Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power: (a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible); (b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state; (c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine; (d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers; (e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits; (f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees; (g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets; (h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery; (i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto; (j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security; (k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee; (l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible; (m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee; (n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services); (o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and (p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 3 contracts
Samples: Executive Rabbi Trust Agreement, Trust Agreement (Novoste Corp /Fl/), Employee Rabbi Trust Agreement (Novoste Corp /Fl/)
Investment Authority. The (a) Subject to subsections (b) and (c) of this Section 4, the Trustee shall have, without exclusion, all powers conferred on have the Trustee by applicable law, unless expressly provided otherwise herein, exclusive authority and all rights associated with discretion to manage and control the assets of the Trust shall be exercised by the Trustee Fund as specified in this Section 4, and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment pursuant to such Exhibit, including, without limiting the generality of the foregoing, authority and discretion may exercise from time to time and at any time the power:
(ai) To invest and reinvest the Trust Fund, together with the income therefromwithout distinction between principal and income, in common stockthe group, preferred stock, family or class of mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and funds or other evidences of indebtedness (including those issued securities specified in writing by the Trustee or any Committee which shall constitute the exclusive permitted investments of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)the Fund;
(bii) To deposit exercise, personally or invest all by general or limited proxy, the right to vote any part securities held in the Fund, and to exercise, personally or by power of the assets of the Trust Fund in savings accounts or certificates of deposit or attorney, any other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised right appurtenant to securities held by the United States or any stateFund;
(ciii) To hold, manage, improve exercise or sell any conversion or subscription or other rights appurtenant to any securities held in the Fund; and
(iv) To invest and control all reinvest any property, real or personal, forming part in the Fund in any other form or type of the Trust Fund and to sellinvestment not specifically mentioned in this subsection (a), convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions so long as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by Committee directs the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or invest in such form that title will pass by delivery;or type of investment.
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the The Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which Company or the Bank. All rights associated with assets of the Trust shall be exercised by the Trustee investsor the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan participants except that voting, tender, appraisal, dissenter and other similar rights with respect to Trust assets shall be exercised by the Committee. In the absence of timely directions from the Committee, the Trustee shall have no duty to exercise such rights, and shall have no liability for refraining from exercising such rights.
(ii) Any investment by the Trustee in securities or obligations of the Company or the Bank shall be subject to prior written approval of the Company.
(c) The Trustee shall exercise its powers under this Section 4 in a manner consistent with such direction by the Committee and shall have no liability whatsoever for any loss, cost or expense occasioned by any investment in accordance with this section.
(d) To the extent permitted by law, the Trustee shall not be liable for any act or omission of the Committee hereunder and, except as set forth hereunder, the Trustee shall not be under any obligations to invest or otherwise manage the assets of the Plan. Without limiting the generality of the foregoing, the Trustee shall not be liable by reason of its taking or refraining from taking any action hereunder at the direction of the Committee; the Trustee shall be under no duty to question or to make inquiries as to any direction or order or failure to give direction or order by the Committee and the Trustee shall be under no duty to make any review of investments acquired for the Fund at the direction or order of the Committee and shall be under no duty at any time to make any recommendation with respect to disposing of or continuing to retain any such investment.
(e) Without limiting the generality of the provisions of Section 7 hereof, the Company agrees, to the extent permitted by law, to indemnify the Trustee and hold it harmless from and against any claim or liability that may be asserted against it, otherwise than on account of the Trustee's own gross negligence or willful misconduct or violation of any provision of law, by reason of the Trustee's taking or refraining from taking any action in accordance with this Section 4.
(f) Subject to the other provisions of this Trust Agreement, the Trustee shall have the power and authority to be exercised in its sole discretion at any time and from time to time to issue and place orders for the purchase or sale of securities directly with qualified brokers or dealers. Such orders may be placed with such qualified brokers and/or dealers who also provide investment information or other research or statistical services to the Trustee in its capacity as a fiduciary or investment manager for other clients.
Appears in 2 contracts
Samples: Employee Benefit Trust Agreement (Mpower Holding Corp), Employee Benefit Trust Agreement (Mpower Holding Corp)
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee Trustee, and shall in no event be exercisable by or rest with Participantsthe Participant. The Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto exercising the judgment and any amendment to such Exhibitcare that persons of prudence, discretion and intelligence would exercise under the circumstances then prevailing considering the probable income and safety of their capital, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, membership or partnership interests, preferred stock, mutual or hedge funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner manner, for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to . To participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, Trust including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem seem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of stateNew York, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages mortgages, or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds bonds, or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(nm) To invest the Trust Fund from time to time in one or more investment funds, which funds shall be registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other servicesservices for which it is compensated by the funds, and which compensation shall be in addition to the compensation of the Trustee hereunder);
(on) To purchase an insurance policy invest in securities (including stock or an annuity rights to fund the benefits of the Plansacquire stock) or obligations issued by Company; and
(po) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In All rights associated with assets of the Trust Fund shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event may be exercisable by or rest with the Participant. The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. Notwithstanding anything in the foregoing provisions of this Section 5 to the contrary, the Trustee shall invest the assets of the Trust Fund and take all investment-related actions, including, without limitation, all actions pursuant to clause (d) above, as directed in securities writing by (including stock i) an investment manager appointed by the Company pursuant to Section 2.2 of the Plan, or rights (ii) as to acquire stockany assets of the Trust Fund as to which no such investment manager has been appointed, the Company. The Trustee shall not be responsible for (i) determining the appropriateness of any direction set forth in clause (i) or obligations issued (ii) of the preceding sentence or (ii) failing to act with respect to the investment of the assets of the Trust Fund in the absence of direction from the Company or an investment manager appointed by the CompanyCompany pursuant to Section 2.2 of the Plan; provided, other than a de minimis amount held in common however, that, except as otherwise directed by the Company or an investment vehicles in which manager appointed by the Company pursuant to Section 2.2 of the Plan, the Trustee investsmay invest idle cash in a readily liquid short-term investment, including, without limitation, in any money market mutual fund described in Section 5(m) above within the Wilmington family of mutual funds. The Trustee and the Company acknowledge that the intent of the parties is that the investment of the assets of the Trust match the deemed investments of the "Deferred Bonus Account" (as defined in the Plan) on the books and records of the Company attributable thereto.
Appears in 2 contracts
Samples: Trust Agreement (Triarc Companies Inc), Trust Agreement (Triarc Companies Inc)
Investment Authority. (a) The Trustee shall have, without exclusion, all powers conferred on establish and maintain a separate account within the Trust for each Employer (the "Separate Account"). All amounts deposited with the Trustee by applicable lawan Employer shall be allocated to such Employer's Separate Account. The Trustee shall invest, unless expressly provided otherwise hereinreinvest and administer the assets allocated to each Employer's Separate Account under the Trust as an individual, separate fund. At the end of each calendar year and at such other times as the Company may determine, the Trustee shall determine the fair market value of the assets of each Employer's Separate Account. The Separate Account of each Employer shall be adjusted to reflect the income collected, realized and unrealized profits and losses, expenses and all other transactions affecting such Separate Account for the valuation period then ended.
(b) The Trustee shall have full power and authority to invest and reinvest the assets of each Employer's Separate Account, or any part thereof, in such stocks (common or preferred), bonds, mortgages, notes, interest-bearing deposits (including such deposits with any corporate trustee acting hereunder), options and contracts for the future or immediate receipt or delivery of property of any kind, or other securities, producing or nonproducing oil and gas royalties and payments and other producing and nonproducing interests in minerals, or in commodities, life insurance policies, annuity contracts or other property of any kind or nature whatsoever, whether real, personal or mixed, as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust, and to hold cash uninvested at any time and from time to time in such amounts and to such extent as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust. The Trustee shall have full power and authority to manage, handle, invest, reinvest, sell for cash or credit, or for part cash or part credit, exchange, hold, dispose of, lease for any period of time (whether or not longer than the life of the Trust), improve, repair, maintain, work, develop, use, operate, mortgage, or pledge, all or any part of the assets and property from time to time constituting any part of the trust funds held in trust under the Trust; borrow or loan money or securities; write options and sell securities or other property short or for future delivery; engage in hedging procedures; buy and sell futures contracts; execute obligations, negotiable and nonnegotiable; vote shares of stock in person and by proxy, with or without power of substitution; register investments in the name of a nominee; sell, convey, lease and/or otherwise deal with any producing or nonproducing oil, gas and mineral leases or mineral rights, payments and royalties; pay all reasonable expenses; execute and deliver any deeds, conveyances, leases, contracts, or written instruments of any character appropriate to any of the powers or duties of the Trustee, and shall, in general, have as broad power respecting the management, operation and handling of the Trust assets and property as if the Trustee were the owner of such assets and property in the Trustee's own right. The preceding provisions of this paragraph to the contrary notwithstanding, the Company shall have the right and power at any time and from time to time to give the Trustee broad guidelines within which it shall invest the assets of the Trust; provided, however, that upon a Change of Control of the Company and continuing for two years thereafter, the Independent Committee, rather than the Company, shall have the sole authority to exercise such right.
(c) All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan Participants. The Trustee .
(d) Each Employer shall have full power and authoritythe right, upon written instruction, to invest and reinvest the Trust Fund in at any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetstime, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner its sole discretion, to substitute assets of equal fair market value for such consideration and any asset held in its Separate Account under the Trust provided, however, that effective upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges a Change of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection Control of the Company and for a period of two years thereafter, any assets transferred to the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate assets held in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers an Employer's Separate Account under the Trust must consist of cash or marketable securities and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless fair market value of any limitation elsewhere in this document relative to investment the respective assets shall be determined by the Trustee, to accept and retain as an investment any securities . This right is exercisable by the Employer in a nonfiduciary capacity without the approval or other property received through the exercise consent of any of the foregoing powers;
(e) To hold person in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 2 contracts
Samples: Retirement Income Restoration Trust (Enserch Corp), Retirement Income Restoration Trust (Enserch Exploration Inc)
Investment Authority. (a) The Trustee shall have, without exclusion, establish and maintain a separate account within the Trust for each Employer (the "Separate Account"). An amount equal to the value of all powers conferred on current Trust Fund assets as of the effective date of this agreement shall be allocated to the Separate Account maintained for the Company. All future amounts deposited with the Trustee by applicable law, unless expressly provided otherwise hereinan Employer shall be allocated to such Employer's Separate Account. The Separate Accounts shall be maintained for record keeping purposes only, and the assets of the Trust may remain invested as a single fund; provided, however, that the Company may direct the Trustee to segregate all or any portion of the Trust Funds for investment solely for one or more of the Separate Accounts. At the end of each calendar quarter and at such other times as the Company may determine, the Trustee shall determine the fair market value of the assets of the Trust. On the basis of such valuation, the Trustee shall adjust the Separate Account of each Employer to reflect its proportionate share of the earnings, losses and expenses of the Trust for the valuation period then ended.
(b) The Trustee shall have full power and authority to invest and reinvest the Trust assets, or any part thereof, in such stocks (common or preferred), bonds, mortgages, notes, interest-bearing deposits (including such deposits with any corporate trustee acting hereunder), options and contracts for the future or immediate receipt or delivery of property of any kind, or other securities, producing or nonproducing oil and gas royalties and payments and other producing and nonproducing interests in minerals, or in commodities, life insurance policies, annuity contracts or other property of any kind or nature whatsoever, whether real, personal or mixed, as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust, and to hold cash uninvested at any time and from time to time in such amounts and to such extent as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust. The Trustee shall have full power and authority to manage, handle, invest, reinvest, sell for cash or credit, or for part cash or part credit, exchange, hold, dispose of, lease for any period of time (whether or not longer than the life of the Trust), improve, repair, maintain, work, develop, use, operate, mortgage, or pledge, all or any part of the assets and property from time to time constituting any part of the trust funds held in trust under the Trust; borrow or loan money or securities; write options and sell securities or other property short or for future delivery; engage in hedging procedures; buy and sell futures contracts; execute obligations, negotiable and nonnegotiable; vote shares of stock in person and by proxy, with or without power of substitution; register investments in the name of a nominee; sell, convey, lease and/or otherwise deal with any producing or nonproducing oil, gas and mineral leases or mineral rights, payments and royalties; pay all reasonable expenses; execute and deliver any deeds, conveyances, leases, contracts, or written instruments of any character appropriate to any of the powers or duties of the Trustee, and shall, in general, have as broad power respecting the management, operation and handling of the Trust assets and property as if the Trustee were the owner of such assets and property in the Trustee's own right. The preceding provisions of this paragraph to the contrary notwithstanding, the Company shall have the right and power at any time and from time to time to give the Trustee broad guidelines within which it shall invest the assets of the Trust; provided, however, that on and after the date of a Change in Control, the Independent Committee, rather than the Company, shall have the sole authority to exercise such right.
