Exhibit 99.1
SunTrust Bank
Senior and Subordinated Global Bank Notes
Due From 7 Days to 30 Years or More from Date of Issue
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
March 31, 2004
TO EACH OF THE DISTRIBUTION AGENTS LISTED
ON SCHEDULE 1 HERETO
Ladies and Gentlemen:
SunTrust Bank, a banking corporation chartered under the laws of the State
of Georgia (the "Bank"), confirms its agreement with each of the distribution
agents listed on Schedule 1 hereto (each referred to as a "Distribution Agent"
and collectively referred to as the "Distribution Agents") with respect to the
issue and sale by it of its (i) senior unsecured debt obligations not insured by
the Federal Deposit Insurance Corporation (the "FDIC") (the "Senior Notes") and
(ii) subordinated unsecured debt obligations not insured by the FDIC (the
"Subordinated Notes", and together with the Senior Notes, the "Bank Notes"). The
Bank Notes have maturities of 7 days to 30 years or more from date of issue. The
Bank Notes are to be issued pursuant to an Amended and Restated Global Agency
Agreement, dated as of March 31, 2004 (the "Global Agency Agreement"), among the
Bank and Deutsche Bank Trust Company Americas, as domestic paying agent (the
"Domestic Paying Agent") and registrar (the "Registrar"), Deutsche Bank AG
London, as London paying agent (the "London Paying Agent") and London issuing
agent (the "London Issuing Agent"), Kredietbank S.A. Luxembourgeoise, as
Luxembourg listing agent (the "Luxembourg Listing Agent") and Deutsche Bank
Luxembourg S.A., as Luxembourg transfer agent (the "Transfer Agent") and
Luxembourg paying agent (the "Luxembourg Paying Agent", and together with the
Domestic Paying Agent and the London Paying Agent, the "Paying Agents" and each
individually, a "Paying Agent"). As of the date hereof, the Bank has authorized
the issuance of up to U.S.$20,000,000,000 (or the equivalent thereof in other
currencies calculated as described in the Offering Circular dated March 31,
2004) aggregate principal amount (whether issued prior to or on or after the
date hereof) at any one time outstanding of its Bank Notes. It is understood,
however, that the Bank may from time to time authorize the issuance of an
additional outstanding amount of Bank Notes and that the Bank Notes may be
distributed through or sold to one or more of the Distribution Agents pursuant
to the terms of this Agreement, all as though the issuance of the Bank Notes
were authorized as of the date hereof. The Bank is a subsidiary of SunTrust
Banks, Inc. ("SunTrust Banks").
This Agreement provides both for the sale of Bank Notes by the Bank to the
Distribution Agents as principal for resale to investors and other purchasers
and for the
sale of Bank Notes by the Bank directly to investors through the Distribution
Agents (as may from time to time be agreed to by the Bank and the Distribution
Agents), in which case the Distribution Agents will act as agents of the Bank in
soliciting Bank Note purchasers.
SECTION 1. Appointment as Distribution Agents.
(a) Appointment of Distribution Agents. Subject to the terms and conditions
stated herein and subject to the reservation by the Bank of the right to sell
Bank Notes directly to investors on its own behalf in those jurisdictions where
it is authorized to do so, the Bank hereby agrees that Bank Notes will be sold
exclusively to or through the Distribution Agents. The Distribution Agents are
authorized to engage the services of any other broker or dealer in connection
with the offer or sale of the Bank Notes purchased by a Distribution Agent as
principal for resale to others but are not authorized to appoint sub-agents. In
connection with sales by the Distribution Agents of Bank Notes purchased by a
Distribution Agent as principal to other brokers or dealers, a Distribution
Agent may allow any portion of the discount it has received in connection with
such purchase from the Bank to such brokers or dealers.
(b) Sale of Bank Notes. The Bank shall not approve the solicitation of
purchases of Bank Notes in excess of the amount which shall be authorized to be
outstanding by the Bank from time to time or in excess of the aggregate
principal amount of Bank Notes specified in the Offering Circular. The
Distribution Agents will have no responsibility for maintaining records with
respect to the aggregate principal amount of Bank Notes sold or outstanding, or
of otherwise monitoring the availability of Bank Notes for sale.
(c) Purchases as Principal. The Distribution Agents shall not have any
obligation to purchase Bank Notes from the Bank as principal, but the
Distribution Agents may agree from time to time to purchase Bank Notes as
principal. Any such purchase of Bank Notes by a Distribution Agent as principal
shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Distribution Agent. If agreed upon by a Distribution
Agent and the Bank, the Distribution Agent, acting solely as agent for the Bank
and not as principal, will solicit purchases of the Bank Notes. The Distribution
Agent will communicate to the Bank, orally or in writing, each offer to purchase
Bank Notes solicited by such Distribution Agent on an agency basis, other than
those offers rejected by the Distribution Agent. The Distribution Agent shall
have the right, in its discretion reasonably exercised, to reject any proposed
purchase of Bank Notes, as a whole or in part, and any such rejection shall not
be deemed a breach of any Distribution Agent's agreement contained herein. The
Bank may accept or reject any proposed purchase of the Bank Notes in whole or in
part. The Distribution Agent shall make reasonable efforts to assist the Bank in
obtaining performance by each purchaser whose offer to purchase Bank Notes has
been solicited by the Distribution Agent and accepted by the Bank. The
Distribution Agent shall not have any liability to the Bank in the event any
such agency purchase is not consummated for any reason. If the Bank shall
default on its obligation to
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deliver Bank Notes to a purchaser whose offer it has accepted, the Bank shall
(i) hold the Distribution Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Bank and (ii) notwithstanding
such default, pay to the Distribution Agent any commission to which it would be
entitled in connection with such sale.
(e) Additional Agents. The Bank may, from time to time, engage additional
agents either as principal or as an agent for the sale of the Bank Notes. Any
additional agents shall be required, as a condition to their engagement, either
to enter into this Agreement (amended to include such additional agents as
signatories) or into an agreement with the Bank substantially similar to this
Agreement.
(f) Stabilization. The Distribution Agent (if any) specified as the
Stabilization Manager in the Pricing Supplement relating to any Tranche of Bank
Notes or any person acting for the Stabilization Manager may, in connection with
such Bank Notes, over-allot or effect transactions with a view to supporting the
market price of the Bank Notes of the Series of which such Tranche forms a part
at a level higher than that which might otherwise prevail for a limited period,
but in so doing, the Stabilization Manager (or any person acting for him) shall
act as principal and not as agent of the Bank. Such stabilization, if commenced,
may be discontinued at any time. Such stabilization shall be conducted in
accordance with all relevant laws, regulations and rules. Any loss or profit
sustained as a consequence of any such over-allotment or stabilization shall, as
against the Bank, be for the account of such named Distribution Agent.
The Bank confirms that it has been informed of the existence of the United
Kingdom Financial Services Authority ("FSA") stabilizing guidance in Section MAR
2 Xxx 2G of the FSA Handbook.
(g) Reliance. The Bank and the Distribution Agents agree that the Bank
Notes purchased by the Distribution Agents shall be purchased, and the Bank
Notes the placement of which a Distribution Agent arranges shall be placed by
such Distribution Agent, in reliance on the representations, warranties,
covenants and agreements of the Bank contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Bank represents and warrants to each Distribution Agent as of the
date hereof, as of the date of each acceptance by the Bank of an offer for the
purchase of Bank Notes (whether to the Distribution Agent as principal or
through the Distribution Agent as agent), as of the date of each delivery of
Bank Notes (whether to such Distribution Agent as principal or through such
Distribution Agent as agent) (the date of each such delivery to a Distribution
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of the times referred to in Section 8(b) hereof (each of the times referenced
above being referred to hereafter as a "Representation Date"), as follows:
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(i) Offering Circular. The Bank has prepared an offering circular,
dated March 31, 2004 (as such document may hereafter be amended or
supplemented (including by any pricing supplement) by the Bank), including
the material incorporated therein by reference, the "Offering Circular"),
to be used by the Distribution Agents in connection with the Distribution
Agents' solicitation of purchasers of, or offering of, the Bank Notes. The
Bank has been authorized by SunTrust Banks to incorporate by reference in
the Offering Circular SunTrust Banks' annual reports on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K and each other
document filed by SunTrust Banks pursuant to Section 13(a), 13(c), 14 or
15(d) (and any and all amendments thereto) (except that information in such
documents deemed not to have been filed in accordance with the rules of the
Securities and Exchange Commission shall not be incorporated by reference)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
the rules and regulations thereunder. The Offering Circular, as of the date
hereof, does not and, as of the applicable Representation Date, will not,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made therein, in the light
of the circumstances under which they are made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Offering Circular made in
reliance upon, and in conformity with, information furnished to the Bank in
writing by the Distribution Agents expressly for use therein.
The Bank has incorporated by reference in the Offering Circular the
publicly available portions of each of its Consolidated Reports of
Condition and Income (each, a "Call Report"), and any amendments or
supplements thereto, for the quarterly periods in the years ended December
31, 2003, 2002 and 2001. The publicly available portions of any Call
Reports filed by the Bank subsequent to the date of the Offering Circular
and prior to the termination of the offering of the Bank Notes will be
incorporated therein by reference.
The documents incorporated by reference into the Offering Circular, at
the time they were or hereafter are filed with the applicable federal
regulatory authorities, complied or when so filed will comply in all
material respects with the 1934 Act or the rules and regulations otherwise
applicable thereto, as the case may be, and, when read together with the
other information in the Offering Circular, did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were or are made,
not misleading.
(ii) Due Organization, Valid Existence and Good Standing. The Bank is
a banking corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia, and is licensed, registered or
qualified to conduct the business in which it is engaged in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such license, registration or qualification,
except to the extent that the failure to be so
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licensed, registered or qualified or to be in good standing would not have
a material adverse effect on the Bank and its subsidiaries taken as a
whole. The Bank is a subsidiary of SunTrust Banks, a Georgia corporation
which has securities registered under the 1934 Act.
(iii) Due Authorization, Execution and Delivery of this Agreement, the
Global Agency Agreement, the Amended and Restated Interest Calculation
Agreement, the Amended and Restated Exchange Rate Agent Agreement and the
Letters of Representations. This Agreement, the Global Agency Agreement,
the Amended and Restated Interest Calculation Agreement dated as of March
31, 2004, between the Bank and Deutsche Bank Trust Company Americas (the
"Interest Calculation Agreement"), the Amended and Restated Exchange Rate
Agent Agreement dated as of March 31, 2004, between the Bank and Deutsche
Bank Trust Company Americas (the "Exchange Rate Agent Agreement") and the
Short-Term and Medium-Term Letters of Representation dated March 31, 2004
(the "Letters of Representations"), between the Bank, Deutsche Bank Trust
Company Americas and The Depository Trust Company, have been duly
authorized, executed and delivered by the Bank and are valid and legally
binding agreements of the Bank, enforceable against the Bank in accordance
with their respective terms, subject to applicable bankruptcy, liquidation,
insolvency, fraudulent transfer, reorganization, moratorium,
conservatorship, receivership and similar laws of general applicability
relating to, or affecting, creditors' rights, and to general equity
principles.
(iv) Due Authorization, Execution and Delivery of the Bank Notes. The
Bank Notes have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued and authenticated against payment of the
consideration therefor, the Bank Notes will be valid and legally binding
obligations of the Bank, enforceable against the Bank in accordance with
their respective terms, subject to applicable bankruptcy, liquidation,
insolvency, fraudulent transfer, reorganization, moratorium,
conservatorship, receivership and similar laws of general applicability
relating to, or affecting, creditors' rights, and to general equity
principles.
(v) Exemption from Registration. The Bank Notes are exempt from
registration under Section 3(a)(2) of the Securities Act of 1933, as
amended (the "1933 Act"), and neither registration of the Bank Notes under
the 1933 Act, nor qualification of an indenture under the Trust Indenture
Act of 1939, as amended, is required in connection with the offer, sale,
issuance or delivery of the Bank Notes pursuant to this Agreement or any
applicable Terms Agreement (as defined in Section 3(a) hereof).
(vi) Exemption from Investment Company Act. The Bank is not required
to register under the provisions of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), or to take any other action with
respect to or under the Investment Company Act.
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(vii) No Other Approvals Required. No consent, approval or
authorization of or filing with any governmental body or agency is required
for the performance by the Bank of its obligations under this Agreement,
the Bank Notes, the Global Agency Agreement, the Interest Calculation
Agreement, the Exchange Rate Agent Agreement, the Letters of
Representations and any applicable Terms Agreement (provided that the
representations contained in the immediately preceding clause with respect
to approvals under the laws of foreign countries shall only be to the best
knowledge of the Bank) or the consummation by the Bank of the transactions
contemplated by this Agreement and any agreement with a Distribution Agent
to purchase such Bank Notes as principal, except (A) such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Bank Notes and (B) with respect
to Subordinated Notes, such approvals of the Georgia Department of Banking
and Finance as are required by Section 7-1-419 of the Official Code of
Georgia, which approvals have been obtained.
(viii) Description of Bank Notes. The Bank Notes are substantially in
the form heretofore delivered to the Distribution Agents and conform in all
material respects to the description thereof contained in the Offering
Circular under the caption "Description of Notes."
(ix) Priority of Bank Notes. The Senior Notes are unsecured and
unsubordinated debt obligations of the Bank and rank pari passu among
themselves and with all other unsecured and unsubordinated debt obligations
of the Bank except, (A) pursuant to Section 11(d)(11) of the Federal
Deposit Insurance Act, the Bank's unsecured deposit obligations and (B)
pursuant to Section 7-1-202 of the Official Code of Georgia, the Bank's
deposit obligations. The Subordinated Notes are unsecured and subordinated
debt obligations of the Bank, rank pari passu among themselves, and are
subordinated and junior in right of payment to the Bank's obligations to
depositors and general creditors, other than obligations which, by their
express terms, rank on a parity with or junior to the Subordinated Notes.
Upon issuance, the Subordinated Notes will qualify as Tier 2 capital of the
Bank (within the meaning of Appendix A to 12 C.F.R. Part 208).
(x) No Violation. Neither the Bank or any of its subsidiaries nor
SunTrust Banks or any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage loan agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties may be bound which
might result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Bank and its subsidiaries, considered as one enterprise, or might
materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement, the
Global Agency Agreement, the Interest Calculation Agreement, the Exchange
Rate Agent Agreement, the Letters of Representations or the Bank
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Notes or any transaction contemplated hereby or thereby. The execution,
issuance and delivery by the Bank of the Bank Notes, and the execution,
delivery and performance by the Bank of this Agreement, the Global Agency
Agreement, the Interest Calculation Agreement, the Exchange Rate Agent
Agreement, the Letters of Representations and any applicable Terms
Agreement, will not violate any law, rule, regulation, order, judgment or
decree applicable to SunTrust Banks and its subsidiaries or to the Bank and
any of its subsidiaries (including without limitation, Sections 7-1-291 and
7-1-419 of the Official Code of Georgia) or violate any provision of the
Bank's charter or by-laws, or conflict with or result in a material breach
of or constitute a material default under, or result in the creation or
imposition of any material lien, charge or encumbrance upon any property or
assets of SunTrust Banks and its subsidiaries or the Bank and any of its
subsidiaries pursuant to any contract, indenture, mortgage loan agreement,
note, lease or other instrument to which SunTrust Banks or any of its
subsidiaries or the Bank or any of its subsidiaries, or the property of any
of them, is bound or subject.
