1
EXHIBIT 1.1
SunTrust Banks, Inc.
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
The statutory business trust organized under the Business
Trust Act (the "Delaware Act") of the State of Delaware and identified on
Schedule I hereto (the "Trust") and SunTrust Banks, Inc., a Georgia corporation
(the "Company" and, together with the Trust, the "Offerors"), confirm their
agreement with you and each of the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of the Trust's securities identified in Schedule I hereto
(the "Preferred Securities") to be issued under a declaration of trust
identified in Schedule I hereto (the "Declaration") among the Company, the
trustees named therein, including the institutional trustee identified in
Schedule I hereto (the "Institutional Trustee"), and the holders from time to
time of beneficial ownership interests in the assets of the Trust. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has agreed to guarantee irrevocably and
unconditionally the obligations of the Trust with respect to the Preferred
Securities (the "Preferred
2
Securities Guarantee") pursuant to a Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement") by and between the Company and
The First National Bank of Chicago, as trustee (the "Preferred Guarantee
Trustee") on behalf of the holders of Preferred Securities of the Trust. The
Company has also agreed to guarantee irrevocably and unconditionally the
obligations of the Trust with respect to the Common Securities (the "Common
Securities Guarantee") pursuant to a Common Securities Guarantee Agreement (the
"Common Securities Guarantee Agreement") to the same extent as the Preferred
Securities Guarantee except that upon an event of default under the Indenture,
the holders of Preferred Securities shall have priority over holders of Common
Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
The proceeds from the sale of the Preferred Securities to the
Underwriters together with the proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities" and, together with
the Preferred Securities, the "Trust Securities") will be used by the Trust to
purchase $# aggregate principal amount of the Company's subordinated debt
securities identified in Schedule I hereto (the "Debentures") to be issued by
the Company pursuant to an indenture identified in Schedule I hereto (the "Base
Indenture") between the Company and the trustee identified in Schedule I hereto
(the "Debt Trustee"), as amended by a supplemental indenture pertaining to the
Deben- tures to be purchased by the Trust and identified in Schedule I hereto
(the "Supplemental Indenture" and, together with the Base Indenture, the
"Indenture").
1. Representations and Warranties. The Offerors jointly
and severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Preferred Securities is a
Delayed Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable and, if the offering of the Preferred Securities
is a Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
2
3
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Preferred Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering
of the Preferred Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Preferred Securi- ties and the
offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective
Date. The Company will next file with the Commission pursuant
to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement
relating to the Preferred Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Preferred Securities
and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Offerors have advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration state-
3
4
ment (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Preferred Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Preferred Securities in
accordance with Rules 430A and 424(b)(l) or (4), or (y) prior
to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x),
the Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect
to the Preferred Securities and the offering thereof. As
filed, such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required
information, with respect to the Preferred Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Offerors have advised you, prior to the Execution Time, will
be included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as hereinafter
defined), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of
the Act, the Securi-
4
5
ties Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date each of the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture did or will comply in
all material respects with the requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act
of the Institutional Trustee, (ii) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the
Guarantee Trustee, (iii) that part of the Registration Statement which
shall consti- tute the Statement of Eligibility and Qualification
(Form T-l) under the Trust Indenture Act of the Debt Trustee or (iv)
the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that
5
6
the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the
date hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus
which describes the Preferred Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Preferred
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Preferred Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information
with respect to the Preferred Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incor-
6
7
porated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement, with the result
that only information required pursuant to Rule 415 need be included
in such registration statement at the effective date thereof with
respect to the securities so offered. Whether the offering of the
Preferred Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Trust agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at the purchase
price set forth in Schedule I hereto the principal amount of the Preferred
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Preferred Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Preferred Securities to be purchased by the Underwriters shall be
7
8
as set forth in Schedule II hereto less the respective amounts of Contract
Securities (as defined) determined as provided below. Preferred Securities to
be purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Preferred Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Preferred Securities from the Trust
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Offerors may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the principal amount of the
Preferred Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Offerors will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors but, except as the Offerors
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Preferred Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of Preferred
Securities set forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Offerors in writing; provided, however, that the
total principal amount of Preferred
8
9
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five business
days after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and the
Offerors or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer, or certified
or official bank check or checks drawn on or by a New York bank and payable in
such funds as are specified in Schedule I hereto. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Preferred Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
The Trust agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Agreements of the Offerors. The Offerors jointly and
severally agree with the several Underwriters that:
(a) The Offerors will use their best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
9
10
of the offering of the Preferred Securities, the Offerors will not
file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus unless the Offerors have furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Offerors will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Offerors will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Preferred Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by either of the Offerors of any notification with respect to the
suspension of the qualification of the Preferred Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Offerors will use their best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Preferred Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the
10
11
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Offerors promptly will (i) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make
generally available to the holders of the Preferred Securities and to
the Representatives an earnings statement or statements of the Company
and its subsidiaries that will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Offerors will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Offerors will arrange for the qualification of
the Preferred Securities for sale under the laws of such jurisdictions
as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities and will arrange for the determination of the
legality of the Preferred Securities for purchase by institutional
investors.