(c) All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan Participants. The Trustee .
(d) Each Employer shall have full power and authoritythe right, upon written instruction, to invest and reinvest the Trust Fund in at any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetstime, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner its sole discretion, to substitute assets of equal fair market value for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed any asset held by the Trustee Trust; provided, however, that on and after the date of a Change in Control, any assets transferred to be necessary the Trust in substitution for assets held by the protection Trust must consist of cash or marketable securities acceptable to the Independent Committee and the fair market value of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment respective assets shall be determined by the Trustee, to accept and retain as an investment any securities . This right is exercisable by the Employer in a nonfiduciary capacity without the approval or other property received through the exercise consent of any of the foregoing powers;
(e) To hold person in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 2 contracts
Samples: Trust Agreement (Trinity Industries Inc), Trust Agreement (Trinity Marine Products, Inc.)
Investment Authority. (a) The Trustee Company shall have, without exclusion, all powers conferred on be responsible for directing the Trustee by applicable lawregarding the investment of Trust assets. The Company may from time to time, unless expressly provided otherwise hereinhowever, and appoint one or more investment managers to direct the Trustee regarding the investment of all rights associated with assets or a portion of the Trust assets. The Company may from time to time direct the Trustee to purchase shares of the Company for one or more Plan participants whom the Company may from time to time specify and may direct that shares of the Company held in Trust be voted in proportion to the instructions of those Plan participants whom the Company may from time to time specify. The Company may also permit Plan participants to express a preference for investments for their own accounts under a Plan from among available investment alternatives selected by the Company for an investment manager. Any selection, direction or instruction under this paragraph shall be exercised by on a form acceptable to the Trustee and the Company and, except for an investment direction made by an investment manager, shall in no event be exercisable considered to be a selection, direction or instruction made by or rest with Participantsthe Company for all purposes under this Trust Agreement. The Company agrees to indemnify the Trustee shall have full power and authorityagainst all liabilities (including without limitation attorneys' fees) resulting from such selections, upon written instructiondirections or instructions other than those resulting from the Trustee's own negligence.
(b) In the absence of selections, to directions or instructions specified in Section 5(a), the Trustee will invest and reinvest the principal and income of the Trust Fund and keep the Trust invested, without distinction between principal and income, in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in all common stockstocks, preferred stock, mutual fundsstocks, bonds, notes, debentures, mortgages, notesequipment, time certificates trust, certificates, investment trust certificates, mutual fund investments, contracts of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetsreal and personal property wherever situated, and in such other property property, investments, and securities of any kind (personalkind, real class, or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms character as the Trustee may deem advisable; suitable for the Trust, and such investment and reinvestment shall not be restricted to exercise or sell stock subscriptions or conversion rights; properties and regardless of any limitation elsewhere in this document relative to securities authorized for investment by the Trustees under any present of future law. Insurance policies or annuity contracts may be purchased only by the Trustee at the direction of the Company. The Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cashits discretion, without liability for interest, may keep such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments cash or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions cash balances as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time deem to be in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration best interests of the Trust Fund, as if and the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investspersons interested therein.
Appears in 2 contracts
Samples: Rabbi Trust Agreement, Master Rabbi Trust Agreement (Nstar/Ma)
Investment Authority. (a) The Trustee shall havenot be liable in discharging its duties hereunder, including without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, limitation its duty to invest and reinvest the Fund, if it acts for the exclusive benefit of the Participants and their Beneficiaries, in good faith and as a prudent person would act in accomplishing a similar task and in accordance with the terms of this Trust Agreement and any applicable federal or state laws, rules or regulations.
(b) Subject to investment guidelines agreed to in writing from time to time by the Company and the Trustee prior to a Change of Control, the Trustee shall have the power in investing and reinvesting the Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerits sole discretion:
(a1) To invest and reinvest in any readily marketable common and preferred stocks, bonds, notes, debentures (including convertible stocks and securities but not including any stock or security of other than a de minimus amount held in a collective or mutual fund), certificates of deposit or demand or time deposits (including any such deposits with the Trustee) and shares of investment companies and mutual funds, without being limited to the classes or property in which the Trustees are authorized to invest by any law or any rule of court of any state and without regard to the proportion any such property may bear to the entire amount of the Fund;
(2) To commingle for investment purposes all or any portion of the Fund with assets of any other similar trust or trusts established by the Company with the Trustee for the purpose of safeguarding deferred compensation or retirement income benefits of its employees and/or directors;
(3) To retain any property at any time received by the Trustee;
(4) To sell or exchange any property held by it at public or private sale, for cash or on credit, to grant and exercise options for the purchase or exchange thereof, to exercise all conversion or subscription rights pertaining to any such property and to enter into any covenant or agreement to purchase any property in the future;
(5) To participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan relating to property held by it 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;
(6) To deposit any property held by it with any protective, reorganization or similar committee, to delegate discretionary power thereto, and to pay part of the expenses and compensation thereof any assessments levied with respect to any such property to deposited;
(7) To extend the time of payment of any obligation held by it;
(8) To hold uninvested any moneys received by it, without liability for interest thereon, but only in anticipation of payments due for investments, reinvestments, expenses or disbursements;
(9) To exercise all voting or other rights with respect to any property held by it and to grant proxies, discretionary or otherwise;
(10) For the purposes of the Trust, to borrow money from others, to issue its promissory note or notes therefor, and to secure the repayment thereof by pledging any property held by it;
(11) To employ suitable contractors and counsel, who may be counsel to the Company or to the Trustee, and to pay their reasonable expenses and compensation from the Fund to the extent not paid by the Company;
(12) To register investments in its own name or in the name of a nominee; to hold any investment in bearer form; and to combine certificates representing securities with certificates of the same issue held by it in other fiduciary capacities or to deposit or to arrange for the deposit of such securities with any depository, even though, when so deposited, such securities may be held in the name of the nominee of such depository with other securities deposited therewith by other persons, or to deposit or to arrange for the deposit of any securities issued or guaranteed by the United States government, or any agency or instrumentality thereof, including securities evidenced by book entries rather than by certificates, with the United States Department of the Treasury or a Federal Reserve Bank, even though, when so deposited, such securities may not be held separate from securities deposited therein by other persons; provided, however, that no securities held in the Fund shall be deposited with the United States Department of the Treasury or a Federal Reserve Bank or other depository in the same account as any individual property of the Trustee, and provided, further, that the books and records of the Trustee shall at all times show that all such securities are part of the Trust Fund;
(13) To settle, together with compromise or submit to arbitration any claims, debts or damages due or owing to or from the income therefromTrust, respectively, to commence or defend suits or legal proceedings to protect any interest of the Trust, and to represent the Trust in common stockall suits or legal proceedings in any court or before any other body or tribunal; provided, preferred stockhowever, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued that the Trustee shall not be required to take any such action unless it shall have been indemnified by the Trustee Company to its reasonable satisfaction against liability or any of its affiliates), other securities, expenses it might incur therefrom;
(14) To hold and retain policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all which policies are contributed to the Trust by the Company or any part subsidiary of the assets of the Trust Fund in savings accounts Company or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected purchased by the Trustee;
(l15) To institutehold any other class of assets which may be contributed by the Company and that is deemed reasonable by the Trustee, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectibleunless expressly prohibited herein;
(m16) To use securities, depositories loan any securities at any time held by it to brokers or custodians and to allow dealers upon such securities security as may be held by a depository or custodian deemed advisable, and during the terms of any such loan to permit the loaned securities to be registered in transferred into the name of such depository and voted by the borrower or its nominee or in the name of such custodian or its nominee;others; and
(n17) To Generally, to do all acts, whether or not expressly authorized, that the Trustee may deem necessary or desirable for the protection of the Fund.
(c) Prior to a Change of Control, the Company shall have the right, subject to this Section to direct the Trustee with respect to investments.
(1) The Company may at any time direct the Trustee to segregate all or a portion of the Fund in a separate investment account or accounts and may appoint one or more investment managers and/or an Investment Committee established by the Company as described in Section 6(d) hereof to direct the investment and reinvestment of each such investment account or accounts. In such event, the Company shall notify the Trustee of the appointment of each such investment manager and/or Investment Committee. No such investment manager shall be related, directly or indirectly, to the Company, but members of the Investment Committee may be employees of the Company.
(2) Thereafter, the Trustee shall make every sale or investment with respect to such investment account as directed in writing by the investment manager or Investment Committee. It shall be the duty of the Trustee to act strictly in accordance with each direction. The Trustee shall be under no duty to question any such direction of the investment manager or Investment Committee, to review any securities or other property held in such investment account or accounts acquired by it pursuant to such directions or to make any recommendations to the investment managers or Investment Committee with respect to such securities or other property.
(3) Notwithstanding the foregoing, the Trustee, without obtaining prior approval or direction from an investment manager or Investment Committee, shall invest the Trust Fund cash balances held by it from time to time in one short term cash equivalents including, but not limited to, through the medium of any short term common, collective or more investment funds registered under commingled trust fund established and maintained by the Investment Company Act of 1940 Trustee subject to the instrument establishing such trust fund, U.S. Treasury Bills, commercial paper (including companies such forms of commercial paper as may be available through the Trustee's Trust Department), certificates of deposit (including certificates issued by the Trustee in its separate corporate capacity), and similar type securities, with a maturity not to exceed one year; and, furthermore, sell such short term investments as may be necessary to carry out the instructions of an investment manager or Investment Committee regarding more permanent type investment and directed distributions.
(4) The Trustee shall neither be liable nor responsible for any loss resulting to the Fund by reason of any sale or purchase of an investment directed by an investment manager or Investment Committee nor by reason of the failure to take any action with respect to any investment which was acquired pursuant to any such direction in the absence of further directions of such investment manager or Investment Committee.
(5) Notwithstanding anything in this Agreement to the contrary, the Trustee shall be indemnified and saved harmless by the Company from and against any and all personal liability to which the Trustee may be subjected by carrying out any directions of an investment manager or an affiliate is Investment Committee issued pursuant hereto or for failure to act in the absence of directions of the investment adviser manager or provides Investment Committee including all expenses reasonably incurred in its defense in the event the Company fails to provide such defense; provided, however, the Trustee shall not be so indemnified if it participates knowingly in, or knowingly undertakes to conceal, an act or omission of an investment manager or Investment Committee, having actual knowledge that such act or omission is a breach of a fiduciary duty; provided further, however, that the Trustee shall not be deemed to have knowingly participated in or knowingly undertaken to conceal an act or omission of an investment manager or Investment Committee with knowledge that such act or omission was a breach of fiduciary duty by merely complying with directions of an investment manager or Investment Committee or for failure to act in the absence of directions of an investment manager or Investment Committee. The Trustee may rely upon any order, certificate, notice, direction or other servicesdocumentary confirmation purporting to have been issued by the investment manager or Investment Committee which the Trustee believes to be genuine and to have been issued by the investment manager or Investment Committee. The Trustee shall not be charged with knowledge of the termination of the appointment of any investment manager or Investment Committee until it receives written notice thereof from the Company.
(d) Prior to a Change of Control, the Board of Directors of the Company may appoint an Investment Committee to direct the investment of the Fund. The Investment Committee may exercise any powers relating to the investment of Trust assets as described in Sections 6 and 7 hereof. The Investment Committee shall exercise its authority by an affirmative action of a majority of members constituting the Investment Committee, expressed from time to time by a vote at a meeting of the Investment Committee, or in an action in writing signed by all members without a meeting. Prior to a Change of Control, the Board of Directors of the Company shall have the right to remove and to replace any member of the Investment Committee at any time by notice in writing to that member. Following a Change of Control, the Company shall have no authority to remove or replace members of the Investment Committee, and any vacancy in the membership of the Investment Committee, created by resignation, disability, death or otherwise, shall be filled by the vote of a majority of the members of the Investment Committee then in office. Following a Change of Control, the Investment Committee may, on its own initiative, acquire fiduciary insurance for the benefit of its members at the Company's expense. If for any reason, the Company does not pay the premiums for such insurance, the Trustee shall pay such premiums out of the Trust assets and seek reimbursement from the Company.
