-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LMnmjl8YGUjpAFmtDxKhWttllAwRvyNRJ0UAp3fbGbuq6hhVYA16VCzuZxGImmxk 747OPb3ANfcQPAWlqy5wMg== 0000950144-97-005486.txt : 19970513 0000950144-97-005486.hdr.sgml : 19970513 ACCESSION NUMBER: 0000950144-97-005486 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970512 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970512 SROS: BSE SROS: NYSE SROS: PHLX FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST BANKS INC CENTRAL INDEX KEY: 0000750556 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 581575035 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08918 FILM NUMBER: 97601031 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE STREET NE CITY: ATLANTA STATE: GA ZIP: 30308 BUSINESS PHONE: 4045887711 MAIL ADDRESS: STREET 1: 303 PEACHTREE STREET NE CITY: ATLANTA STATE: GA ZIP: 30308 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST CAPITAL I CENTRAL INDEX KEY: 0001037959 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-25381-01 FILM NUMBER: 97601032 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N.E.. CITY: ATLANTA STATE: GA ZIP: 30308 MAIL ADDRESS: STREET 1: 303 PEACHTREE ST N.E. CITY: ATLANTA STATE: GA ZIP: 30308 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST CAPITAL II CENTRAL INDEX KEY: 0001037960 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-25381-02 FILM NUMBER: 97601054 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N.E.. CITY: ATLANTA STATE: GA ZIP: 30308 MAIL ADDRESS: STREET 1: 303 PEACHTREE ST N.E. CITY: ATLANTA STATE: GA ZIP: 30308 8-K 1 SUNTRUST BANKS, INC. FORM 8-K 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MAY 12, 1997 SunTrust Banks, Inc. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Georgia 001-08918 58-1575035 - ------------------------ ------------------------ ------------------- (State of incorporation) (Commission File Number) (IRS Employer Identification No.) 303 Peachtree Street, N.E. 30308 Atlanta, Georgia ---------- - ---------------------------------------- (Zip Code) (Address of principal executive offices) Registrant's telephone number, including area code: 404-588-7711 SunTrust Capital I SunTrust Capital II ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware N/A To be applied for - ------------------------ ------------------------ ------------------- (State of incorporation) (Commission File Number) (IRS Employer Identification No.) 303 Peachtree Street, N.E. 30308 Atlanta, Georgia ---------- - ---------------------------------------- (Zip Code) (Address of principal executive offices) Registrant's telephone number, including area code: 404-588-7711 ================================================================================ 1 2 ITEM 5. OTHER EVENTS. SunTrust Banks, Inc. (the "Company"), SunTrust Capital I and SunTrust Capital II (the "Trusts" and, together with the Company, the "Registrants") are filing this Current Report on Form 8-K so as to file with the Securities and Exchange Commission certain items that are to be incorporated by reference into their Registration Statement on Form S-3 (Registration Nos. 333-25381, 333-25381-01 and 333-25381-02). ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) EXHIBITS
Exhibit No. Description - ------- ----------- 1.1 -- Form of Underwriting Agreement. 4.9 -- Form of Supplemental Indenture to be used in connection with the issuance by the Company of Subordinated Debentures. 8.1 -- Form of Tax Opinion of King & Spalding.
- 2 - 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrants have duly caused this Current Report on Form 8-K to be signed on their behalf by the undersigned, hereunto duly authorized. Date: May 12, 1997 SUNTRUST BANKS, INC. By: /s/ Raymond D. Fortin ------------------------------- Raymond D. Fortin Senior Vice President Date: May 12, 1997 SUNTRUST CAPITAL I By: /s/ Raymond D. Fortin ------------------------------- Raymond D. Fortin Trustee Date: May 12, 1997 SUNTRUST CAPITAL II By: /s/ Raymond D. Fortin ------------------------------- Raymond D. Fortin Trustee - 3 - 4 EXHIBIT INDEX
Exhibit Sequentially No. Exhibit Numbered Page - ------- ------- ------------- 1.1 -- Form of Underwriting Agreement 4.9 -- Form of Supplemental Indenture to be used in connection with the issuance by the Company of Subordinated Debentures 8.1 -- Form of Tax Opinion of King & Spalding
- 4 - EX-1.1 2 UNDERWRITING AGREEMENT 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 Raymond D. Fortin, 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 Raymond D. Fortin, 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, Meagher & Flom 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, Hamilton & Scheetz, 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, Meagher & Flom 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 Clos- 23 24 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, Arthur Andersen 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, Arthur Andersen 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, Meagher & Flom LLP, counsel for the Underwriters, at 919 Third Avenue, New York, New York 10022, 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 303 Peachtree Street, N.E., Atlanta, Georgia 30308, 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, 333-25381-01 and 333-25381-02 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 Arthur Andersen 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 EX-4.9 3 SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.9 ================================== FIRST SUPPLEMENTAL INDENTURE between SUNTRUST BANKS, INC. and THE FIRST NATIONAL BANK OF CHICAGO Dated as of __________, 1997 ================================== 2 TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.4. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARTICLE III REDEMPTION OF THE DEBENTURES SECTION 3.1. Tax Event or Capital Treatment Event Redemption . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE V EXPENSES SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 5.2. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE VI FORM OF DEBENTURE SECTION 6.1. Form of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE VII ORIGINAL ISSUE OF DEBENTURES SECTION 7.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VIII COVENANTS SECTION 8.1. Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 8.2. Covenants as to the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Page ---- ARTICLE IX MISCELLANEOUS SECTION 9.1. Ratification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 9.2. Acknowledgement of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 9.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders . . . . . . . . . . 16 SECTION 9.4. Debt Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 9.6. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 9.