(f) Until the business day following the Closing Date,
the Offerors will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt
11
12
securities issued or guaranteed by the Company or the Trust (other
than the Preferred Securities, the Preferred Securities Guarantee and
the Debentures).
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Offerors contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Offerors made in any
certificates pursuant to the provisions hereof, to the performance by the
Offerors of their obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President - Legal of the Company, or of other counsel for the Company
satisfactory to the Representatives, dated the Closing Date, to the
effect that:
i) each of the Company, SunTrust Banks of Florida,
Inc., SunTrust Banks of Georgia, Inc., SunTrust Banks of
Tennessee, Inc., SunTrust Bank, Central Florida and SunTrust
Bank, Atlan-
12
13
ta (individually a "Subsidiary" and collectively the
"Subsidiaries"), has been duly incorporated or organized and
is validly existing as a corporation or banking association in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly quali- fied to
do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business; and the Company is duly registered
as a bank holding company under the Bank Holding Company Act
of 1956, as amended;
ii) each of the Declaration, the Preferred Securities
Guarantee Agreement, the Common Securities Guarantee
Agreement, the Base Indenture, the Supplemental Indenture, the
Debentures, this Agreement and any Delayed Delivery Contract
has been duly authorized by the Company;
iii) except as otherwise set forth in the Final
Prospectus, all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not ade-
13
14
quately disclosed in the Final Prospectus; and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, that is not
described or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements (or provisions
thereof) relating to the Company fairly summarize in all
material respects such proceedings, material contracts or
agreements (or provisions thereof);
v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Trust, of a character required to be
disclosed in the Registration Statement that is not adequately
disclosed in the Final Prospectus;
vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained or
incorporated therein and the Form T-1 Statements of
Eligibility and Qualification filed as exhibits to the
Registration Statement, as to which such counsel need express
no opinion) comply as to form in all material respects with
the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder;
14
15
vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated
herein or in any Delayed Delivery Contract, except such as
have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Preferred Securities by
the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
viii) the execution, delivery and performance by the
Company of this Agreement, any Delayed Delivery Contract, the
Declaration, the Preferred Securities Guarantee Agreement, the
Common Securities Guarantee Agreement, the Base Indenture and
the Supplemental Indenture, the consummation by the Company of
the transactions herein and therein contemplated and the
issuance and sale of the Debentures will not conflict with,
result in a breach or violation of, or constitute a default
under any law or the charter or by-laws of the Company or the
terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or
any of its subsidiaries is a party or bound or any judgment,
order or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
subsidiaries;
ix) to the knowledge of such counsel, no holder of
securities of the Company has rights to the registration of
such securities under the Registration Statement.