(e) Following a Change of Control, unless there is then in existence an Investment Committee as described in Section 6(d) above, the Trustee shall have the sole and absolute discretion in the management of the Trust assets and shall have all the powers set forth under Section 6(b). In investing the Trust assets, the Trustee shall consider:
(1) the needs of the Arrangements;
(o2) To the need for matching of the Trust assets with the liabilities of the Arrangements; and
(3) the duty of the Trustee to act solely in the best interests of the Participants and their Beneficiaries.
(f) The Trustee shall have the right, in its sole discretion, to delegate its investment responsibility to an investment manager who may be an affiliate the Trustee. In the event the Trustee shall exercise this right, the Trustee shall remain, at all times responsible for the acts of an investment manager. The Trustee shall have the right to purchase an insurance policy or an annuity to fund the benefits of the Plans; andArrangements.
(pg) To do all other acts necessary The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance consent of any investment made by the Trustee person in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 2 contracts
Samples: Officer Grantor Trust Agreement (Pacific Gas & Electric Co), Officer Grantor Trust Agreement (Pg&e Corp)
Investment Authority. (a) The Trustee shall havehave full power and authority to invest and reinvest the Trust assets, without exclusionor any part thereof, in such stocks (common or preferred), bonds, mortgages, notes, interest-bearing deposits (including such deposits with any corporate trustee acting hereunder), options and contracts for the future or immediate receipt or delivery of property of any kind, or other securities, producing or nonproducing oil and gas royalties and payments and other producing and nonproducing interests in minerals, or in commodities, life insurance policies, annuity contracts or other property of any kind or nature whatsoever, whether real, personal or mixed, as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust, and to hold cash uninvested at any time and from time to time in such amounts and to such extent as the Trustee, in the Trustee's absolute discretion and judgment, deems appropriate for the Trust. The Trustee shall have full power and authority to manage, handle, invest, reinvest, sell for cash or credit, or for part cash or part credit, exchange, hold, dispose of, lease for any period of time (whether or not longer than the life of the Trust), improve, repair, maintain, work, develop, use, operate, mortgage, or pledge, all or any part of the assets and property from time to time constituting any part of the trust funds held in trust under the Trust; borrow or loan money or securities; write options and sell securities or other property short or for future delivery; engage in hedging procedures; buy and sell futures contracts; execute obligations, negotiable and nonnegotiable; vote shares of stock in person and by proxy, with or without power of substitution; register investments in the name of a nominee; sell, convey, lease and/or otherwise deal with any producing or nonproducing oil, gas and mineral leases or mineral rights, payments and royalties; pay all reasonable expenses; execute and deliver any deeds, conveyances, leases, contracts, or written instruments of any character appropriate to any of the powers conferred on or duties of the Trustee, and shall, in general, have as broad power respecting the management, operation and handling of the Trust assets and property as if the Trustee by applicable lawwere the owner of such assets and property in the Trustee's own right. The preceding provisions of this paragraph to the contrary notwithstanding, unless expressly provided otherwise hereinthe Company shall have the right and power at any time and from time to time to give the Trustee broad guidelines within which it shall invest the assets of the Trust; provided, however, that upon a Change of Control and all continuing for two years thereafter, the Independent Committee, rather than the Company, shall have the sole authority to exercise such right.
(b) All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;.
(c) To holdThe Company shall have the right, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for at any term, even extending beyond the duration of this Trusttime, and otherwise dispose of the same from time to time in such manner its sole discretion, to substitute assets of equal fair market value for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed any asset held by the Trustee Trust; provided, however, that effective upon a Change in Control and for a period of two years thereafter, any assets transferred to be necessary the Trust in substitution for assets held by the protection Trust must consist of cash or marketable securities and the fair market value of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment respective assets shall be determined by the Trustee, to accept and retain as an investment any securities . This right is exercisable by the Company in a nonfiduciary capacity without the approval or other property received through the exercise consent of any of the foregoing powers;
(e) To hold person in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 2 contracts
Samples: Deferred Compensation Trust Agreement (Enserch Exploration Inc), Deferred Compensation Trust Agreement (Enserch Corp)
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. (a) The Trustee shall have full power exclusive authority and authoritydiscretion to manage and control the Trust's assets and may employ investment managers, upon written instructionincluding affiliates of the Trustee, to manage the investment of the Trust's assets.
(b) In the exercise of its authority and discretion under this Section 5, the Trustee, from time to time and at any time, shall, subject to Section 5(d) hereof, have the power:
(1) to invest and reinvest the Trust Fund assets held in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, includingthe Trust, without limiting the generality of the foregoing, the power:
(a) To invest distinction between principal and reinvest the Trust Fund, together with the income therefromincome, in shares of stock (whether common stockor preferred, preferred stock, mutual fundsand including Common Stock) or other evidences of ownership, bonds, mortgagesdebentures, notes, time certificates of deposit, commercial paper and notes or other evidences of indebtedness indebtedness, unsecured or secured by mortgages on real or personal property wherever situated (including those issued by the Trustee any part interest in a bond and mortgage or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy note and mortgage whether insured or sell securities or other assets, uninsured) and other property of any kind (personalproperty, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund interest in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part foreign or domestic, and in order to reduce interest rate fluctuations, contracts, as either buyer or seller, for the future delivery of the Trust Fund United States Treasury securities and comparable federal-government-backed securities;
(2) to sell, convey, transferredeem, exchange, partitiongrant options for the purchase or exchange of, lease or otherwise dispose of, any real or personal property, at public or private sale, for cash or upon credit, with or without security, without obligation on the part of any person dealing with the Trustee to see to the application of the proceeds of or to inquire into the validity, expediency or propriety of any such disposition;
(3) to exercise, personally or by general or limited proxy, the right to vote and tender any shares of stock, bonds or other securities held in the Trust (including Common Stock), to delegate discretionary voting power to trustees of a voting trust for any termperiod of time, even extending beyond and to exercise, personally or by power of attorney, any other right appurtenant to any securities or other property of the duration Trust;
(4) to join in or oppose any reorganization, recapitalization, consolidation, merger or liquidation, or any plan therefor, or any lease, mortgage or sale of the property of any organization the securities of which are held in the Trust; to pay from the Trust any assessments, charges or compensation specified in any plan of reorganization, recapitalization, consolidation, merger or liquidation; to deposit any property with any committee or depository; and to retain any property allotted to the Trust in any reorganization, recapitalization, consolidation, merger or liquidation;
(5) to exercise or sell any conversion or subscription or other rights appurtenant to any stock, security or other property held in the Trust;
(6) to borrow from any lender (including the Trustee in its individual capacity) money, in any amount and upon any reasonable terms and conditions, for purposes of this TrustTrust Agreement, and otherwise dispose to pledge or mortgage any property held in the Trust to secure the repayment of any such loan;
(7) to compromise, settle or arbitrate any claim, debt, or obligation of or against the same Trust; to enforce or abstain from time enforcing any right, claim, debt or obligation; to time make all determinations as to the fair market value of any assets held in such manner for such consideration the Trust; and to abandon any property determined by it to be worthless;
(8) to make loans of securities held in the Trust to registered brokers and dealers upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers are permitted by applicable law and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessaryregulations, and in each instance to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against permit the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, securities so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian lent to be registered in the name of such depository the borrower or its a nominee of the borrower; provided, that in each instance the loan is adequately secured and neither the borrower nor any affiliate of the borrower has discretionary authority or control with respect to the assets of the Trust involved in the name of such custodian transaction or its nominee;renders investment advice with respect to those assets; and
(n9) To to invest and reinvest any property in the Trust Fund in any other form or type of investment not specifically mentioned in this Section 5.
(c) The Company shall have the right at any time, and from time to time in one its sole discretion, to substitute assets acceptable to the Trustee of equal fair market value for any asset held in the Trust, so long as the assets to be substituted constitute Permitted Contributions. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
(1) Any shares of Common Stock held by the Trust shall be voted on each matter brought before an annual or special stockholders' meeting of the Company in the manner provided for herein. Prior to each such meeting of the stockholders, the Company shall cause the trustee (the "FIP Trustee") of The Dial Corporation Future Investment Plan or successor plan (the "FIP") to furnish to the Trustee (but not to the Company or any of its directors or senior management), as of a date not more investment funds registered under than five (5) business days in advance of such meeting, a document setting forth the Investment Company Act percentages of 1940 (including companies the votes to be cast in favor of, in opposition to or in abstention on each matter by the FIP Trustee with respect to which the shares of Common Stock held by the FIP, such votes to be based upon the instructions received as of such date from the participants in the FIP in accordance with the provisions of the FIP then in effect; provided, however, that any failure on the part of the FIP Trustee to follow such instructions or otherwise to abide by such provisions by reason of its fiduciary obligations under ERISA or any other reason shall be disregarded. In the event the date of such stockholder's meeting is changed, the provisions of this Section 5(d)(1) shall be applied to each subsequent scheduled meeting date. Upon timely receipt of such document by the Trustee, the Trustee or an affiliate is shall on each such matter vote all shares of Common Stock held by the investment adviser or provides other services);Trust in accordance with such percentages.
(o2) To purchase an insurance policy or an annuity to fund As more fully set forth herein, the benefits shares of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of Common Stock held by the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made tendered or exchanged by the Trustee in the same proportion as shares of Common Stock held in the FIP. Prior to the scheduled expiration date of a tender or exchange offer for shares of Common Stock, the Company shall cause the FIP Trustee to furnish to the Trustee (but not to the Company or any of its capacity directors or senior management), as trustee of a date not more than five (5) business days in advance of such scheduled expiration date, a document setting forth the percentage of the shares of Common Stock held by the FIP which will be tendered or exchanged, such percentage to be based upon the instructions received as of such date from the participants in the FIP in accordance with the provisions of the FIP then in effect; provided, however, that any failure on the part of the FIP Trustee to follow such instructions or otherwise to abide by such provisions by reason of its fiduciary obligations under ERISA or any other reason shall be disregarded. In the event the scheduled expiration date of such offer is changed, the provisions of this Section 5(d)(2) shall be applied to each subsequent scheduled expiration date. Upon timely receipt of such document by the Trustee, the Trustee shall tender or exchange the number of shares of Common Stock held by the Trust Agreement. Notwithstanding any powers granted in the same percentage as shares of Common Stock held by the FIP are to be tendered or exchanged.
(3) All actions taken by the Trustee pursuant to this Trust Agreement or applicable lawSection 5(d), and any information in respect of such actions, shall be held confidential by the Trustee and shall not have be divulged or released to any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 person, other than (i) agents of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by who are not affiliated with the Company, other than a de minimis amount (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in common investment vehicles in which the Trustee investsTrust, or (iii) as may be required by court order.
Appears in 1 contract
Samples: Trust Agreement (Dial Corp /New/)
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participantsthe Participant or the Beneficiaries. The Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B Schedule D hereto and any amendment to such ExhibitSchedule D provided by the Company and approved by the Trustee only after the Trustee reasonably determines that such amendment is in the best interest of the Participant and the Beneficiaries, exercising the judgment and care that persons of prudence, discretion and intelligence would exercise under the circumstances then prevailing considering the probable income and safety of their capital, including, without limiting the generality of and subject to the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assetsFund, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assetsFund;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of stateTexas, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any assets of the Trust assets Fund as security; provided, however, that in no event may the Trustee secure any loan using the life insurance policy described in Schedule A as collateral;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To Only as contemplated and permitted by the provisions of Schedule D, to purchase an insurance policy or an annuity to fund the benefits of the PlansAgreement, and to make any investment decision required with respect to the underlying assets of such policy, if any; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In Notwithstanding the foregoing, in no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests. All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with the Participant or the Beneficiaries.
Appears in 1 contract
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the The Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company. All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan participants, except that voting rights with respect to Trust assets will be exercised by the Company. Notwithstanding anything herein to the contrary, the Trustee shall invest the assets of the Trust in accordance with the Investment Guidelines set forth in Xxxxxxxx X to this Agreement, which Investment Guidelines may be amended from time to time at the discretion of the Company upon written notice to the Trustee. The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
(b) Subject to the provisions of the Trust Agreement, the Trustee shall have, with respect to the Trust, the following investment powers in its discretion:
(1) To invest and reinvest in any property, foreign or domestic, including common and preferred stocks, bonds, notes and debentures (including convertible stocks and securities); certificates of deposit; life insurance and guaranteed annuity contracts, regardless of diversification and without being limited to investments authorized by law for the investment of trust funds.
(2) Subject to the other provisions of Section 5, to use Trust assets to purchase, and pay all premiums and other charges upon, annuity or life insurance contracts ("Contracts"), the rates of return and maturity dates of which may reasonably be expected to yield assets of the Trust sufficient to pay the amounts payable pursuant to the Payment Schedule.