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ii 4 FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1997 (the "First Supplemental Indenture"), between SunTrust Banks, Inc., a Georgia corporation (the "Company"), and The First National Bank of Chicago, as trustee (the "Debt Trustee"), under the Indenture dated as of __________, 1997 between the Company and the Debt Trustee (the "Indenture"). WHEREAS, the Company executed and delivered the Indenture to the Debt Trustee to provide for the future issuance of the Company's unsecured subordinated debt securities to be issued from time to time in one or more series as might be determined by the Company under the Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture; WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Debt Securities to be known as its Floating Rate Junior Subordinated Deferrable Interest Debentures, Series A, due __________, 20__ (the "Debentures"), the form and substance of such Debentures and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this First Supplemental Indenture; WHEREAS, SunTrust Capital I, a Delaware statutory business trust (the "Trust"), has offered to the public $__________ aggregate liquidation amount of its Floating Rate Preferred Securities, Series A (the "Preferred Securities"), representing beneficial ownership interests in the assets of the Trust, and proposes to invest the proceeds from such offering, together with the proceeds of the issuance and sale by the Trust to the Company of $__________ aggregate liquidation amount of its Common Securities; and WHEREAS, the Company has requested that the Debt Trustee execute and deliver this First Supplemental Indenture pursuant to Sections 2.03 and 9.01 of the Indenture and all requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms, and to make the Debentures, when executed by the Company and authenticated and delivered by the Debt Trustee, the valid and binding obligations of the Company, have been performed, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects: NOW THEREFORE, in consideration of the purchase of the Debentures by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Debentures and the additional terms, provisions and conditions thereof, the Company covenants and agrees with the Debt Trustee as follows: 5 ARTICLE I DEFINITIONS SECTION 1.1 Definition of Terms. Unless the context otherwise requires: (a) a term defined in the Indenture has the same meaning when used in this First Supplemental Indenture; (b) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout; (c) the singular includes the plural and vice versa; (d) a reference to a Section or Article is to a Section or Article of this First Supplemental Indenture; (e) headings are for convenience of reference only and do not affect interpretation; (f) the following terms have the meanings given to them in the Declaration: Business Day; Clearing Agency; Common Securities; Delaware Trustee; Direct Action; Distribution; Institutional Trustee Account; Preferred Securities; Preferred Securities Guarantee; Preferred Security Certificate; Regular Trustees; and Underwriting Agreement; (g) the following terms have the meanings given to them in this Section 1.1(g): "3-Month LIBOR" shall have the meaning set forth in Section 2.5(b). "90 Day Period" shall have the meaning set forth in Section 2.5(f). "Additional Sums" shall have the meaning set forth in Section 2.5(f). "Calculation Agent" shall have the meaning set forth in Section 2.5(b). "Capital Treatment Event" means the reasonable determination by the Company that, as a result of the occurrence of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision thereof or therein, or as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement, action or decision is announced on or after the 2 6 date of issuance of the Preferred Securities under the Declaration, there is more than an insubstantial risk that the Company will not be entitled to treat an amount equal to the liquidation amount of the Preferred Securities as "Tier I Capital" (or the then equivalent thereof) for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the Company. "Compounded Interest" shall have the meaning set forth in Section 4.1. "Debentures" shall have the meaning set forth in the preamble of this First Supplemental Indenture. "Declaration" means the Amended and Restated Declaration of Trust of the Trust, dated as of __________, 1997, as amended from time to time. "Deferred Interest" shall have the meaning set forth in Section 4.1. "Depositary", with respect to the Debentures, means The Depository Trust Company or such other successor Clearing Agency for the Preferred Securities. "Determination Date" shall have the meaning set forth in Section 2.5(b)(i). "Dissolution Event" means the liquidation of the Trust pursuant to the Declaration and the distribution of the Debentures held by the Institutional Trustee to the holders of the Trust Securities issued by the Trust pro rata in accordance with the Declaration. "Extension Period" shall have the meaning set forth in Section 4.1. "Global Debenture" shall have the meaning set forth in Section 2.4(a)(i). "Index Maturity" shall have the meaning set forth in Section 2.5(b)(i). "Interest Payment Date" shall have the meaning set forth in Section 2.5(e). "Interest Period" shall have the meaning set forth in Section 2.5(b). "Interest Rate" shall have the meaning set forth in Section 2.5(b). 3 7 "Like Amount" means (i) with respect to a redemption of the Trust Securities, Trust Securities having a liquidation amount equal to the principal amount of Debentures to be paid in accordance with their terms and (ii) with respect to a distribution of Debentures upon the liquidation of the Trust, Debentures having a principal amount equal to the liquidation amount of the Trust Securities of the holder thereof to whom Debentures are distributed. "Market Day" shall have the meaning set forth in Section 2.5 (b). "Maturity Date" shall mean __________, 20__. "Non Book-Entry Preferred Securities" shall have the meaning set forth in Section 2.4(a)(ii). "Other Guarantees" means all guarantees issued or to be issued by the Company with respect to capital securities (if any) and issued to other trusts to be established by the Company (if any), in each case similar to the Trust. "Redemption Price" shall mean, with respect to any redemption of the Debentures pursuant to Article III hereof, an amount in cash equal to 100% of the principal amount to be redeemed plus any accrued and unpaid interest thereon, including Compounded Interest and Additional Sums, if any, to the date of such redemption. "Reference Banks" shall have the meaning set forth in Section 2.5(b)(ii). "Reuters Screen LIBO Page" shall have the meaning set forth in Section 2.5(b)(ii). "Securities Registrar" shall have the meaning set forth in Section 2.3. "Tax Event" means the receipt by the Trust of an opinion of counsel to the Company experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of issuance of the Preferred Securities under the Declaration, there is more than an insubstantial risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on 4 8 the Debentures, (ii) interest payable by the Company on the Debentures is not, or within 90 days of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes or (iii) the Trust is, or will be within 90 days of the date of the opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Telerate Page 3750" shall have the meaning set forth in Section 2.5(b)(i). "Trust" shall have the meaning set forth in the preamble of this First Supplemental Indenture. "Trust Securities" shall mean the Preferred Securities and the Common Securities, collectively. ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES SECTION 2.1 Designation and Principal Amount. There is hereby authorized a series of Debt Securities designated the "Floating Rate Junior Subordinated Deferrable Interest Debentures, Series A, due __________, 20__", limited in aggregate principal amount to $__________, which amount shall be as set forth in any written order of the Company for the authentication and delivery of Debentures pursuant to Section 2.05 of the Indenture. SECTION 2.2 Maturity. The Maturity Date (which shall constitute the Stated Maturity of the Debentures for purposes of the Indenture) shall be the date on which the Debentures mature and on which the principal thereof shall be due and payable together with all accrued and unpaid interest thereon (including Compounded Interest and Additional Sums, if any). SECTION 2.3 Form and Payment. Except as provided in Section 2.4, the Debentures shall be issued in fully registered certificated form without interest coupons. Principal of, premium, if any, and interest on (including Compounded Interest and Additional Sums, if any) the Debentures issued in certificated form will be payable, the transfer of such Debentures will be registrable and such Debentures will be exchangeable for Debentures bearing identical terms and provisions at the office or agency of the Company maintained for such purpose as set forth in the Indenture; provided, however, that payment of interest with respect to Debentures (other than a 5 9 Global Debenture) may be made at the option of the Company (i) by check mailed to the Holder at such address as shall appear in the Security Register or (ii) by transfer to an account maintained by the Person entitled thereto, provided that proper transfer instructions have been received in writing by the relevant record date. The Company selects each of New York, New York and Chicago, Illinois as a place of payment where the principal of (and premium, if any) and interest on the Debentures are payable as specified in accordance herewith, and hereby appoints The First National Bank of Chicago, the Debt Trustee, as registrar for the Debentures (the "Security Registrar"). Notwithstanding the foregoing, so long as the Holder of any Debentures is the Institutional Trustee, the payment of the principal of, premium, if any, and interest (including Compounded Interest and Additional Sums, if any) on such Debentures held by the Institutional Trustee will be made at such place and to such account as may be designated by the Institutional Trustee. SECTION 2.4 Global Debenture. (a) In connection with a Dissolution Event, (i) the Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee in exchange for a global Debenture in an aggregate principal amount equal to the aggregate principal amount of all outstanding Debentures (a "Global Debenture"), to be registered in the name of the Depositary, or its nominee, and delivered by the Debt Trustee to or upon the order of the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Regular Trustees. The Company upon any such presentation shall execute a Global Debenture in such aggregate principal amount and deliver the same to the Debt Trustee for authentication and delivery in accordance with the Indenture. Payments on the Debentures issued as a Global Debenture will be made to the Depositary; and (ii) if any Preferred Securities are held in non book-entry certificated form, the Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee and any Preferred Security Certificate which represents Preferred Securities other than Preferred Securities held by the Clearing Agency or its nominee ("Non Book-Entry Preferred Securities") will be deemed to represent beneficial interests in Debentures presented to the Debt Trustee by the Institutional Trustee having an aggregate principal amount equal to the aggregate liquidation amount of the Non Book-Entry Preferred Securities until such Preferred Security Certificates are presented to the Security Registrar for transfer or reissuance at which time such Preferred Security Certificates will be cancelled and a Debenture, registered in the name of the holder of the 6 10 Preferred Security Certificate or the transferee of the holder of such Preferred Security Certificate, as the case may be, with an aggregate principal amount equal to the aggregate liquidation amount of the Preferred Security Certificate cancelled, will be executed by the Company and delivered to the Debt Trustee for authentication and delivery in accordance with the Indenture. Upon the issuance of such Debentures, Debentures with an equivalent aggregate principal amount that were presented by the Institutional Trustee to the Debt Trustee will be deemed to have been cancelled. (b) A Global Debenture may be transferred, in whole but not in part, only to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary. SECTION 2.5 Interest. (a) Each Debenture will bear interest at the Interest Rate (as defined below) from __________, 1997 until the principal thereof becomes due and payable, and on any overdue principal at the Interest Rate and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the Interest Rate, compounded quarterly, payable (subject to the provisions of Article IV) quarterly in arrears on the first day of __________, __________, __________ and ___________ of each year commencing on __________ 1, 1997, to the Person in whose name such Debenture or any predecessor Debenture is registered, at the close of business on the regular record date for such interest installment, which, in respect of any Debentures of which the Institutional Trustee is the Holder or in the case of a Global Debenture, shall be the close of business on the Business Day next preceding that Interest Payment Date (as defined below). Notwithstanding the foregoing sentence, if the Debentures are no longer in book-entry only form, except if the Debentures are held by the Institutional Trustee, the record dates shall be the __________ 15, __________ 15, __________ 15 and __________ 15 prior to the applicable Interest Payment Date. (b) The interest rate in respect of the Debentures applicable during an Interest Period will be the sum of (i) a floating rate per annum determined by reference to 3-Month LIBOR, determined as described below, plus (ii) a margin of __________% (such sum, the "Interest Rate"). "3-Month LIBOR" means the London, England interbank offered rate for three month U.S. dollar deposits and with respect to any Interest Period will be calculated by The First National Bank of Chicago, as calculation agent (the "Calculation Agent"), as follows: 7 11 (i) On the second Market Day (as defined below) preceding the commencement of such Interest Period (each, a "Determination Date"), 3-Month LIBOR will be determined on the basis of the offered rate for deposits of not less than U.S. $1,000,000 for a period of three months (the "Index Maturity"), commencing on the second Market Day immediately preceding the commencement of such Interest Period, which appears on the display designated as Page 3750 on the Dow Jones Telerate Service (or such other pages as may replace Page 3750 on that service for the purpose of displaying London, England interbank offered rates of major banks) ("Telerate Page 3750") as of 11:00 a.m., London, England time on said Determination Date. If no such offered rate appears, 3-Month LIBOR with respect to such Interest Period will be determined as described in (ii) below. (ii) With respect to a Determination Date on which no such offered rate appears on Telerate Page 3750 as described in (i) above, 3-Month LIBOR shall be the arithmetic mean, expressed as a percentage, of the offered rates (unless by its terms such display provides for only a single rate, in which case a single rate shall be used) for deposits in U.S. dollars for the Index Maturity that appears on the display designated as "LIBO" on the Reuters Monitor Money Market Rates Service (or such other page as may replace the LIBO page on that service for the purpose of displaying London, England interbank offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00 a.m., London, England time, on such date. If, in turn, at least two such rates are not displayed on the Reuters Screen LIBO Page at such time (unless, as aforesaid, only a single rate is required), the Calculation Agent will obtain from each of four reference banks in London, England selected by the Calculation Agent ("Reference Banks") such bank's offered quotation (expressed as a percentage per annum) as of approximately 11:00 a.m., London, England time, on such date for deposits in U.S. dollars to prime banks in the London, England interbank market for the Index Maturity. If two or more such quotations are provided as requested, then 3-Month