Exhibit 4.4
SUNTRUST BANKS, INC.
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401(k) TRUST AGREEMENT
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(Amended and Restated as of January 1, 1993)
(formerly known as the SunTrust Banks, Inc. Employee
Stock Ownership Trust)
THIS TRUST AGREEMENT, executed the 31st day of December, 1992, by and
between SUNTRUST BANKS, INC., a bank holding company approved under the laws of
the United States, with its principal corporate office in Atlanta, Georgia,
(hereinafter referred to as the "Corporation") and TRUST COMPANY BANK of
Atlanta, Georgia, as Trustee, (hereinafter referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, SunTrust Banks, Inc. has established a retirement plan consisting
of an employee stock ownership plan and a cash or deferred arrangement, known as
the SunTrust Banks, Inc. 401(k) Plan (the "Plan"), effective January 1, 1993, by
amending and restating the SunTrust Banks, Inc. Employee Stock Ownership Plan,
which Plan is intended to continue to qualify as an Employee Stock Ownership
Plan, as defined in Section 4975(e)(7) of the Internal Revenue Code of 1986, as
amended and to qualify as a cash or deferred arrangement as defined in Section
401(k) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, SunTrust Banks, Inc. now desires to establish the SunTrust Banks,
Inc. 401(k) Trust (the "Trust") effective January 1, 1993 in order to provide a
means of funding the Plan and such Trust shall be established by amending and
restating the SunTrust Banks, Inc. Employee Stock Ownership Trust.
NOW, THEREFORE, it is agreed by and between the Corporation and the Trustee
as follows:
SECTION I
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The Corporation hereby establishes, effective January 1, 1993, a trust and
such Trust is hereby created by amending and restating the SunTrust Banks, Inc.
Employee Stock Ownership Trust in its entirety and the Corporation will
contribute thereto such further sums of money and such property acceptable to
the Trustee as shall from time to time be paid or delivered to the Trustee, and
the earnings and profits thereon. The Trustee hereby accepts its appointment as
the Trustee of the SunTrust Banks, Inc. 401(k) Trust pursuant to this Trust
Agreement and agrees to accept the assets and liabilities for payment of
benefits under the SunTrust Banks, Inc. Employee Stock Ownership Trust pursuant
to the terms of this Agreement.
All such money and property, all investments made therewith and profits
thereof and earnings and profits thereon, less the payments which at the time of
reference shall have been made by the Trustee as authorized herein, are referred
to herein as the "Trust Fund".
The Trust Fund shall be held by the Trustee in trust and dealt with in
accordance with the provisions of this Trust Agreement. Except with respect to
contributions made under a mistake of fact or conditioned upon the deductibility
of the contribution or upon approval of the Plan by the Secretary of Treasury
Department, no part of the principal or income of the Trust Fund shall be used
for or diverted to any purposes other
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than the exclusive benefit of the Participants and their Beneficiaries, nor can
any portion of the Trust Fund revert to or be used by or for the benefit of the
Corporation or any Affiliate.
This Trust Agreement is intended to meet all the requirements of Sections
401(a), 401(k), 501(a) and 4975(e)(7) of the Internal Revenue Code of 1986 (the
"Code") and the Employee Retirement Income Security Act of 1974 ("ERISA"), as
the same may be amended from time to time.
The trust fund established under this Trust Agreement shall be a part of
the Plan. This Trust Agreement shall amend and restate any prior trust agreement
between the parties with respect to the Plan.
The Corporation and the Trustee shall each by a "Named Fiduciary" for the
Fund and, as between the Corporation and the Trustee, the Corporation shall not
be responsible for the performance of any duty or function assigned under this
Trust Agreement to the Trustee and the Trustee shall not be responsible for the
performance of any duty or function so assigned to the Corporation.
Each Named Fiduciary shall have only such powers and responsibilities as
are expressly assigned to it in this Trust Agreement for the control,
safekeeping, management, investment, and administration of the Fund; provided,
in the event of any ambiguity or in the event a power or responsibility is not
expressly assigned to a specific Named Fiduciary, the power or responsibility
shall be deemed to have been assigned to the
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Corporation. The Trustee shall have no responsibility to inquire into the acts
and omissions of the Corporation in excercise of powers or the discharge of
responsibilities assigned to the Corporation under this Trust Agreement.
