Exhibit 4.8
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PREFERRED SECURITIES GUARANTEE AGREEMENT
SUNTRUST CAPITAL __
DATED AS OF _____________________
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION.................................................................1
SECTION 1.1 DEFINITIONS AND INTERPRETATION...................................................1
ARTICLE II TRUST INDENTURE ACT...........................................................................5
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.................................................5
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES...................................................6
SECTION 2.3 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE.......................................6
SECTION 2.4 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE..................................6
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.................................6
SECTION 2.6 EVENTS OF DEFAULT; WAIVER .......................................................6
SECTION 2.7 EVENT OF DEFAULT; NOTICE.........................................................7
SECTION 2.8 DISCLOSURE OF INFORMATION........................................................7
SECTION 2.9 CONFLICTING INTERESTS............................................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE.....................................7
SECTION 3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.............................7
SECTION 3.2 CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE....................................9
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF PREFERRED SECURITIES GUARANTEE.....11
ARTICLE IV PREFERRED GUARANTEE TRUSTEE..................................................................11
SECTION 4.1 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY........................................11
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE TRUSTEE.............12
ARTICLE V GUARANTEE.....................................................................................13
SECTION 5.1 GUARANTEE.......................................................................13
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.....................................................13
SECTION 5.3 OBLIGATIONS NOT AFFECTED........................................................13
SECTION 5.4 RIGHTS OF HOLDERS...............................................................14
SECTION 5.5 GUARANTEE OF PAYMENT............................................................15
SECTION 5.6 SUBROGATION.....................................................................15
SECTION 5.7 INDEPENDENT OBLIGATIONS.........................................................15
ARTICLE VI LIMITATION OF TRANSACTIONS, SUBORDINATION....................................................15
SECTION 6.1 LIMITATION OF TRANSACTIONS......................................................15
SECTION 6.2 SUBORDINATION...................................................................16
SECTION 6.3 PARI PASSU GUARANTEES...........................................................16
ARTICLE VII TERMINATION.................................................................................16
SECTION 7.1 TERMINATION.....................................................................16
ARTICLE VIII INDEMNIFICATION............................................................................17
SECTION 8.1 EXCULPATION.....................................................................17
SECTION 8.2 INDEMNIFICATION.................................................................17
SECTION 8.3 COMPENSATION AND REIMBURSEMENT..................................................17
ARTICLE IX MISCELLANEOUS................................................................................18
SECTION 9.1 SUCCESSORS AND ASSIGNS..........................................................18
SECTION 9.2 AMENDMENTS......................................................................18
SECTION 9.3 NOTICES.........................................................................18
SECTION 9.4 BENEFIT.........................................................................19
SECTION 9.5 GOVERNING LAW...................................................................19
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of _____________________, is executed and delivered by
SunTrust Banks, Inc., a Georgia corporation (the "Guarantor"), and Bank One,
N.A., as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of SunTrust Capital __, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of _____________________, among the trustees
of the Issuer named therein, the Guarantor, as sponsor, and the holders from
time to time of beneficial ownership interests in the assets of the Issuer, the
Issuer may issue up to $_______________ aggregate liquidation amount of its
_________________ preferred securities (the "Preferred Securities") representing
beneficial ownership interests in the assets of the Issuer and having the terms
set forth in Annex I to the Declaration, of which $_______________ aggregate
liquidation amount of the Preferred Securities are being issued on the date
hereof.
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1 or in the Declaration, as the case may be;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context otherwise
requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the following terms have the meaning given to them in this
Section 1.1(g):
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means a day other than (a) a day on which
banking institutions in New York, New York or Chicago, Illinois are authorized
or required by law or executive order to remain closed or (b) a day on which the
Institutional Trustee's Corporate Trust Office or the Corporate Trust Office of
the Debt Trustee is closed for business.
"Common Securities" means the securities representing common
beneficial ownership interests in the assets of the Issuer.
"Corporate Trust Office" means (i) when used with respect to
the Preferred Guarantee Trustee, the principal corporate trust office of an
Affiliate of the Preferred Guarantee Trustee located in New York, New York,
which on the date of this Preferred Securities Guarantee is ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust Administration, (ii)
when used with respect to the Debt Trustee, its Principal Corporate Trust Office
as defined in the Indenture, and (iii) when used with respect to the
Institutional Trustee, its Corporate Trust Office as defined in the Declaration.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
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"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the ____________________________________"
held by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the terms
of the Preferred Securities set forth in Annex I to the Declaration.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Preferred Securities, but if
and only to the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), but if and only to the extent the Issuer
has funds available therefor, with respect to any Preferred Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Preferred
Securities or the redemption of all the Preferred Securities upon the maturity
or redemption of the Debentures as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, but if and
only to the extent the Issuer shall have funds available therefor, and (b) the
amount of assets of the Issuer remaining available for distribution to Holders
in liquidation of the Issuer (in either case, the "Liquidation Distribution").