LIBOR for such date shall be the arithmetic average of such quotations. If, in turn, fewer than two such quotations are provided as requested, then 3-Month LIBOR for such date will be obtained from the preceding Market Day for which the Reuters Screen LIBO Page displayed a rate for the Index Maturity. (iii) If on any Determination Date, the Calculation Agent is required but unable to determine 3-Month LIBOR in the manner provided in paragraphs (a) and (b) above, 3-Month LIBOR for such Interest Period shall be 3-Month LIBOR as determined on the previous Determination Date. 8 12 The term "Market Day" means any Business Day on which commercial banks and foreign exchange markets are open for business (including dealings in foreign exchange and foreign currency deposits) in New York, New York and London, England. The term "Interest Period" means each period beginning on, and including, May __, 1997, and ending on, but excluding, the first Interest Payment Date, and each successive period beginning on, and including, an Interest Payment Date and ending on, but excluding, the next succeeding Interest Payment Date. The Interest Rate for any Interest Period will at no time be higher than the maximum rate then permitted by New York law as the same may be modified by United States law. All percentages resulting from any calculations referred to in this First Supplemental Indenture will be rounded, if necessary, to the nearest multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent or more being rounded upwards). (c) The Calculation Agent shall, as soon as practicable after 11:00 a.m., London, England time, on each Determination Date, determine the Interest Rate and inform the Debt Trustee and the Paying Agent and, if any Debentures are held by the Institutional Trustee, the Institutional Trustee. Unless otherwise provided by the Debt Trustee, the Paying Agent will calculate the amount of interest payable on the Debentures in respect of the following Interest Period. The amount of interest payable for any Interest Period will be computed on the basis of the actual number of days in the applicable Interest Period divided by 360 and rounding the resulting figure to the nearest cent (with one-half cent or more being rounded upwards). The determination of the Interest Rate by the Calculation Agent and the amount of interest payable by Paying Agent will (in the absence of wilful default, bad faith or manifest error) be final, conclusive and binding on all concerned. None of the Debt Trustee, the Paying Agent, the Calculation Agent, the Trust or the Company (or any of their respective officers, directors, agents, beneficiaries, employees or affiliates) shall have any liability to any person for (i) the selection of any Reference Bank or (ii) any inability to retain major banks in the London, England interbank market, in the case of the Calculation Agent, which is caused by circumstances beyond its reasonable control. (d) All certificates, communications, opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained for the purposes of the provisions relating to the payment and calculation of interest on the Debentures, whether by the Reference Banks (or any of them) or the Calculation Agent, Debt Trustee or Paying Agent, will (in the absence of wilful default, bad faith or manifest error) be binding on the Trust, the Company, the Debt Trustee and all of the holders of the Debentures, and no liability will (in the 9 13 absence of wilful default, bad faith or manifest error) attach to the Calculation Agent, Debt Trustee or Paying Agent in connection with the exercise or non-exercise by any of them of their powers, duties and discretion. (e) In the event that any date on which interest is payable on the Debentures is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which interest is actually payable, an "Interest Payment Date"). (f) If a Tax Event has occurred and is continuing while the Institutional Trustee is the Holder of any Debentures, and the Trust or the Institutional Trustee is required to pay any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States, or any other taxing authority, then, in any case, the Company will pay such additional sums ("Additional Sums") on the Debentures held by the Institutional Trustee, as shall be required so that the net amounts received and retained by the Trust and the Institutional Trustee after paying such taxes, duties, assessments or other governmental charges will be equal to the amounts the Trust and the Institutional Trustee would have received had the Trust and the Institutional Trustee not been subject to such taxes, duties, assessments or other government charges as a result of such Tax Event. Additional Sums shall be treated as interest for all purposes under the Indenture. ARTICLE III REDEMPTION OF THE DEBENTURES SECTION 3.1 Tax Event or Capital Treatment Event Redemption. If a Tax Event or a Capital Treatment Event has occurred and is continuing then, notwithstanding Section 3.2(a) but subject to Section 3.2(c), the Company shall have the right upon not less than 30 days nor more than 60 days notice to the Holders to redeem the Debentures, in whole, but not in part, for cash within 90 days following the occurrence of such Tax Event or Capital Treatment Event (or, if the approval of the Federal Reserve Board is then required for such redemption, on such later date as promptly practicable after such approval is obtained) (the "90 Day Period"), at the Redemption Price. 10 14 SECTION 3.2 Optional Redemption by Company. (a) Subject to the provisions of Section 3.2(b), except as otherwise may be specified in this First Supplemental Indenture or the Indenture, the Company shall have the right to redeem the Debentures, in whole or in part, from time to time, on or after __________, _____, at the Redemption Price. If the Debentures are only partially redeemed pursuant to this Section 3.2, the Debentures will be redeemed pro rata or by lot or by any other method utilized by the Security Registrar; provided, that if at the time of redemption the Debentures are registered as a Global Debenture, the Depositary shall determine, in accordance with its procedures, the principal amount of such Debentures beneficially held by each Holder of Debentures to be redeemed. (b) If a partial redemption of the Debentures would result in the delisting of the Preferred Securities issued by the Trust from any national securities exchange or interdealer quotation system or other organization on which the Preferred Securities are then listed, the Company shall not be permitted to effect such partial redemption and may only redeem the Debentures in whole. (c) Any redemption of Debentures pursuant to Section 3.1 or Section 3.2 shall be subject to the Company obtaining the prior approval of the Federal Reserve, if such approval is then required under applicable law, rules, guidelines or policies of the Federal Reserve. SECTION 3.3 No Sinking Fund. The Debentures are not entitled to the benefit of any sinking fund. ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD SECTION 4.1 Extension of Interest Payment Period. So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time and from time to time during the term of the Debentures, to defer payments of interest by extending the interest payment period of such Debentures for a period not exceeding 20 consecutive quarterly periods (the "Extension Period"), during which Extension Period no interest shall be due and payable; provided that no Extension Period shall end on a date other than an Interest Payment Date or extend beyond the Maturity Date. To the extent permitted by applicable law, interest, the payment of which has been deferred because of the extension of the interest payment period pursuant to this Section 4.1, will bear interest thereon 11 15 at the interest rate then in effect compounded quarterly for each quarterly period of the Extension Period ("Compounded Interest"). At the end of the Extension Period, the Company shall pay all interest accrued and unpaid on the Debentures, including any Additional Sums and Compounded Interest (together, "Deferred Interest") that shall be payable to the Holders in whose names the Debentures are registered in the Security Register on the record date relating to the Interest Payment Date on which the Extension Period ends. Before the termination of any Extension Period, the Company may further defer payments of interest by further extending such period, provided that such period, together with all such previous and further extensions within such Extension Period, shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity Date of the Debentures. Upon the termination of any Extension Period and the payment of all Deferred Interest then due, the Company may commence a new Extension Period, subject to the foregoing requirements. No interest shall be due and payable during an Extension Period, except at the end thereof. Compounded Interest shall be treated as interest for all purposes under the Indenture. SECTION 4.2 Notice of Extension. (a) If the Institutional Trustee is the only registered Holder at the time the Company selects an Extension Period, the Company shall give written notice to the Regular Trustees, the Institutional Trustee and the Debt Trustee of its selection of such Extension Period five Business Days before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Trust are payable, or (ii) the date the Trust is required to give notice of the record date, or the date such Distributions are payable, to any national securities exchange or interdealer quotation system or to holders of the Preferred Securities issued by the Trust, but in any event at least five Business Days before such record date. (b) If the Institutional Trustee is not the only Holder at the time the Company selects an Extension Period, the Company shall give the Holders and the Debt Trustee written notice of its selection of such Extension Period at least 10 Business Days before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the Company is required to give notice of the record or payment date of such interest payment to any national securities exchange or interdealer quotation system or to the Holders. (c) The quarterly period in which any notice is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20 quarterly periods permitted in the maximum Extension Period permitted under Section 4.1. 12 16 ARTICLE V EXPENSES SECTION 5.1 Payment of Expenses. In connection with the offering, sale and issuance of the Debentures to the Trust and in connection with the sale of the Trust Securities by the Trust, the Company, in its capacity as borrower with respect to the Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Debentures and the compensation of the Debt Trustee in accordance with the provisions of Section 6.06; (b) pay all costs and expenses relating to the organization and operation of the Trust. SECTION 5.2 Payment Upon Resignation or Removal. Upon termination of this First Supplemental Indenture or the Indenture or the removal or resignation of the Debt Trustee, unless otherwise stated, the Company shall pay to the Debt Trustee all amounts accrued under Section 6.06 of the Indenture to the date of such termination, removal or resignation. Upon termination of the Declaration or the removal or resignation of the Delaware Trustee or the Institutional Trustee, as the case may be, pursuant to Sections 10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee or the Institutional Trustee, as the case may be, all amounts accrued under said Sections to the date of such termination, removal or resignation. ARTICLE VI FORM OF DEBENTURE SECTION 6.1 Form of Debenture. The Debentures and the Debt Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the forms set forth in Exhibit A hereto. 13 17 ARTICLE VII ORIGINAL ISSUE OF DEBENTURES SECTION 7.1 Original Issue of Debentures. Debentures in the aggregate principal amount of $__________ may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Debt Trustee for authentication as provided in Sections 2.03 and 2.05 of the Indenture. ARTICLE VIII COVENANTS SECTION 8.1 Limitation on Dividends. The Company will not, and will 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 of the Company's capital stock, (ii) make any payment of principal of, premium, if any, or interest on or repay, repurchase or redeem any debt securities of the Company (including Other Debt Securities) that rank pari passu with, or junior in right of payment to, the Debentures or (iii) make any guarantee payment with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company (including Other Guarantees) 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 Company 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 shareholder's rights plan, or the issuance of stock under any such 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 interests in 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 Company's benefit plans for its directors, officers or employees and (g) obligations under any dividend reinvestment plan or stock purchase plan of the Company), if at such time (1) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice, or the lapse of time, or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have taken reasonable steps to cure, (2) if such Debentures are held by the Institutional Trustee, the Company shall be in 14 18 default with respect to its payment obligations under the Preferred Securities Guarantee or Common Securities Guarantee or (3) the Company shall have given notice of its selection of an Extension Period and shall not have rescinded such notice or such Extension Period and such Extension Period shall be continuing. SECTION 8.2 Covenants as to the Trust. In the event Debentures are issued to the Trust or a trustee of such trust in connection with the issuance of Trust Securities by the Trust, for so long as such Trust Securities remain outstanding, the Company (i) will maintain 100% direct or indirect ownership of the Common Securities of the Trust; provided, however, that any successor of the Company, permitted pursuant to Article X of the Indenture, may succeed to the Company's ownership of such Common Securities, (ii) will use commercially reasonable efforts to cause the Trust (a) to remain a grantor trust, except in connection with a distribution of Debentures to the holders of Trust Securities in liquidation of the Trust, the redemption of all of the Trust Securities of the Trust, or certain mergers, consolidations or amalgamations, each as permitted by the Declaration, and (b) to otherwise continue to be classified as a grantor trust and not an association taxable as a corporation for United States federal income tax purposes and (iii) will not cause, as sponsor of the Trust, or permit, as holder of the Common Securities, the dissolution, winding-up or termination of the Trust, except in connection with a distribution of the Debentures as provided in the Declaration and in connection with certain mergers, consolidations or amalgamations. ARTICLE IX MISCELLANEOUS SECTION 9.1 Ratification of Indenture. The Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. SECTION 9.2 Acknowledgement of Rights. The Company acknowledges that, with respect to any Debentures held by the Trust or a trustee thereof, if the Institutional Trustee of such Trust fails to enforce its rights under this First Supplemental Indenture or the Indenture as the Holder of the Debentures held as the assets of SunTrust Capital I, any