(3) To retain any property at any time received by it.
(4) To sell, exchange, convey, transfer or dispose of, and to grant options for the purchase or exchange with respect to, any property at any time held by it, by public or private sale, for cash or on credit or partly for cash and partly on credit.
(5) To participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan 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 or other entity any of the securities of which may at any time be held in the Trust, and to do any act with reference thereto.
(6) To deposit any property with any protective, reorganization or similar committee, to delegate discretionary power to any such committee and to pay and agree to pay part of the expenses and compensation of any such committee and any assessments levied with respect to any property so deposited.
(7) To exercise all conversion and subscription rights pertaining to any property, and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payment of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith, and to hold and retain any securities or other property which it may so acquire.
(8) To extend the time of payment of any obligation held in the Trust (other than a de minimis amount certificates of deposit or demand or time deposits with the Trustee).
(9) To invest and reinvest all or any specified portion of the Trust assets through the medium of any common, collective or commingled trust fund which has been or may hereafter be established and maintained by the Trustee, provided that prior to investing any portion of the Trust for the first time in any such common, collective or commingled trust fund, the Trustee shall advise the Company of its intent to make such an investment and furnish to the Company any information it may reasonably request with respect to such common, collective or commingled trust fund.
(10) To commingle assets of the Trust, for investment purposes only, with assets of other trust funds established by the Company, provided that the Trustee shall maintain separate records with respect to each such other trust, and further provided that the assets of the Trust shall not be commingled in any fund intended to hold only assets of qualified plans.
(11) To make, execute and deliver, as Trustee, any and all deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers, releases or other instruments in writing necessary or proper for the accomplishment of any of the foregoing powers.
(c) The Trustee, upon the Company's written direction, shall pay from the Trust such sums to such insurance company or companies as the Company may direct for the purpose of procuring Contracts. The Company shall prepare the application for any Contract. The Trustee shall receive and hold in the Trust, subject to the following, all Contracts obtained, the proceeds of any sale, assignment or surrender of any such Contract, and any and all dividends and other payments of any kind received with respect to any such Contract.
(d) The Trustee shall be the complete and absolute owner of Contracts held in common investment vehicles in which the Trust, provided that the Company shall have power, without the consent of any other person, to exercise any and all of the rights, options or privileges that belong to the Trustee investsas such absolute owner or that are granted by the terms of any such Contract or by the terms of this Agreement, and the Trustee shall not exercise any of the foregoing powers or to take any other action permitted by any such Contract other than upon the Company's written direction. The Trustee shall have no duty to exercise any of such powers or to take any such action unless and until it receives such direction. The Trustee, upon the written direction of the Company, shall deliver any Contract held in the Trust to such person as is specified in the direction.
(e) Upon the Company's written direction, the Trustee shall pay from the Trust premiums, assessments, dues, charges and interest, if any, upon any Contract held in the Trust. The Trustee shall have no duty to make any such payment unless and until it shall have received such direction.
(f) Anything contained herein to the contrary notwithstanding, to the extent permitted by law, the Trustee shall not be liable for the refusal of any insurance company to issue or change any Contract or to take any other action requested by the Trustee; for the form, terms, genuineness, validity, sufficiency or effect of any Contract held in the Trust; for the act of any person or persons that may render any such Contract null and void; for the failure of any insurance company to pay all the proceeds of any such Contract as and when the same shall become due and payable; for any delay in payment resulting from any provision contained in any such Contract; nor for the fact that for any reason whatsoever (other than the Trustee's own gross negligence or willful misconduct) any Contract shall lapse or otherwise become uncollectible.
Appears in 1 contract
Samples: Grantor Trust Agreement (Minerals Technologies Inc)
Investment Authority. The Section 5.1 Except as otherwise provided herein, Company shall, prior to a Change of Control as defined herein, have the sole power and responsibility for the management, disposition and investment of the Trust assets, and Trustee shall havecomply with written directions from Company or its designated agent, without exclusionwhich may include a recordkeeper for the Plan. Trustee shall have no duty or responsibility to review, initiate action or make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them. Prior to issuing any such directions, Company shall certify to Trustee the person(s) at Company or its agent who have the authority to issue such directions. On and after the date of a Change of Control, Trustee shall have the sole and absolute discretion to manage, dispose of, and invest the Trust assets.
Section 5.2 In the administration of the Trust, Trustee shall have the following powers; however, prior to a Change of Control as defined herein, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by the solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, as defined herein, unless Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, has been properly delegated investment authority pursuant to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerSection 5.4:
(a1) To hold assets of any kind, including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To sell, exchange, assign, transfer and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)accumulated income) as directed;
(b4) To deposit vote, tender or invest exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust, as directed;
(6) To sell or exercise any “rights” issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates the name of deposit or other deposits Trustee (which bear a reasonable interest rate in a banksuch instance need not disclose its fiduciary capacity) or, including as permitted by laws, in the commercial department name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trustee, if Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d8) To make such distributions in accordance with the provisions of this Trust Agreement;
(9) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection hold a portion of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power for the ordinary administration and for the disbursement of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold funds in cash, without liability for interestinterest thereon, for such period of time as necessary, notwithstanding that Trustee or an affiliate of Trustee may benefit directly or indirectly from such uninvested amounts. It is acknowledged that Trustee’s handling of such amounts is consistent with usual and customary banking and fiduciary practices, and any earnings realized by Trustee or its affiliates will be compensation for its bank services in addition to its regular fees; and
(10) To invest in deposit products of Trustee or its affiliates, or other bank or similar financial institution, subject to the rules and regulations governing such deposits, and without regard to the amount of such deposit, as directed.
Section 5.3 From time to time prior to a Change of Control as defined herein the Company may appoint one or more investment managers who shall have investment management and control over all or a portion of the assets of the Trust (“Investment Managers”). The Company shall notify the Trustee in writing of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager’s management and control. Such Investment Manager shall, prior to a Change of Control, direct Trustee as to the investment of assets and any voting, tendering and other appurtenant rights of all securities held in the portion of the Trust Fund whichover which the Investment Manager is appointed. Trustee shall have no duty or responsibility to review, in its discretion, shall be reasonable under initiate action or make recommendations regarding the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust assets and shall retain such assets until directed in writing to be issued, held dispose of them.
Section 5.4 Company may delegate to Trustee the responsibility to manage all or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration portion of the Trust Fundprior to a Change of Control as defined herein if Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as if the Trustee were the absolute owner thereof. Howeverprovided herein, nothing in this Section 5 shall be construed subject to mean the Trustee assumes any responsibility for the performance of any investment made guidelines provided by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted Company.
Section 5.5 Subject to the foregoing provisions of this Article V, Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by Company. All rights associated with assets of the CompanyTrust shall be exercised by Trustee or the person designated by Trustee, other than and shall in no event be exercisable by or rest with Plan participants or their beneficiaries. Company shall have the right at any time and from time to time, in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by Company in a de minimis amount held nonfiduciary capacity without the approval or consent of any person in common investment vehicles in which the Trustee investsa fiduciary capacity.
Appears in 1 contract
Investment Authority. The (a) Subject to subsections (b) and (c) of this Section 5, the Trustee shall have, without exclusion, all powers conferred on have exclusive authority and discretion to manage and control the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee Fund as specified in this Section 5, and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment pursuant to such Exhibit, including, without limiting the generality of the foregoing, authority and discretion may exercise from time to time and at any time the power:
(ai) To invest and reinvest the Trust Fund, together with the income therefromwithout distinction between principal and income, in common stockthe group, preferred stock, family or class of mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and funds or other evidences of indebtedness (including those issued securities specified in writing by the Trustee or any Company which shall constitute the exclusive permitted investments of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)the Fund;
(bii) To deposit exercise, personally or invest all by general or limited proxy, the right to vote any part securities held in the Fund; and to exercise, personally or by power of the assets of the Trust Fund in savings accounts or certificates of deposit or attorney, any other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised right appurtenant to securities held by the United States or any stateFund;
(ciii) To hold, manage, improve exercise or sell any conversion or subscription or other rights appurtenant to any securities held in the Fund;
(iv) To invest and control all reinvest any property, real or personal, forming part in the Fund in any other form or type of investment not specifically mentioned in this subsection (a), so long as such form or type of investment is a form or type of investment approved by the Chief Financial Officer or Chief Executive Officer of the Trust Fund Company and a direction is made by the Company to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time invest in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;property.
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the The Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company or the Bank. All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan participants except that voting, tender, appraisal, dissenter and other similar rights with respect to Trust assets shall be exercised by the Company. In the absence of timely directions from the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsshall have no duty to exercise such rights, and shall have no liability for refraining from exercising such rights.
(ii) Any investment by the Trustee in securities or obligations of the Company or the Bank shall be subject to prior written approval of the Company.
(iii) The Company shall have the right at anytime, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
(c) The Trustee shall exercise its powers under this Section 5 in a manner consistent with such direction by the Company and shall have no liability whatsoever for any loss, cost or expense occasioned by any investment in accordance with this section.
(d) To the extent permitted by law, the Trustee shall not be liable for any act or omission of the Company hereunder and, except as set forth hereunder, the Trustee shall not be under any obligations to invest or otherwise manage the assets of the Plan. Without limiting the generality of the foregoing, the Trustee shall not be liable by reason of its taking or refraining from taking any action hereunder at the direction of the Company; the Trustee shall be under no duty to question or to make inquiries as to any direction or order or failure to give direction or order by the Company and the Trustee shall be under no duty to make any review of investments acquired for the Fund at the direction or order of the Company and shall be under no duty at any time to make any recommendation with respect to disposing of or continuing to retain any such investment.
(e) Without limiting the generality of the provisions of Section 8 hereof, the Company agrees, to the extent permitted by law, to indemnify the Trustee and hold it harmless from an against any claim or liability that may be asserted against it, otherwise than on account of the Trustee's own gross negligence or willful misconduct or violation of any provision of law, by reason of the Trustee's taking or refraining from taking any action in accordance with this Section 5.
(f) Subject to the other provisions of this Trust Agreement, the Trustee shall have the power and authority to be exercised in its sole discretion at any time and from time to time to issue and place orders for the purchase or sale of securities directly with qualified brokers or dealers. Such orders may be placed with such qualified brokers and/or dealers who also provide investment information or other research or statistical services to the Trustee in its capacity as a fiduciary or investment manager for other clients.
Appears in 1 contract
Investment Authority. (a) Except as otherwise provided in this Agreement, The Trustee shall haveadminister the Trust as a nondiscretionary Trustee, without exclusion, all powers conferred on and the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated shall not have any discretion or authority with regard to the investment of the assets of the Trust and shall be exercised act solely as directed by the Trustee and shall in no event be exercisable by or rest with ParticipantsEmployer. The Trustee, as may be directed by the Employer (or pursuant to the terms of the Plan), is authorized and empowered, by way of limitation, with the following powers, rights and duties, each of which the Trustee shall have full power and authority, upon written instruction, to invest and reinvest exercise in a nondiscretionary manner as directed in accordance with the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality direction of the foregoing, Employer (or pursuant to the power:terms of the Plan):
(a1) To invest and reinvest the Trust Fundassets, together with the income therefrom, in common stock, preferred stock, mutual fundsconvertible preferred stock, bonds, debentures, convertible debentures and bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any Trustee), shares of its affiliates)mutual funds, guaranteed investment contracts, bank investment contracts, other securities, policies of life insurance, annuity contracts, options, options to buy or sell securities or other assets, and all other property of any kind type (personal, real or mixed, and tangible or intangible);
(b2) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which in a bank or savings and loan association or other depository institution, including Trustee or any of its affiliates, provided with respect to such deposits with Trustee or an affiliate the deposits bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any staterate;
(c3) To hold, manage, improve improve, repair and control all property, real or personal, forming part of the Trust Fund and Trust; to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinetime;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e4) To hold in cash, without liability for interest, such portion of the Trust Fund whichas is pending investment, in its discretionor payment of expenses, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f5) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on bonds and mortgages held in the Trust, Trust including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem seem desirable, to transfer property to such agents or trustees, to grant to such agents such powers as are necessary or desirable to protect the Trust or its assetsTrust, to direct such agents agent or trusteestrustee, or to delegate such power to direct direct, and to remove such agents agent or trusteestrustee;
(g6) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assetsTrust;
(h7) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To The exercise all of the further rights, powers, options and privileges granted, provided for for, or vested in trustees generally under the laws of the State of statestate in which Trustee is incorporated as set forth above, so that the powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) 8) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust trust assets as security;; and
(k9) To lend certificates representing stocks, bonds or other securities to maintain accounts at and execute transactions through any brokerage or other firm, including any firm selected by the which is an affiliate of Trustee;.