A Named Fiduciary, by written instrument filed with the records of the
Plan, may allocate fiduciary responsibilities (other than the responsibilities
of the Trustee in the management and control of the assets of the Fund) to
another Named Fiduciary or may designate a person who is not a Named Fiduciary
to carry out any of its responsibilities under this Trust Agreement (other than
the responsibilities of the Trustee in the management and control of the assets
of the Fund). However, no such designation shall be effective as to the designee
until such person has consented in writing to the allocation or designation and
no such allocation or designation shall be effective as to any Named Fiduciary
(other than the designee) until such Named Fiduciary has received written notice
of such designation.
A Named Fiduciary, or a person designated by a Named Fiduciary to perform
any responsibility of a Named Fiduciary pursuant to the procedure described in
the preceding paragraph, may employ one or more persons to render advice with
respect to any responsibility such Named Fiduciary has under this Trust
Agreement or such person has by virtue of such designation. Any person may serve
in more than one fiduciary capacity under this Trust Agreement.
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SECTION II
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The Trustee shall have the sole and exclusive responsibility, authority and
discretion to manage and control the assets of the Fund in accordance with the
Plan and this Trust Agreement. The Trustee shall act under this Trust Agreement
through one or more of its duly authorized trust officers.
It shall be the duty of the Trustee to do the following:
(A) To hold, to invest and to reinvest the Trust Fund as hereinafter
provided; and
(B) To make such payments and distributions from the Trust Fund at such
time or times and to such person or persons, including any member of the
Plan Committee, as required by the Plan or as directed by the Plan
Committee or its designated agent. Any written direction of the Plan
Committee shall constitute certification that the payment so directed is
one which the Plan Committee is authorized to direct. To the extent
permitted by law, the Trustee shall be under no liability for any payment
made pursuant to the direction of the Plan Committee. The Trustee may make
any payment requested to be made by it hereunder by mailing its check for
the amount thereof to the person to whom the payment is to be made, at such
address as may have been last furnished to the Trustee, or if no such
address shall have been so furnished to the Trustee, to such person in care
of the Plan Committee. Such written directions of the Plan Committee need
not specify the application to be made of payments so directed, and the
Trustee shall not be responsible in any way respecting such application or
for the administration of the Plan. The Trustee shall be under no duty to
enforce payment of any contribution to the Trust Fund and shall not be
responsible for the adequacy of the Trust Fund to meet and discharge
liabilities under the Plan.
SECTION III
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The Trustee shall, in its discretion, unless otherwise directed by the
Corporation, invest and reinvest the principal and income of the Trust Fund and
keep the Trust Fund invested, without distinction between principal and income,
in accordance with the following provisions:
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(A) The Trustee shall hold, use and apply all funds and other assets
received by it subject to the terms and provisions of the Plan and for the
purposes set forth herein and in the Plan;
(B) Except as provided in Section VIII of the Plan, the Plan is designed to
invest primarily in Qualifying Employer Securities, as defined in Section
407 of ERISA, including, without limitation, Employer Stock.
Notwithstanding the above, the trustee may hold cash in such amounts as may
be in its opinion reasonable for the proper operation of this trust and may
invest such funds in stocks, bonds, securities, investment company or trust
shares, mortgages, notes, government obligations, savings accounts,
certificates of deposit, repurchase agreements and cash equivalents of
the Trustee or others, money market funds, mutual funds, choses in action,
real estate, improvements thereon, and other property as the Trustee may
deem appropriate, including common trust funds, mutual funds, or commingled
trust funds maintained by the Trustee, an Affiliate or others for the
investment of qualified pension, profit sharing and stock bonus plans,
including any common, collective or group trust fund which is maintained
under Code Section 584 or Revenue Ruling 81-100, 1981-1 C.B. 326, by the
Trustee or any bank which is an Affiliate; provided no investment may be
made in employer real property (whether or not such property is qualifying
employer real property) as such term is defined for purposes of Section 407
of ERISA. The Trustee may also appoint a subsidiary of the Trustee to
manage (including the power to acquire and dispose of) any assets held by
the Trustee hereunder, to such extent and upon such terms as the Trustee
deems best, provided:
(1) such manager is registered an investment advisor under the
Investment Advisers Act of 1940;
(2) such manager acknowledged in writing to the Trustee at the time of
such appointment that such manager is a fiduciary with respect to the
Plan; and
(3) the Trustee shall remain responsible for the actions of such
investment manager to the same extent as if such actions were
performed by the Trustee.