In addition, such counsel shall state that he has no reason to believe
that at the Effective Date the Registration Statement (other than the
financial statements and other financial and statistical information
contained or incorporated therein and the Form T-1 Statements of
Eligibility and Qualifi-
15
16
cation filed as exhibits to the Registration Statement, as to which
such counsel need express no belief) contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus (other than the financial
statements and other financial and statistical information contained
or incorporated therein and the Form T-1 Statements of Eligibility and
Qualification filed as exhibits to the Registration Statement, as to
which such counsel need express no belief) as of its date and as of
the Closing Date includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Georgia or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and the Trust and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Company shall have furnished to the
Representatives the opinion of King & Spalding, counsel for the
Company, dated the Closing Date, to the effect that:
i) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Preferred
Securities, Common Securities and Debentures conform in all
material respects to the respective descriptions thereof
contained in the Final Prospectus;
ii) the Declaration has been duly executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and
16
17
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iii) the Preferred Securities Guarantee Agreement has
been duly executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
iv) the Common Securities Guarantee Agreement has
been duly executed and delivered by the Company and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies);
v) the Base Indenture and Supplemental Indenture
have each been duly executed and delivered by the
Company, the Base Indenture has been duly qualified under the
Trust Indenture Act, and the Base Indenture and Supplemental
Indenture each constitute a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies); and the Debentures are in the form contemplated by
17
18
the Base Indenture and Supplemental Indenture and, when
executed and authenticated in accordance with the provisions
of the Base Indenture and Supplemental Indenture and delivered
to and paid for by the Trust, will constitute legal, valid and
binding obligations of the Company (subject, as to enforcement
of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies) entitled to the
benefits of the Base Indenture and Supplemental Indenture;
vi) this Agreement and any Delayed Delivery Contract
have been duly executed and delivered by the Company;
vii) the statements in the Final Prospectus under the
captions "Description of the Preferred Securities,"
"Description of the Preferred Securities Guarantee,"
"Description of the Debentures" and "ERISA Considerations,"
and in the Basic Prospectus under the captions "Description of
the Subordinated Debt Securities," "Description of the
Preferred Securities" and "Description of the Preferred
Securities Guarantees," in each case insofar as such
statements constitute summaries of the legal matters or
documents (or provisions thereof) referred to therein, fairly
present the information required to be described with respect
to such legal matters and documents (or provisions thereof)
and fairly summarize in all material respects such legal
matters and documents (or provisions thereof) required to be
so described;
viii) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
18
19
Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
In rendering such opinion, such counsel may rely (A) upon the
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President - Legal of the
Company, or of other counsel for the Offerors satisfactory to the
Representatives, (B) as to matters involving the application of laws,
other than the Delaware General Corporation Law and the laws of the
States of Georgia and New York and of the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (C) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Trust and public officials.
References to the Final Prospectus made in this paragraph (c) include
any supplements thereto at the Closing Date.
(d) The Offerors shall have furnished to the
Representatives the opinion of King & Spalding, special tax counsel
for the Company and the Trust, dated the Closing Date, to the effect
that:
i) the Trust will be classified as a grantor trust
and not as an association taxable as a corporation for United
States federal income tax purposes. As a result, each
beneficial owner of Preferred Securities (a "Securityholder")
will be required to include in its gross income its pro rata
share of the interest income, including original issue
discount, paid or accrued with respect to the Debentures,
whether or not cash is actually distributed to the
Securityholder;
ii) the Debentures will be treated as indebtedness of
the Company for United States federal income tax purposes; and
iii) the discussion contained in the Final Prospectus
under the caption "United States Federal Income Taxation"
constitutes, in all material respects, a fair and accurate
summary
19
20
of United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities
under current law.