(lb) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by Employer. All rights associated with assets of the CompanyTrust shall be exercised by Trustee or the person designated by Trustee, and shall in no event be exercisable by or rest with Plan Participants, except that voting rights with respect to Trust assets will be exercised in accordance with the provisions of Section 16(g). Employer shall have the right at anytime, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by Employer in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
(c) To the extent necessary or which it deems appropriate to implement its powers under this Section or otherwise to fulfill any of its duties and responsibilities as Trustee of the Trust, Trustee shall have the following additional powers and authority:
(1) To register securities, or any other than property, in its name or in the name of any nominee, or to hold securities in bearer form, provided the books and records of Trustee shall indicate at all times the true ownership of such property, and to deposit any securities or other property in a de minimis amount held depository or clearing corporation;
(2) To designate and engage the services of, and to delegate powers and responsibilities to, such agents, representatives, advisers, counsel and accountants as Trustee considers necessary or appropriate, any of whom may be an affiliate of Trustee or a person who renders services to such an affiliate, and, as a part of its expenses under this Trust Agreement, to pay their reasonable expenses and compensation;
(3) To make, execute and deliver, as Trustee, any and all deeds, leases, mortgages, conveyances, waivers, releases or other instruments in common investment vehicles writing necessary or appropriate for the accomplishment of any of the powers listed in this Trust Agreement; and
(4) Generally, to do all other acts which Trustee deems necessary or appropriate for the Trustee investsprotection of the Trust.
Appears in 1 contract
Samples: Deferred Compensation Plan Trust Agreement (Ruby Tuesday Inc)
Investment Authority. (a) Prior to a Change in Control, the Trustee shall invest and manage the assets of the Trust in accordance with written directions from the administrative committee appointed in accordance with the Plan(s) (the "Committee"). Upon a Change in Control, the authority of the Company and the Committee hereunder shall cease and the Trustee shall have the exclusive authority and responsibility for the investment of Trust assets.
(b) The Company shall have the right, at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust.
(c) Subject to the foregoing provisions of this Section 5, the Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund funds in any investment permitted by law, subject to any investment guidelines provided under the standards set forth in Exhibit B hereto and any amendment to such Exhibit, Section 8(a) including, without limiting the generality of the foregoing, the power:
(ai) To hold, invest and reinvest the principal or income of the Trust Fundin bonds, together with the income therefrom, in common stock, or preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and mixed tangible or intangible)intangible property provided, however, that in no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company or its affiliates, other than a de minimis amount held in common investment vehicles in which the Trustee invests;
(bii) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any stateState;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(eiii) To hold in cash, without liability for interest, such portion of the Trust Fund funds which, in its discretion, shall be reasonable under the circumstances, pending investments investments, or payments payment of expenses expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(giv) To employ such agents, agents including investment advisors, custodians, sub-custodians and counsel counsel-as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(hv) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee Trustee, or in the name of its nominee(s) or agentsagent(s), or in such form that title will pass by delivery;
(ivi) To exercise all of the further rights, powers, options and privileges granted, provided for for, or vested in trustees generally under the laws of the State of stateCalifornia, so that the powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(jvii) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(kviii) To lend certificates representing stocks, bonds bonds, or other securities to any brokerage or other firm selected by the Trustee;
(lix) To institute, compromise and defend actions and proceedings, ; to pay or contest any claim, ; to settle a claim by or against the Trustee by compromise, arbitration arbitration, or otherwise otherwise; to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(mx) To use securities, securities depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(nxi) To invest the Trust Fund funds from time to time in one or more investment funds, which funds shall be registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services)1940;
(oxii) To purchase an insurance policy invest part or an annuity to fund the benefits all of the PlansTrust funds in insurance contracts, the type and amount thereof to be specified by the Company. The Trustee shall be under no duty to make inquiry as to the propriety of the type or amount so specified. Each insurance contract issued shall provide that the Trustee shall be the owner thereof with the power to exercise all rights, privileges, options and elections granted by or permitted under such contract or under the rules of the insurer. The exercise by the Trustee of any incidents of ownership under any contract shall, prior to a Change in Control, be subject to the direction of the Company or the Committee. The Trustee shall have no power to name a beneficiary of the policy other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor Trustee, or to loan to any person the proceeds of any borrowing against such policy; and
(pxiii) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under the operations of this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 1 contract
Investment Authority. The (a) Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to may invest and reinvest the Trust Fund funds of the trust fund in any investment permitted by lawproperty, subject to any investment guidelines provided in Exhibit B hereto real, personal or mixed, wherever situate, and any amendment to such Exhibitwhether or not productive of income or consisting of wasting assets, including, without limitation, common and preferred stock, bonds, notes, debentures, leaseholds, mortgages (including without limiting the generality of the foregoing, the power:
(a) To invest any collective or part interest in any bond and reinvest the Trust Fundmortgage or note and mortgage), together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness oil, mineral or gas properties, royalties, interests or rights (including those equipment pertaining thereto), without being limited to the classes of property in which trustees are authorized by law or any rule of court to invest trust funds and without regard to the proportion any such property may bear to the entire amount of the trust fund. Trustee may invest and reinvest all or any portion of the trust fund collectively with other funds through the medium of one (1) or more common, collective or commingled trust funds which have been or may hereafter be established and maintained by Trustee, the instrument or instruments establishing such trust fund or funds, as amended from time to time, being made part of this Trust by reference as if fully set forth herein so long as any portion of the trust fund shall be invested through the medium thereof. Trustee is expressly authorized to invest all or part of the trust fund in savings accounts, time deposits, certificates of deposit, money market accounts, repurchase agreements and/or any other interest-bearing accounts (regardless of the term of such deposits or investments), if any, issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank. Trustee is further expressly authorized to utilize the discount brokerage operation, including the commercial department if any, offered by Trustee.
(b) Trustee may sell or exchange any property or asset of the trust fund at public or private sale, with or without advertisement, upon terms acceptable to Trustee and in such manner as Trustee may deem wise and proper. The proceeds of any such sale or exchange may be reinvested as is provided hereunder. The purchaser of any such property from Trustee shall not be required to look to the application of the proceeds of any such sale or exchange by Trustee, if such bank is supervised by the United States or any state;.
(c) To holdTrustee shall have full power to mortgage, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partitionpledge, lease for any term, even extending beyond the duration of this Trust, and or otherwise dispose of the same from time property of the trust fund without securing any order of court therefor, without advertisement, and to time execute any instrument containing any provisions which Trustee may deem proper in order to carry out such manner for actions. Any such consideration and upon such terms and conditions as the lease so made by Trustee shall determine;be binding, notwithstanding the fact that the term of the lease may extend beyond the termination of the Plan.
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including Trustee shall have the power to give proxies, borrow money upon terms agreeable to Trustee and pay assessments and other sums deemed by the Trustee interest thereon at rates agreeable to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, and to accept and retain as an investment repay any securities or other property received through the exercise of any of the foregoing powers;debts so created.
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as Trustee may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held participate in the Trustreorganization, including the appointment recapitalization, merger or consolidation of agents or trustees in such other jurisdictions as the any corporation wherein Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including own stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests.securities and may deposit such stock or
Appears in 1 contract
Samples: Trust Agreement (Saks Inc)
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which Trustee invests. All rights associated with assets of the Trust shall be exercised by Trustee or the person designated by Trustee, and shall in no event be exercisable by or rest with Plan participants.
(b) Except as provided in Section 5(c) hereof, the Trustee investsshall have the power of investing and reinvesting the Trust assets and in its sole discretion:
1) To invest and reinvest in any personal property, wherever situated and whether or not productive of income or consisting of wasting assets, including without limitation, common and preferred stocks, bonds, notes, debentures (including convertible stocks and securities but not including any stock or security of the Trustee or any affiliate thereof), leaseholds, mortgages, certificates of deposit or demand or time deposits (including any such deposits with the Trustee or any of its affiliates), shares of investment companies and mutual funds, interests in partnerships and trusts, insurance policies and annuity contracts, without being limited to the classes of property in which trustees are authorized to invest by any law or any rule of court of any state and without regard to the proportion any such property may bear to the entire amount of the Trust; provided however, that the Trust shall be diversified so as to minimize the risk of large losses unless under the circumstances it is clearly prudent not to do so, in the sole discretion of the Trustee;
2) As directed by the Treasurer of the Company, to invest and reinvest in insurance contracts or policies, and, if so directed by the Treasurer of the Company, to hold such contracts and policies in the name of the Trustee or otherwise, and to pay all premiums and other costs in connection therewith from the Trust;
3) To invest and reinvest all or any portion of the Trust assets collectively with funds of other trusts in units of or through the medium of any common, collective, or commingled trust fund or mutual fund that may be established and maintained by the Trustee or any of its affiliates, the instrument or instruments establishing such trust or funds, as amended, being made part of this Trust Agreement so long as any portion of the Trust shall be invested through the medium thereof;
4) To retain any property at any time received by the Trustee;
5) To sell or exchange any property held by it at public or private sale, for cash or on credit, to grant and exercise options for the purchase or exchange thereof, to exercise all conversion or subscription rights pertaining to any such property and to enter into any covenant or agreement to purchase any property in the future;
6) To participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan relating to property held by it 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;
7) To deposit any property held by it with any protective, reorganization, or similar committee, to delegate discretionary power thereto, and to pay part of the expenses and compensation thereof and any assessments levied with respect to any such property so deposited;
8) To extend the time of payment of any obligation held by it;
9) To hold uninvested any moneys received by it, without liability for interest thereon, until such moneys shall be invested, reinvested, or disbursed;
10) To exercise all voting or other rights with respect to any property held by it and to grant proxies, discretionary or otherwise;
11) To cause any property held by it to be registered and held in the name of one or more nominees, with or without the addition of words indicating that such securities are held in a fiduciary capacity, and to hold securities in bearer form;
12) To settle, compromise, or submit to arbitration any claims, debts, or damages due or owing to or from the Trust, respectively, 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 in any court or before any other body or tribunal; provided, however, that the Trustee shall not be required to take any such action unless it shall have been indemnified by the Company to its reasonable satisfaction against liability or expenses it might incur therefrom; and
13) Generally, to do all acts, whether or not expressly authorized, that the Trustee may deem necessary or desirable for the protection of the Trust.
Appears in 1 contract
Samples: Trust Agreement (Public Service Co of New Hampshire)
Investment Authority. The Section 5.1 Except as provided below, Company shall have the sole power and responsibility for the management, disposition, and investment of the Trust assets, and Trustee shall havecomply with written directions from Company or its designated agent, without exclusionwhich may include a recordkeeper for the Plan. Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them. Prior to issuing any such directions, Company shall certify to Trustee the person(s) at Company or its agent who have the authority to issue such directions.
Section 5.2 In the administration of the Trust, Trustee shall have the following powers; however, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by the solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, unless Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, has been properly delegated investment authority pursuant to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powersection 5.4 below:
(a1) To hold assets of any kind, including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To sell, exchange, assign, transfer, and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)accumulated income) as directed;
(b4) To deposit vote, tender, or invest exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust, as directed;
(6) To sell or exercise any "rights" issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates the name of deposit or other deposits Trustee (which bear a reasonable interest rate in a banksuch instance need not disclose its fiduciary capacity) or, including as permitted by laws, in the commercial department name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trustee, if Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d8) To make such distributions in accordance with the provisions of this Trust Agreement;
(9) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection hold a portion of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power for the ordinary administration and for the disbursement of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold funds in cash, without liability for interest, interest thereon for such portion period of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions time as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form notwithstanding that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate of Trustee may benefit directly or indirectly from such uninvested amounts. It is the investment adviser acknowledged that Trustee’s handling of such amounts is consistent with usual and customary banking and fiduciary practices, and any earnings realized by Trustee or provides other services);
(o) To purchase an insurance policy or an annuity its affiliates will be compensation for its bank services in addition to fund the benefits of the Plansits regular fees; and
(p10) To do all invest in deposit products of Trustee or its affiliates, or other acts necessary bank or desirable for similar financial institution, subject to the proper administration rules and regulations governing such deposits, and without regard to the amount of the Trust Fundsuch deposit, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee directed;
(11) To invest in securities (including stock or and the rights to acquire stock) or obligations issued by the CompanyCompany or an Employer as that term is defined in the Plan(s);
(12) To appoint custodians, subcustodians, or subtrustees, domestic or foreign (including affiliates of the Trustee), as to part or all of the Trust; provided that the Trustee shall not be liable for the acts or omissions of any subcustodian appointed under this Section;
(13) To determine, as of the last day of each Plan Year and on such additional dates as designated by the Plan, the fair market value of the assets of the Trust Fund which are publicly traded, as defined in Treas. Reg. §54.4975-7(b)(iv). The Trustee is directed to reflect Plan assets received through an in-kind transfer from a prior trustee in the Trust records of the Plan at the cost basis provided by the prior trustee and market value as of the date of transfer. The Trustee may rely on valuations provided to it from investment funds without undertaking an independent valuation of such funds. The Plan Administrator shall have the sole fiduciary responsibility to value all other Trust assets, including employer securities, which are not publicly traded as defined above. The Plan Administrator shall be responsible for hiring an independent appraiser to assist it in its valuation responsibilities to the extent required by law or the Plan, deemed prudent by the Plan Administrator. The Plan Administrator shall provide to the Trustee for the preparation of any trust reports the value of any assets over which it has valuation responsibility along with any additional information as requested. The Plan Administrator may have a third party recordkeeper act as its agent to inform the trustee of the value of any asset over which it has valuation responsibility. Any valuation made by the Trustee or Plan Administrator in good faith shall be binding and conclusive upon all parties to the Plan and this Trust Agreement and upon all persons interested or who may become interested, directly, or indirectly, in the Trust hereby created.
