............... 0081 10,110,003 1.a b. Interest-bearing balances (2) ........................................ 0071 1,998,859 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 23,932,421 2.b 3. Federal funds sold and securities purchased under agreement to resell .... 1350 19,525,969 3 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale ....................................... 5369 55,386 4.a b. Loans and leases, net of unearned income ............................. B528 77,065,438 4.b c. LESS: Allowance for loan and lease losses ............................ 3123 1,931,234 4.c d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) ............................................... B529 75,134,204 4.d 5. Trading assets (from Schedule RC-D) ...................................... 3545 3,978,185 5 6. Premises and fixed assets (including capitalized leases) ................. 2145 748,205 6 7. Other real estate owned (from Schedule RC-M) ............................. 2150 11,079 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ................................................... 2130 401,512 8 9. Customers' liability to this bank on acceptances outstanding ............. 2155 275,403 9 10. Intangible assets ........................................................ a. Goodwill ............................................................. 3163 447,558 10.a b. Other Intangible assets (from Schedule RC-M) ......................... 0426 3,844 10.b 11. Other assets (from Schedule RC-F) ........................................ 2160 5,670,527 11 12. Total assets (sum of items 1 through 11) ................................. 2170 142,293,155 12
- ----------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. BANK ONE, NA FFEC 031 Legal Title of Bank RC-2 Transmitted to EDS as 0145123 on 08/14/01 at 09:51:59 CST 12 FDIC Certificate Number - 03618 SCHEDULE RC -- CONTINUED
Bil Mil Thou -------------- Dollar Amounts in Thousands - -------------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from RCON Schedule RC-E, part I) .................................................................. 2200 56,795,188 13.a (1) Noninterest-bearing(1) ................................ 6631 20,269,584 13.a.1 (2) Interest-bearing ...................................... 6636 36,525,624 13.a.2 b. In foreign offices, Edge and Agreement subsidiaries and IBFs RCFN (from Schedule RC-E, part II) ............................. 2200 33,279,360 13.b (1) Noninterest-bearing ................................... 6631 685,406 13.b.1 (2) Interest-bearing ...................................... 6636 32,593,954 RCFD 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase .............................................................................. 2800 9,121,123 14 15. Trading liabilities (from Schedule RC-D) ................................................... 3548 3,365,890 15 16. OTHER BORROWED MONEY (INCLUDES MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER CAPITALIZED LEASES) (FROM SCHEDULE RC-M): ................................ 3190 20,125,897 16 17. Not applicable 18. Bank's liability on acceptances executed and outstanding .................................. 2920 276,403 18 19. Subordinated notes and debentures(2) ...................................................... 3200 3,851,152 19 20. Other liabilities (from Schedule RC-G) .................................................... 2930 6,982,395 20 21. Total liabilities (sum of items 13 through 20) ............................................ 2948 133,796,408 21 22. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES............................................. 3000 2,600 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ............................................. 3838 0 23 24. Common stock .............................................................................. 3230 200,858 24 25. Surplus (exclude all surplus related to preferred stock) .................................. 3839 5,493,189 25 26. a. Retained earnings ...................................................................... 3632 2,913,064 26.a b. ACCUMULATED OTHER COMPREHENSIVE INCOME(3) .............................................. B530 (112,964) 26.b 27. OTHER EQUITY CAPITAL COMPONENTS(4) ........................................................ A130 0 27 28. Total equity capital (sum of items 23 through 27) ......................................... 3210 8,494,147 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22 and 28) ..... 3300 142,293,155 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 RCFD Number auditors as of any date during 2000 ........................................................ 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank conducted with generally accepted auditing standards by a certified in accordance with generally accepted auditing public accounting firm which submits a report on the bank standards by a certified public accounting firm 2 = Independent audit of the bank's parent holding company (may be required by state chartering authority) conducted in accordance with generally accepted auditing 5 = Directors' examination of the bank performed by standards by a certified public accounting firm which other external auditors (may be required by state submits a report on the consolidated holding company (but chartering authority) not on the bank separately) 6 = Review of the bank's financial statements by 3 = ATTESTATION ON BANK MANAGEMENT'S ASSERTION ON THE external auditors EFFECTIVENESS OF THE BANK'S INTERNAL CONTROL OVER FINANCIAL 7 = Compilation of the bank's financial statements by REPORTING BY A CERTIFIED PUBLIC ACCOUNTING FIRM external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work
- --------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. (3) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (4) Includes treasury stock and unearned Employee Stock Ownership Plan shares. -----END PRIVACY-ENHANCED MESSAGE-----