Notwithstanding any other provisions of this Section III to the contrary, the
Trustee may, in its sole discretion, retain in cash or keep unproductive of
income such amount of the Trust Fund as
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it may deem advisable, and it shall not be required to pay interest on such
balance in cash in its hand pending investment.
SECTION IV
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In addition to the powers, authorities, duties and discretions elsewhere
herein granted and those conferred by law, the Trustee shall have the following
powers and duties:
(A) The Trustee is authorized and empowered:
(1) To retain any property at any time received by it.
(2) To sell or exchange any property without advertisement at public
or private sale for cash or on credit and grant options for the
purchase or exchange thereof; and no person dealing with the Trustee
shall be bound to see to the application of the purchase money or to
inquire as to the validity, expediency or propriety of any such sale
or other distribution.
(3) To vote, subject to the provisions of subsection (B)(4) below, any
stocks, bonds or other securities, to give general or special proxies
or powers of attorney with or without power of substitution; to
exercise any conversion privileges, subscription rights or other
options and to make any payments incidental thereto; to participate in
any plan or reorganization, consolidation, merger, combination,
liquidation or other similar plan relating to any property and to
consent to or oppose any such plan or any action thereunder, or any
contract, lease, mortgage, purchase, sale or other action by any
person or corporation.
(4) To desposit any property with any protective, reorganization or
similar committee; to delegate discretionary powers to any such
committee; and to pay or agree to pay part of the expenses and
compensation of any such committee on the assessments levied with
respect to any property so deposited.
(5) To manage, operate, repair, improve, develop, preserve, mortgage,
or lease for any period any real property or any oil, mineral or gas
properties, royalties, interests or rights held by it directly or
through any corporation, either alone or by joining with others, using
other trust assets for any of such purposes; to modify, extend, renew,
waive or otherwise adjust any or all of the provisions of any such
mortgage or lease; and to make provisions for
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amortization of the investment in or depreciation of the value of such
property; to adjust boundaries, to grant easements and to demolish or
erect buildings on any real property.
(6) In the event of foreclosure or any proceeding for the collection
or realization of any mortgage or mortgages held hereunder, to
exchange any such mortgage or mortgages for any other property; to
purchase such property at any foreclosure or other sale or to acquire
such property by deed without foreclosure and to retain property so
purchased or acquired for such period of time as it may deem proper.
(7) To make, execute, acknowledge and deliver any and all deeds,
leases, mortgages, assignments, documents of transfer and conveyance
and any and all instruments that may be necessary or appropriate to
carry out the powers herein granted.
(8) To borrow or raise money at any time or from time to time from any
person or corporation, including itself, including any "exempt loans"
which are made or guaranteed by a "disqualified person" as provided
for in paragraph 12.5 of the Plan, Section 54.4975-7(b) of the
Treasury Regulations and Section 2550.408b-3 of the Department of
Labor Regulations, and to pledge or mortgage such property, but any
loan so made shall be at the then prevailing rate of interest.
(9) To deposit any stock, bond or other security in and depository or
other similar institution and to register any investment held in the
Trust Fund in its own name or in the name of a nominee and to hold any
investments in bearer form, but the books and records of the Trustee
shall at all times show that all such investments are part of the
Trust Fund.
(10) To settle, compromise or submit to arbitration any claims, debts,
or damages due or owing to or from the trust; to commence or defend
suits or legal proceedings to protect any interest of the trust; and
to represent the trust in all suits or legal proceedings of any court
or before any other body or tribunal.