(e) The Trust shall have furnished to the Representatives
the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
Delaware counsel for the Trust, dated the Closing Date, to the effect
that:
i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act; all filings required under the laws of the State
of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made;
ii) the Declaration has been duly qualified under the
Trust Indenture Act and constitutes a legal, valid and binding
instrument enforceable against the Regular Trustees in
accordance with its terms (subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies);
iii) under the Delaware Act and the Declaration, the
Trust has the power and authority to (A) execute and deliver,
and to perform its obligations under, this Agreement and any
Delayed Delivery Contract, (B) issue and sell the Preferred
Securities and the Common Securities and (C) conduct its
business as described in the Final Prospectus;
iv) the Preferred Securities have been duly
authorized for issuance by the Trust and are in the form
contemplated by the Declaration and, subject to the
qualifications set forth below, when certificates therefor in
the form examined by such counsel are issued, executed and
authenticated in accordance with the Declaration and delivered
and paid for in accordance with this Agreement and any Delayed
Delivery Contract, will be validly issued, fully paid
20
21
and nonassessable undivided beneficial ownership interests in
the assets of the Trust entitled to the benefits of the
Declaration; and the holders of the Preferred Securities will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. Such counsel may bring to the attention of the
Underwriters, however, that the Preferred Securities holders
may be obligated, pursuant to the Declaration, to (i) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred
Securities and the issuance of replacement Preferred
Securities, and (ii) provide security and indemnity in
connection with requests of or directions to the Property
Trustee (as defined) to exercise its rights and powers under
the Declaration. The issuance of the Preferred Securities is
not subject to preemptive or other similar rights under the
Delaware Act or the Declaration;
v) the Common Securities have been duly authorized
for issuance by the Trust and are in the form contemplated by
the Declaration and, subject to the qualifications set forth
below, when certificates therefor in the form examined by such
counsel are issued, delivered and paid for in accor- dance
with the Declaration, will be validly issued, fully paid and
nonassessable undivided beneficial ownership interests in the
assets of the Trust entitled to the benefits of the
Declaration; and the holders of the Common Securities will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Such counsel may bring to the attention of the Underwriters,
however, that the Common Securities holders may be obligated,
pursuant to the Declaration, to (i) provide indemnity and/or
security in connection with and pay taxes or governmental
charges arising from transfers of Common Securities and the
issuance of replacement Common Securities,
21
22
and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined)
to exercise its rights and powers under the Declaration. The
issuance of the Common Securities is not subject to preemptive
or other similar rights under the Delaware Act or the
Declaration;
vi) this Agreement and any Delayed Delivery Contract
have been duly authorized, executed and delivered by the
Trust;
vii) based on such counsel's review of Applicable
Laws, no Governmental Approval which has not been obtained or
taken and is not in full force and effect is required to
authorize or is required in connection with the execution or
delivery by the Trust of this Agreement or any Delayed
Delivery Contract or the performance by the Trust of the
transactions contemplated hereby and thereby. As used in this
paragraph and the following paragraph, (A) the term
"Applicable Laws" means only the Delaware Business Trust Act,
the General Corporation Law of the State of Delaware and those
laws, rules and regulations of the State of Delaware which, in
such counsel's experience, are ordinarily applicable to
transactions of the type contemplated by this Agreement and
any Delayed Delivery Contract (excluding (1) federal
securities laws and state securities or "blue sky" laws and
(2) any anti-fraud laws), but without such counsel having made
any special investigation with respect to any other laws,
rules or regulations; (B) the term "Governmental Approval"
means any consent, approval, license, authorization or
validation of, or filing, qualification or registration with,
any Governmental Authority pursuant to Applicable Laws; and
(C) the term "Governmental Authority" means any Delaware
legislative, judicial, administrative or regulatory body under
Applicable Laws;
viii) the execution, delivery and performance by the
Trust of this Agreement and any Delayed Delivery Contract, and
the issuance and sale of the Preferred Securities and the
Common
22
23
Securities by the Trust in accordance with the terms of this
Agreement and the consummation of the other transactions
contemplated hereby, will not (a) violate any Applicable Laws
or (b) conflict with the certificate of trust of the Trust or
the Declaration; and
ix) the Trust is not regulated or required to be
registered as an "investment company" under the Investment
Company Act of 1940, as amended.