Section 5.3 From time to time the Company may appoint one or more investment managers who shall have investment management and control over all or a portion of the assets of the Trust ("Investment Managers"). The Company shall notify the Trustee in writing of the appointment of the Investment Manager. In the event more than a de minimis amount one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager's management and control. Such Investment Manager shall direct Trustee as to the investment of assets and any voting, tendering, and other appurtenant rights of all securities held in common investment vehicles in the portion of the Trust over which the Investment Manager is appointed. Trustee investsshall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of the Trust assets and shall retain such assets until directed in writing to dispose of them.
Section 5.4 Company may delegate to Trustee the responsibility to manage all or a portion of the Trust if Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as provided herein, subject to any investment guidelines provided by Company.
Section 5.5 The Trustee shall have no responsibility to notify the Company of any calls for redemption which do not appear in Standard New York Financial Publications, unless the Trustee actually receives written notice of such call for redemption. The Trustee shall promptly notify the Company of each written notice actually received by the Trustee in the ordinary course of its custodial business hereunder concerning any default of payment in connection with securities held hereunder, call for redemption, exchange offer, tender offer, rights offering, subscription rights, conversion or similar rights, merger, consolidation, reorganization, reclassification or recapitalization, or similar event or proceeding affecting the property held in the Trust, and shall take such action in respect thereto as may be directed in writing by the Company.
Section 5.6 All solicitation fees payable to the Trustee as agent in connection with tender offers or any of the aforementioned proceedings that would not otherwise be payable to the Company will be retained by the Trustee.
Section 5.7 Should any securities held in any depository be called for partial redemption by the issuer of such securities, the Trustee is authorized in the Trustee’s sole discretion to allot the called portion to the respective holders in any manner deemed to be fair and equitable in the Trustee’s judgment. Securities called for partial redemption must be in the Trust pursuant to an actual rather than provisional credit.
Appears in 1 contract
Investment Authority. (a) The Company shall have the right, subject to this Section, to direct the Trustee with respect to investments. The Company shall have the power in investing and reinvesting the Trust Fund in its sole discretion to direct the Trustee to take any of the actions set forth in this Section 5(a). Prior to issuing any such directions, the Company shall certify to the Trustee the person(s) at the Company or its agent who have the authority to issue such directions.
(1) To segregate all or a portion of the Trust Fund in a separate investment account or accounts. The Company may appoint one or more investment managers and/or an investment committee established by the Company to direct the investment and reinvestment of each such investment account or accounts; provided, however that in no event is the Company required to appoint any such investment manager or investment committee;
(2) To invest and reinvest in any readily marketable common and preferred stocks (including any stock or security of the Company), bonds, notes, debentures (including convertible stocks and securities but not including any stock or security of the Trustee other than a de minimus amount held in a mutual fund), certificates of deposit or demand or time deposits (including any such deposits with the Trustee), limited partnerships or limited liability companies, private placements and shares of investment companies, and mutual funds, without being limited to the classes or property in which the Trustee is authorized to invest by any law or any rule of court of any state and without regard to the proportion any such property may bear to the entire amount of the Trust Fund;
(3) To invest and reinvest all or any portion of the Trust Fund collectively through the medium of any proprietary mutual fund that may be established and maintained by the Trustee;
(4) To commingle for investment purposes all or any portion of the Trust Fund with assets of any other similar trust or trusts established by the Company with the Trustee for the purpose of safeguarding deferred compensation or retirement income benefits of its employees and/or directors;
(5) To retain any property at any time received by the Trustee;
(6) To sell or exchange any property held by it at public or private sale, for cash or on credit, to grant and exercise options for the purchase or exchange thereof, to exercise all conversion or subscription rights pertaining to any such property and to enter into any covenant or agreement to purchase any property in the future;
(7) To oppose, consent to or participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan relating to property held by it 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;
(8) To deposit any property held by it with any protective, reorganization or similar committee, to delegate discretionary power thereto, and to pay part of the expenses and compensation thereof for any assessments levied with respect to any such property to be deposited;
(9) To extend the time of payment of any obligation held by it;
(10) To hold any moneys received by it without investing such money, without liability for interest thereon, but only in anticipation of payments due for investments, reinvestments, expenses or disbursements;
(11) To exercise all voting or other rights with respect to any property held by it and to grant proxies, discretionary or otherwise;
(12) For the purposes of the Trust, to borrow money from others, to issue its promissory note or notes therefor, and to secure the repayment thereof by pledging any property held by it;
(13) To employ suitable contractors and counsel, who may be counsel to the Company or to the Trustee, and to pay their reasonable expenses and compensation from the Trust Fund to the extent not paid by the Company;
(14) To register investments in its own name or in the name of a nominee; and to combine certificates representing securities with certificates of the same issue held by it in other fiduciary capacities or to deposit or to arrange for the deposit of such securities with any depository, even though, when so deposited, such securities may be held in the name of the nominee of such depository with other securities deposited therewith by other persons, or to deposit or to arrange for the deposit of any securities issued or guaranteed by the United States government, or any agency or instrumentality thereof, including securities evidenced by book entries rather than by certificates, with the United States Department of the Treasury or a Federal Reserve Bank, even though, when so deposited, such securities may not be held separate from securities deposited therein by other persons; provided, however, that no securities held in the Trust Fund shall be deposited with the United States Department of the Treasury or a Federal Reserve Bank or other depository in the same account as any individual property of the Trustee, and provided, further, that the books and records of the Trustee shall haveat all times show that all such securities are part of the Trust Fund;
(15) To settle, without exclusioncompromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust, respectively, to commence or defend suits or legal proceedings to protect any interest of the Trust, and to represent the Trust in all powers conferred on suits or legal proceedings in any court or before any other body or tribunal; provided, however, that the Trustee shall not be required to take any such action unless it shall have been indemnified by applicable lawthe Company to its reasonable satisfaction against liability or expenses it might incur therefrom;
(16) To hold any other class of assets which may be contributed by the Company and that is deemed reasonable by the Trustee, unless expressly provided otherwise prohibited herein;
(17) To loan any securities at any time held by it to brokers or dealers upon such security as may be deemed advisable, and during the terms of any such loan to permit the loaned securities to be transferred into the name of and voted by the borrower or others;
(18) Generally, to do all acts, whether or not expressly authorized, that the Trustee may deem necessary or desirable for the protection of the Trust Fund;
(19) To invest cash balances held by it from time to time in short term cash equivalents including, but not limited to, through the medium of any short term fund established and maintained by the Trustee subject to the instrument establishing such trust fund, U.S. Treasury Bills, commercial paper (including such forms of commercial paper as may be available through the Trustee’s Trust Department), certificates of deposit (including certificates issued by the Trustee in its separate corporate capacity), and similar type securities, with a maturity not to exceed one year; and, furthermore, sell such short term investments as may be necessary to carry out the instructions of an investment manager or investment committee regarding more permanent type investment and directed distributions;
(20) To exercise all rights associated with respect to any investment held by the Trust, including but not limited to, exercising or voting of proxies, in person or by general or limited proxy, shall be in accordance with and as directed in writing by the Company or its authorized representative.
(b) From time to time, the Company may appoint one or more investment managers or an investment committee who shall have investment management and control over a portion of the assets of the Trust. In the event the Company does appoint any such investment manager or investment committee, the Company shall notify the Trustee of the appointment of each such investment manager and/or investment committee in writing. Such investment manager or investment committee shall direct the Trustee as to the investment of assets and any voting, tendering and other appurtenant rights of all securities held in the portion of the Trust over which the investment manager or investment committee is appointed. Thereafter, the Trustee shall make every sale or investment with respect to such investment account as directed in writing by the investment manager or investment committee. It shall be exercised by the duty of the Trustee and shall to act strictly in no event be exercisable by or rest accordance with Participantseach direction. The Trustee shall be under no duty to question any such direction of the investment manager or investment committee, to review any securities or other property held in such investment account or accounts acquired by it pursuant to such directions or to make any recommendations to the investment managers or investment committee with respect to such securities or other property. Notwithstanding anything in this Trust Agreement to the contrary, the Trustee shall be indemnified and held harmless by the Company from and against any and all personal liability to which the Trustee may be subjected by carrying out any directions of an investment manager or investment committee issued pursuant hereto or for failure to act in the absence of directions of the investment manager or investment committee including all expenses reasonably incurred in its defense in the event the Company fails to provide such defense; provided, however, the Trustee shall not be so indemnified if it participates knowingly in, or knowingly undertakes to conceal, an act or omission of an investment manager or investment committee, having actual knowledge that such act or omission is a breach of a fiduciary duty; provided further, however, that the Trustee shall not be deemed to have knowingly participated in or knowingly undertaken to conceal an act or omission of an investment manager or investment committee with knowledge that such act or omission was a breach of fiduciary duty by merely complying with directions of an investment manager or investment committee or for failure to act in the absence of directions of an investment manager or investment committee. The Trustee may rely upon any order, certificate, notice, direction or other documentary confirmation purporting to have been issued by the investment manager or investment committee which the Trustee believes to be genuine and to have been issued by the investment manager or investment committee. The Trustee shall not be charged with knowledge of the termination of the appointment of any investment manager or investment committee until it receives written notice thereof from the Company.
(c) The Company may delegate to the Trustee the responsibility to manage all or a portion of the Trust if the Trustee agrees to do so in writing. Upon written acceptance of that delegation, the Trustee shall have the full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by lawinvestments as provided herein, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting by the generality of the foregoing, the power:Company.
(ad) To invest The Company shall have the right at any time, and reinvest the Trust Fund, together with the income therefrom, from time to time in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and its sole discretion to substitute assets (other evidences of indebtedness (including those than securities issued by the Trustee or the Company) of equal fair market value for any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or sell securities or other assets, and other property consent of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate person in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 1 contract
Investment Authority. The Trustee (a) Except as provided below, the Company shall havehave the sole power and responsibility for the management, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise hereindisposition, and all rights associated with assets investment of the Trust shall be exercised by assets, and the Trustee and shall in no event be exercisable by comply with written directions from the Company or rest with Participantsits designated agent, which may include a recordkeeper for the Plan. The Trustee shall have full power no duty or responsibility to review, initiate action, or make recommendations regarding the investment of Trust assets and authority, upon written instruction, shall retain such assets until directed in writing to invest and reinvest dispose of them.
(b) In the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality administration of the foregoingTrust, the powerTrustee shall have the following powers, all of which shall be exercised only in a fiduciary capacity:
(ai) To invest hold and reinvest control the assets in the Trust Fundof any kind (except as provided in Section (c) below) including shares of any registered investment company, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by whether or not the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities affiliates provides investment advice or other assetsservices to such company and receives compensation for the services provided;
(ii) To sell, exchange, assign, transfer, and other convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed by the Company or an Investment Manager;
(iii) To invest and reinvest assets of any kind the Trust (personal, real including accumulated income) as directed by the Company or mixed, and tangible or intangiblean Investment Manager (as defined in (d) below);
(biv) To deposit vote, tender, or invest exercise any right to any stock or securities held in the Trust as directed by the Company or an Investment Manager;
(v) To consent to and participate in any plan for the liquidation, reorganization, consolidation, or merger of any corporation, any security of which is held in the Trust, as directed;
(vi) To sell or exercise any “rights” issued on any securities held in the Trust, as directed;
(vii) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department name of the TrusteeTrustee (which in such instance need not disclose its fiduciary capacity) or, if as permitted by law, in the name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trust shall at all times show that all such bank investments are part of the Trust and the Trustee shall hold evidence of title to all such investments; and
(viii) To make such distributions to Participants (as such term is supervised by defined in the United States or any state;respective Plan) in accordance with the provisions of this Trust Agreement and the Plan.