(xi) No Material Adverse Change. Since the respective dates as of
which information is given or incorporated by reference in the Offering
Circular (a) there has not been any material adverse change, or any
development which could be expected to result in a material adverse change,
in the condition, financial or otherwise, or business affairs or business
prospects of the Bank and its subsidiaries or of SunTrust Banks and its
subsidiaries, as the case may be, considered as one enterprise, whether or
not arising in the ordinary course of business, other than as set forth or
contemplated in the Offering Circular (including the material incorporated
by reference therein), and (b) there have been no material transactions
entered into by the Bank or any of its subsidiaries or SunTrust Banks and
any of its subsidiaries, considered as one enterprise, other than those in
the ordinary course of business.
(xii) Rating. The Senior Notes of the Bank have been rated by a
"nationally recognized statistical rating agency" (as that term is defined
by the Securities and Exchange Commission (the "Commission") for purposes
of Rule 436(g)(2) under the 1933 Act), in one of its four highest
categories.
(xiii) Financial Statements and Financial Information. The financial
statements and other financial information of SunTrust Banks and its
consolidated subsidiaries included or incorporated by reference in the
Offering Circular present fairly the consolidated financial position of
SunTrust Banks and its consolidated subsidiaries, as of the dates indicated
therein and the consolidated results of their operations for the periods
specified therein; and except as stated therein, such financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis; the Call
Reports and other financial information of the Bank included or
incorporated by reference in the Offering Circular present fairly its
financial position and the results of its operations for the periods
specified therein, and except as stated therein, have been prepared in
conformity with regulatory instructions issued by
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the Federal Financial Institution Examination Council applied on a
consistent basis; and financial information of certain financial
institutions, if any, acquired or consolidated with or proposed to be
acquired by or consolidated with SunTrust Banks or the Bank included or
incorporated by reference in the Offering Circular present fairly the
financial position of such financial institutions as of the dates indicated
therein and the results of their operations for the periods specified
therein.
(xiv) Limitation on Liabilities of the Bank. The Bank will not issue
any Bank Note if the aggregate amount of outstanding liabilities of the
Bank for money borrowed as a result of the issuance of such Bank Note
exceeds the limitations set forth in Sections 7-1-291 and 7-1-419 of the
Official Code of Georgia, unless otherwise expressly approved by the
Georgia Department of Banking and Finance.
(xv) Legal Proceedings. Except as may be set forth in the Offering
Circular, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Bank, threatened against or affecting, SunTrust Banks or
any of its subsidiaries or the Bank or any of its subsidiaries, which
might, in the opinion of the Bank, result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs, business prospects, properties or assets of the Bank and its
subsidiaries considered as one enterprise, or might materially and
adversely affect the consummation of this Agreement, the Global Agency
Agreement, the Interest Calculation Agreement, the Exchange Rate Agent
Agreement or the Bank Notes or any transaction contemplated hereby or
thereby.
(xvi) Commodity Exchange Act. The Bank Notes, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the Global Agency Agreement, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any officer of the
Bank or SunTrust Banks and delivered to the Distribution Agents or to counsel
for the Distribution Agents in connection with an offering of Bank Notes, or the
sale of Bank Notes to a Distribution Agent as principal, contemplated by this
Agreement shall be deemed a representation and warranty by the Bank to the
Distribution Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date referred to in Section 2(a) hereof
subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Distribution Agents.
(a) Purchases as Principal. Unless otherwise agreed to by a Distribution
Agent and the Bank, Bank Notes shall be purchased by the Distribution Agent as
principal. Such purchases shall be made in accordance with terms agreed upon by
the Distribution Agent and the Bank with respect to such information (as
applicable) as is
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specified in Exhibit A hereto (which terms shall be agreed upon orally, and
which may or may not be confirmed in writing in the form of Exhibit A, prepared
by the Distribution Agent and mailed or sent via facsimile transmission to the
Bank) and, in the case of sales to Distribution Agents on a syndicated basis, a
separate terms agreement substantially in the form of Exhibit G hereto. Any oral
or written agreement entered into pursuant to the previous sentence, including
any agreement in the form of Exhibit G hereof, is referred to herein as a "Terms
Agreement". The Distribution Agent's commitment to purchase Bank Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Bank herein contained and shall be subject to the terms
and conditions herein set forth. Each purchase of Bank Notes shall be at a
discount from the principal amount of each such Bank Note equivalent to the
commission to be agreed to by the Bank and each such Distribution Agent and set
forth in the Terms Agreement. The Distribution Agent may engage the services of
any other broker or dealer in connection with the resale of the Bank Notes
purchased as principal and may allow any portion of the discount received in
connection with such purchases from the Bank to such brokers and dealers. At the
time of each purchase of Bank Notes by a Distribution Agent as principal, the
Distribution Agent shall specify the requirements for the opinions of counsel,
officers' certificates and the accountant's letter pursuant to Sections 6(a),
6(b) and 6(d) hereof. The resale of any Bank Notes acquired by such Distribution
Agent as principal shall be subject to all of the applicable selling
restrictions set forth in Exhibit F hereto.
(b) Solicitations as Distribution Agents. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed upon by the Bank and a Distribution
Agent, such Distribution Agent, as an agent of the Bank, will use its reasonable
efforts to solicit offers to purchase the Bank Notes upon the terms and
conditions set forth herein and in the Offering Circular. All Bank Notes sold
through a Distribution Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Bank and the Distribution Agent.
The Bank reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Bank Notes through the Distribution Agents, as
agents, commencing at any time for any period of time or permanently. Upon
receipt of instructions from the Bank, the Distribution Agents will forthwith
suspend solicitation of purchases from the Bank until such time as the Bank has
advised the Distribution Agents that such solicitation may be resumed. During
such period, the Bank shall not be required to comply with the provisions of
Sections 8(b), (c) and (d). Upon advising the Distribution Agents that such
solicitation may be resumed, however, the Bank shall simultaneously provide the
documents required to be delivered by Sections 8(b), (c) and (d), and the
Distribution Agents shall have no obligation to solicit offers to purchase the
Bank Notes until such documentation has been received by the Distribution
Agents.
The Bank agrees to pay each Distribution Agent a commission, in the form of
a discount, equal to the applicable percentage of the principal amount of each
Bank Note sold by the Bank as a result of a solicitation made by such
Distribution Agent as agreed to by the Bank and each such Distribution Agent and
set forth in a Terms Agreement.
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The Distribution Agents may reallow any portion of the commission payable
pursuant hereto to dealers in connection with the offer and sale of the Bank
Notes.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Bank Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Bank and the
applicable Distribution Agent and set forth in a pricing supplement to the
Offering Circular to be prepared in connection with each sale of Bank Notes.
Administrative procedures with respect to the sale of Bank Notes shall be agreed
upon from time to time by the Distribution Agents and the Bank (the
"Procedures"). The initial Procedures, as agreed upon by the Distribution Agents
and the Bank, are attached hereto as Exhibit H. The Distribution Agents and the
Bank agree to perform the respective duties and obligations specifically
provided to be performed by the Distribution Agents and the Bank herein and in
the Procedures.
(d) Delivery. The documents required to be delivered by Section 6 hereof
shall be delivered at the office of Sidley Xxxxxx Xxxxx & Xxxx LLP, on the date
hereof, or at such other time as the Distribution Agents and the Bank may agree
upon in writing (the "Closing Time").
SECTION 4. Covenants of the Bank.
The Bank covenants with the Distribution Agents as follows:
(a) Amending Offering Circular. The Bank will give the Distribution Agents
notice of its intention to prepare any additional offering circular supplement
with respect to the sale of the Bank Notes or any amendment or supplement to the
Offering Circular and will furnish the Distribution Agents with copies of any
such amendment or supplement or other documents proposed to be distributed a
reasonable time in advance of such proposed distribution and will not distribute
any such amendment or supplement or other documents in a form to which the
Distribution Agents or counsel for the Distribution Agents shall reasonably
object.
(b) Copies of Offering Circular. The Bank will deliver to the Distribution
Agents as many copies of the Offering Circular (as amended or supplemented,
including documents incorporated by reference therein) as the Distribution
Agents shall reasonably request in connection with sales or solicitations of
offers to purchase the Bank Notes.
(c) Revisions of Offering Circular - Material Changes. Except as otherwise
provided in Subsection (d) of this Section 4, if any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Distribution Agents or counsel for the Bank, to amend or
supplement the Offering Circular in order that the Offering Circular will not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
immediate notice shall be given, and confirmed in writing, to the Distribution
Agents to cease the solicitation of offers to purchase the Bank Notes in their
capacity as agents and to cease sales of the Bank Notes the Distribution Agents
may then own as
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principal, and the Bank will promptly prepare such amendment or supplement as
may be necessary to correct such untrue statement or omission. The Distribution
Agents shall, at such time as the Bank shall have furnished to the Distribution
Agents an amended or supplemented Offering Circular in form satisfactory to the
Distribution Agents and their counsel, resume solicitation of offers to purchase
Bank Notes using the Offering Circular so amended and supplemented. The Bank
agrees to update the Offering Circular through amendment or supplement no less
than annually from the date hereof.
(d) Suspension of Certain Obligations. The Bank shall not be required to
comply with the provisions of subsection (c) of this Section 4 during any period
from the later of the time (i) the Distribution Agents shall have suspended
solicitation of purchases of the Bank Notes in their capacity as agents pursuant
to a request from the Bank and (ii) no Distribution Agent shall then hold any
Bank Notes purchased as principal pursuant hereto, until the time the Bank shall
determine that solicitation of purchases of the Bank Notes should be resumed or
the Distribution Agent shall subsequently purchase Bank Notes from the Bank as
principal.
(e) Regulatory Reports. Upon request, the Bank shall provide the
Distribution Agents with copies of the publicly available portion of any reports
required to be filed by the Bank or SunTrust Banks with any United States or
state supervisory or regulatory authority as promptly as reasonably practicable
after such reports become publicly available.
(f) Preparation of Pricing Supplements. The Bank will prepare, with respect
to the Bank Notes to be sold through or to the Distribution Agents pursuant to
this Agreement, a pricing supplement with respect to the Bank Notes in a form
previously approved by the Distribution Agents.
(g) Blue Sky Qualifications. The Bank will endeavor, in cooperation with
the Distribution Agents, to qualify the Bank Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Distribution Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Bank Notes; provided, however, that the Bank shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Bank will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Bank Notes have been qualified as above provided. The Bank will
promptly advise the Distribution Agents of the receipt by the Bank of any
notification with respect to the suspension of the qualification of the Bank
Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(h) Stand-Off Agreement. In connection with a purchase by a Distribution
Agent of Bank Notes as principal, between the date of the agreement to purchase
such Bank Notes and the Settlement Date with respect to such purchase, the Bank
will not, without the prior consent of the Distribution Agent who is party to
such agreement, offer or sell, or enter into any agreement to sell, any debt
securities of the Bank (other than the
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Bank Notes that are to be sold pursuant to such agreement and deposit and other
bank obligations issued and sold directly by the Bank in the ordinary course of
its business).
(i) Selling Restrictions. Each relevant Distribution Agent represents and
agrees that it will comply with the terms set out in the section headed "United
Kingdom" in Exhibit F (Selling Restrictions).
SECTION 5. Payment of Expenses.
Whether or not the transactions contemplated hereunder are consummated or
this Agreement or any agreement by a Distribution Agent to purchase Bank Notes
as principal is terminated, the Bank will pay all expenses incident to the
performance of the Bank's obligations under this Agreement including, without
limitation: (a) the preparation, printing and delivery of the Offering Circular
and all amendments and supplements thereto; (b) the preparation and reproduction
of this Agreement; (c) the preparation, issuance and delivery of the Bank Notes,
including fees and expenses related to the use of book-entry notes; (d) the fees
and disbursements of the Bank's counsel and accountants, of the Paying Agents,
London Issuing Agent, Registrar, Transfer Agent and Listing Agent and of any
calculation agents or exchange rate agents and their respective counsel; (e) the
reasonable fees and disbursements of counsel to the Distribution Agents incurred
in connection with the updating and maintenance of the program relating to the
Bank Notes and incurred from time to time in connection with the transactions
contemplated thereby; (f) any fees charged by rating agencies for rating of the
Bank Notes; (g) any advertising and other out-of-pocket expenses of the
Distribution Agents incurred with the approval of the Bank; (h) the
qualification of the Bank Notes under state securities laws in accordance with
the provisions of Section 4(g) hereof, including the filing fees and the
reasonable fees and disbursements of counsel for the Distribution Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey; (i) the cost of preparing and providing
any CUSIP or other identification numbers for the Bank Notes; (j) compliance
with any applicable requirements of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc., including the filing fees and
the reasonable fees and disbursements of counsel for the Distribution Agents in
connection therewith; and (k) all fees payable to any exchange in connection
with listing the Bank Notes on any exchange.
SECTION 6. Conditions of Distribution Agents' Obligations.
The obligations of the Distribution Agents to solicit offers to purchase
the Bank Notes as agents of the Bank, the obligations of any purchasers of Bank
Notes sold through a Distribution Agent as agent, and any obligation of a
Distribution Agent to purchase Bank Notes pursuant to any agreement by such
Distribution Agent to purchase Bank Notes as principal (or otherwise), will be
subject at all times to the accuracy of the representations and warranties on
the part of the Bank herein and to the accuracy of the statements of the Bank's
and SunTrust Banks' officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Bank of all
covenants and agreements herein contained and to the following additional
conditions precedent:
12
(a) Legal Opinions. On the date hereof, and, if required pursuant to
Section 8(c) hereof, on each Settlement Date, the Distribution Agents, and, only
with respect to any opinions referred to in subparagraph (i) hereof, the
Domestic Paying Agent and Registrar, shall have received the following legal
opinions, dated as of the date hereof or the Settlement Date, as the case may
be, and in form and substance satisfactory to the Distribution Agents:
(i) Opinions of Counsel to the Bank and SunTrust Banks. The opinion of
Xxxxxxx X. Xxxxxx, Esq., counsel to the Bank and SunTrust Banks,
substantially in the form of Exhibit B.
(ii) Opinion of Counsel to the Distribution Agents. The opinion of
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the Distribution Agents,
covering such matters as they may request.
(b) Officers' Certificates. On the date hereof, and, if required pursuant
to Section 8(b) hereof, on each Settlement Date, the Distribution Agents shall
have received a certificate of (i) the President, a Senior Vice President or
Vice President, and the Chief Financial Officer, Chief Accounting Officer or
Treasurer of the Bank satisfactory to the Distribution Agents, substantially in
the form of Exhibit C hereto and (ii) the President, a Senior Vice President or
Vice President, and the Chief Financial Officer, Chief Accounting Officer or
Treasurer of SunTrust Banks satisfactory to the Distribution Agents,
substantially in the form of Exhibit D hereto, each dated the date hereof or the
Settlement Date, as the case may be.
(c) Representations Certificate. On the date hereof, the Distribution
Agents shall have received a certificate of SunTrust Banks, substantially in the
form of Exhibit E hereto.
(d) Accountants' Letter. On the date hereof, and, if required pursuant to
Section 8(d) hereof, on each Settlement Date, the Distribution Agents shall have
received a letter from PricewaterhouseCoopers LLP, independent accountants to
the Bank and SunTrust Banks, dated as of the date hereof or the Settlement Date,
as the case may be, and in form and substance satisfactory to the Distribution
Agents.