holder of Preferred Securities may institute legal proceedings directly against the Company to enforce such Institutional Trustee's rights under this First Supplemental Indenture or the 15 19 Indenture without first instituting any legal proceedings against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of, premium, if any, or interest on the Debentures when due, the Company acknowledges that a holder of Preferred Securities may institute a Direct Action for enforcement of payment to such holder of the principal of, premium, if any, or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in the Debentures. SECTION 9.3 Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred on the Debt Trustee; provided, however, that (subject to the provisions of Section 6.01 of the Indenture) the Debt Trustee shall have the right to decline to follow any such direction if the Debt Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Debt Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Debt 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 proceedings so directed would involve the Debt Trustee in personal liability. Prior to any declaration accelerating the maturity of the Debt Securities, the Holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding may on behalf of the Holders of all of the Debt Securities waive any past default or Event of Default and its consequences except a default (a) in the payment of principal of, premium, if any, or interest on any of the Debt Securities (unless such default has been cured and a sum sufficient to pay all matured installments of principal, premium, if any, and interest due otherwise than by acceleration has been deposited with the Debt Trustee) or (b) in respect of covenants or provisions hereof which cannot be modified or amended without the consent of the Holder of each Debenture affected; provided, however, that if the Debt Securities are held by the Institutional Trustee, such waiver or modification to such waiver shall not be effective until the holders of a majority in aggregate liquidation amount of Trust Securities shall have consented to such waiver or modification to such waiver; provided further, that if the consent of the Holder of each outstanding Debenture is required, such waiver shall not be effective until each holder 16 20 of the Trust Securities shall have consented to such waiver. Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this First Supplemental Indenture and the Indenture and the Company, the Debt Trustee and the Holders shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by Section 5.08 of the Indenture, said default or Event of Default shall for all purposes of the Debt Securities and the Indenture be deemed to have been cured and to be not continuing. SECTION 9.4 Debt Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Debt Trustee, and the Debt Trustee assumes no responsibility for the correctness thereof. The Debt Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture. SECTION 9.5 Governing Law. This First Supplemental Indenture and each Debenture shall be construed in accordance with and governed by the laws of the State of New York. SECTION 9.6 Separability. In case any one or more of the provisions contained in this First Supplemental Indenture or in the Debentures shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the Debentures, but this First Supplemental Indenture and the Debentures shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein. SECTION 9.7 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. 17 21 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, as of the day and year first above written. SUNTRUST BANKS, INC. By -------------------------------------- Name: Title: Attest: By: ----------------- Name: Title: THE FIRST NATIONAL BANK OF CHICAGO, as Debt Trustee By -------------------------------------- Name: Title: Attest: By: ----------------- Name: Title: 22 EXHIBIT A (FORM OF FACE OF DEBENTURE) [IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a Global Debenture within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Debenture is exchangeable for Debentures registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Debenture (other than a transfer of this Debenture as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Debenture is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Debenture issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] A-1 23 No. CUSIP No. ---------- ---------- SUNTRUST BANKS, INC. FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES A DUE ---------- SUNTRUST BANKS, INC., a Georgia corporation (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to SunTrust Capital I, or registered assigns, the principal sum of $ __________ on __________ and to pay interest on said principal sum from __________, 1997, or from the most recent interest payment date to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on the first day of __________, __________, __________ and __________ of each year commencing __________ 1, 1997, at the Interest Rate (as defined in the Indenture (as defined below)) until the principal hereof shall have become due and payable, and on any overdue principal and premium, if any, at the Interest Rate and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the Interest Rate compounded quarterly. The amount of interest payable on any Interest Payment Date (as defined below) shall be calculated as provided in the Indenture. In the event that any date on which interest is payable on this Debenture is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day that is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which interest is actually payable, an "Interest Payment Date"). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Debt Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be, except if the Debentures are held by the Institutional Trustee, the close of business on the __________ 15, __________ 15, __________ 15 and __________ 15 prior to the applicable Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such regular record date and may be paid to the Person in whose name this Debenture (or one or more Predecessor Debt Securities) is registered at the close of business on a special record date to be fixed by the Debt Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders not less than 10 days prior to such special record date, or may A-2 24 be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or interdealer quotation system on which the Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of, premium, if any, and interest (including Compounded Interest and Additional Sums, if any) on this Debenture shall be payable at the office or agency of the Debt Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made, at the option of the Company, by check mailed to the registered Holder at such address as shall appear in the Security Register or by wire transfer to an account designated by a Holder in writing not less than ten days prior to the date of payment. Notwithstanding the foregoing, so long as the Holder of this Debenture is the Institutional Trustee, the payment of the principal of, premium, if any, and interest on this Debenture will be made at such place and to such account as may be designated by the Institutional Trustee. The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Debt Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Debt Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder or creditor upon said provisions. This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred to, or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Debt Trustee. THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY. The provisions of this Debenture are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. A-3 