Exhibit 9
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as
of this 22nd day of September, 2004, between NATIONAL COMMERCE FINANCIAL
CORPORATION, a Tennessee corporation ("NCF"), and SUNTRUST BANKS, INC., a
Georgia corporation ("SunTrust").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, NCF and The Bank of New York, as Trustee are parties
to a Junior Subordinated Indenture, dated as of December 14, 2001, pursuant to
which NCF has issued $206,185,575 in aggregate principal amount of 7.70% junior
subordinated deferrable interest debentures due 2031 in order to evidence a loan
made to NCF of the proceeds from the issuance by National Commerce Capital Trust
II, a Delaware statutory business trust (the "Trust"), of an aggregate of
8,000,000 of 7.70% trust preferred securities (the "Preferred Securities") and
of an aggregate of 247,423 of Common Securities, representing preferred
undivided beneficial interests in the assets of the Trust;
WHEREAS, NCF has guaranteed payments of amounts due under the
Preferred Securities and Common Securities to the extent set forth in the
Guarantee Agreement dated as of December 14, 2001 between NCF and The Bank of
New York, as Guarantee Trustee (the "Guarantee Agreement");
WHEREAS, pursuant to the Agreement and Plan of Merger, dated
May 7, 2004, by and between SunTrust and NCF (the "Merger Agreement"), NCF will
merge with and into SunTrust (the "Merger") and SunTrust will be the surviving
entity;
WHEREAS, Section 8.1 of the Guarantee Agreement allows NCF to
assign all of its right, title and interest in and to the Guarantee Agreement;
WHEREAS, NCF desires to assign, transfer and deliver to
SunTrust, all right, title and interest to the Guarantee Agreement, and SunTrust
desires to assume all of NCF's liabilities and obligations under and pursuant to
the Guarantee Agreement; and
WHEREAS, in connection with the Merger, at the effective time
of the Merger, SunTrust will assume all of NCF's obligations in connection with
the Guarantee Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, NCF and
SunTrust mutually covenant and agree as follows:
ARTICLE 1
ASSIGNMENT AND ASSUMPTION OF OBLIGATIONS
Section 1.01 Assignment. Effective as of the Effective Time (as defined in
the Merger Agreement) of the Merger, NCF does hereby assign, transfer and
deliver to SunTrust all right, title and interest in the Guarantee Agreement.
Section 1.02 Assumption. Effective as of the Effective Time (as defined in
the Merger Agreement) of the Merger, SunTrust, as the successor to NCF under the
terms of the Merger Agreement, hereby expressly agrees to perform NCF's
obligations under the Guarantee Agreement.
ARTICLE 2
MISCELLANEOUS
Section 2.01 Definitions. Capitalized terms used in this Assignment and not
otherwise defined herein shall have the respective meanings set forth in the
Guarantee Agreement.
2
Section 2.02 Counterparts. The parties may sign any number of copies of
this Assignment. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 2.03 Headings. The Section headings are for convenience only and
shall not affect the construction hereof.
Section 2.04 Effectiveness. This Assignment shall become effective and
operative immediately, without any further action required by the parties hereto
upon consummation of the Merger notwithstanding the earlier dated execution and
delivery of this Assignment; provided that, if such Merger does not occur on or
before October 31, 2004, this Assignment shall terminate and be void and of no
effect.
Section 2.05 GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed as of the date first above written.
NATIONAL COMMERCE FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President and Chief Financial Officer
SUNTRUST BANKS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
Acknowledged as of this
22nd day of September, 2004:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇▇▇▇ , AS GUARANTEE TRUSTEE
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
[ASSIGNMENT AND ASSUMPTION AGREEMENT -
GUARANTEE AGREEMENT, DATED DECEMBER 14, 2001]