(e) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Distribution Agents shall have been furnished with such documents
and opinions as such counsel may reasonably request for the purpose of enabling
such counsel to pass upon the issuance and sale of the Bank Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Bank
in connection with the issuance and sale of Bank Notes as herein contemplated
shall be satisfactory in form and substance to the Distribution Agents and to
counsel to the Distribution Agents.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Distribution Agent, any
13
applicable agreement by such Distribution Agent to purchase Bank Notes as
principal) may be terminated by the Distribution Agents by written notice to the
Bank at any time at or prior to the Closing Time and any such termination shall
be without liability of any party to any other party, except that the provisions
of Section 5 hereof, the indemnity and contribution agreement set forth in
Sections 9 and 10 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 7. Delivery of and Payment for Bank Notes Sold through a Distribution
Agent.
Delivery of Bank Notes sold through a Distribution Agent as agent shall be
made by the Bank to such Distribution Agent for the account of any purchaser
only against payment therefor in immediately available funds. In the event that
a purchaser shall fail either to accept delivery of or to make payment for a
Bank Note on the date fixed for settlement, the Distribution Agent shall
promptly notify the Bank and deliver the Bank Note to the Bank, and, if the
Distribution Agent has theretofore paid the Bank for the Bank Note, the Bank
will promptly return such funds to the Distribution Agent. If such failure shall
have occurred for any reason other than default by the applicable Distribution
Agent to perform its obligations hereunder, the Bank will reimburse such
Distribution Agent on an equitable basis for its loss of the use of funds during
the period when the funds were credited to the account of the Bank.
SECTION 8. Additional Covenants of the Bank.
The Bank covenants and agrees with each Distribution Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by the
Bank of an offer for the purchase of Bank Notes (whether to a Distribution Agent
as principal or through the Distribution Agent as agent), and each delivery of
Bank Notes to the Distribution Agents, shall be deemed to be an affirmation that
the representations and warranties of the Bank contained in this Agreement and
in any certificate theretofore delivered to the Distribution Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to the
applicable Distribution Agent, of the Bank Note or Bank Notes relating to such
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall relate
to the Offering Circular as amended and supplemented to each such time,
including any amendment resulting from the incorporation by reference of
documents filed by the Bank or SunTrust Banks).
(b) Subsequent Delivery of Certificates. Each time that (i) the Offering
Circular shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates or other variable
terms of Bank Notes), (ii) SunTrust Banks files its Form 10-K with the
Commission, or within 30 days thereafter, (iii) (if required in connection with
the purchase of Bank Notes by a Distribution Agent as principal) the Bank sells
Bank Notes to such Distribution Agent as
14
principal or (iv) the Bank issues and sells Bank Notes in a form not previously
certified to the Distribution Agents by the Bank, the Bank shall furnish or
cause to be furnished forthwith to the Distribution Agents certificates from the
Bank and SunTrust Banks dated the date of such amendment or supplement, the date
of such filing, or the Settlement Date, as the case may be, to the effect that
the statements contained in the certificates which were last furnished to the
Distribution Agents by the Bank and SunTrust Banks pursuant to Section 6(b)
hereof are true and correct at the time of such amendment, supplement or sale,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Offering Circular as amended and
supplemented to such time, including any amendment resulting from incorporation
by reference of documents filed by the Bank and SunTrust Banks) or, in lieu of
such certificates, certificates of the same form as the certificates referred to
in said Section 6(b), modified as necessary to relate to the Offering Circular
as amended and supplemented to the time of delivery of such certificates.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the Offering
Circular shall be amended or supplemented with respect to the Bank Notes (other
than by an amendment or supplement (x) providing solely for a change in interest
rates or other variable terms of the Bank Notes or similar changes, or (y)
setting forth financial statements or other information as of and for a fiscal
period (unless, in the reasonable judgment of the Distribution Agents, an
opinion of counsel should be furnished in light of such an amendment)), (ii)
SunTrust Banks files its Form 10-K with the Commission, or within 30 days
thereafter, (iii) (if required in connection with the purchase of Bank Notes by
a Distribution Agent as principal) the Bank sells Bank Notes to such agent as
principal or (iv) the Bank issues and sells Bank Notes in a form not previously
certified to the Distribution Agents by the Bank, the Bank shall furnish or
cause to be furnished forthwith to the Distribution Agents, the Domestic Paying
Agent and Registrar and their respective counsel, a letter from each counsel
last furnishing an opinion referred to in Section 6(a)(i) hereof (or such other
counsel as may be acceptable to the Distribution Agents) to the effect that the
Distribution Agents may rely on such last opinion to the same extent as though
it were dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Offering
Circular as amended and supplemented to the time of delivery of such letter
authorizing reliance) or in lieu of such letter, each such counsel (or such
other counsel as may be acceptable to the Distribution Agents) may deliver a
letter in the same form as its letter referred to in Section 6(a)(i) but
modified, as necessary to relate to the Offering Circular as amended and
supplemented to the time of delivery of such letter. With respect to this
Section 8(c), the opinion referred to in Section 6(a)(ii) will also be furnished
in the same manner contemplated above but only pursuant to Section 8(c)(iii)
above.
(d) Subsequent Delivery of Accountants' Letters. Each time that (i) the
Offering Circular shall be amended or supplemented with respect to the Bank
Notes (other than by an amendment or supplement providing solely for a change in
interest rates or other variable terms of the Bank Notes), (ii) if requested by
the Distribution Agents, there is filed with the Commission any document
incorporated by reference into the Offering Circular, but in any event, within
30 days of SunTrust Banks' filing of its Form 10-K with the Commission, (iii)
(if required in connection with the purchase of Bank
15
Notes by a Distribution Agent as principal) the Bank sells Bank Notes to such
agent as principal or (iv) (if required by a Distribution Agent) the Bank issues
and sells Bank Notes in a form not previously certified to the Distribution
Agents by the Bank, the Bank shall furnish or cause to be furnished forthwith to
the Distribution Agents and the Distribution Agents' counsel a letter from
PricewaterhouseCoopers LLP reaffirming the statements made in its letter
delivered pursuant to Section 6(d), or in lieu of such letter,
PricewaterhouseCoopers LLP may deliver a letter in the same form as its letter
referred to in Section 6(d) but modified as necessary to relate to the Offering
Circular as amended and supplemented to the time of delivery of such letter.
(e) Listing. In connection with any application to list Bank Notes on the
Luxembourg Stock Exchange or any other stock exchange, the Bank will furnish
from time to time any and all documents, instruments, information and
undertakings and publish all advertisements or other material that may the
necessary in order to effect such listing(s) and maintain such listing(s) until
none of such Bank Notes is outstanding or until such time as payment in respect
of principal, premium, if any, and interest in respect of all such Bank Notes
has been duly provided for, whichever is earlier; provided, however, that if the
Bank can no longer reasonably maintain such listing(s), it will use its best
efforts to obtain and maintain the quotation for, or listing of, the Bank Notes
on such other stock exchange or stock exchanges as the Bank may decide with the
approval of the Distribution Agents.
SECTION 9. Indemnification.
(a) Indemnification of Distribution Agents. The Bank agrees to indemnify
and hold harmless each Distribution Agent, each person who controls any
Distribution Agent and each affiliate of any Distribution Agent which assists
such Distribution Agent in the distribution of the Bank Notes within the meaning
of the 1933 Act or of the 1934 Act against any and all losses, claims, damages,
expenses or liabilities, to which they or any of them may become subject under
the 1933 Act or the 1934 Act or other Federal or state statutory law or
regulation, at common law or otherwise, as incurred, insofar as such losses,
claims, damages, expenses 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 Offering Circular (including for purposes of this
Section 9 all amendments and supplements thereto and any of the documents
incorporated by reference therein), 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, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Bank
will not be liable in any such case to the extent that any such loss, claim,
damage, expense 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 Bank by or on behalf of any Distribution Agent specifically for use in the
Offering Circular. This indemnity agreement will be in addition to any liability
which the Bank may otherwise have.
16
(b) Indemnification of the Bank. Each Distribution Agent severally agrees
to indemnify and hold harmless the Bank and each person who controls the Bank
within the meaning of the 1933 Act or of the 1934 Act to the same extent as the
foregoing indemnity from the Bank to each Distribution Agent, but only with
reference to written information furnished to the Bank by or on behalf of such
Distribution Agent specifically for use in the Offering Circular. This indemnity
agreement will be in addition to any liability which any Distribution Agent may
otherwise have.
(c) Notification. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Distribution
Agents, each affiliate of any Distribution Agent which assists such Distribution
Agent in the distribution of the Bank Notes and such control persons of the
Distribution Agents shall be designated in writing by the Distribution Agents
that are Indemnified Parties and any such separate firm for the Bank, its
directors, its officers and such control persons of the Bank or authorized
representatives shall be designated in writing by the Bank. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
17
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
SECTION 10. Contribution.
If the indemnification provided for in paragraphs (a) or (b) of Section 9
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein in connection with
any offering of Bank Notes, then each Indemnifying Person under such paragraph,
in lieu of indemnifying such Indemnified Person thereunder, shall contribute to
the amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Bank on the one hand and each
Distribution Agent on the other from the offering of the Bank Notes to which
such loss, claim, damage or liability relates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Bank on the one hand and each
Distribution Agent on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Bank on the one hand and each Distribution Agent on the other in connection with
the offering of such Bank Notes shall be deemed to be in the same respective
proportion as the net proceeds from the offering of such Bank Notes (before
deducting expenses) received by the Bank and the total discounts and commissions
received by each Distribution Agent in respect thereof bear to the aggregate
offering price of such Bank Notes. The relative fault of the Bank on the one
hand and of each Distribution Agent on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Bank or by such Distribution Agent and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or the omission or alleged omission.
The Bank and each Distribution Agent agrees that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation (even if all Distribution Agents were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 10. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to above in Sections 9 and 10 shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of Sections 9
and 10, in no event shall a Distribution Agent be required to contribute any
amount in excess of the amount by which the total price at which the Bank Notes
referred to in Section 10 that were sold by or through such Distribution Agent
exceeds the amount of any damages that such Distribution Agent has otherwise
been required to pay by
18
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligation
of each Distribution Agent to contribute pursuant to this Section 10 is several
(in the proportion that the principal amount of the Bank Notes the sale of which
by or through such Distribution Agent gave rise to such losses, claims, damages
or liabilities bears to the aggregate principal amount of the Bank Notes the
sale of which by or through any Distribution Agent gave rise to such losses,
claims, damages or liabilities) and is not joint.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Bank pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Distribution Agents or any controlling person of a
Distribution Agent, or by or on behalf of the Bank, and shall survive each
delivery of and payment for any of the Bank Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement
hereunder by a Distribution Agent to purchase Bank Notes as principal) may be
terminated for any reason, at any time by either the Bank or any of the
Distribution Agents as to itself, immediately upon the giving of 30 days written
notice of such termination to the other party hereto in accordance with the
provisions of Section 13 hereof.
(b) Termination of an Agreement to Purchase Bank Notes as Principal. A
Distribution Agent may terminate an agreement hereunder by such Distribution
Agent to purchase Bank Notes as principal, immediately upon written notice to
the Bank, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Offering Circular, any material adverse
change, or any development which could be expected to result in a material
adverse change, in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Bank and its subsidiaries, or of
SunTrust Banks and its subsidiaries, as the case may be, considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Distribution Agent, impracticable to
market the Bank Notes or enforce contracts for the sale of the Bank Notes, or
(iii) there shall have occurred a change in international financial, political
or economic conditions or currency exchange rates or exchange controls as would
be likely to prejudice materially the sale by such Distribution Agent of the
Bank Notes, or (iv) if trading in any securities of the Bank or SunTrust Banks
shall have been suspended by the Commission or a national securities exchange,
or if trading generally on any of the Luxembourg Stock Exchange, the New York
Stock Exchange or the Chicago Board of
19
Trade shall have been suspended, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, by any of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either federal, New York State or Georgia authorities, as the case may be, or
there shall have occurred a material disruption in commercial banking or
securities clearance settlement services in the United States, or (v) if the
rating assigned by any nationally recognized securities rating agency to any
debt securities of the Bank or SunTrust Banks as of the date of any agreement by
a Distribution Agent to purchase the Bank Notes as principal shall have been
lowered since that date or if any such rating agency shall have publicly
announced that it has placed under surveillance or review, other than with
positive implications, its rating of any debt securities or deposits of the Bank
or SunTrust Banks, or (vi) if there shall have come to such Distribution Agent's
attention any facts that would cause such Distribution Agent to believe that the
Offering Circular or any amendments thereto or supplements thereof, at the time
it was required to be delivered to a purchaser of Bank Notes, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading.
(c) General.
In the event of any such termination, none of the parties will have any
liability to the other parties hereto, except that (i) the Distribution Agents
shall be entitled to any commissions earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) a
Distribution Agent shall own any Bank Notes purchased with the intention of
reselling them or (b) an offer to purchase any of the Bank Notes has been
accepted by the Bank but the time of delivery to the purchaser or his agent of
the Bank Note or Bank Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 8 hereof shall remain in effect until such Bank Notes
are so resold or delivered, as the case may be, and (iii) the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 9 and 10 hereof, and the provisions of Section 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Bank:
SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
20
If to the SunTrust Banks:
SunTrust Banks, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
If to the Distribution Agents, at the respective addresses specified in
Schedule 1 hereto, or at such other address as such party may designate from
time to time by notice duly given in accordance with the terms of this Section
13.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Distribution Agents, the Bank and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 9 and 10 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein or therein contained. This Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Bank Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Governing Law.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of New York applicable to
agreements made and to be performed in such state without regard to its
conflicts of laws principles. Any suit, action or proceeding brought by the Bank
or SunTrust Banks in connection with or arising under this Agreement shall be
brought solely in the state or federal court of appropriate jurisdiction located
in the Borough of Manhattan, The City of New York.
SECTION 16. Counterparts.
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
21
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to the Bank a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between each of the Distribution Agents and the Bank in accordance with its
terms.
Very truly yours,
SUNTRUST BANK
By:
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
22
CONFIRMED AND ACCEPTED,
as of the date first above written:
Distribution Agents
CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS LIMITED
By:
-----------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO.
By:
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX INTERNATIONAL
By:
-----------------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
-----------------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES LTD.
By:
-----------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
-----------------------------------------
Name:
Title:
23
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By:
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By:
-----------------------------------------
Name:
Title:
SUNTRUST CAPITAL MARKETS, INC.
