Exhibit 4.7
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COMMON 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 GUARANTEE.....................................................................................3
SECTION 2.1 GUARANTEE...........................................................................3
SECTION 2.2 WAIVER OF NOTICE AND DEMAND.........................................................4
SECTION 2.3 OBLIGATIONS NOT AFFECTED............................................................4
SECTION 2.4 RIGHTS OF HOLDERS...................................................................5
SECTION 2.5 GUARANTEE OF PAYMENT................................................................5
SECTION 2.6 SUBROGATION.........................................................................5
SECTION 2.7 INDEPENDENT OBLIGATIONS.............................................................5
ARTICLE III LIMITATION OF TRANSACTIONS, SUBORDINATION....................................................6
SECTION 3.1 LIMITATION OF TRANSACTIONS..........................................................6
SECTION 3.2 SUBORDINATION.......................................................................6
SECTION 3.3 PARI PASSU GUARANTEES...............................................................6
ARTICLE IV TERMINATION...................................................................................7
SECTION 4.1 TERMINATION.........................................................................7
ARTICLE V MISCELLANEOUS..................................................................................7
SECTION 5.1 SUCCESSORS AND ASSIGNS..............................................................7
SECTION 5.2 AMENDMENTS..........................................................................7
SECTION 5.3 NOTICES.............................................................................7
SECTION 5.4 BENEFIT.............................................................................8
SECTION 5.5 GOVERNING LAW.......................................................................8
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"),
dated as of __________________, is executed and delivered by SunTrust Banks,
Inc., a Georgia corporation (the "Guarantor"), for the benefit of the Holders
(as defined herein) from time to time of the Common Securities (as defined
herein) of SunTrust Capital __, a Delaware business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of __________________, among the Trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of beneficial ownership interests in the assets of the Issuer, the
Issuer may issue up to $_____________ aggregate liquidation amount of its
_____________ common securities (the "Common Securities") representing
beneficial ownership interests in the assets of the Issuer and having the terms
set forth in Annex I to the Declaration;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Preferred Securities Guarantee") in substantially
identical terms to this Common Securities Guarantee for the benefit of the
holders of the Preferred Securities (as defined herein), except that if an Event
of Default (as defined in the Indenture), has occurred and is continuing, the
rights of Holders of the Common Securities to receive Guarantee Payments under
this Common Securities Guarantee are subordinated to the rights of holders of
Preferred Securities to receive Guarantee Payments under the Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Common Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Common
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Common Securities Guarantee, unless the
context otherwise requires:
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(a) Capitalized terms used in this Common Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1 or in the Declaration, as the case may be;
(b) Terms defined in the Declaration as at the date
of execution of this Common Securities Guarantee have the same meaning when used
in this Common Securities Guarantee unless otherwise defined in this Common
Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities
Guarantee" or "this Common Securities Guarantee" are to this Common Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Common Securities
Guarantee to Articles and Sections are to Articles and Sections of this Common
Securities Guarantee unless otherwise specified;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the following terms have the meaning given to
them in this Section 1.1(g):
"Distributions" means the periodic distributions and other
payments payable to Holders of Common Securities in accordance with the terms of
the Common Securities set forth in Annex I to the Declaration.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Common Securities, but if and
only to the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), but if and only to the extent the Issuer
has funds available therefor, with respect to any Common Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Common Securities or
the redemption of all the Common Securities upon the maturity or redemption of
the Debentures as provided in the Declaration), the lesser of (a) the aggregate
of the liquidation amount and all accrued and unpaid Distributions on the Common
Securities to the date of payment, but if and only to the extent the Issuer has
funds available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default under the
Indenture has occurred and is continuing, the rights of Holders of the Common
Securities to receive Guarantee Payments under this Common Securities Guarantee
are subordinated to the
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rights of Holders of Preferred Securities to receive guarantee payments pursuant
to the Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Common Securities.