25 IN WITNESS WHEREOF, the Company has caused this instrument to be executed. SUNTRUST BANKS, INC. By: ------------------------------------- Name: Title: Attest: By: ---------------------------------------- Name: Title: CERTIFICATE OF AUTHENTICATION This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture. The First National Bank of Chicago, as Debt Trustee By: ---------------------------------------- Authorized Officer Dated: ------------------------------------- A-4 26 (FORM OF REVERSE OF DEBENTURE) This Debt Security is one of a duly authorized series of debt securities of the Company (herein sometimes referred to as the "Debentures"), all issued or to be issued in one or more series under and pursuant to an Indenture, dated as of __________, 1997, duly executed and delivered between the Company and The First National Bank of Chicago, as Debt Trustee (the "Debt Trustee"), as supplemented by the First Supplemental Indenture, dated as of __________, 1997, between the Company and the Trustee (the Indenture as so supplemented, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Debt Trustee, the Company and the Holders of the Debentures. By the terms of the Indenture, Debt Securities are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. This Debenture is one of the series designated on the face hereof and is limited in aggregate principal amount as specified in said First Supplemental Indenture Upon the occurrence and continuation of a Tax Event or Capital Treatment Event, the Company shall have the right, subject to certain conditions set forth in the Indenture, to redeem this Debenture in whole, but not in part, at the Redemption Price within 90 days following the occurrence of such Tax Event or Capital Treatment Event (or, if the prior approval of the Board of Governors of the Federal Reserve System (the "Federal Reserve") is then required, on such later date as promptly as practicable after such approval is obtained). In addition, the Company shall have the right to redeem this Debenture, in whole or in part, at any time on or after __________ 1, 2007, at the Redemption Price (any of the foregoing redemptions an "Optional Redemption"). The "Redemption Price" means an amount in cash equal to 100% of the principal amount together with any accrued and unpaid interest thereon, including Additional Sums and Compounded Interest, if any, to the date of such redemption. Any redemption pursuant to this paragraph will be made upon not less than 30 days nor more than 60 days notice. If the Debentures are only partially redeemed by the Company pursuant to an Optional Redemption, the Debentures will be redeemed pro rata or by lot or by any other method utilized by the Security Registrar; provided that if, at the time of redemption, the Debentures are registered as a Global Debenture, the Depositary shall determine the principal amount of such Debentures beneficially held by each Debentureholder to be redeemed in accordance with its procedures. In the event of redemption of this Debenture in part only, a new Debenture or Debentures for the unredeemed portion A-5 27 hereof will be issued in the name of the Holder hereof upon the cancellation hereof. Notwithstanding the foregoing, any redemption of Debentures by the Company shall be subject to the prior approval of the Federal Reserve, if such approval is then required under applicable law, rules, guidelines or policies of the Federal Reserve. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Debentures may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Company and the Debt Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Debt Securities of all series affected (acting as one class), to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities; provided, however, that no such supplemental indenture shall without the consent of the Holders of the outstanding Debentures affected thereby (i) change the Maturity Date, or reduce the rate or extend the time of payment of interest (except as contemplated by Section 2.5 of the First Supplemental Indenture) on any Debenture, or reduce the principal amount thereof, or reduce any amount payable on prepayment thereof, or make the principal thereof or any interest or premium thereon payable in any coin or currency in which any Debenture (or premium, if any, thereon) or the interest thereon is payable or impair or affect the right of any Holder to institute suit for payment thereof; or (ii) reduce the percentage in principal amount of the outstanding Debentures, the Holders of which are required to consent to any such amendment to the First Supplemental Indenture; provided, however, that if the Debentures are held by the Trust, such amendment shall not be effective until the holders of a majority in liquidation amount of Trust Securities shall have consented to such amendment; provided, further, that if the consent of the Holder of each outstanding Debenture is required, such amendment shall not be effective until each holder of the Trust Securities shall have consented to such amendment. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the outstanding Debt Securities of any series affected thereby, on behalf of all of the Holders of the Debt Securities of such series, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture with respect to such series, and its consequences, except a default in the payment of the principal of, A-6 28 premium, if any, or interest on any of the Debt Securities of such series. Any such consent or waiver by the registered Holder of this Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Debenture and of any Debenture issued in exchange therefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Debenture. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Debenture at the time and place and at the rate and in the money herein prescribed. So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time and from time to time during the term of the Debentures, to defer payments of interest by extending the interest payment period of such Debentures for up to 20 consecutive quarterly periods (an "Extension Period"), at the end of which period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the Interest Rate to the extent that payment of such interest is enforceable under applicable law); provided that no Extension Period may end on a day other than an Interest Payment Date or last beyond the Maturity Date of the Debentures. Before the termination of any such Extension Period, the Company may further extend such Extension Period, provided that such Extension Period together with all such further extensions thereof shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity Date of the Debentures. Upon the termination of any such Extension Period and the payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a new Extension Period, subject to the foregoing requirements. The Company will not (i) declare or pay any dividends or distributions on, or prepay, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (ii) make any payment of principal of, premium, if any, or interest on or repay, repurchase or redeem any debt securities of the Company (including Other Debt Securities) that rank pari passu with, or junior in right of payment to, the Debentures or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company (including Other Guarantees) 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 Company by way of issuance of its capital stock (or options, warrants or other rights to subscribe A-7 29 therefor), (b) any declaration of a dividend in connection with the implementation of a shareholder's rights plan, or the issuance of stock under any such plan in the future, or the prepayment or repurchase of any such rights