By:
-----------------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
-----------------------------------------
Name:
Title:
UBS LIMITED
By:
-----------------------------------------
Name:
Title:
24
SCHEDULE 1
CITIGROUP GLOBAL MARKETS INC. Address for notices:
000 Xxxxxxxxx Xxxxxx -------------------
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Department
Facsimile: (000) 000-0000
CITIGROUP GLOBAL MARKETS LIMITED Address for notices:
Citigroup Center -------------------
Xxxxxxx Xxxxx 0 Xxxxxxxxx Xxxxxx
00 Xxxxxx Square Xxxxxxx Xxxxx 0
Xxxxxx X00 0XX 00 Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Medium-Term Note Department
XXXXXXX, SACHS & CO. Address for notices:
00 Xxxxx Xxxxxx -------------------
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: MTN Trading -
Xxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXXX SACHS INTERNATIONAL Address for notices:
Peterborough Court -------------------
000 Xxxxx Xxxxxx Xxxxxxxxxxxx Xxxxx
Xxxxxx XX0X 0XX 000 Xxxxx Xxxxxx
Xxxxxxxxx: Euro Medium Term Note Desk
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
X.X. XXXXXX SECURITIES INC. Address for notices:
000 Xxxx Xxxxxx, 0xx Xxxxx --------------------
Xxx Xxxx, XX 00000 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium Term Note Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1
X.X. XXXXXX SECURITIES LTD. Address for notices:
125 London Wall --------------------
Xxxxxx, XX0X 0XX 000 Xxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Euro Medium Term Note Desk
Telephone: 000-00-00-0000-0000
Facsimile: 011-44-20-7777-9153
XXXXXX BROTHERS INC. Address for notices:
000 Xxxxxxx Xxxxxx -------------------
Xxx Xxxx, XX 00000 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Medium Term Note Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX BROTHERS INTERNATIONAL Address for notices:
(EUROPE) --------------------
00 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxxxxx Xxxxx Canary Wharf
London E14 5LE Xxxxxx X00 0XX
Attention: European Medium Term Notes
and Money Markets
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
XXXXXX XXXXXXX & CO. Address for notices:
INCORPORATED --------------------
0000 Xxxxxxxx, 0xx Xxxxx 0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Manager-Continuously Offered Products
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Investment Banking Information Center
29th Floor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX XXXXXXX & CO. Address for notices:
INTERNATIONAL LIMITED --------------------
00 Xxxxx Xxxxxx 20 Cabot Square
Canary Wharf Xxxxxx Xxxxx
Xxxxxx X00 0XX Xxxxxx X00 0XX
Xxxxxxx Xxxxxxx
Attn: Manager, Continuously Offered Products
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
2
SUNTRUST CAPITAL MARKETS, INC. Address for notices:
000 Xxxxxxxxx Xxxxxx --------------------
23rd Floor; Mail Code 3935 000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 00xx Xxxxx; Mail Code 3935
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UBS SECURITIES LLC Address for notices:
000 Xxxxxxxxxx Xxxx. --------------------
Xxxxxxxx, XX 00000 000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UBS LIMITED Address for notices:
000 Xxxxxxxxx Xxxxxx --------------------
Xxxxxx, XX0X 0XX 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Attention: MTNS and Private Placements
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
3
EXHIBIT A
FORM OF PRICING SUPPLEMENT
The Pricing Supplement applicable to each Tranche of Notes will be in the
following form and will contain such information as is applicable in respect of
such Notes:
PRICING SUPPLEMENT DATED [________]
(to Offering Circular dated March 31, 2004)
SUNTRUST BANK
(A BANK ORGANIZED PURSUANT TO THE LAWS OF THE STATE OF GEORGIA)
GLOBAL BANK NOTES
Issue of [Aggregate Principal Amount of Tranche][Title of Notes]
UNDER THE U.S.$20,000,000,000 GLOBAL BANK NOTE PROGRAM
This document constitutes the Pricing Supplement relating to the issue of Notes
described herein. Terms used herein shall be deemed to be defined as such for
the purposes of the conditions set forth in the Offering Circular dated March
31, 2004. This Pricing Supplement is supplemental to and must be read in
conjunction with such Offering Circular.
[Include whichever of the following apply or specify as "Not Applicable" (N/A).
Note that the numbering should remain as set out below, even if "Not Applicable"
is indicated for individual paragraphs or sub-paragraphs.]
1. Issuer: SunTrust Bank
2. [(i)] Series Number: [________]
[(ii)] Tranche Number: [________]
(If fungible with an existing Series,
details of that Series, including the
date on which the Notes become fungible
and the aggregate principal amount of
the Series)
3. Specified Currency or Currencies [________]
(in the case of Dual Currency
Notes):
4. Aggregate Principal Amount: [________]
A-1
[(i)] Series: [________]
[(ii)] Tranche: [________]
5. [(i)] Original Issue Date [and [________]
Interest Commencement Date]:
[(ii)] Interest Commencement [________]
Date (if different from the
Original Issue Date):
6. Stated Maturity Date: [Specify date or (for floating rate
notes) Interest Payment Date falling in
or nearest to the relevant month and
year]
7. Status of the Notes: [Senior]
[Subordinated]
8. Interest Basis: [[________]per cent. Fixed Rate]
[[________]Month
[LIBOR/EURIBOR/Other]+/-
[[________]per cent. Floating Rate]
[Zero Coupon]
[Indexed]
[Dual Currency]
[Other (specify)]
(further particulars specified below)
9. Redemption/Payment Basis: [Redemption at par]
[Indexed]
[Dual Currency]
[Partly Paid]
[Installment]
[Other (specify)]
10. Change of Interest or [Specify details of any provision for
Redemption/Payment Basis: change in interest/payment basis]
11. Redeemable at Option of [Redemption at the option of the Issuer]
Issuer/Holder:
[Redemption at the option of the Holder]
(further particulars specified below)
12. [(i)] Issue Price: [________] per cent. of the aggregate
principal amount of the Notes [plus
accrued interest from [insert date]]
A-2
[(ii)] Net proceeds: (in the case of fungible issues only, if
applicable)
13. Authorized Denominations: [________]
14. Listing: [Luxembourg/other (specify)/None]
15. Method of distribution: [Syndicated/Non-syndicated]
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
16. Fixed Rate Note Provisions: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Interest Rate(s): [________] per cent. per annum [payable
[annually/semiannually/
quarterly/monthly] [other] in arrears]
[payable at maturity]
(ii) Interest Payment Date(s): [________] in each year, up to [but
excluding]the Stated Maturity
Date]/[specify other] (NB: This will
need to be amended in the case of long
or short Coupons)
(iii) Interest amount(s): [________] per [________] in principal
amount
(iv) Day Count Convention: [30/360]
[Actual/360]
[Actual/Actual (ISMA)]
[Other (specify convention and
applicable period)]
(v) Interest Determination [________] in each year
Date(s):
[Insert interest payment dates except
where there are long or short periods.
In these cases, insert regular interest
payment dates] (NB: only relevant where
Day Count Convention is Actual/Actual
(ISMA))
(vi) Other terms relating to the [None/(give details)]
method of calculating interest
for Fixed Rate Notes:
17. Floating Rate Note Provisions: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-
A-3
paragraphs of this paragraph)
(i) Interest Payment Dates: [________]
(ii) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified
Following Business Day
Convention/Preceding Business Day
Convention/other (give details)]
(iii) Minimum Interest Rate: [________] per cent. per annum
(iv) Maximum Interest Rate: [________] per cent. per annum
(v) Day Count Convention: 30/360
Actual/360
Actual/Actual
Other (specify convention and applicable
period)
(vi) Manner in which the [Reference Rate Determination/ISDA
Interest Rate(s) and Rate/other (give details)]
Interest Amount is/are to
be determined:
(vii) Party responsible for [________]
calculating the Interest
Rate(s) (if not the
Calculation Agent):
(viii)Reference Rate
Determination:
--Initial Interest Rate: [________]
--Index Maturity: [________]
--Interest Rate [LIBOR (specify applicable LIBOR
Basis/Bases: screen)/EURIBOR/CMT Rate/CD
Rate/Commercial Paper Rate/Eleventh
District Cost of Funds Rate/Federal
Funds Rate/X.X. Xxxxx Rate/Prime
Rate/Treasury Rate/Other]
(additional information is required if
other--including fallback provisions)
--Interest Determination [________]
Date(s):
--Relevant Screen Page: [________]
(In the case of CMT Rate, specify CMT
A-4
Moneyline Telerate Page and CMT Maturity
Index)
(In the case of LIBOR, specify whether
LIBOR Moneyline Telerate or LIBOR
Reuters)
(In the case of EURIBOR, if not
Moneyline Telerate 248 ensure it is a
page which shows a composite rate or
amend the fallback provisions
appropriately)
--Index Currency: [________]
--Spread: [+/-%]
--Spread Multiplier: [________]
--Initial Interest Reset [________]
Date:
--Interest Reset Period: [________]
--Interest Reset Dates: [________]
--Interest Calculation: [Regular Floating Rate Note][Floating
Rate/Fixed Rate Note (specify Fixed Rate
Commencement Date and Fixed Interest
Rate)] [Inverse Floating Rate Note
(specify Fixed Interest Rate)]
(ix) ISDA Rate:
--Margin(s): [+/-] [_] per cent. per annum
--Floating Rate Option: [________]
--Designated Maturity: [________]
--Reset Date: [________]
18. Discount Note (including Zero [Applicable/Not Applicable]
Coupon Note) Provisions:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Total Amount of OID: [________]
(ii) Yield to Maturity: [________]
[________]
A-5
(iii) Initial Accrual
Period:
(iv) Issue Price: [________]
19. Index/Formula Linked Interest [Applicable/Not Applicable]
Note Provisions:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Index/Formula: [give or annex details]
(ii) Agent, if any, [________]
responsible for calculating
the principal and/or
interest due:
(iii) Provisions for [________]
determining Coupon where
calculation by reference to
Index and/or Formula is
impossible or
impracticable:
20. Dual Currency Note Provisions: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Face Amount: [________]
(ii) Face Amount Currency: [________]
(iii) Optional Payment [________]
Currency:
(iv) Designated Exchange [________]
Rate:
(v) Option Election Dates: [________]
(vi) Option Value [________]
Calculation Agent:
(vii)Agent, if any, [________]
responsible for calculating
the principal and/or
interest payable:
PROVISIONS RELATING TO REDEMPTION
21. Redeemable at option of Issuer: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
A-6
(i) Initial Redemption [_______]
Date:
(ii) Initial Redemption [_______]
Percentage:
(iii) Annual Redemption [_______]
Percentage Reduction:
22. Repayable at Option of Holders: [Applicable/Not Applicable]
Holders' Optional Repayment [_______]
Date(s):
GENERAL PROVISIONS APPLICABLE TO THE
NOTES
23. Form of Notes:
(i) Bearer Notes: [Temporary Registered Global Note
exchangeable for a Permanent Registered
Global Note which is exchangeable for
Definitive Notes only upon the
occurrence of a Definitive Exchange
Event]
[Temporary Bearer Global Note
exchangeable for a Permanent Bearer
Global Note which is exchangeable for
Definitive Bearer Notes [on 60 days'
notice]]
(ii) Registered Notes: [_______]
--Registrar: [_______]
--Transfer Agent: [_______]
--Record Dates: [_______]
24. Partly Paid Notes: amount of [Not Applicable/give details]
each payment comprising the
Issue Price and date on which
each payment is to be made and
consequences (if any) of failure
to pay, including the right of
the Issuer to forfeit the Notes
and interest due on late
payment:
25. Installment Notes:
(i) Installment amount(s): [Not Applicable/give details]
(ii) Installment date(s): [Not Applicable/give details]
A-7
26. Other terms or specified [Not Applicable/give details]
conditions:
27. Talons for future Coupons or [Yes/No. If yes, give details]
Receipts to be attached to
Definitive Bearer Notes (and
dates on which such Talons
mature):
28. Details of any additional or [Not Applicable/give details)]
different Paying Agents,
Registrars, London Issuing
Agents, Transfer Agents:
DISTRIBUTION
29. (i) If syndicated, names of [Not Applicable/give names]
Distribution Agents:
(ii) Stabilization Manager (if [Not Applicable/give names]
any): The Stabilization Manager or any other
person acting for the Stabilization
Manager may over-allot or effect
transactions with a view to supporting
the market price of the Notes at a level
higher than that which might otherwise
prevail for a limited period. There may
be no obligation on the Stabilization
Manager or any agent of the
Stabilization Manager to engage in such
stabilization. Such transactions, if
commenced, may be discontinued at any
time and must be terminated after a
limited period. Such transactions, if
any, must comply with all applicable
laws, regulations and rules.
30. If non-syndicated, name of [Not Applicable/give names]
Distribution Agent:
31. Additional selling restrictions: [Not Applicable/give names]
OPERATIONAL INFORMATION
32. CUSIP Code: [_______]
33. ISIN Code: [_______]
34. Common Code: [_______]
35. Clearing System(s): [DTC only]
[Euroclear and Clearstream,
Luxembourg only]
[DTC, Euroclear and Clearstream,
Luxembourg through DTC]
[DTC, Euroclear and Xxxxxxxxxxx,
X-0
Luxembourg] [Other (specify)]
36. Delivery: Delivery [against/free of] payment
37. Redenomination applicable: Redenomination [not] applicable
(If Redenomination is applicable, any
provisions necessary to deal with
floating rate interest calculation
(including alternative reference rates))
38. "Business Day" definition (if [_______]
other than as defined in the
Offering Circular):
39. Governing Law: New York
[LISTING APPLICATION
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the U.S.$20,000,000,000 Global Bank Note
Program of SunTrust Bank]
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in this Pricing
Supplement. Signed on behalf of the Issuer:
By:
------------------------------------
Duly Authorized
A-9
EXHIBIT B
[Date]
[FORM OF OPINION OF COUNSEL TO THE BANK AND SUNTRUST BANKS]
DISTRIBUTION AGENTS, as set forth in Schedule I hereto
Deutsche Bank Trust Company Americas
Trust & Securities Services
00 Xxxx Xxxxxx-00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I am the General Counsel of SunTrust Banks, Inc. ("SunTrust Banks") and
SunTrust Bank (the "Bank") and, together with other attorneys under my
supervision have acted as counsel to the Bank and SunTrust Banks, in connection
with the execution today (i) by you and the Bank of the Amended and Restated
Distribution Agreement (the "Distribution Agreement"), (ii) by SunTrust Banks of
the Representations Certificate pursuant to Section 6(c) of the Distribution
Agreement (the "Representations Certificate"), and (iii) by the Bank and
Deutsche Bank Trust Company Americas, Deutsche Bank AG London, Deutsche Bank
Luxembourg S.A. (together, the "Paying Agents") and Kredietbank S.A.
Luxembourgeoise of the Amended and Restated Global Agency Agreement (the "Global
Agency Agreement"), the Amended and Restated Interest Calculation Agreement
between the Bank and Deutsche Bank Trust Company Americas dated as of March 31,
2004 (the "Interest Calculation Agreement"), the Amended and Restated Exchange
Rate Agent Agreement between the Bank and Deutsche Bank Trust Company Americas
dated March 31, 2004 (the "Exchange Rate Agent Agreement) and (iv) by the Bank,
Deutsche Bank Trust Company Americas and The Depository Trust Company of the
Short-Term and Medium-Term Letters of Representations (the "Letters of
Representations"), all of which are dated March 31, 2004, relating to the
issuance and sale by the Bank of its (i) senior bank notes (the "Senior Notes")
and (ii) subordinated bank notes (the "Subordinated Notes" and together with the
Senior Notes, the "Bank Notes"). The Bank Notes have maturities of 7 days to 30
years or more from date of issue. This opinion letter is furnished pursuant to
Section 6(a)(i) of the Distribution Agreement. Capitalized terms used herein and
not otherwise defined have the meanings set forth in the Distribution Agreement.
In arriving at the opinions expressed below, I have examined and relied on
the following documents:
(a) an executed copy of the Distribution Agreement, the Representations
Certificate, the Global Agency Agreement, the Exchange Rate Agent
Agreement and the Interest Calculation Agreement;
(b) the Offering Circular;
B-1
(c) specimens of the Bank Notes; and
(d) the documents delivered to you by the Bank and SunTrust Banks at the
closing pursuant to the Distribution Agreement.
In addition, I have examined and relied on the originals or copies certified or
otherwise identified to my satisfaction of all such corporate records of the
Bank and SunTrust Banks and such other instruments and other certificates of
public officials, officers and representatives of the Bank and SunTrust Banks
and such other persons, and I have made such investigations of law, as I have
deemed appropriate as a basis for the opinions expressed below. In rendering the
opinions expressed below, I have assumed and have not verified that the
signatures on all documents that I have examined are genuine, that all copies of
documents that I have examined conform to the originals thereof, and that the
Bank Notes conform to the specimen thereof that I have examined.