(f) The Offerors shall have furnished to the
Representatives the opinion of Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
Delaware counsel for The First National Bank of Chicago, as
Institutional Trustee under the Declaration, Preferred Guarantee
Trustee under the Preferred Securities Guarantee Agreement and Debt
Trustee under the Indenture, and First Chicago Delaware Inc., as
Delaware Trustee under the Declaration, dated the Closing Date, with
respect to such matters as the Representatives may reasonably require.
(g) The Representatives shall have received from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 ▇▇▇▇-
▇▇
▇▇
ing Date, each to the effect that the signers of each such certificate
have carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
i) the representations and warranties of the
Company and the Trust, as the case may be, in this Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company and the Trust, as the case may be, has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the knowledge of
the Company and the Trust, as the case may be, threatened; and
iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries and of the
Trust, as the case may be, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(i) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
24
25
i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
ii) on the basis of a reading of the amounts
included or incorporated in the Registration Statement and the
Final Prospectus in response to Item 301 of Regulation S-K and
of the latest unaudited financial statements made available by
the Company and its subsidiaries; carrying out certain
specified procedures (but not an audit in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive
committee of the Company and its subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) the amounts in the "Selected
Historical Financial Data" included or incorporated
in the Registration Statement and the Final
Prospectus do not agree with the corresponding
amounts in the audited and unaudited financial
statements from which such amounts were derived;
(2) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited
25
26
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(3) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the shareholders' equity of the Company
and its subsidiaries as compared with the amounts
shown on the most recent consolidated balance sheet
included or incorporated in the Registration
Statement and the Final Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year (on a
consolidated basis), in net interest income; net
interest income after provision for loan losses or in
income before income taxes, or in the total or per
share amount of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(4) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and the
Final Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
26
27
iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12.1 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the Company's Quarterly Reports on Form 10- Q, incorporated in
the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
iv) if unaudited pro forma financial statements
are included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (i)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth in the introductory paragraph to this paragraph (i),
in subparagraphs (i) and (ii)(2) above and, to the extent referring to
infor-
27
28
mation contained in Exchange Act reports incorporated in the
Registration Statement and the Final Prospectus in subparagraphs
(ii)(l) and (iii) above.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (i) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries or of the
Trust the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representa- tives, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Preferred Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(m) The Trust shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Offerors.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
28
29
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Offerors in
writing or by telephone or fax confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the Underwriters, 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 Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Preferred Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in
29
30
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Offerors by or on behalf
of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, the Trust and each of
the Regular Trustees, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Offerors by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Offerors acknowledge that the statements set forth in the last two
paragraphs of the cover page, under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sales of Preferred
Securities pursuant to delayed delivery arrangements, in the last sentence
under the heading "Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent
30
31
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which
31
32
the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Offerors and by the Underwriters from the offering of the Preferred Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Preferred Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Offerors and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Offerors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Offerors or the Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement, each director of the Company and
each Regular Trustee of the Trust shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Preferred Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall
32
33
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Preferred
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Preferred Securities set forth opposite the names of all
the remaining Underwriters) the Preferred Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Preferred Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Preferred
Securities, and if such nondefaulting Underwriters do not purchase all the
Preferred Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Offerors. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Offerors and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of and payment for the Preferred Securities,
if prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by federal or Florida,
Georgia, Tennessee or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Preferred Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
33
34
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of the Trust or its Regular Trustees
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Offerors or any of the officers, directors,
trustees or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Preferred Securities. The provisions
of Sections 6 and 7 hereof shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or faxed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company or the Trust, will
be mailed, delivered or faxed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Treasurer.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
34
35
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof
whereupon this Letter and your acceptance shall represent a binding agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
SunTrust Capital *
by
-----------------------
Name:
Title:
SunTrust Banks, Inc.
by
-----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified below.