If an event of default under the Indenture has occurred and is continuing, the
rights of holders of the Common Securities to receive payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indebtedness" shall mean (i) every obligation of the
Guarantor for money borrowed; (ii) every obligation of the Guarantor evidenced
by bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Guarantor with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Guarantor; (iv) every obligation of the Guarantor issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Guarantor; (vi) every obligation of the
Guarantor for claims in respect of derivative products, including interest rate,
foreign exchange rate and
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commodity forward contracts, options and swaps and other similar arrangements;
and (vii) every obligation of the type referred to in clauses (i) through (vi)
of another Person and all dividends of another Person the payment of which, in
either case, the Guarantor has guaranteed or is responsible or liable for,
directly or indirectly, as obligor or otherwise.
"Indemnified Person" means the Preferred Guarantee Trustee,
any Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of November __, 2001,
among the Guarantor (the "Debenture Issuer") and Bank One, N.A., as trustee, and
any indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Institutional Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of
outstanding Preferred Securities, voting separately as a class, who are the
record owners of Preferred Securities representing more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in rendering the
Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Preferred Guarantee Trustee" means Bank One, N.A., until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, when used with respect to the
Preferred Guarantee Trustee, any officer assigned to the Corporate Trust Office
of the Preferred Guarantee Trustee, including any managing director, vice
president, assistant vice president, senior trust officer, trust officer,
assistant treasurer, assistant secretary or any other officer of the Preferred
Guarantee Trustee, customarily performing functions similar to those performed
by any of the above designated officers, and also, with respect to a particular
corporate trust matter, any other officer, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" shall mean the principal of, premium, if
any, and interest on, all Indebtedness, whether outstanding on the date of
execution of this Preferred Securities Guarantee or hereafter created, assumed
or incurred, except Indebtedness that by its terms is expressly stated to be not
superior in right of payment to the Debentures or to rank pari passu with the
Debentures, and any deferrals, renewals or extensions of such Senior
Indebtedness.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Common Securities and the
Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
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(c) The application of the Trust Indenture Act to this
Preferred Securities Guarantee shall not affect the nature of the Preferred
Securities as equity securities representing beneficial ownership interests in
the assets of the Issuer.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee
Trustee with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders"), (i) within 14 days after each record date for payment of
Distributions as of such record date, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Guarantee Trustee provided, that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year (commencing
_____________), the Preferred Guarantee Trustee shall provide to the Holders
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered on
or before 120 days after the end of each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver .
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The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice, provided, that,
the Preferred Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Preferred Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice thereof from the Guarantor or a Holder, or a
Responsible Officer of the Preferred Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge thereof.
SECTION 2.8 Disclosure of Information.
The disclosure of information as to the names of the Holders
of the Preferred Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was derived,
shall not be deemed to be a violation of any existing law, or any law hereafter
enacted that does not specifically refer to Section 312 of the Trust Indenture
Act, nor shall the Preferred Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 2.9 Conflicting Interests.
The Declaration shall be deemed to be specifically described
in this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee.
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(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders, and the Preferred
Guarantee Trustee shall not transfer its right, title and interest in this
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.4(c) hereof or to a Successor Preferred
Guarantee Trustee on acceptance by such Successor Preferred Guarantee Trustee of
its appointment to act as Successor Preferred Guarantee Trustee. The right,
title and interest of the Preferred Guarantee Trustee shall automatically vest
in any Successor Preferred Guarantee Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered in connection with the appointment of such Successor
Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) This Preferred Securities Guarantee and all moneys
received by the Preferred Guarantee Trustee hereunder in respect of the
Guarantee Payments will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Preferred
Guarantee Trustee or its agents or their creditors.
(e) The Preferred Guarantee Trustee shall not resign as a
Trustee unless a Successor Preferred Guarantee Trustee has been appointed and
accepted that appointment in accordance with Article IV.
(f) No provision of this Preferred Securities Guarantee shall
be construed to relieve the Preferred Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
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specifically set forth in this Preferred Securities Guarantee,
and no implied covenants or obligations shall be read into
this Preferred Securities Guarantee against the Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if
the Preferred Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Preferred Securities
Guarantee or indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against such risk or liability is not reasonably
assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by
an Officer's Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action here-under, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any court of
competent jurisdiction.
(v) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Preferred Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the Preferred
Guarantee Trustee, upon the occurrence of an Event of Default (that has
not been cured or waived), of its obligation to exercise the rights and
powers vested in it by this Preferred Securities Guarantee, and to use
the same degree of care and skill in this exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or
her own affairs.
(vi) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, nominee, custodian
or attorney appointed with due care by it hereunder.
(vii) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
Preferred Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such
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action. No third party shall be required to inquire as to the authority
of the Preferred Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action.
(viii) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee.
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Guarantee
Trustee does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange
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Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii),
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee Trustee
may resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Preferred Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after
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prescribing such notice, if any, as it may deem proper, appoint a Successor
Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on
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the Holders pursuant to the terms of the Preferred Securities, or any action on
the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders.