(11) From time to time to retain suitable agents, investment advisers,
legal counsel and independent purchasing agents and to pay them
reasonable expenses and compensation. The Trustee shall not be
responsible for any loss occasioned by any such agents, investment
advisers, legal counsel and independent purchasing agents selected
with reasonable care.
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(12) To allocate in its sole discretion, in whole or in part, to
principal or income, all receipts and disbursements for which no
express provision in made-hereunder.
(13) To do all acts which it may deem necessary or proper and to
excercise any and all powers of the Trustee under this Agreement,
insofar as such acts or powers are not violative of the provisions of
ERISA, upon such terms and conditions as it may deem to be for the
best interests of the trust.
(B) Notwithstanding the above, the Truste shall comply with the following
requirements:
(1) The Trustee may not obligate the Plan or Trust to acquire Employer
Stock from a particular holder thereof at an indefinite time
determined upon the occurrence of an event such as the death of the
holder. The Plan may not obligate itself to acquire Employer
Securities including, without limitation, Employer Stock under a put
option binding upon the Plan. However, the Plan may be given an option
to assume, at the time a put option is exercised, the rights and
obligations of the Employer under a put option binding upon the
Employer. All purchases of Employer Securities including, without
limitation, Employer Stock shall be made at a price which, in the
judgement of the Trustee, or its designated purchasing agent, does
not exceed the fair market value thereof. All sales of Employer
Securities including, without limitation, Employer Stock shall be made
at a price which, in the judgment of the Trustee, or its designated
purchasing agent, is not less than the fair market value thereof.
(2) All Employer Stock (including fractional shares) allocated to a
Participant's account shall be voted by the Trustee, in accordance
with instructions from such Participant, except as provided below. The
Employer shall provide Participants with notices and information
statements when voting rights are to be exercised, the content of
which must generally be the same as for all holders of Employer Stock.
Fractional shares may be voted by the Trustee on a combined basis, in
order to reflect the direction of the Participants holding such
shares. Participants shall have the right to determine confidentially
whether shares held by them in the plan will be tendered in a tender
or exchange offer. The Trustee shall determine the procedures that
should be followed to insure such confidentiality. The Corporation may
solicit Participants under proxy provisions applicable to all holders
of Employer Stock.
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The Trustee shall vote any unallocated shares of Employer Stock and
any stock for which it has not received timely instructions in
accordance with the best interests of the Participants and
Beneficiaries.
SECTION V
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Reasonable expenses incurred by the Trustee in the performance of its
duties, including fees for legal services rendered to the Trustee and such other
expenses as may be agreed upon in writing from time to time between the
Corporation and the Trustee, and all other proper charges and disbursements of
the Trustee, shall be paid from the Trust Fund, unless paid by the Corporation,
but until paid shall constitute a charge upon the Trust Fund. All taxes of any
and all kinds whatsoever that may be levied or assessed under existing or future
laws, upon or in respect of the Trust Fund or the income therefrom, shall be
paid from the Trust Fund.
SECTION VI
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The Trustee shall discharge its duties under this Trust Agreement solely in
the interest of the Participants and Beneficiaries for the exclusive purpose of
providing benefits to the Participants and Beneficiaries and defraying
reasonable expenses of administering the Plan, with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent man acting
in a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, and by diversifying the
investment of the Plan, subject to the provisions of Section III, so as to
minimize the risk of large losses, unless under the circumstances
10
it is clearly prudent not to do so, all in accordance with the provisions of the
Plan and this Trust Agreement insofar as they are consistent with the provisions
of ERISA, the Plan, this Trust Agreement and as they may be amended from time to
time; but the duties and obligations of the Trustee as such shall be limited to
those expressly imposed upon it by this Trust Agreement, notwithstanding any
reference herein to the Plan, or to the provisions thereof, it being hereby
expressly agreed that the Trustee is not a party to the Plan and shall have no
responsibility with respect to the opertion or administration of the Plan;
provided, if the Corporation and the Trustee agree, the Trustee shall perform
such recordkeeping functions as set forth in a separate recordkeeping agreement
between the Corporation and the Trustee. No right, power, authority, duty or
responsibility of any kind or description whatsoever respecting the Fund or the
Plan shall be attributed to the Trustee on account of any ambiguity or inference
which might be interpreted by any person to exist in the terms of this Trust
Agreement.
