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
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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
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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
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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
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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
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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
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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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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:
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(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.
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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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
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
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