Based on the foregoing, it is my opinion that:
1. The Bank is a banking corporation validly existing and in good
standing under the laws of the State of Georgia. SunTrust Banks is a
corporation validly existing and in good standing under the laws of the
State of Georgia and is licensed, registered or qualified to conduct the
business in which it is engaged in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
license, registration or qualification, except to the extent that the
failure to be so licensed, registered or qualified or to be in good
standing would not have a material adverse effect on the Bank and its
subsidiaries taken as a whole. The Bank is a wholly-owned subsidiary of
SunTrust Banks, which has securities registered under the Securities
Exchange Act of 1934, as amended.
2. The Distribution Agreement, the Global Agency Agreement, the
Interest Calculation Agreement, the Exchange Rate Agent Agreement and the
Letters of Representations have been duly authorized, executed and
delivered by the Bank and, assuming due authorization, execution and
delivery by all parties thereto other than the Bank, are legal, valid,
binding and enforceable agreements of the Bank, subject to applicable
bankruptcy, liquidation, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, and similar laws of general
applicability relating to, or affecting, creditors' rights and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
3. The Representations Certificate has been duly authorized, executed
and delivered by a duly authorized officer of SunTrust Banks and, assuming
due authorization, execution and delivery of the Distribution Agreement,
the Global Agency Agreement, the Interest Calculation Agreement and the
Exchange Rate Agent Agreement by all parties thereto other than the Bank,
is a legal, valid, binding and enforceable agreement of SunTrust Banks,
subject to applicable bankruptcy, liquidation, insolvency, fraudulent
transfer, reorganization, moratorium, conservatorship, receivership and
similar laws of general
B-2
applicability relating to, or affecting, creditors' rights and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
4. The Bank Notes have been duly authorized for issuance and sale
pursuant to the Distribution Agreement and, when issued and authenticated
against payment of the consideration therefor, the Bank Notes will be
legal, valid, binding and enforceable obligations of the Bank, subject to
applicable bankruptcy, liquidation, insolvency, fraudulent transfer,
reorganization, moratorium, conservatorship, receivership, and similar laws
of general applicability relating to, or affecting creditors rights and
subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
5. The execution, issuance and delivery by the Bank of the Bank Notes,
the execution, delivery and performance by the Bank of the Distribution
Agreement, the Global Agency Agreement, the Interest Calculation Agreement,
the Exchange Rate Agency Agreement, the Letters of Representations and any
agreement by an agent party to the Distribution Agreement to purchase the
Bank Notes as principal, and the execution, delivery and performance by
SunTrust Banks of the Representations Certificate, do not violate any law,
rule, regulation, order, judgment or decree applicable to SunTrust Banks
and its subsidiaries or the Bank and its subsidiaries (including without
limitation, Sections 7-1-291 and 7-1-419 of the Official Code of Georgia),
if any, or violate any provision of each of the Bank's or SunTrust Banks'
Charter, Bylaws, or Articles of Incorporation, as the case may be, or
conflict with or result in a material breach of or constitute a material
default under, or result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of SunTrust Banks
and its subsidiaries or the Bank and its subsidiaries, if any, pursuant to
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to me to which SunTrust Banks or any of its subsidiaries
or the Bank and its subsidiaries if any, or the property of any of them, is
bound or subject.
6. The Bank Notes are exempt from registration under Section 3(a)(2)
of the Securities Act of 1933, as amended (the "1933 Act"), and neither
registration of the Bank Notes under the 1933 Act, nor qualification of an
indenture under the Trust Indenture Act of 1939, as amended, is required in
connection with the offer, sale, issuance or delivery of the Bank Notes
pursuant to the Distribution Agreement or any applicable agreement by an
agent party to the Distribution Agreement to purchase the Bank Notes as
principal.
7. The Bank is not required to register under the provisions of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
8. No consent, approval or authorization of or filing with any Federal
or Georgia governmental body or agency is required for the performance by
the Bank of its obligations under the Distribution Agreement, the Global
Agency
B-3
Agreement, the Interest Calculation Agreement, the Exchange Rate Agent
Agreement, and any applicable agreement by an agent party to the
Distribution Agreement to purchase the Bank Notes as principal or the Bank
Notes, except (A) such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Bank Notes and (B) with respect to Subordinated Notes, such approvals of
the Georgia Department of Banking and Finance as are required by Section
7-1-419 of the Official Code of Georgia, which approvals have been
obtained.
9. The Bank Notes conform in all material respects to the description
thereof contained in the Offering Circular under the caption "Description
of Notes."
10. The Senior Notes are unsecured and unsubordinated debt obligations
of the Bank, and rank pari passu among themselves and with all other
unsecured and unsubordinated debt obligations of the Bank except, (A)
pursuant to Section 11(d)(11) of the Federal Deposit Insurance Act, the
Bank's unsecured deposit obligations and (B) pursuant to Section 7-1-202 of
the Official Code of Georgia, the Bank's deposit obligations. The
Subordinated Notes are unsecured and subordinated debt obligations of the
Bank, rank pari passu among themselves, and are subordinate and junior in
right of payment to the Bank's obligations to its depositors and general
creditors, other than obligations which, by their express terms, rank on a
parity with or junior to the Subordinated Notes.
11. Except as may be set forth in the Offering Circular, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to my knowledge, threatened
against or affecting, SunTrust Banks or any of its subsidiaries or the Bank
and its subsidiaries, if any, which if determined adversely to SunTrust
Banks or any of its subsidiaries or the Bank and its subsidiaries, as the
case may be, could reasonably be expected to result in any material adverse
change in the financial condition, or in the earnings or business affairs,
of SunTrust Banks and its subsidiaries, taken as a whole, or the Bank and
its subsidiaries, taken as a whole, or could reasonably be expected to
materially and adversely affect the consummation of the Distribution
Agreement, the Global Agency Agreement, the Interest Calculation Agreement,
the Exchange Rate Agent Agreement or the Bank Notes or any transaction
contemplated thereby.
Because the primary purpose of my role in the transaction was not to
establish or confirm factual matters or financial, accounting or statistical
matters and because of the wholly or partially non-legal character of many of
the statements contained in the Offering Circular, I am not passing upon and do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Circular and I make no representation that
I have independently verified the accuracy, completeness or fairness of such
statements. Without limiting the foregoing, I assume no responsibility for, and
have not independently verified, the accuracy, completeness or fairness of the
financial statements and schedules and other financial and statistical data
B-4
included in the Offering Circular, and I have not examined the accounting,
financial or statistical records from which such financial statements, schedules
and data are derived. I note that, while certain portions of the Offering
Circular (including financial statements and schedules) have been included
therein on the authority of "experts" within the meaning of the 1933 Act, as
amended, I am not such an expert with respect to any portion of the Offering
Circular, including without limitation such financial statements or schedules or
the other financial or statistical data included therein.
I advise you that no information has come to my attention that causes me to
believe that the Offering Circular (other than the financial statements and
schedules and other financial and statistical data included therein, as to which
I express no view) as of the date thereof or hereof, contained or contains an
untrue statement of a material fact or omitted or omits 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.
I express no opinion other than as to the federal law of the United States
of America and the laws of the State of Georgia.
I am furnishing this opinion letter to you solely for your benefit. This
opinion letter is not to be used, circulated, quoted or otherwise referred to
for any other purpose, except that Sidley Xxxxxx Xxxxx & Xxxx LLP may rely upon
this opinion letter to the same extent as if it were addressed to it for
purposes of rendering its opinion to you on the date hereof.
Very truly yours,
B-5
EXHIBIT C
[THE BANK]
OFFICERS' CERTIFICATE
We, [Officers' Names], [Officers' Titles], respectively, of SunTrust Bank,
a banking association duly organized and validly existing in good standing under
the laws of the State of Georgia (the "Bank"), pursuant to Section 6(b)(i) of
the Amended and Restated Distribution Agreement, dated March 31, 2004 (the
"Distribution Agreement"), among each of the Bank and Citigroup Global Markets
Inc., Citigroup Global Markets Limited, Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx
International, X.X. Xxxxxx Securities Inc., X.X. Xxxxxx Securities Ltd., Xxxxxx
Brothers Inc., Xxxxxx Brothers International (Europe), Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxx Xxxxxxx & Co. International Limited, SunTrust Capital
Markets, Inc., UBS Warburg LLC and UBS Limited hereby certify that:
(i) Since [___], there has been no material adverse change, or any
development which could be expected to result in a material adverse change, in
the condition, financial or otherwise, of the Bank and its subsidiaries
considered as one enterprise, or in the business affairs, earnings or business
prospects of the Bank and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, other than as set forth or
contemplated in the Offering Circular, dated March 31, 2004 (including the
material incorporated by reference therein), as amended or supplemented to the
date hereof, relating to the Bank Notes;
(ii) The other representations and warranties of the Bank contained in
Section 2 of the Distribution Agreement are true and correct with the same force
and effect as though expressly made at and as of the date hereof; and
(iii) The Bank has performed or complied with the Distribution Agreement
and with all agreements and documentation executed in connection therewith and
satisfied in all material respects all conditions on its part to be performed or
satisfied at or prior to the date hereof.
IN WITNESS WHEREOF, we have hereunto signed our names and affixed the seal
of the Bank this ____ day of _______.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
C-1
EXHIBIT D
[SunTrust Banks, Inc.]
Officers' Certificate
We, [Officers' Names], [Officers' Titles], respectively, of SunTrust Banks,
Inc., a corporation organized under the laws of the State of Georgia ("SunTrust
Banks"), pursuant to Section 6(b)(ii) of the Amended and Restated Distribution
Agreement, dated March 31, 2004, (the "Distribution Agreement"), among each of
SunTrust Bank (the "Bank") and Citigroup Global Markets Inc., Citigroup Global
Markets Limited, Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx International, X.X. Xxxxxx
Securities Inc., X.X. Xxxxxx Securities Ltd., Xxxxxx Brothers Inc., Xxxxxx
Brothers International (Europe), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx
Xxxxxxx & Co. International Limited, SunTrust Capital Markets, Inc., UBS Warburg
LLC and UBS Limited (collectively, the "Distribution Agents") hereby certify
that:
1. Since [____], there has been no material adverse change, or any
development which could be expected to result in a material adverse change, in
the condition, financial or otherwise, of the Bank and its subsidiaries or
SunTrust Banks and its subsidiaries, as the case may be, considered as one
enterprise, or in the business affairs, earnings or business prospects of the
Bank and its subsidiaries, as the case may be, considered as one enterprise,
whether or not arising in the ordinary course of business, other than as set
forth or contemplated in the Offering Circular, dated March 31, 2004, as amended
or supplemented to the date hereof, relating to the Bank Notes;
2. The representations and warranties of SunTrust Banks contained in the
Representation Certificate dated March 31, 2004, furnished by SunTrust Banks to
the Distribution Agents pursuant to Section 6(c) of the Distribution Agreement
are true and correct with the same force and effect as though expressly made at
and as of the date hereof; and
3. SunTrust Banks has performed or complied in all material respects with
the Distribution Agreement and with all agreements and documentation executed in
connection therewith and satisfied in all material respects all conditions on
its part to be performed or satisfied at or prior to the date hereof.
D-1
IN WITNESS WHEREOF, we have hereunto signed our names and affixed the seal
of SunTrust Banks the ____ day of ______.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
D-2
EXHIBIT E
REPRESENTATIONS CERTIFICATE OF SUNTRUST BANKS, INC.
To induce Citigroup Global Markets Inc., Citigroup Global Markets Limited,
Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx International, X.X. Xxxxxx Securities Inc.,
X.X. Xxxxxx Securities Ltd., Xxxxxx Brothers Inc., Xxxxxx Brothers International
(Europe), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Xxxxxxx & Co. International
Limited, SunTrust Capital Markets, Inc., UBS Warburg LLC and UBS Limited (each
referred to as a "Distribution Agent" and collectively referred to as the
"Distribution Agents") to enter into the Amended and Restated Distribution
Agreement of even date herewith (the "Distribution Agreement") among each of
SunTrust Bank (the "Bank"), and the Distribution Agents and to induce Deutsche
Bank Trust Company Americas, Deutsche Bank AG London, Deutsche Bank Luxembourg
S.A. and Kredietbank S.A. Luxembourgeoise to enter into the Amended and Restated
Global Agency Agreement (the "Global Agency Agreement") between the Bank and
Deutsche Bank Trust Company Americas, Deutsche Bank AG London, Deutsche Bank
Luxembourg S.A. and Kredietbank S.A. Luxembourgeoise with respect to the issue
and sale by the Bank of its Bank Notes (the "Bank Notes"), the undersigned,
[Officers' Names], [Officers' Titles in accordance with Section 6(c) of the
Distribution Agreement] of SunTrust Banks, Inc. ("SunTrust Banks"), hereby
represent and warrant on behalf of SunTrust Banks to each Distribution Agent and
to [___] as of the date hereof, as of each time that there is filed with the
Securities and Exchange Commission (the "Commission") any document relating to
SunTrust Banks incorporated by reference in the Offering Circular, as of the
date of each acceptance by the Bank of an offer for the purchase of Bank Notes
(whether by a Distribution Agent as principal or through such Distribution Agent
as agent), as of each applicable Settlement Date and as of each applicable
Representation Date, as follows:
(i) Authorization to Incorporate by Reference. SunTrust Banks has
authorized the Bank to incorporate by reference in the Offering Circular
its annual reports on Form 10-K, quarterly reports on Form 10-Q and current
reports on Form 8-K, and each other document filed by the Corporation
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "1934 Act") filed by SunTrust Banks
with the Commission pursuant to the 1934 Act and the rules and regulations
thereunder (and any and all amendments thereto) (except that information in
such documents deemed not to have been filed in accordance with the rules
of the Securities and Exchange Commission shall not be incorporated by
reference) (the "Incorporated Documents").
(ii) Incorporated Documents. The Incorporated Documents, at the time
they were or hereafter are filed with the applicable federal regulatory
authorities, complied or when so filed will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder or the rules and regulations
otherwise applicable thereto, as the case may be, and, when read together
with the other information in the Offering Circular, did not and will not
contain an untrue
E-1
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were or are made, not
misleading.
(iii) Due Organization, Valid Existence and Good Standing. SunTrust
Banks is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia, and is licensed,
registered or qualified to conduct the business in which it is engaged in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such license, registration or qualification,
except to the extent that the failure to be so licensed, registered or
qualified or to be in good standing would not have a material adverse
effect on SunTrust Banks and its subsidiaries taken as a whole.
(iv) No Material Adverse Change. Since the respective dates as of
which information is given in the Offering Circular, there has not been any
material adverse change, or any development which could be expected to
result in a material adverse change, in the condition, financial or
otherwise, or in the business affairs, earnings or business prospects of
the Bank and its subsidiaries, considered as one enterprise, or SunTrust
Banks and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, other than as set forth or
contemplated in the Offering Circular.
In addition, to induce the Distribution Agents to enter into the
Distribution Agreement, SunTrust Banks agrees to indemnify and hold harmless
each Distribution Agent and each person, if any, who controls each Distribution
Agent within the meaning of Section 15 of the Securities Act of 1933, as amended
(the "1933 Act") or Section 20 of the 1934 Act (each, a "Controlling Person") to
the same extent and upon the same terms that the Bank agrees to indemnify and
hold harmless each Distribution Agent and each such Controlling Person in
Section 9(a) of the Distribution Agreement and to contribute to the payment of
any losses, liabilities, claims, damages or expenses incurred by each
Distribution Agent or each such Controlling Person to the same extent and upon
the same terms that the Bank agrees to contribute in Section 10 of the
Distribution Agreement but, in each case only to the extent that the Bank has
not satisfied its obligations so to indemnify and to contribute pursuant to
Section 9(a) and 10 of the Distribution Agreement.