-------------------------------
by
-----------------------------
by
---------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
Date:
---------
35
36
SCHEDULE I
Underwriting Agreement: Underwriting Agreement dated
__________
Registration Statement: No. 333-25381, ▇▇▇-▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇-▇▇
Trust Issuing
Preferred Securities: SunTrust Capital Trust ______
Declaration Governing
Preferred Securities: Amended and Restated Declaration of
Trust of SunTrust Capital Trust
_____, dated as of __________, among
the Company, the trustees named
therein and the holders from time to
time of beneficial ownership
interests in the assets of SunTrust
Capital Trust _____
Institutional Trustee
under Declaration: The First National Bank of
Chicago
Preferred Securities Guarantee
Agreement Guaranteeing
Preferred Securities: Preferred Securities Guarantee
Agreement, dated as of __________,
between the Company and The First
National Bank of Chicago, as trustee
Guarantee Trustee Under
Preferred Securities
Guarantee Agreement: The First National Bank of Chicago
I-1
37
Base Indenture
Governing Debentures: Indenture, dated __________, between
the Company and The First National
Bank of Chicago, as trustee (the
"Debt Trustee")
Supplemental Indenture
Governing Debentures: __________ Supplemental Indenture,
dated __________, between the
Company and the Debt Trustee
Debt Trustee: The First National Bank of
Chicago
Representative(s): ----------------------
[address]
Title, Purchase Price
and Description of
Preferred Securities:
Title: Floating Rate Junior Subordi-
nated Deferrable Interest
Debentures, Series _____ due
----------
Principal amount: ----------
Purchase price (including
accrued interest or
amortization, if any): ----------
Sinking fund provisions:
-------------------------------------
Redemption provisions:
-------------------------------------
Other provisions:
-------------------------------------
Closing Date, Time and Location:
Closing Date: ----------
Time: ----------
Location:
-------------------------------------
I-2
38
Type of Offering:
-------------------------------------
Payment of Funds:
-------------------------------------
Delayed Delivery Arrangements:
Fee:
----------
Minimum principal amount
of each contract: $
---------
Maximum aggregate principal
amount of all contracts: $
---------
Modification of items to be
covered by the letter from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP delivered
pursuant to Section 5(i)
at the Execution Time: [No modification except that such
letter will be delivered at Closing
Time, not Execution Time.]
I-3
39
SCHEDULE II
Principal Amount of Preferred
Underwriters Securities to be Purchased
------------ -----------------------------
$
---------- ----------
-----------------------------
Total.......................... $
----------
II-1
40
SCHEDULE III
Delayed Delivery Contract
----------
[Insert name and address
of lead Representative(s)]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SunTrust
Capital _____ (the "Trust"), and the Trust agrees to sell to the undersigned,
on __________ (the "Delivery Date"), $__________ principal amount of the
Trust's Preferred Securities, Series _____ due __________ (the "Preferred
Securities") offered by the Trust's Prospectus dated __________, 1997 and
related Prospectus Supplement dated __________, _____ receipt of a copy of
which is hereby acknowledged, at a purchase price of _____% of the principal
amount thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from __________ to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Preferred Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City time, on the
Delivery Date to or upon the order of the Trust in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Trust and the undersigned, upon delivery to the undersigned of the
Preferred Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or fax communication addressed to the Trust not less than five full
business days prior to the Delivery Date. If no request is received, the
Preferred Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Preferred
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Preferred Securities on the Delivery Date, and the obligation of
the Trust to sell and deliver Preferred Securities on the Delivery Date, shall
be subject to the conditions (and neither
III-1
41
party shall incur any liability by reason of the failure thereof) that (l) the
purchase of Preferred Securities to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Trust, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Preferred Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters,
the Trust will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion(s) of counsel
for the Trust delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Preferred Securities, and the obligation of the Trust to cause the Preferred
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Preferred Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Trust's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Trust, it is required that the Trust sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Trust and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
III-2
42
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
----------------------------------
(Name of Purchaser)
by
--------------------------------
(Signature and Title of Officer)
----------------------------------
(Address)
Accepted:
SunTrust Capital
-----
by
----------------------------
Name:
Title:
SunTrust Banks, Inc.
by
----------------------------
Name:
Title:
III-3