pursuant thereto, (c) payments under the Preferred Securities Guarantee, (d) the purchase of fractional interests in 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 Company's benefit plans for its directors, officers or employees and (g) obligations under any dividend reinvestment plan or stock purchase plan of the Company), if at such time (1) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice, or the lapse of time, or both would constitute an Event of Default and (b) in respect of which the Company shall not have taken reasonable steps to cure, (2) if such Debentures are held by the Institutional Trustee, the Company shall be in default with respect to its payment obligations under the Preferred Securities Guarantee or Common Securities Guarantee or (3) the Company shall have given notice of its selection of an Extension Period and shall not have rescinded such notice or such Extension Period and such Extension Period shall be continuing. Subject to the prior approval of the Federal Reserve if such approval is then required under applicable law, rules,3 guidelines or policies of the Federal Reserve, the Company will have the right at any time to liquidate the Trust and cause the Debentures to be distributed to the holders of the Trust Securities in liquidation of the Trust. As provided in the Indenture and subject to certain limitations therein set forth, this Debenture is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Debenture for registration of transfer at the office or agency of the Debt Trustee in New York, New York, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th Floor - Window 2, New York, New York 10005 accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Security Registrar duly executed by the registered Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Debentures of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto. A-8 30 Prior to due presentment for registration of transfer of this Debenture, the Company, the Debt Trustee, any paying agent and the Security Registrar may deem and treat the registered holder hereof as the owner hereof (whether or not this Debenture shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and premium, if any, and (subject to Section 2.5 of the First Supplemental Indenture) interest due hereon and for all other purposes, and neither the Company nor the Debt Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. The Debentures are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. All terms used in this Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture. THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. A-9 EX-8.1 4 TAX OPINION 1 EXHIBIT 8.1 404/572-3353 404/572-5147 May __, 1997 SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 Ladies and Gentlemen: We have acted as special tax counsel to SunTrust Banks, Inc. (the "Company") and to SunTrust Capital I (the "Trust") in connection with the proposed offering by the Trust of its Floating Rate Preferred Securities, Series A (the "Preferred Securities") as described in that certain Prospectus dated May 6, 1997, which is included in the Registration Statement on Form S-3 filed with the Securities and Exchange Commission in connection with the offering of such Preferred Securities (the "Registration Statement"), and that certain Prospectus Supplement dated May __, 1997 (the "Prospectus Supplement"). In connection therewith, you have requested our opinions with respect to the status of the Subordinated Debentures and the Trust for United States federal income tax purposes and the accuracy of the discussion included in Prospectus Supplement under the heading "United States Federal Income Taxation." All capitalized terms used herein without definition shall have the same meaning as in the Prospectus Supplement. FACTS AND ASSUMPTIONS RELIED UPON In rendering the opinions expressed herein, we have examined such documents as we have deemed appropriate, including (but not limited to) the Registration Statement, the Prospectus Supplement and all exhibits thereto. In our examination of documents, we have assumed, with your consent, that all documents submitted to us are authentic originals, or if submitted as photocopies or telecopies, that they faithfully reproduce the originals thereof, that all such documents have been or will be duly executed to the extent required, that all representations and statements set forth in such documents are true and correct, and that all obligations imposed by any such documents on the parties thereto are enforceable, and have been or will be performed or satisfied, in accordance with their terms. In addition, we have relied, 2 SunTrust Banks, Inc. May __, 1997 Page 2 with your consent, upon (i) the opinion of Skadden, Arps, Slate, Meagher & Flom (Delaware), special Delaware counsel to the Trust, as to certain matters of Delaware law relating to the validity of the Preferred Securities; and (ii) the opinion of Raymond D. Fortin, Senior Vice President and Counsel of the Company, as to certain other legal matters. Finally, we have assumed, again with your consent, that the Trust (i) will not be registered under the Investment Company Act of 1940, as amended, as a management company or unit investment trust, (ii) will not elect under such Act to be treated as a business development company, and (iii) will not be a common trust fund or similar fund excluded by section 3(c)(3) of such Act from the definition of "investment company" and will not be included in the definition of "common trust fund" by section 584(a) of the Internal Revenue Code. OPINIONS Based upon and subject to the foregoing, we are of the following opinions: (1) The Subordinated Debentures will be treated as indebtedness of the Company for United States federal income tax purposes. (2) The Trust will be classified as a grantor trust and will not be treated 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 Subordinated Debentures, whether or not cash is actually distributed to the Securityholder. (3) The discussion contained in that portion of the Prospectus Supplement under the caption "United States Federal Income Taxation" constitutes, in all material respects, a fair and accurate summary of the principal United States federal income tax consequences of the purchase, ownership, and disposition of Preferred Securities under current law. * * * The opinions expressed herein are based on the Internal Revenue Code of 1986, as amended, the United States Treasury Regulations promulgated thereunder, current administrative positions of the United States Internal Revenue Service, and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein and the tax consequences to the SunTrust Capital Trusts and to the holders of the Preferred Securities. In addition, our opinions cannot be relied upon if any of the facts contained in the documents that we have examined, including the 3 SunTrust Banks, Inc. May __, 1997 Page 3 opinions of Skadden, Arps, Slate, Meagher & Flom (Delaware) and Raymond D. Fortin, or if any of the assumptions that we have made, is, or later becomes, inaccurate. Finally, our opinions are limited to the tax matters specifically covered thereby, and we have not been asked to address, nor have we addressed, any other tax consequences relating to the Trust, Subordinated Debentures or Preferred Securities. This opinion is given as of the date hereof, and we assume no obligation to update this opinion to reflect any fact or circumstance that may hereafter come to our attention or any change in any law or regulation that may hereafter occur. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to us under the caption "Legal Matters" in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. Very truly yours, -----END PRIVACY-ENHANCED MESSAGE-----