All representations and warranties contained in this certificate shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Distribution Agents or any Controlling Person of the
Distribution Agents, or by or on behalf of SunTrust Banks and shall survive each
delivery of and payment for any of the Bank Notes.
All terms used herein but not otherwise defined shall have the meanings
assigned to such terms in the Distribution Agreement.
E-2
IN WITNESS WHEREOF, I have hereunto signed my name on behalf of SunTrust
Banks this __th day of [_].
SUNTRUST BANKS, INC.
By:
------------------------------------
Name:
Title:
E-3
EXHIBIT F
SELLING RESTRICTIONS
Each Distribution Agent and the Bank will, in connection with the offering of
the Bank Notes on behalf of the Bank, comply with the restrictions on the
offering of Bank Notes and distribution of documents relating thereto set forth
below and/or such other restrictions agreed to by the Bank and such Distribution
Agent. Capitalized terms used below but not defined herein have the meanings
ascribed to them in the Offering Circular.
SALES RESTRICTIONS
GENERAL
No action has been taken by the Bank or any of the Distribution Agents that
would permit a public offering of its (i) senior unsecured debt obligations not
insured by the Federal Deposit Insurance Corporation (the "FDIC") (the "Senior
Notes") and (ii) subordinated unsecured debt obligations not insured by the FDIC
(the "Subordinated Notes") and together with the Senior Notes, the "Bank Notes")
or possession or distribution of the Offering Circular, including any
supplements thereto, or any other offering material in any jurisdiction outside
the United States where action for that purpose is required other than as
described below. Accordingly, each Distribution Agent has represented, warranted
and agreed, and each other distribution agent will be required to represent,
warrant and agree, that it will comply with all applicable laws and regulations
in force in any such jurisdiction in which it purchases, offers or sells Bank
Notes or possesses or distributes the Offering Circular, including any
supplements thereto, or any other offering material and will obtain any consent,
approval or permission required by it for the purchase, offer or sale by it of
Bank Notes under the laws and regulations in force in any such jurisdiction to
which it is subject or in which it makes such purchases, offers or sales and
neither the Bank nor any other Distribution Agent shall have responsibility
therefor.
With regard to each Bank Note, the relevant purchaser will be required to
comply with such restrictions as the Bank and the relevant purchaser shall agree
and as shall be set out in the applicable Pricing Supplement. The following
selling restrictions may be modified by the Bank and the relevant Distribution
Agents following a change in the relevant law, regulation or directive. Any such
modification will be set out in the applicable Pricing Supplement.
UNITED STATES LAW
The Bank Notes have not been, and are not required to be, registered with
the Commission under the Securities Act. The Bank Notes are exempt from
registration with the Commission pursuant to an exemption contained in Section
3(a)(2) of the Securities Act.
F-1
Bearer Notes are subject to United States tax law requirements and may not
be offered, sold, resold or delivered, directly or indirectly, within the United
States or its possessions or to a U.S. person, except in certain transactions
permitted by United States tax regulations. Any underwriters, Distribution
Agents and dealers participating in the offering of Bearer Notes, directly or
indirectly, will be required to agree that they will not, in connection with the
original issuance of any Bearer Notes or during the restricted period offer,
sell, resell or deliver, directly or indirectly, any Bearer Notes in the United
States or its possessions or to United States persons (other than as permitted
by the applicable United States tax regulations). In addition, any such
underwriters, agents and dealers will be required to have procedures reasonably
designed to ensure that their employees or agents who are directly engaged in
selling Bearer Notes are aware of the above restrictions on the offering, sale,
resale or delivery of Bearer Notes. Terms used in this paragraph have the
meaning given to them by the Code.
UNITED KINGDOM
Each Distribution Agent has represented and agreed, and each further
distribution agent appointed under the Program will be required to represent and
agree, that:
(i) in relation to Bank Notes which have a maturity of one year or
more, it has not offered or sold and, prior to the expiry of the period of
six months from the issue date of such Bank Notes, will not offer or sell
any such Bank Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, as amended;
(ii) in relation to any Bank Notes which have a maturity of less than
one year, (a) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of its business and (b) it has not offered or sold
and will not offer or sell any Bank Notes other than to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses where the issue of the Bank Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Bank;
(iii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of any Bank Notes
in circumstances in which Section 21(1) of the FSMA does not apply to the
Bank; and
F-2
(iv) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Bank Notes
in, from or otherwise involving the United Kingdom.
JAPAN
Unless otherwise specified in the applicable Pricing Supplement, the Bank
Notes have not been, and will not be, registered under the Securities and
Exchange Law of Japan (Law No. 25 of 1948, as amended (the "Securities and
Exchange Law")). Accordingly, each Distribution Agent has represented and
agreed, and each further Distribution Agent appointed under the Program will be
required to represent and agree, that it will not offer or sell any Bank Notes,
directly or indirectly, in Japan or to or for the benefit of residents of Japan
(which term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others for
re-offering or resale, directly or indirectly, in Japan or to or for the benefit
of any resident of Japan, except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and Exchange
Law and any other applicable laws, regulations and ministerial guidelines of
Japan.
THE NETHERLANDS
Each Distribution Agent has represented and agreed, and each further
Distribution Agent appointed under the Program will be required to represent and
agree, that it has not, directly or indirectly, offered or sold and will not,
directly or indirectly, offer or sell in The Netherlands any Bank Notes other
than to persons who trade or invest in securities in the conduct of a profession
or business (which include banks, stockbrokers, insurance companies, pension
funds, other institutional investors and finance companies and treasury
departments of large enterprises) unless one of the other exemptions from or
exceptions to the prohibition contained in Article 3 of the Dutch Securities
Transactions Supervision Act 1995 (wet toezicht effectenwerkeer 1995) is
applicable and the conditions attached to such exemption or exception were
complied with.
GERMANY
Each Distribution Agent has represented and agreed, and each further
Distribution Agent appointed under the Program will be required to represent and
agree, that it will offer and sell any Bank Notes (i) unless otherwise provided
in the applicable Pricing Supplement in the case of an issue made on a
syndicated basis, only for an aggregate purchase price per purchaser of at least
euro 40,000 (or the foreign currency equivalent) or such other amount as may be
stipulated from time to time by applicable German law or (ii) as may otherwise
be permitted in accordance with applicable German law.
SWITZERLAND
Each Distribution Agent has represented and agreed, and each further
Distribution Agent appointed under the Program will be required to represent and
agree, that the issue of any Bank Notes denominated in Swiss Francs or carrying
a Swiss Franc-related
F-3
element will be effected in compliance with the relevant regulations of the
Swiss National Bank regarding issues of Swiss Franc denominated debt securities.
In addition, in connection with issuances of Bearer Notes:
(1) except to the extent permitted under United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (a) each
Distribution Agent agrees that it has not offered or sold, and during
the restricted period under Regulation S under the 1933 Act or other
applicable restricted period (the "Restricted Period") will not offer
or sell, Bearer Notes to a person who is within the United States or
its possessions or to a United States person, and (b) it has not
delivered and will not deliver within the United States or its
possessions definitive Bearer Notes that are sold during the
restricted period;
(2) each Distribution Agent represents and agrees that it has and
throughout the Restricted Period will have in effect procedures
reasonably designed to ensure that its employees or Distribution
Agents who are directly engaged in selling Bearer Notes are aware that
Bearer Notes may not be offered or sold during the Restricted Period
to a person who is within the United States or its possessions or to a
United States person, except as permitted by the D Rules;
(3) if it is a United States person, each such Distribution Agent
represents that it is acquiring the Bearer Notes for purposes of
resale in connection with their original issuance and if it retains
Bearer Notes for its own account, it will only do so in accordance
with the requirements of Section 1.163-5(c)(2)(i)(D)(6) of the D
Rules; and
(4) With respect to each affiliate that acquires from it Bearer Notes for
the purpose of offering or selling Bearer Notes during the Restricted
Period, each such Distribution Agent either (a) repeats and confirms
the representations and agreements contained in clauses (1), (2) and
(3) above on its behalf, or (b) agrees that it will obtain from such
affiliate for the Bank's benefit the representations and agreements
contained in clauses (1), (2) and (3) above.
Terms used in the foregoing paragraph have the meanings given to them by the
Code and regulations thereunder, including the D Rules.
F-4
EXHIBIT G
FORM OF SYNDICATED TERMS AGREEMENT
[Date]
To: The Agents Listed on Annex 1 Hereto
Re: SunTrust Bank (the "Issuer")
US$20,000,000,000 Global Bank Note Program
Ladies and Gentlemen:
The Issuer proposes to issue and sell the _____% Global Bank Notes due
_________________ (the "Notes") to the agents listed on Annex 1 hereto
(collectively, the "Agents"). The Agents agree to purchase on a syndicated basis
the Notes as described in the pricing supplement attached as Annex 2 hereto (the
"Pricing Supplement"), on the terms set out in such Pricing Supplement and on
the terms set out below. The sale of the Notes will be subject to the terms and
conditions stated herein and in the Amended and Restated Distribution Agreement,
dated March 31, 2004 ( the "Distribution Agreement"), among the Issuer and the
Distribution Agents named therein. Unless otherwise defined herein, all terms
used herein have the meanings given to them in the Distribution Agreement. Each
of the provisions of the Distribution Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Agreement to
the same extent as if such provisions had been set forth in full herein.
1. Subject to the terms and conditions of the Distribution Agreement and this
Agreement, the Issuer hereby agrees to issue the Notes, and the Agents
severally agree to purchase the Notes (in the proportions set out next to
each Agent's name in Annex I hereto) at the purchase price of _______ per
Note (being equal to the issue price of __% of the principal amount less a
combined underwriting commission of __% of the principal amount);
2. The purchase price specified above will be paid by the lead Distribution
Agent on behalf of the Agents by wire transfer in immediately available
funds to the Issuer at ______ (____ time) on _______, ___, or such other
time and/or date as the Issuer and the lead Distribution Agent on behalf of
the Agents may agree (the "Settlement Time") against delivery of the Notes
to or upon your order in the manner contemplated in the Distribution
Agreement, the Amended and Restated Global Agency Agreement or otherwise.
3. The Agents' obligations hereunder are conditional on the receipt of: (i)
opinions of counsel described in Section 8(c) of the Distribution
Agreement, dated as of the Settlement Time, (ii) a "comfort letter"
described in Section 8(d) of the Distribution Agreement, dated as of the
Settlement Time, (iii) the officer's certificates described in Section 8(b)
of the Distribution Agreement, dated as of the Settlement Time; and (iv)
such other opinions, certificates and documents as
G-1
may be agreed by the Issuer and the Agents on or prior to the date of this
Agreement.
4. If one or more of the Agents shall fail at the Settlement Time to purchase
the Bank Notes which it or they are obligated to purchase under this
Agreement (the "Defaulted Bank Notes"), the lead Distribution Agent shall
have the right, within 36 hours thereafter, to make arrangements for one or
more of the non-defaulting Agents, or any other agents, to purchase all,
but not less than all, of the Defaulted Bank Notes in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the lead
Distribution Agent shall not have completed such arrangements within such
36-hour period, then:
(a) if the principal amount of Defaulted Bank Notes does not exceed
10% of the principal amount of Notes to be purchased on such date, each of
the non-defaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Agents, or
(b) if the principal amount of Defaulted Bank Notes exceeds 10% of the
principal amount of Notes to be purchased on such date, this Agreement
shall terminate without liability on the part of any non-defaulting Agent.
No action taken pursuant to this section shall relieve any defaulting Agent
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Lead Agent or the Issuer shall have the right to
postpone the Settlement Time for a period not exceeding seven days in order to
effect any required changes in any documents or arrangements. As used herein,
the term "Agent" includes any person substituted for an Agent under this Section
4.
Very truly yours,
SUNTRUST BANK
By:
------------------------------------
Name:
Title:
Distribution Agents
[MANAGERS]
X-0
XXXXX 0
Xxxxxxxx xx Xxxxxx
Agent Principal Amount of Notes
----- -------------------------
[Managers]
ANNEX 1
ANNEX 2
FORM OF PRICING SUPPLEMENT
The Pricing Supplement applicable to each Tranche of Notes will be in the
following form and will contain such information as is applicable in respect of
such Notes:
PRICING SUPPLEMENT DATED [_________]
(to Offering Circular dated March 31, 2004)
SUNTRUST BANK
(A BANK ORGANIZED PURSUANT TO THE LAWS OF THE STATE OF GEORGIA)
GLOBAL BANK NOTES
Issue of [Aggregate Principal Amount of Tranche][Title of Notes]
UNDER THE U.S.$20,000,000,000 GLOBAL BANK NOTE PROGRAM
This document constitutes the Pricing Supplement relating to the issue of Notes
described herein. Terms used herein shall be deemed to be defined as such for
the purposes of the conditions set forth in the Offering Circular dated March
31, 2004. This Pricing Supplement is supplemental to and must be read in
conjunction with such Offering Circular.
[Include whichever of the following apply or specify as "Not Applicable" (N/A).
Note that the numbering should remain as set out below, even if "Not Applicable"
is indicated for individual paragraphs or sub-paragraphs.]
1. Issuer: SunTrust Bank
2. [(i)] Series Number: [________]
[(ii)] Tranche Number: [________]
(If fungible with an existing Series,
details of that Series, including the
date on which the Notes become fungible
and the aggregate principal amount of
the Series)
3. Specified Currency or Currencies [________]
(in the case of Dual Currency
Notes):
XXXXX 0 - 0
0. Xxxxxxxxx Xxxxxxxxx Xxxxxx: [________]
[(i)] Series: [________]
[(ii)] Tranche: [________]
5. [(i)] Original Issue Date [and [________]
Interest Commencement
Date]:
[(ii)] Interest Commencement [________]
Date (if different from the
Original Issue Date):
6. Stated Maturity Date: [Specify date or (for floating rate
notes) Interest Payment Date falling in
or nearest to the relevant month and
year]
7. Status of the Notes: [Senior]
[Subordinated]
8. Interest Basis: [[_______]per cent. Fixed Rate]
[[_______]Month [LIBOR/EURIBOR/Other]+/-
[[_______]per cent. Floating Rate]
[Zero Coupon]
[Indexed]
[Dual Currency]
[Other (specify)]
(further particulars specified below)
9. Redemption/Payment Basis: [Redemption at par]
[Indexed]
[Dual Currency]
[Partly Paid]
[Installment]
[Other (specify)]
10. Change of Interest or [Specify details of any provision for
Redemption/Payment Basis: change in interest/payment basis]
11. Redeemable at Option of [Redemption at the option of the Issuer]
Issuer/Holder:
[Redemption at the option of the Holder]
(further particulars specified below)
12. [(i)] Issue Price: [_______] per cent. of the aggregate
principal amount of the Notes [plus
accrued interest from [insert date]]
ANNEX 2 - 2
[(ii)] Net proceeds: (in the case of fungible issues only, if
applicable)
13. Authorized Denominations: [________]
14. Listing: [Luxembourg/other (specify)/None]
15. Method of distribution: [Syndicated/Non-syndicated]
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
16. Fixed Rate Note Provisions: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Interest Rate(s): [________] per cent. per annum [payable
[annually/semiannually/
quarterly/monthly] [other] in arrears]
[payable at maturity]
(ii) Interest Payment Date(s): [________] in each year, up to [but
excluding]the Stated Maturity
Date]/[specify other] (NB: This will
need to be amended in the case of long
or short Coupons)
(iii) Interest amount(s): [________] per [__] in principal amount
(iv) Day Count Convention: [30/360]
[Actual/360]
[Actual/Actual (ISMA)]
[Other (specify convention and
applicable period)]
(v) Interest Determination [________] in each year
Date(s):
[Insert interest payment dates except
where there are long or short periods.