With respect to transfers of plan assets from a Prior Plan or Prior PAYSOP,
the Trustee shall have no responsibility except to receive such money and
property from the trustee of any Prior Plan or Prior PAYSOP and to hold and
administer the same thereafter in accordance with this Trust Agreement and shall
not be responsible for any act or omission of the trustee of the Prior Plan or
Prior PAYSOP, and shall not be required to make any claim or demand against the
such prior trustee unless the Plan
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Committee shall in writing request the Trustee to make such a claim or demand.
Pursuant to paragraph 14.1 of this Plan, the Plan Committee in its
discretion may direct, and the Trustee shall make payment on such direction,
that payments be made directly to an incompetent or disabled person, whether
because of minority or mental or physical disability, or to the guardian of such
person, or to the person having custody of such person, without further
liability either on the part of the Plan Committee, the Company or the Trustee
for the amount of such payment to the person on whose account such payment is
made. In the event the Trustee shall deem it necessary to withhold any
distribution pending compliance with legal requirements with respect to probate
of xxxxx, appointment of personal representatives, payment or provision for
estate or inheritance taxes, or for death duties or otherwise, the Trustee shall
notify the Plan Committee and shall thereafter take no action pending receipt of
the Plan Committee's instructions to distribute and an agreement from the
Company, in form satisfactory to the Trustee, protecting it from any liability
arising out of noncompliance with such requirements.
The Corporation agrees, to the extent permitted by law, to indemnify and
hold the Trustee harmless from and against any liability that the Trustee may
incur in the administration of the Trust Fund, unless arising from the Trustee's
own negligence, willful misconduct or lack of good faith. The Trustee shall in
no way be responsible for the correctness of the computation of the amount of
any contribution to be made by the Corporation or
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its Affiliates. The Trustee from time to time may consult with legal counsel of
its own selection (who may be counsel for the Corporation or for the Trustee in
its individual capacity) concerning any question which may arise under this
Agreement, and the Trustee shall not be deemed imprudent by reason of its taking
or refraining from taking any action in accordance with the opinion of counsel.
SECTION VII
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The Trustee shall keep accurate and detailed accounts of all investments,
receipts, disbursements and other transactions in the Trust Fund hereunder, and
all accounts, books and records relating thereto shall be open to inspection and
audit at all reasonable times by any person designated by the Plan Committee.
The Trustee shall determine the value of the Trust Fund by such method as it
shall, in its discretion, determine to be reasonable and proper. The Trustee
shall not be required to make any inventory or appraisal or report to any court,
or to secure any order of court for the exercise of any of its powers (as
described in this Trust Agreement and as otherwise provided by law), and the
Trustee shall not be required to give bond.
Within ninety (90) days following the close of each fiscal year and within
sixty (60) days after the removal of resignation of the Trustee as hereinafter
provided, the Trustee shall file with the Plan Committee a written account
setting forth all investments, receipts, disbursements, and other transactions
effected by it during such fiscal year or during the period from the close of
the last fiscal year to the date of such removal or
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resignation. Upon the expiration of one (1) year from the date of filing such
annual or other account, the Trustee shall be forever released and discharged
from all liability and accountability to anyone with respect to the propriety of
its actions and transactions shown on such account, except with respect to any
such acts or transactions as to which the Plan Committee shall file written
objections with the Trustee within such one (1) year period.
To the extent permitted by law, but subject to any express provision of
applicable law as may be in effect from time to time to the contrary, and except
as otherwise provided in the Plan, no Beneficiary or Participant of the Trust
Fund hereunder shall have any right at any time to an accounting from the
Trustee with respect to any securities or other property purchased, sold or held
by the Trustee, or with respect to any receipts, disbursements or other
transactions by the Trustee, or regarding any other matter.