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests. All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan participants.
(d) From time to time, the Company may appoint one or more investment managers who shall have investment management and control over all or a portion of the assets of the Trust (“Investment Managers”). Each Investment Manager shall be a (i) registered investment advisor under the Investment Advisors Act of 1940, (ii) bank, as defined in the Investment Advisors Act of 1940, or (iii) qualified insurance company under the laws of one state. The Company shall notify the Trustee of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager’s management and control. As shall be provided in any contract between an Investment Manager and the Company, such Investment Manager shall hold a revocable proxy with respect to all securities which are held under the management of such Investment Manager pursuant to such contract and such Investment Manager shall report the voting of all securities subject to such proxy on an annual basis to the Company. In the event that the Company does not appoint an Investment Manager as provided in this Section 5(d), references in this Trust Agreement to “Investment Manager” shall mean the Company.
Appears in 1 contract
Investment Authority. Section 6.1 Except as provided below, Company shall have the sole power and responsibility for the management, disposition, and investment of the Trust assets, and Trustee shall comply with written directions from Company or its designated agent, which may include a recordkeeper for the Plan or the Contracts. Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them. Prior to issuing any such directions, Company shall certify to Trustee the person(s) at Company or its agent who have the authority to issue such directions.
Section 6.2 In the administration of the Trust, Trustee shall have the following powers; however, all powers regarding the investment of the Trust shall be exercised solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, unless Trustee has been properly delegated investment authority pursuant to Section 6.4 below:
(1) To hold assets of any kind, including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To grant options, sell, exchange, assign, transfer, convert, redeem and convey or otherwise dispose of any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust (including accumulated income) as directed;
(4) To vote, tender, or exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To oppose or consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may at any time be held and to do any act with reference thereto, as directed, including the exercise of options, the making of agreements or subscriptions, which may be deemed necessary or advisable in connection therewith, and to hold and retain any securities or other property so acquired;
(6) To sell or exercise any "rights" issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust to be held in the name of Trustee (which in such instance need not disclose its fiduciary capacity) or, as permitted by laws, in the name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trust shall at all times show that all such investments are part of the Trust and Trustee shall hold evidence of title to all such investments;
(8) To make distributions in accordance with the provisions of this Trust Agreement;
(9) To hold a portion of the Trust as is reasonably necessary for the ordinary administration and for the disbursement of funds in cash, without liability for interest thereon for such period of time as necessary, notwithstanding that Trustee or an affiliate of Trustee may benefit directly or indirectly from such uninvested amounts. It is acknowledged that Trustee’s handling of such amounts will be consistent with usual and customary banking and fiduciary practices and the Trustee’s Float Disclosure policy dated January 3, 2012 attached hereto as Appendix A, and any earnings realized by Trustee or its affiliates will be compensation for its bank services in addition to its regular fees; and
(10) To invest in deposit products of Trustee or its affiliates, or other bank or similar financial institution, subject to the rules and regulations governing such deposits, and without regard to the amount of such deposit, as directed;
(11) To invest in securities (including stock and the rights to acquire stock) or obligations issued by the Company or an Employer as that term is defined in the Plan, as directed;
(12) To exercise any conversion privilege and/or subscription right available in connection with any securities or other property at any time held, as directed;
(13) Subject to the consent of Company, to appoint custodians, subcustodians, or subtrustees, domestic or foreign (including affiliates of the Trustee), as to part or all of the Trust;
(14) To determine, as of the last day of each Plan Year and on such additional dates as designated by the Plan, the fair market value of the assets of the Trust which are publicly traded, as defined in Treas. Reg. §54.4975-7(b)(iv). The Trustee is directed to reflect assets received through an in-kind transfer from a prior trustee in the Trust records of the Plan or Contracts at the cost basis provided by the prior trustee and market value as of the date of transfer. The Trustee may rely on valuations provided to it from investment funds without undertaking an independent valuation of such funds. The Oversight Committee shall have the sole responsibility to value all other Trust assets, including employer securities, which are not publicly traded as defined above. The Oversight Committee shall be responsible for hiring an independent appraiser to assist it in its valuation responsibilities to the extent required by law or the Plan, or deemed prudent by the Oversight Committee. The Oversight Committee shall provide to the Trustee for the preparation of any trust reports the value of any assets over which it has valuation responsibility along with any additional information as requested. The Oversight Committee may have a third party recordkeeper act as its agent to inform the trustee of the value of any asset over which it has valuation responsibility. Any valuation made by the Trustee or Oversight Committee in good faith shall be binding and conclusive upon all parties to the Plan, the Contracts and this Trust Agreement and upon all persons interested or who may become interested, directly, or indirectly, in the Trust hereby created.
Section 6.3 From time to time the Company may appoint one or more investment managers who shall have investment management and control over all or a portion of the assets of the Trust ("Investment Managers"). The Company shall notify the Trustee in writing of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager's management and control. Such Investment Manager shall direct Trustee as to the investment of assets and any voting, tendering, and other appurtenant rights of all securities held in the portion of the Trust over which the Investment Manager is appointed. In the event an Investment Manager is appointed, Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of the Trust assets assigned to the Investment Manager and shall retain such assets until directed in writing to dispose of them.
Section 6.4 Company may delegate to Trustee the responsibility to manage all or a portion of the Trust if Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as provided herein, subject to any investment guidelines provided by Company.
Section 6.5 The Trustee shall havehave no responsibility to notify the Company of any calls for redemption which do not appear in Standard New York Financial Publications, without exclusion, all powers conferred on unless the Trustee actually receives written notice of such call for redemption. The Trustee shall promptly notify the Company of each written notice actually received by applicable lawthe Trustee in the ordinary course of its custodial business hereunder concerning any default of payment in connection with securities held hereunder, unless expressly provided otherwise hereincall for redemption, exchange offer, tender offer, rights offering, subscription rights, conversion or similar rights, merger, consolidation, reorganization, reclassification or recapitalization, or similar event or proceeding affecting the property held in the Trust, and all shall take such action in respect thereto as may be directed in writing by the Company.
Section 6.6 All solicitation fees payable to the Trustee as agent in connection with tender offers or any of the aforementioned proceedings that would not otherwise be payable to the Company will be retained by the Trustee.
Section 6.7 Should any securities held in any depository be called for partial redemption by the issuer of such securities, the Trustee is authorized in the Trustee’s sole discretion to allot the called portion to the respective holders in any manner deemed to be fair and equitable in the Trustee’s judgment. Securities called for partial redemption must be in the Trust pursuant to an actual rather than provisional credit.
Section 6.8 All rights associated with assets of the Trust shall be exercised by the Trustee and shall in no event be exercisable or the person designated by or rest with Participantsthe Trustee. The Trustee Company shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund right in its sole discretion at any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetstime, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner time, to substitute assets of equal fair market value for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed any asset held by the Trustee to be necessary for Trust. This right is exercisable by the protection of Company in a non-fiduciary capacity without the Trust Fund, to vote any corporate stock either in person approval or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless consent of any limitation elsewhere person in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsfiduciary capacity.
Appears in 1 contract
Samples: Rabbi Trust Agreement (Brinks Co)
Investment Authority. (a) The Company hereby designates the Trustee to administer the Trust as a nondiscretionary, directed Trustee. The Trustee shall have, without exclusion, all powers conferred on will not have any discretion or authority with regard to the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by fund, but must act solely as a directed trustee of the Trustee and shall in no event be exercisable by or rest with Participantsfunds contributed to it. The Trustee shall have full power is authorized and authorityempowered, upon by way of limitation, with the following powers, rights and duties, each of which the Trustee exercises solely as directed trustee in accordance with the written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality direction of the foregoing, the powerCompany:
(a1) To invest and reinvest the Trust Fundfund, together with the income therefrom, in common stock, preferred stock, open or closed end mutual fundsfunds (including those for which the Trustee or an affiliate acts as an investment advisor), bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b2) To deposit or invest all or any part of the assets of the Trust Fund fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c3) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner manner, for such consideration and upon such terms and conditions as the Trustee shall determine;
(d4) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fundfund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to . To participate in voting trusts, trustee pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations liquidation and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e5) To hold in cash, without liability for interest, such portion of the Trust Fund which, fund which the Company may direct in its discretion, writing shall be reasonable under the circumstances, pending investments or payments of expenses expenses, or the distribution of benefits;
(f6) To take such actions as may be necessary or desirable to protect the Trust Fund fund from loss due to the default on mortgages held in the Trust, Trust including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem many seem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g7) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) 8) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i9) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, Texas so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j10) To borrow money from any source (including Subject to the Trustee) and conditions provided herein, to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, ; to pay or contest any claim, ; to settle a claim by or against the Trustee by compromise, arbitration arbitration, or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m11) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p12) To do all other acts necessary or desirable for the proper administration of the Trust Fundfund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under the operations of this Trust Agreement, except as provided herein. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or to applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may Internal Revenue Code of 1986, as amended.
(b) The Company shall have the Trustee invest right from time to time, in securities (including stock or rights its sole discretion, to acquire stock) or obligations issued substitute assets of equal fair market value for any asset held by the Company, other than Trust. This right is exercisable by the Company in a de minimis amount held nonfiduciary capacity without the approval or consent of any person in common investment vehicles in which the Trustee investsa fiduciary capacity.
Appears in 1 contract
Investment Authority. (a) The Trustee shall have, without exclusion, all powers conferred on invest the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust in the manner directed by the Company which directions shall be exercised in strict conformity with the standards set forth in paragraph (a) of Section 9. The Company agrees to indemnify the Trustee for, and to hold it harmless against, any and all liabilities, losses, costs or expenses (including reasonable legal fees and expenses) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against the Trustee at any time by reason of actions taken in accordance with such directions by the Trustee and shall in Company or omitted because no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibitdirections are given, including, without limiting the generality limitation, any acquisition, retention or disposition of any stock or other securities of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);Company.
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised extent directed by the United States or any state;
(c) To holdCompany, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all have the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to following investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;:
(i) To exercise all of the further rights, powers, options and privileges granted, provided purchase or subscribe for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source property whatsoever (including the Trusteestock or rights to acquire stock) and to execute promissory notes, mortgages retain in trust such securities or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the property. The Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company.
(ii) To sell for cash or on credit, to grant options, convert, redeem, exchange for other than securities or other property, or otherwise to dispose of any securities or other property at any time held.
(iii) To exercise any conversion privilege and/or subscription right available in connection with any securities or other property at any time held; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may at any time be held and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions, which may be deemed necessary or advisable in connection therewith; and to hold and retain any securities or other property so acquired.
(iv) To exercise, personally or by general or by limited power of attorney, any right, including the right to vote, appurtenant to any securities or other property held at any time.
(v) To hold part or all of the Trust uninvested.
(vi) To register any securities held hereunder in the name of the Trustee or in the name of a de minimis amount nominee with or without the addition of words indicating that such securities are held in common investment vehicles a fiduciary capacity, and to hold any securities in which bearer form. All rights associated with assets of the Trust shall be exercised by the Trustee investsor the person designated by the Trustee. The Company shall have the right in its sole discretion at any time, and from time to time, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
Appears in 1 contract
Samples: Trust Agreement (Pittston Co)
Investment Authority. The (a) Subject to subsections (b) and (c) of this Section 4, the Trustee shall have, without exclusion, all powers conferred on have the Trustee by applicable law, unless expressly provided otherwise herein, exclusive authority and all rights associated with discretion to manage and control the assets of the Trust shall be exercised by the Trustee Fund as specified in this Section 4, and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment pursuant to such Exhibit, including, without limiting the generality of the foregoing, authority and discretion may exercise from time to time and at any time the power:
(ai) To invest and reinvest the Trust Fund, together with the income therefromwithout distinction between principal and income, in common stockthe group, preferred stock, family or class of mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and funds or other evidences of indebtedness (including those issued securities specified in writing by the Company (the "Investment Guidelines") which the Company shall provide to the Trustee or any following the execution of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetsthis Trust Agreement, and other property which shall constitute the exclusive permitted investments of any kind the Fund (personal, real or mixed, and tangible or intangiblesuch Investment Guidelines to be annexed hereto as Exhibit 3);
(bii) To deposit exercise, personally or invest all by general or limited proxy, the right to vote any part securities held in the Fund, and to exercise, personally or by power of the assets of the Trust Fund in savings accounts or certificates of deposit or attorney, any other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised right appurtenant to securities held by the United States or any stateFund;
(ciii) To hold, manage, improve exercise or sell any conversion or subscription or other rights appurtenant to any securities held in the Fund; and
(iv) To invest and control all reinvest any property, real or personal, forming part in the Fund in any other form or type of the Trust Fund and to sellinvestment not specifically mentioned in this subsection (a), convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions so long as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by Company directs the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or invest in such form that title will pass by delivery;or type of investment.