"Indebtedness" shall mean (i) every obligation of the
Guarantor for money borrowed; (ii) every obligation of the Guarantor evidenced
by bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Guarantor with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Guarantor; (iv) every obligation of the Guarantor issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Guarantor; (vi) every obligation of the
Guarantor for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
other similar arrangements; and (vii) every obligation of the type referred to
in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Guarantor has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Preferred Securities" means the securities representing
preferred beneficial ownership interests in the assets of the Issuer.
"Senior Indebtedness" shall mean the principal of, premium, if
any, and interest on, all Indebtedness, whether outstanding on the date of
execution of this Common Securities Guarantee or hereafter created, assumed or
incurred, except Indebtedness that by its terms is expressly stated to be not
superior in right of payment to the Debentures or to rank pari passu with the
Debentures, and any deferrals, renewals or extensions of such Senior
Indebtedness.
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
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SECTION 2.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 2.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Common Securities Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Common Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Common Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Debentures or any extension of the maturity date
of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Common
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in,
the Common Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 2.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
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There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4 Rights of Holders.
The Guarantor expressly acknowledges that any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Common Securities Guarantee, without first instituting a legal
proceeding against the Issuer or any other person or entity.
SECTION 2.5 Guarantee of Payment.
This Common Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 2.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Common Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Common Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this Common
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 2.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
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ARTICLE III
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 3.1 Limitation of Transactions.
So long as any Common Securities remain outstanding, if (i)
the Guarantor shall be in default with respect to its Guarantee Payments or
other obligations hereunder, or (ii) there shall have occurred an event of
default under the Indenture that has not been cured or waived, then the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
prepay, purchase, acquire or make a liquidation payment with respect to, any
shares of the Guarantor's capital stock, (ii) make any payment of principal of,
or interest or premium, if any, on, or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu in all respects with, or junior
in right of payment to, the Debentures or (iii) make any guarantee payment with
respect to any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor if such guarantee ranks pari passu with, or junior
in right of payment to, the Debentures (other than (a) dividends, distributions,
redemptions, purchases or acquisitions made by the Guarantor by way of issuance
of its capital stock (or options, warrants or other rights to subscribe
therefor), (b) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such shareholders' rights plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the Preferred
Securities Guarantee or Common Securities Guarantee, (d) the purchase of
fractional shares resulting from a reclassification of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (f) purchases of common
stock related to the issuance of common stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees and (g)
obligations under any of the Guarantor's dividend reinvestment or stock purchase
plans).
SECTION 3.2 Subordination.
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all Senior Indebtedness, and (ii) senior to all capital stock now or
hereafter issued by the Guarantor and to any guarantee now or hereafter entered
into by the Guarantor in respect of any of its capital stock.
SECTION 3.3 Pari Passu Guarantees.
The obligations of the Guarantor under this Common Securities
Guarantee shall rank pari passu with the obligations of the Guarantor under any
similar Common Securities Guarantee (as defined in the Indenture) now or
hereafter entered into by the Guarantor in respect of any other trust or similar
financing vehicle sponsored by the Guarantor.
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ARTICLE IV
TERMINATION
SECTION 4.1 Termination.
This Common Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Common Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Common Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Common Securities Guarantee will continue to be effective or will be reinstated,
as the case may be, if, at any time, any Holder must restore payment of any sum
paid under the Common Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns.
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2 Amendments.
Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Common Securities Guarantee may only be amended with the prior
approval of the Holders of at least a majority in liquidation amount of all the
outstanding Common Securities. The provisions of Section 12.2 of the Declaration
with respect to meetings of Holders of the Securities shall apply to the giving
of such approval.
SECTION 5.3 Notices.
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, faxed or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Regular
Trustee at the Issuer's mailing address set forth below (or such other address
as the Issuer may give notice of to the Holders):
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SunTrust Capital __
c/o SunTrust Banks, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
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):
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 5.4 Benefit.
This Common Securities Guarantee is solely for the benefit of
the Holders and is not separately transferable from the Common Securities.
SECTION 5.5 Governing Law.
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and
year first above written.
SUNTRUST BANKS, INC.
By:
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Name:
Title:
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