The Plan Committee shall have authority to determine the interests of all
persons in the Trust Fund or under the Plan, and the Trustee shall have no duty
to question any direction given by the Plan Committee. The Corporation and the
Plan Committee shall have authority either jointly or severally to enforce this
Agreement on behalf of all persons claiming any interest in the Trust Fund or
under the Plan. To protect the Trust Fund from the expenses which might
otherwise be incurred, it is imposed as a condition for the securing of any
interest in the Trust Fund, and it is hereby agreed, that no other person may
institute or
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maintain any action or proceeding against the Trustee or the Trust Fund in the
absence of any rule or law to the contrary, written authorization by the Plan
Committee or a judgment of a court of competent jurisdiction that in refusing
such authorization the Plan Committee has acted fraudulently or in bad faith.
In any action or proceeding affecting the Trust Fund, the only necessary parties
shall be the Corporation, the Plan Committee and the Trustee, and no other
person shall be entitled to any notice or process. To the extent permitted by
law, any judgment entered in any such action or proceeding shall be conclusive
upon all persons.
SECTION VIII
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The Trustee may be removed by action of the Board or by the Plan Committee,
at any time without cause upon thirty (30) days notice in writing to the
Trustee. The Trustee may resign at any time upon sixty (60) days notice in
writing to the Corporation and the Plan Committee. Upon such removal or
resignation of the Trustee, the Corporation or the Plan Committee shall appoint
and designate in writing a successor Trustee who shall have the same powers and
duties as those conferred upon the Trustee hereunder. Upon acceptance of such
appointment in writing by the successor Trustee, the Trustee shall assign,
transfer and pay over to such successor Trustee the Trust Fund and properties
then constituting such Fund. The Trustee is authorized, however, to reserve
such sum of money as to it may deem advisable for expenses in connection with
the settlement of its accounts or otherwise, and
15
any balance of such reserve remaining after the payment of such expenses shall
be paid over to the successor Trustee.
If a successor is not appointed within sixty (60) days after the Trustee
gives notice of its resignation, the Trustee or the Plan Committee may apply to
any court of competent jurisdiction for appointment of a sucessor.
SECTION IX
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Any action by the Corporation pursuant to any of the provisions of this
Agreement shall be evidenced by a resolution of its Board of Directors certified
to the Trustee over the signature of its Secretary or any Assistant Secretary
under the corporate seal, and the Trustee shall be fully protected in acting in
accordance with such resolution so certified to it. All orders, requests and
instructions of the Plan Committee to the Trustee shall be in writing signed
by two (2) members of the committee, or by its Secretary and one (1) member
thereof, and the Trustee shall act and shall be fully protected in acting in
accordance with such orders, requests and instructions. The Corporation shall
furnish the Trustee from time to time certified copies of resolutions of its
Board of Directors evidencing the appointment and termination of office of any
members of the committee and the appointment of successors thereto. The
committee shall furnish the Trustee from time to time certified copies of
minutes of the committee which delegate authority of the committee to any
agents.
The Trustee may rely upon any certificate, notice or direction purporting
to have been signed on behalf of the Plan
16
Committee, or its agents, which the Trustee believes to have been signed by the
committee or the person or persons authorized to act for the committee.
No communication shall be binding upon the Trustee unless the same is in
writing and is received by the Trustee, and shall not be binding until so
received.
SECTION X
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The Corporation reserves the right at any time and from time to time by
action of its Board of Directors to terminate this trust or to amend, in whole
or in part, any or all of the provisions of this Agreement, and notice thereof
in writing shall be delivered to the Plan Committee and the Trustee, provided
that no such amendment which affects the rights, duties and responsibilities of
the Trustee may be made without its consent and provided further that no such
amendment shall authorize or permit any part of the principal or income of the
Trust Fund to be used for or diverted to purposes other than for the exclusive
benefit of Participants and their Beneficiaries. Notwithstanding the prior
provisions of this Section, the Trustee shall distribute the trust assets and
terminate only after receipt of (i) a copy of a favorable determination
letter from the Internal Revenue Service respecting such termination or (ii)
other evidence satisfactory to the Trustee that such termination does not
adversely affect the qualification of the Plan and an agreement from the
Corporation, in form satisfactory to the Trustee, protecting it from any
liability in connection with such termination or (iii) opinion of its counsel
that the distribution
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of assets and termination of the trust is appropriate under the circumstances
and the Trustee has taken such action as is reasonable and necessary to protect
the interests of the Plan Participants and Beneficiaries. Notwithstanding the
above, if the Plan is completely terminated, amounts properly allocated to and
held in a suspense account under the Plan established pursuant to Section
1.415-6(b)(6) of the regulations under Code Section 415 shall revert to the
Corporation if the Plan permits such reversion. The Trustee shall have no
obligation or responsibility whatsoever to determine whether the reversion of
any such amount is permitted by the Code or ERISA.