In these cases, insert regular interest
payment dates] (NB: only relevant where
Day Count Convention is Actual/Actual
(ISMA))
(vi) Other terms relating to the [None/(give details)]
method of calculating interest
for Fixed Rate Notes:
17. Floating Rate Note Provisions: [Applicable/Not Applicable]
(If not applicable, delete the remaining
sub-
ANNEX 2 - 3
paragraphs of this paragraph)
(i) Interest Payment Dates: [________]
(ii) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified
Following Business Day
Convention/Preceding Business Day
Convention/other (give details)]
(iii) Minimum Interest Rate: [________] per cent. per annum
(iv) Maximum Interest Rate: [________] per cent. per annum
(v) Day Count Convention: 30/360
Actual/360
Actual/Actual
Other (specify convention and applicable
period)
(vi) Manner in which the [Reference Rate Determination/ISDA
Interest Rate(s) and Rate/other (give details)]
Interest Amount is/are to
be determined:
(vii)Party responsible for [________]
calculating the Interest
Rate(s) (if not the
Calculation Agent):
(viii)Reference Rate
Determination:
--Initial Interest Rate: [________]
--Index Maturity: [________]
--Interest Rate Basis/Bases: [LIBOR (specify applicable LIBOR
screen)/ EURIBOR/CMT Rate/CD
Rate/Commercial Paper Rate/Eleventh
District Cost of Funds Rate/Federal
Funds Rate/X.X. Xxxxx Rate/ Prime
Rate/Treasury Rate/Other]
(additional information is required if
other-- including fallback provisions)
--Interest Determination [________]
Date(s):
--Relevant Screen Page: [________]
(In the case of CMT Rate, specify CMT
ANNEX 2 - 4
Moneyline Telerate Page and CMT Maturity
Index)
(In the case of LIBOR, specify whether
LIBOR Moneyline Telerate or LIBOR
Reuters)
(In the case of EURIBOR, if not
Moneyline Telerate 248 ensure it is a
page which shows a composite rate or
amend the fallback provisions
appropriately)
--Index Currency: [________]
--Spread: [+/-%]
--Spread Multiplier: [________]
--Initial Interest Reset [________]
Date:
--Interest Reset Period: [________]
--Interest Reset Dates: [________]
--Interest Calculation: [Regular Floating Rate Note][Floating
Rate/Fixed Rate Note (specify Fixed Rate
Commencement Date and Fixed Interest
Rate)] [Inverse Floating Rate Note
(specify Fixed Interest Rate)]
(ix) ISDA Rate:
--Margin(s): [+/-] [_] per cent. per annum
--Floating Rate Option: [________]
--Designated Maturity: [________]
--Reset Date: [________]
18. Discount Note (including [Applicable/Not Applicable]
Zero Coupon Note)
Provisions:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Total Amount of OID: [________]
(ii) Yield to Maturity: [________]
[________]
ANNEX 2 - 5
(iii) Initial Accrual
Period:
[________]
(iv) Issue Price:
19. Index/Formula Linked [Applicable/Not Applicable]
Interest Note Provisions:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Index/Formula: [give or annex details]
(ii) Agent, if any, [________]
responsible for calculating
the principal and/or
interest due:
(iii) Provisions for [________]
determining Coupon where
calculation by reference to
Index and/or Formula is
impossible or
impracticable:
20. Dual Currency Note [Applicable/Not Applicable]
Provisions:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
(i) Face Amount: [________]
(ii) Face Amount Currency: [________]
(iii) Optional Payment [________]
Currency:
(iv) Designated Exchange [________]
Rate:
(v) Option Election Dates: [________]
(vi) Option Value [________]
Calculation Agent:
(vii) Agent, if any, [________]
responsible for calculating
the principal and/or
interest payable:
PROVISIONS RELATING TO
REDEMPTION
21. Redeemable at option of [Applicable/Not Applicable]
Issuer:
(If not applicable, delete the remaining
sub-paragraphs of this paragraph)
ANNEX 2 - 6
(i) Initial Redemption Date: [________]
(ii) Initial Redemption [________]
Percentage:
(iii) Annual Redemption [________]
Percentage Reduction:
22. Repayable at Option of Holders: [Applicable/Not Applicable]
Holders' Optional Repayment [________]
Date(s):
GENERAL PROVISIONS APPLICABLE
TO THE NOTES
23. Form of Notes:
(i) Bearer Notes: [Temporary Registered Global Note
exchangeable for a Permanent Registered
Global Note which is exchangeable for
Definitive Notes only upon the
occurrence of a Definitive Exchange
Event]
[Temporary Bearer Global Note
exchangeable for a Permanent Bearer
Global Note which is exchangeable for
Definitive Bearer Notes [on 60 days'
notice]]
(ii) Registered Notes: [________]
--Registrar: [________]
--Transfer Agent: [________]
--Record Dates: [________]
24. Partly Paid Notes: amount of [Not Applicable/give details]
each payment comprising the
Issue Price and date on which
each payment is to be made and
consequences (if any) of failure
to pay, including the right of
the Issuer to forfeit the Notes
and interest due on late
payment:
25. Installment Notes:
(i) Installment amount(s): [Not Applicable/give details]
(ii) Installment date(s): [Not Applicable/give details]
ANNEX 2 - 7
26. Other terms or specified [Not Applicable/give details]
conditions:
27. Talons for future Coupons or [Yes/No. If yes, give details]
Receipts to be attached to
Definitive Bearer Notes (and
dates on which such Talons
mature):
28. Details of any additional or [Not Applicable/give details)]
different Paying Agents,
Registrars, London Issuing
Agents, Transfer Agents:
DISTRIBUTION
29. (i) If syndicated, names of
Distribution Agents: [Not Applicable/give names]
(ii) Stabilization Manager (if [Not Applicable/give names]
any): The Stabilization Manager or any other
person acting for the Stabilization
Manager may over-allot or effect
transactions with a view to supporting
the market price of the Notes at a level
higher than that which might otherwise
prevail for a limited period. There may
be no obligation on the Stabilization
Manager or any agent of the
Stabilization Manager to engage in such
stabilization. Such transactions, if
commenced, may be discontinued at any
time and must be terminated after a
limited period. Such transactions, if
any, must comply with all applicable
laws, regulations and rules.
30. If non-syndicated, name of [Not Applicable/give names]
Distribution Agent:
31. Additional selling restrictions: [Not Applicable/give names]
OPERATIONAL INFORMATION
32. CUSIP Code: [________]
33. ISIN Code: [________]
34. Common Code: [________]
35. Clearing System(s): [DTC only]
[Euroclear and Clearstream, Luxembourg
only]
[DTC, Euroclear and Clearstream,
Luxembourg through DTC]
[DTC, Euroclear and Clearstream,
ANNEX 2 - 8
Luxembourg] [Other (specify)]
36. Delivery: Delivery [against/free of] payment
37. Redenomination applicable: Redenomination [not] applicable
(If Redenomination is applicable, any
provisions necessary to deal with
floating rate interest calculation
(including alternative reference rates))
38. "Business Day" definition (if [________]
other than as defined in the
Offering Circular):
39. Governing Law: New York
[LISTING APPLICATION
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the U.S.$20,000,000,000 Global Bank Note
Program of SunTrust Bank]
RESPONSIBILITY
The Issuer accepts responsibility for the information contained in this Pricing
Supplement. Signed on behalf of the Issuer:
By:
-----------------------------------
Duly Authorized
ANNEX 2 - 9
EXHIBIT H
ADMINISTRATIVE PROCEDURES MEMORANDUM
(Dated as of March 31, 2004)
FOR
SUNTRUST BANK
Global Bank Notes Due From
7 Days to 30 Years or More from Date of Issue
Senior unsecured debt obligations (the "Senior Notes") and subordinated
unsecured obligations (the "Subordinated Notes" and, together with the Senior
Notes, the "Bank Notes") which from time to time may be offered on a continuing
basis for sale by SunTrust Bank (the "Bank") through each of the distribution
agents listed on Schedule I to the Amended and Restated Distribution Agreement
to which these Administrative Procedures are an exhibit (the "Distribution
Agreement") (each, a "Distribution Agent" and collectively, the "Distribution
Agents") who may purchase the Bank Notes, as principal from the Bank for resale
to investors and other purchasers in accordance with the Distribution Agreement.
In addition, if agreed to by the Bank and the applicable Distribution Agent,
such Distribution Agent may utilize its reasonable efforts on an agency basis to
solicit offers to purchase the Bank Notes. Only those provisions in these
Administrative Procedures that are applicable to the particular role that a
Distribution Agent will perform shall apply. Whenever these Administrative
Procedures indicate that information may be set forth in a Bank Note, such
information may be set forth in a Pricing Supplement to the Offering Circular
(as defined below).
Deutsche Bank Trust Company Americas (or such other agent appointed in
accordance with the Amended and Restated Global Agency Agreement (as defined
below)) will act as the registrar (the "Registrar") and domestic paying agent
(the "Domestic Paying Agent") for the Bank Notes through its office at 00 Xxxx
Xxxxxx - 27th Floor, New York, New York 10005, or such other address as the
Registrar and Domestic Paying Agent may notify the Bank from time to time.
Deutsche Bank AG London, (or such other agent appointed in accordance with the
Amended and Restated Global Agency Agreement), will act as London paying agent
(the "London Paying Agent") and London issuing agent (the "London Issuing
Agent"). As used herein, the term "Offering Circular" refers to the most recent
offering circular, as such document may be amended or supplemented, which has
been prepared by the Bank for use by the Distribution Agents in connection with
the offering of the Bank Notes.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Bank Notes or the Offering Circular.
H-1
DTC REGISTERED GLOBAL NOTES
Bank Notes may be issued in book-entry form (each beneficial interest in a
global Note, a "Book-Entry Note" and collectively, the "Book-Entry Notes") and
represented by one or more fully registered global Bank Notes (each, a "Global
Note" and collectively, the "Global Bank Notes") held by or on behalf of The
Depository Trust Company, as depositary ("DTC", which term includes any
successor thereof), and recorded in the book-entry system maintained by DTC.
Book-Entry Notes represented by a Global Note are exchangeable for definitive
Bank Notes in registered form, of like tenor and of an equal aggregate principal
amount, by the owners of such Book-Entry Notes only upon certain limited
circumstances described in the Offering Circular.
In connection with the qualification of Book-Entry Notes for eligibility in
the book-entry system maintained by DTC, Deutsche Bank Trust Company Americas or
its agents will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
the applicable Letters of Representations from Deutsche Bank Trust Company
Americas to DTC relating to the Program, and a Certificate of Deposit Agreement
between Deutsche Bank Trust Company Americas and DTC (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Settlement Procedures for Settlement Procedures with regard to Book-Entry
Book-Entry Notes: Notes purchased by each Distribution Agent as
principal or sold by each Distribution Agent, as
agent of the Bank, will be as follows (which will
have been agreed to by the Bank and such
Distribution Agent in accordance with the
Distribution Agreement):
(A) The Distribution Agent will advise the Bank by
telephone, confirmed by facsimile to the Bank
and the Registrar, of the following settlement
information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of such Book-Entry Notes.
3. Whether the Bank Note is a Senior Note or
a Subordinated Note.
4. Each term specified in the applicable
Pricing Supplement.
5. Price to public, if any, of such Book
Entry Bank Notes (if such Book-Entry Notes
are
H-2
not being offered "at the market").
6. Trade Date.
7. Settlement Date (Original Issue Date).
8. Maturity Date.
9. Redemption provisions, if any, including:
Initial Redemption Date, Initial
Redemption Percentage and Annual
Redemption Percentage Reduction.
10. Repayment provisions, if any, including
Holder's Optional Repayment Date(s).
11. Net proceeds to the Bank.
12. Whether such Book-Entry Notes are being
sold to the Distribution Agent as
principal or to an investor or other
purchaser through the Distribution Agent
acting as agent for the Bank.
13. The Distribution Agent's commission or
discount, as applicable.
14. Whether such Book-Entry Notes are being
issued with Original Issue Discount and
the terms thereof.
15. Default Rate.
16. Identification numbers of participant
accounts maintained by DTC on behalf of
the Distribution Agent.
17. Whether additional documentation will be
required for Bank Notes being sold to the
Distribution Agent as principal.
18. Such other information specified with
respect to such Book-Entry Notes (whether
by Addendum or otherwise).
(B) The Registrar will assign a CUSIP number of the
appropriate series to the Global Note
representing such Book-Entry Notes and, as soon
thereafter as
H-3
practicable, the Registrar will notify the
Distribution Agent by telephone of such CUSIP
number.
(C) The Registrar will communicate to DTC and the
Distribution Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. The identification numbers of the
participant accounts maintained by DTC on
behalf of the Registrar and the
Distribution Agent.
3. Identification of the Book-Entry Note as a
Fixed Rate Book-Entry Note or Floating
Rate Book-Entry Note.
4. The initial Interest Payment Date for the
Global Note representing such Book-Entry
Notes, the number of days by which such
date succeeds the related Record Date and,
if then calculable, the amount of interest
payable on such Interest Payment Date
(which amount shall have been confirmed by
the Bank).
5. The CUSIP number of the Global Note
representing such Book-Entry Notes.
6. Whether such Global Note represents any
other Bank Notes issued or to be issued in
book-entry form.
(D) The Registrar will complete and deliver to DTC
(or its custodian) the Global Note representing
such Book-Entry Notes in a form that has been
approved by the Bank and the relevant
Distribution Agents.
(E) DTC will credit the Book-Entry Notes
represented by such Global Note to the
participant account of the Registrar maintained
by DTC.
(F) The Registrar will enter an SDFS deliver order
through DTC's Participant Terminal System
H-4
instructing DTC (i) to debit such Book-Entry
Notes to the Registrar's participant account
and credit such Book-Entry Notes to the
participant account of the Distribution Agent
maintained by DTC and (ii) to debit the
settlement account of the Distribution Agent
and credit the Settlement account of the
Registrar maintained by DTC in an amount equal
to the price of such Book-Entry Notes less such
Distribution Agent's commission or discount.
Any entry of such deliver order shall be deemed
to constitute a representation and warranty by
the Registrar to DTC that (i) the Global Note
representing such Book-Entry Notes has been
issued and authenticated and (ii) the Registrar
is holding such Global Note pursuant to the
Certificate Agreement.
(G) In the case of Book-Entry Notes sold through a
Distribution Agent acting as agent, the
Distribution Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Book-Entry
Notes to the Distribution Agent's participant
account and credit such Book-Entry Notes to the
participant accounts of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Distribution Agent maintained by DTC, in an
amount equal to the offering price of such
Book-Entry Notes.
(H) Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
(I) In the case of Book-Entry Notes sold through a
Distribution Agent acting as agent, the
Distribution Agent will confirm the purchase of
such Book-Entry Notes to the purchaser either
by transmitting to the Participant with respect
to such Book-Entry Notes a confirmation order
through DTC's Participant Terminal System or by
mailing a written confirmation to such
purchaser.
H-5
Settlement Procedures For offers to purchase Book-Entry Notes accepted by
Timetable: the Bank, Settlement Procedures "A" through "I" set
forth above shall be completed as soon as possible
but no later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 5:00 p.m. on the Trade Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:00 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled on the same Business Day
as the Trade Date, Settlement Procedures C, F, and G
shall be completed no later than 2:30 p.m. on such
Business Day, and Settlement Procedure D shall be
completed no later than 10:00 a.m. on such Business
Day.