(a) The Issuer expressly acknowledges that (i) this Preferred
Securities Guarantee will be deposited with the Preferred Guarantee Trustee to
be held for the benefit of the Holders and (ii) the Preferred Guarantee Trustee
has the right to enforce this Preferred Securities Guarantee on behalf of the
Holders.
(b) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee, including the giving
of directions to the Preferred Guarantee Trustee, or direct the Preferred
Guarantee Trustee to exercise any trust or power conferred upon the Preferred
Guarantee Trustee under this Preferred Securities Guarantee; provided, however,
that, subject to Section 3.1, the Preferred Guarantee Trustee shall have the
right to decline to follow any such direction if the Preferred Guarantee Trustee
shall determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Preferred Guarantee Trustee
being advised by counsel determines that the action or proceeding so directed
may not lawfully be taken or if the Preferred Guarantee Trustee in good faith by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that the
action or proceeding so directed would involve the Preferred Guarantee Trustee
in personal liability.
(c) If the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Preferred Guarantee Trustee's
rights under this Preferred
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Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other person or entity.
SECTION 5.5 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Preferred Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if
there shall have occurred an Event of Default that has not been cured or waived,
then the Guarantor shall not and it shall not permit any subsidiary to, (i)
declare or pay any dividends or distributions on, or prepay, purchase, acquire
or make a liquidation payment with respect to, any shares of the Guarantor's
capital stock, (ii) make any payment of principal of, or interest or premium, if
any, on, or repay, repurchase or redeem any debt securities of the Guarantor
that rank pari passu in all respects with, or junior in right of payment to, the
Debentures or (iii) make any guarantee payment with respect to any guarantee by
the Guarantor of debt securities of any subsidiary of the Guarantor if such
guarantee ranks pari passu with, or junior in right of payment to, the
Debentures (other than (a) dividends,
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distributions, redemptions, purchases or acquisitions made by the Guarantor by
way of issuance of its capital stock (or options, warrants or other rights to
subscribe therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such shareholders' rights plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under this
Preferred Securities Guarantee or the Common Securities Guarantee, (d) the
purchase of fractional shares resulting from a reclassification of the Company's
capital stock, (e) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (f) purchases
of common stock related to the issuance of common stock or rights under any of
the Guarantor's benefit plans for its directors, officers or employees and (g)
obligations under any of the Guarantor's dividend reinvestment or stock purchase
plans).
SECTION 6.2 Subordination.
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all Senior Indebtedness and (ii) senior to all capital
stock now or hereafter issued by the Guarantor and to any guarantee now or
hereafter entered into by the Guarantor in respect of any of its capital stock.
SECTION 6.3 Pari Passu Guarantees.
The obligations of the Guarantor under this Preferred
Securities Guarantee shall rank pari passu with the obligations of the Guarantor
under any similar Preferred Securities Guarantee (as defined in the Indenture)
now or hereafter entered into by the Guarantor in respect of any other trust or
any other similar financing vehicle sponsored by the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Preferred Securities Guarantee shall terminate (i) upon
full payment of the Redemption Price of all Preferred Securities, (ii) upon
distribution of the Debentures to the Holders of the Preferred Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if, at any time, any Holder must restore payment
of any sum paid under the Preferred Securities or under this Preferred
Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The provisions
set forth in this Section 8.2 shall survive the termination of this Preferred
Securities Guarantee or the earlier resignation or removal of the Preferred
Guarantee Trustee.
SECTION 8.3 Compensation and Reimbursement.
The Guarantor agrees:
(1) to pay to the Preferred Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder in such
amounts as the Guarantor and the Preferred Guarantee Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(2) to reimburse the Preferred Guarantee Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Preferred
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Guarantee Trustee in accordance with any provision of this Preferred Securities
Guarantee (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith.
The obligations of the Guarantor under this Section 8.3 shall
survive the termination of this Preferred Securities Guarantee or the earlier
resignation or removal of the Preferred Guarantee Trustee.
To secure the Guarantor's payment obligations in this Section
and in Section 8.2, the Guarantor and the Holders agree that the Preferred
Guarantee Trustee shall have a lien prior to the Preferred Securities on all
money or property held for collection by the Preferred Guarantee Trustee. Such
lien shall survive the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Preferred Securities.
The provisions of the Declaration with respect to consents to amendments thereof
(whether at a meeting or otherwise) of Holders of the Securities shall apply to
the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, faxed or mailed by first class mail, as follows:
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(a) If given to the Preferred Guarantee Trustee, at the
Preferred Guarantee Trustee's mailing address set forth below (or such other
address as the Preferred Guarantee Trustee may give notice of to the Holders and
the Guarantor):
Bank One, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders and the Preferred Guarantee Trustee):
SunTrust Banks, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, faxed with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
SUNTRUST BANKS, INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
BANK ONE, N.A.,
as Preferred Guarantee Trustee
By:
---------------------------------
Name:
Title:
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