Any such amendment shall become effective upon (a) delivery to the Trustee
of the written instrument of amendment together with a certified copy of the
resolution of the Board of Directors authorizing such amendment, and (b)
endorsement by the Trustee on such instrument of its receipt thereof, together
with its consent thereto if such consent is required.
SECTION XI
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In the event of the termination of the Plan as provided therein, the
Trustee shall dispose of the Trust Fund in accordance with the terms of the
Plan.
Notice of such termination shall be given to the Trustee by an instrument
in writing executed by the Corporation and acknowledged in the same form as this
Trust Agreement, together with a certified copy of the resolutions of the Board
of Directors of the Corporation authorizing such termination. The
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Corporation shall send a copy of such notice to each member of the Plan
Committee.
SECTION XII
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Unless in this SunTrust Banks, Inc. 401(k) Trust Agreement a different
meaning or definition is expressly specified, the terms "Plan Committee";
"Participant"; "Employer Stock" and all other words, phrases and terms used
herein shall have the meaning and definitions ascribed to them, respectively, in
the SunTrust Banks, Inc. 401(k) Trust Plan as the same may be amended from time
to time.
SECTION XIII
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This SunTrust Banks, Inc. 401(k) Trust Agreement shall become effective as
of January 1, 1993, and shall be administered, construed and enforced according
to the laws of the State of Georgia.
SECTION XIV
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Except to the extent permitted by law, no account, benefit, payment or
distribution under the Plan or this Trust Agreement shall be subject to
attachment, garnishment, levy, execution or any claim or legal process of any
creditor of a Participant or Beneficiary, and no Participant or Beneficiary
shall have any right to alienate, commute, anticipate, or assign all or any part
of his account, benefit, payment or distribution under the Plan or this Trust
Agreement. The preceding sentence also shall apply to the creation, alienation,
assignment, or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order unless such order is
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determined in accordance with the Plan to be a "qualified domestic relations
order" within the meaning of Code Section 414(p).
Any person having any claim for any benefit under the Plan shall look
solely to the assets of the Fund for the satisfaction of that claim. Neither the
Trustee nor any of its directors, employees or agents shall have any liability
for any benefit under the Plan.
Any payment to a Participant or Beneficiary, or to the legal representative
or heirs-at-law of any such person made in accordance with the provisions of the
Plan shall to the extent of such payment be in full satisfaction of all claims
under the Plan.
The assets of the Fund shall be held, administered, invested and managed by
the Trustee (except to the extent investment responsibility is allocated to
another person under the terms of this Trust Agreement) consistent with the
terms of this Trust Agreement in all respects as a single trust. To the extent
portions of such assets may be attributable to different employers or may be
allocable to the payment of benefits for different employee groups, the
Corporation shall be responsible for maintaining and determing the appropriate
portion of the Fund held in respect of any such group of employees in the event
that such maintenance or determination shall become necessary, unless the
Corporation and the Trustee agree pursuant to a separate recordkeeping agreement
between the Corporation and the Trustee that the Trustee shall be responsible
for such
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recordingkeeping functions. The determination by the Corporation or the Trustee
of the portion of the Fund held in respect of any such employee group shall be
final and conclusive upon all persons.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and attested as of the day and year first
above written.
ATTEST: SUNTRUST BANKS, INC.
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: Asst. Secretary Title: Senior Vice President
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(CORPORATE SEAL)
ATTEST: TRUST COMPANY BANK
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President Title: Group Vice President
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(CORPORATE SEAL)
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