If a sale is to be settled more than one Business
Day after the trade date, Settlement Procedures A, B
and C may, if necessary, be completed at any time
prior to the specified times on the first Business
Day after such trade date. In connection with a sale
which is to be settled more than one Business Day
after the trade date, if the initial interest rate
for a Floating Rate Note is not known at the time
that Settlement Procedure A is completed, Settlement
Procedures B and C shall be completed as soon as
such rate has been determined, but no later than
11:00 a.m. and 2:00 p.m., New York City time,
respectively, on the second Business Day before the
Settlement Date.
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
H-6
If settlement of a Book-Entry Note is rescheduled or
canceled, the Registrar will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 5:00 p.m.,
New York City time, on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle: If the Registrar fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure F, then the Registrar may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Book-Entry Note to the
participant account of the Registrar maintained at
DTC. DTC will process the withdrawal message;
provided that such participant account contains a
principal amount of the Global Note representing
such Book-Entry Note that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all
Book-Entry Notes represented by a Global Note, the
Registrar will xxxx such Global Note "canceled" and
make appropriate entries in its records. The CUSIP
number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If
withdrawal messages are processed with respect to
some of the Book-Entry Notes represented by a Global
Note, the Registrar will exchange such Global Note
for two Global Bank Notes, one of which shall
represent the Book-Entry Notes for which such
withdrawal messages are processed and shall be
canceled immediately after issuance, and the other
of which shall represent the other Book-Entry Notes
previously represented by the surrendered Global
Note and shall bear the CUSIP number of the
surrendered Global Note.
In the case of any Book-Entry Note sold through a
Distribution Agent, acting as agent, if the purchase
price for any Book-Entry Note is not timely paid to
the Participants with respect to such Book-Entry
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the applicable
Distribution Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures
F and G, respectively. Thereafter, the Registrar
will
H-7
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to a Book-Entry
Note that was to have been represented by a Global
Note also representing other Book-Entry Notes, the
Registrar will provide, in accordance with
Settlement Procedure D, for the issuance of a Global
Note representing such remaining Book-Entry Notes
and will make appropriate entries in its records.
H-8
BEARER NOTES
In certain circumstances Bearer Notes may be issued. Settlement Procedures
with regard to Bearer Notes purchased by each Distribution Agent as principal or
sold by each Distribution Agent as agent of the Bank, will be as follows:
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
No later than Original 2:00 p.m. The Bank may agree with one or more of
Issue Date minus 5 the Distribution Agents for the issue
Business Days and purchase of Bearer Notes (whether
pursuant to an unsolicited bid from a
Distribution Agent or pursuant to an
inquiry by the Bank). The Distribution
Agent instructs the London Issuing Agent
to obtain a Common Code and ISIN from
Euroclear or Clearstream, Luxembourg. In
the case of the first Tranche of Bank
Notes of a Series, the London Issuing
Agent telephones Euroclear or
Clearstream, Luxembourg with a request
for a Common Code and ISIN for such
Series and in the case of a subsequent
Tranche of Bank Notes of that Series the
London Issuing Agent telephones
Euroclear or Clearstream, Luxembourg
with a request for a temporary Common
Code and ISIN for such Tranche. Each
Common Code and ISIN is notified by the
London Issuing Agent to each
Distribution Agent which has reached
agreement with the Bank.
3:00 p.m. If a Distribution Agent has reached
agreement with the Bank by telephone,
such Distribution Agent confirms the
terms of the agreement to the Bank by
fax attaching a copy of the Pricing
Supplement. The Distribution Agent sends
a copy of that fax to the London Issuing
Agent and the Registrar for information.
5:00 p.m. The Bank confirms its agreement to the
terms on which the issue of Bearer Notes
is to the made (including the form of
the Pricing Supplement) by signing and
returning a copy of the Pricing
Supplement to the relevant Distribution
Agent. The Bank also confirms its
instructions to the London Issuing Agent
(including, in the case of Floating Rate
Bank Notes, the rate fixed by the
Calculation Agent) to carry out the
duties to be carried out by the London
Issuing Agent under these Settlement
Procedures and the Global Agency
Agreement including preparing,
authenticating and issuing a Temporary
Global
H-9
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
Note for the Tranche of Bank Notes which
is to be purchased and in the case of
the first Tranche of a Series, where the
Pricing Supplement for such Tranche does
not specify that such Temporary Global
Note is to be exchangeable only for
Bearer Notes in definitive form, a
Permanent Global Note for such Series,
giving details of such Bearer Notes.
The Bank confirms such instructions by
sending a copy by Fax of the signed
Pricing Supplement to the London Issuing
Agent.
No later than Original 2:00 p.m. In the case of Bearer Notes which are to
Issue Date minus 4 be listed on a Stock Exchange, the
Business Days London Issuing Agent notifies the
relevant Listing Agent who in turn
notifies the relevant Stock Exchange by
fax or by hand of the details of the
Bank Notes to be issued by sending the
Pricing Supplement to the relevant Stock
Exchange.
Original Issue Date minus 3:00 p.m. In the case of Bearer Notes cleared
2 Business Days through Euroclear and/or Clearstream,
Luxembourg, the relevant Distribution
Agent instructs the relevant clearing
system to debit its account and pay the
purchase price, against delivery of the
Bearer Notes, to the London Issuing
Agent's account with the relevant
clearing system on the Original Issue
Date and the London Issuing Agent
receives details of such instructions
through the records of the relevant
clearing system.
Original Issue Date minus 3:00 p.m. In the case of Floating Rate Bank Notes,
1 Business Day the Calculation Agent notifies the
relevant clearing system, the Bank, any
relevant Stock Exchange (or the relevant
Listing Agent, which in turn shall
notify the relevant Stock Exchange) and
the relevant Distribution Agent by telex
or fax of the rate of interest for the
first Interest Period (if already
determined). Where the rate of interest
has not yet been determined,
notification will be made in accordance
with this paragraph as soon as it has
been determined.
H-10
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
Original Issue Date minus agreed The London Issuing Agent prepares and
1 Business Day (in the time authenticates a Temporary Global Note
case of pre-closed for each Tranche of Bank Notes which is
issues) or Original Issue to be purchased and, where required as
Date (in any other case) specified above, a Permanent Global Note
(the "Payment Instruction in respect of the relevant Series. The
Date") Temporary Global Note and any such
Permanent Global Note are then delivered
by the London Issuing Agent to a common
depositary for Euroclear and
Clearstream, Luxembourg and instructions
are given by the London Issuing Agent to
Euroclear or, as the case may be,
Clearstream, Luxembourg to credit the
Bearer Notes represented by such
Temporary Global Note to the London
Issuing Agent's distribution account.
In the case of Bearer Notes cleared
through Euroclear and/or Clearstream,
Luxembourg, the London Issuing Agent
further instructs Euroclear or, as the
case may be, Clearstream, Luxembourg to
debit from the distribution account the
nominal amount of the relevant Tranche
of Bank Notes and to credit such nominal
amount to the account of such
Distribution Agent with Euroclear or
Clearstream, Luxembourg against payment
to the account of the London Issuing
Agent of the purchase price for the
relevant Tranche of Bank Notes on the
Original Issue Date. The relevant
Distribution Agent gives corresponding
instructions to Euroclear or
Clearstream, Luxembourg. The parties
(which for this purpose shall include
the London Issuing Agent) may agree to
arrange for "free delivery" to the made
through the relevant clearing system if
specified in the applicable Pricing
Supplement.
Original Issue Date The relevant clearing system debits and
credits accounts in accordance with
instructions received by it.
The London Issuing Agent pays to the
Bank on the Original Issue Date the
aggregate purchase price received by it
to such account of the Bank as shall
have been notified to the London Issuing
Agent for the purpose.
H-11
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
On or subsequent to the The London Issuing Agent notifies the
Original Issue Date Bank forthwith in the event that a
Distribution Agent does not pay the
purchase price due from it in respect of
a Bank Note.
The London Issuing Agent notifies the
Bank of the issue of Bearer Notes giving
details of the Global Note(s) and the
nominal sum represented thereby.
The relevant Distribution Agent promptly
notifies the London Issuing Agent that
the distribution of the Bearer Notes
purchased or placed by it has been
completed. If applicable, the London
Issuing Agent promptly notifies the
Bank, the relevant Distribution Agents
and the relevant clearing system of the
date of the end of any applicable
restricted trading period with respect
to the relevant Tranche of Bank Notes.
X-00
XXXXXXXXX/XXXXXXXXXXX, XXXXXXXXXX REGISTERED GLOBAL NOTES
Bank Notes may be issued in book-entry form as Book-Entry Notes and
represented by one or more fully registered Global Bank Notes held by or on
behalf of Euroclear and/or Clearstream, Luxembourg, as depositary, and recorded
in the book-entry system maintained by Euroclear and/or Clearstream, Luxembourg.
Book-Entry Notes represented by a Global Note are exchangeable for definitive
Bank Notes in registered form, of like tenor and of an equal aggregate principal
amount, by the owners of such Book-Entry Notes only upon certain limited
circumstances described in the Offering Circular. Settlement Procedures with
regard to Book-Entry Notes purchased by each Distribution Agent as principal or
sold by each Distribution Agent, as agent of the Bank, are as follows:
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
No later than Original 2:00 p.m. The Bank may agree with one or more of
Issue Date minus 5 the Distribution Agents for the issue
Business Days and purchase of Bank Notes (whether
pursuant to an unsolicited bid from a
Distribution Agent or pursuant to an
inquiry by the relevant Bank).
3:00 p.m. In the case of the first Tranche of
Registered Bank Notes, the London
Issuing Agent telephones Euroclear
and/or Clearstream, Luxembourg with a
request for a Common Code for such
Tranche and, in the case of a subsequent
Tranche of Bank Notes of that Series,
the London Issuing Agent telephones
Euroclear and/or Clearstream, Luxembourg
with a request for a temporary Common
Code for such Tranche and the London
Issuing Agent confirms such number(s) to
the Registrar. Each ISIN number, and
each Common Code is notified by the
Registrar by telex or fax to the Bank
and the relevant Distribution Agent.
If a Distribution Agent has reached
agreement with the Bank by telephone,
such Distribution Agent confirms the
terms of the agreement to the Bank by
telex or fax attaching a copy of the
Pricing Supplement. The relevant
Distribution Agent sends a copy of that
fax to the London Issuing Agent and the
Registrar for information.
5:00 p.m. The Bank confirms its agreement to the
terms on which the issue of Bank Notes
is to the made (including the form of
the Pricing Supplement) by signing and
returning a copy of the Pricing
Supplement to the relevant
H-13
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
Distribution Agent. The Bank also
confirms its instructions (including, in
the case of Floating Rate Bank Notes,
the rate fixed by the Calculation Agent)
to the London Issuing Agent and the
Registrar to carry out the duties to be
carried out by the London Issuing Agent
and the Registrar under these Settlement
Procedures and the Global Agency
Agreement including preparing,
authenticating and issuing one or more
Registered Global Bank Notes and/or one
or more Definitive Registered Bank Notes
for each Tranche of Bank Notes which are
to be purchased or placed by the
relevant Distribution Agent, giving
details of such Bank Notes.
The Bank confirms such instructions by
sending a copy by fax of the signed
Pricing Supplement to the London Issuing
Agent and the Registrar.
The relevant Distribution Agent notifies
Euroclear and/or Clearstream, Luxembourg
of the relevant accounts to be credited
with Bank Notes represented by interests
in the Global Note(s) to be issued.
No later than Original 2:00 p.m. In the case of Bank Notes which are to
Issue Date minus 4 be listed on a Stock Exchange, the
Business Days London Issuing Agent notifies the
relevant Listing Agent who in turn
notifies the relevant Stock Exchange by
fax or by hand of the details of the
Bank Notes to be issued by sending the
Pricing Supplement to the relevant Stock
Exchange.
Original Issue Date minus 3:00 p.m. Where the relevant Distribution Agent is
2 Business Days purchasing or placing Bank Notes through
Euroclear and/or Clearstream,
Luxembourg, the relevant Distribution
Agent instructs Euroclear and/or
Clearstream, Luxembourg, subject to
further instructions, on the Original
Issue Date or, in the case of Bank Notes
denominated in a currency requiring a
pre-closing, the Original Issue Date
minus 1 Business Day, to debit its
account, or such account as it directs,
and pay the purchase price to the
account of the closing bank as agreed
between the Bank, the London Issuing
Agent and the relevant Distribution
Agent from time to time (in such
capacity, the "Closing Bank") for such
purpose.
H-14
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
Original Issue Date minus 3:00 p.m. In the case of Floating Rate Bank Notes,
1 Business Day the Calculation Agent notifies the
Registrar, Euroclear, Clearstream,
Luxembourg, the Bank, in the case of
Listed Bank Notes, the relevant Listing
Agent (who in turn notifies the relevant
Stock Exchange), and the relevant
Distribution Agent by telex or fax of
the rate of interest for the first
Interest Period (if already determined).
Where the rate of interest has not yet
been determined, this will be notified
in accordance with this paragraph as
soon as it has been determined.
Original Issue Date minus agreed The London Issuing Agent prepares and
1 Business Day (in the time authenticates the Registered Global
case of pre-closed Note(s) for each Tranche of Bank Notes
issues) or Original Issue which is to be purchased by attaching
Date (in any other case) the applicable Pricing Supplement to a
(the "Payment Instruction copy of the applicable master Registered
Date") Global Note(s).
The Registrar enters details of the
principal amount of Bank Notes to the
issued and the registered holder(s) of
such Bank Notes in the Register. Each
Registered Global Note is then delivered
by, or on behalf of, the London Issuing
Agent to a custodian for Euroclear
and/or Clearstream, Luxembourg to credit
the principal amount of the relevant
Tranche of Bank Notes to the appropriate
participants' accounts in Euroclear
and/or Clearstream, Luxembourg
previously notified by the relevant
Distribution Agent. Each Definitive
Registered Note is delivered to the
relevant Distribution Agent or its
designee for the benefit of the
purchaser of such Bank Note against
delivery by such Distribution Agent of a
receipt therefor or, if so instructed
and upon confirmation from the Bank that
proper payment by the purchaser has been
made, delivered directly to the Bank or
its designee for the benefit of the
purchaser of such Bank Note(s) against
delivery of a receipt therefor. The
parties (which for this purpose shall
include the London Issuing Agent and the
Registrar) may agree to arrange for
"free delivery" to be made through the
relevant clearing system if specified in
the applicable Pricing Supplement, in
which case these Settlement Procedures
will be amended accordingly.
H-15
LATEST
LONDON
DAY TIME ACTION
--- ------ ------
Original Issue Date The relevant Distribution Agent
instructs Euroclear and/or Clearstream,
Luxembourg to credit the interests in
the Registered Global Note(s)
representing Bank Notes purchased by or
through such Distribution Agent to such
accounts as the relevant Distribution
Agent has directed with Euroclear and/or
Clearstream, Luxembourg.
Euroclear and/or Clearstream, Luxembourg
debit and credit accounts in accordance
with instructions received by them.
The Closing Bank makes payment to the
Bank on the Original Issue Date of the
aggregate amount received by it to such
account of the Bank as shall have been
notified to the Closing Bank for that
purpose by the relevant bank.
On or subsequent to the The London Issuing Agent notifies the
Original Issue Date Bank forthwith in the event that the
relevant Distribution Agent does not pay
the purchase price due from it in
respect of the Bank Notes.
The relevant Distribution Agent notifies
the London Issuing Agent that the
distribution of the Bank Notes purchased
or placed by it has been completed.
H-16