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the The Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company or the Bank. All rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Covered Persons.
(ii) Any investment by the Trustee in securities or obligations of the Company or the Bank shall be subject to prior written approval of the Company.
(c) The Trustee shall exercise its powers under this Section 4 in a manner consistent with the Investment Guidelines and shall have no liability whatsoever for any loss, cost or expense occasioned by any investment in accordance the Investment Guideline or otherwise in accordance with this Section.
(d) To the extent permitted by law, the Trustee shall not be liable for any act or omission of the Company hereunder and, except as set forth hereunder, the Trustee shall not be under any obligation to invest or otherwise manage the assets of the Plan. Without limiting the generality of the foregoing, the Trustee shall not be liable by reason of its taking or refraining from taking any action hereunder at the direction of the Company; the Trustee shall be under no duty to question or to make inquiries as to any direction or order or failure to give direction or order by the Company, other than a de minimis amount held in common investment vehicles in which and the Trustee investsshall be under no duty to make any review of investments acquired for the Fund at the direction or order of the Company and shall be under no duty at any time to make any recommendation with respect to disposing of or continuing to retain any such investment.
(e) Without limiting the generality of the provisions of Section 7 hereof, the Company agrees, to the extent permitted by law, to indemnify the Trustee and hold it harmless from and against any claim or liability that may be asserted against it, otherwise than on account of the Trustee's own gross negligence or willful misconduct or violation of any provision of law, by reason of the Trustee's taking or refraining from taking any action in accordance with this Section 4.
(f) Subject to the other provisions of this Trust Agreement, the Trustee shall have the power and authority to be exercised in its sole discretion at any time and from time to time to issue and place orders for the purchase or sale of securities directly with qualified brokers or dealers. Such orders may be placed with such qualified brokers and/or dealers who also provide investment information or other research or statistical services to the Trustee in its capacity as a fiduciary or investment manager for other clients.
Appears in 1 contract
Samples: Directors and Officers Insurance Premium Trust Agreement (Mpower Holding Corp)
Investment Authority. (a) The Trustee shall have, without exclusion, all powers conferred on invest the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust in accordance with investment directions received from the Company, which directions may include a direction to invest Trust assets in accordance with the deemed investment selections of Plan participants and beneficiaries. In the absence of any directions from the Company, the Trustee shall be exercised invest the assets of the Trust in a manner which is consistent with an investment policy communicated to it in writing by the Trustee and shall Company or, if no such policy has been communicated, in no event be exercisable by or rest with Participantsa manner which is appropriate given the purposes for which the Trust has been established. The Trustee shall have full power and authority, upon written instruction, to may invest and reinvest the Trust Fund in any investment permitted by lawwhich it deems appropriate, subject to any the proper investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality directions of the foregoingCompany, and in furtherance thereof the powerTrustee may:
(a1) To invest and reinvest the Invest Trust Fund, together with the income therefrom, assets in common stockand preferred stocks (including stock bought and sold on margin); corporate bonds; mutual funds (including funds for which the Trustee or its affiliates serve as investment advisor or in any other capacity or for which they receive compensation for providing investment advisory, preferred stockcustody, mutual funds, bonds, mortgages, notes, time transfer agency or other services); money market accounts; certificates of deposit; debentures; commercial paper; put and call options; limited partnerships; mortgages; U.S. Government obligations, commercial paper including U.S. Treasury notes and other evidences of indebtedness (including those bonds; real and personal property having a ready market; life insurance policies; commodities; savings accounts; notes; and securities issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)affiliates as permitted by law;
(b2) To Hold cash uninvested and deposit the same with any banking or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bankinstitution, including its own banking department or the commercial banking department of the Trustee, if such bank is supervised by the United States or any statean affiliate;
(c3) To holdUtilize a general disbursement account, managei.e., improve and control all propertyin the form of a demand deposit account and/or time deposit account, real or personal, forming part of for distributions from the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose without incurring any liability for payment of interest thereon, notwithstanding receipt of income with respect to float involving the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinedisbursement account by it or an affiliate;
(d4) To haveHold contributions in an omnibus account, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations andi.e., in connection therewiththe form of a demand deposit account and/or time deposit account, maintained by it or an affiliate for up to deposit securities with and transfer title three (3) business days (or such longer period as may result due to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cashcircumstances beyond its control), without liability for interest, such portion of interest thereon. (The Company acknowledges that any float earnings associated with the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages assets held in the Trust, including the appointment of agents or trustees in such other jurisdictions as omnibus accounts are retained by the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name part of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided compensation for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other performing benefit payment services);
(o5) To purchase Join in or oppose the reorganization, recapitalization, consolidation, sale or merger of corporations or properties, including those in which it or its affiliates are interested as Trustee, upon such terms as it deems advisable;
(6) Hold investments in nominee or bearer form;
(7) Exercise all ownership rights including the voting of proxies and the exercise of tender offers but only with respect to assets for which the Company has not provided investment directions;
(8) Apply for and procure from an insurance policy or company as an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration investment of the Trust Fundsuch contracts on the life of any Participant as the Company shall deem proper; to exercise at any time or from time to time, whatever rights and privileges may be granted under such contracts; and collect, receive, and settle for the proceeds of any such contracts as if and when entitled to do so under the Trustee were the absolute owner provisions thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the The Trustee shall not have any the power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 to invest assets of the Procedure Trust in life insurance contracts unless specifically directed to do so by the Company, and Administrative Regulations promulgated pursuant the Company shall be solely responsible for selecting the insurance company(ies) and the policy(ies) in which Trust assets are to be invested. Such direction shall include but not be limited to the Codeterm, price and the insurance company from which the policy should be purchased. In The Trustee shall be the sole owner and named beneficiary of any policies purchased hereunder, and no event may Participants or beneficiaries shall have any interest whatsoever in such policies. If Trust assets are inadequate to pay all premiums on all insurance policies, the Trustee may, at the direction of the Company, borrow against the policies in order to pay such premiums. The Trustee may invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which . All rights associated with assets of the Trust shall be exercised by the Trustee investsor the person designated by the Trustee, and shall in no event be exercisable by or rest with Plan participants, except that voting and dividend rights with respect to Trust assets will be exercised by Company. The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value acceptable to the Trustee for any asset held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
Appears in 1 contract
Investment Authority. The Trustee shall have, without exclusion, all powers conferred on (a) Subject to the provisions of paragraph (b) the Trustee by applicable lawshall, unless expressly provided otherwise hereinin its sole discretion, invest and reinvest the Trust assets in any property, real or personal, or part interest therein, wherever situated, including but without being limited to, common and preferred stocks, personal, corporate and governmental obligations, trust and participation certificates, leaseholds, mortgages and other interests in realty, notes and other evidences of indebtedness or ownership, secured or unsecured, and all rights associated with assets including specifically real property, stocks, securities, obligations and interests of NBD and its affiliates. Such investments shall be limited to investments that are rated in one of the Trust two highest rating categories by a nationally recognized rating agency. Such investments shall not be exercised restricted to property and securities of the character authorized for investment by trustees under any present or future laws. All rights, privileges, options and elections contained in any policies or contracts issued by insurance companies and acquired pursuant to the foregoing shall vest in the Trustee and shall be exercised, assigned, or otherwise disposed of in no event be exercisable by its discretion. Without liability for interest, the Trustee may keep a portion of the Trust assets uninvested and may deposit any uninvested assets with itself or rest with Participantsother banks. The Trustee is further authorized and empowered in its sole discretion to invest and reinvest all or any part of the Trust assets through the medium of any common, collective or commingled trust fund, including those operated and maintained by the Trustee, as the same may have heretofore been or may hereafter be established or amended, subject to all of the terms of the declaration of trust pursuant to which such trust fund was established.
(b) Subject to the provisions of paragraph (a) hereof, and in furtherance and not in limitation of the Trustee's investment authority, the Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together deal with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of Trust assets, including, without limitation, the Trust Fund in savings accounts or certificates of deposit power to invest, reinvest, and change investments; to acquire any property by purchase, subscription, lease, or other deposits which bear a reasonable interest rate in a bankmeans; to sell for cash or on credit, including the commercial department of the Trusteeconvey, if such bank is supervised by the United States lease for long and short terms, or convert, redeem or exchange, all or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund assets; to borrow, and to sellpledge as security for such borrowings all or any part of the Trust assets; to make loans with or without security; to improve, conveyrepair and develop real property; to enforce, transferby suit or otherwise, exchange, partition, lease for any term, even extending beyond or to waive its rights on behalf of the duration of this TrustTrust assets, and otherwise dispose to defend claims asserted against it or Trust assets; to compromise, adjust and settle any and all claims against or in favor of it or the Trust assets other than claims for benefits by Plan participants or their beneficiaries; to renew, extend or foreclose any mortgage or other security; to bid on property in foreclosure; to take deeds in lieu of foreclosure, with or without paying a consideration therefor; to vote, or give proxies to vote, any stock or other security, and to waive notice of meetings; to oppose, participate in and consent to the reorganization, merger, consolidation, or readjustment of the same from time finances of any enterprise, to time pay assessments and expenses in such manner connection therewith, and to deposit securities under deposit agreements; to hold securities unregistered, or to register them in its own name or in the names of nominees; and to cause any investment to be registered and held in the name of one or more nominees of any system for such consideration central handling of securities; to form corporations and to create trusts to hold title to any securities or other property, all upon such terms and conditions as may be deemed advisable; to make, execute, acknowledge and deliver any and all instruments that it shall deem necessary or appropriate to carry out the powers herein granted; and generally to exercise any of the powers of an owner with respect to all or any part of the Trust. No persons dealing with the Trustee shall determine;be bound to see to the application of any money or property paid or delivered to the Trustee or to inquire into the validity or propriety of any transaction.
(dc) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by NBD may direct the Trustee to be necessary transfer assets to an insurance company to provide an alternative or additional funding medium or investment vehicle for the protection management and control of Plan assets. If the Trustee agrees to hold any insurance contract as an asset of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power at the request of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable lawNBD, the Trustee shall not have any power that could give this Trust responsibility for the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 selection of the Procedure issuer and/or for terms of the contract, or for performing any functions under any insurance contract that it may be directed to purchase and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, hold as contractholder other than a de minimis amount held in common investment vehicles in which the Trustee investsexecution of any documents and the transfer of payments of any funds incidental thereto on the directions of NBD.
Appears in 1 contract
Samples: Benefit Protection Trust Agreement (First Chicago NBD Corp)
Investment Authority. (a) The Trustee shall have, without exclusion, all have the following powers conferred on and authority in the Trustee by applicable law, unless expressly administration of the Trust Fund to be exercised as provided otherwise herein, and all in Section 8 hereof;
(1) All rights associated with assets of the Trust shall be exercised by the Trustee or Company and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in Plan participants;
(2) To retain any investment permitted and property which may be received by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to it for such Exhibit, includinglength of time as may seem proper, without limiting the generality liability by reason of the foregoing, the power:such retention;
(a3) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the Trust assets in any common or preferred stocks, shares of the Trust Fund in savings accounts or certificates investment trusts and investment companies, bonds, debentures, mortgages, deeds of deposit or other deposits which bear a reasonable interest rate in a banktrust, including the commercial department of the Trusteemortgage participations, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all propertynotes, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities estate or other property received through which the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund whichCommittee, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as select; provided that the Trustee may deem desirable, to transfer property to such agents not invest in its own stock or trustees, to grant such powers as are necessary securities or desirable to protect the Trust in stock or its assets, to direct such agents securities issued by a parent or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property affiliate company of the Trust to be issued, held or registered in the individual name of Trustee; and further provided that the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall may not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests). Any such investments may be held in bearer form, or in the name of the Trustee, or in the name of a nominee or nominees: 13
(4) To retain cash or the proceeds from the sale of any assets until such time or times as it receives direction from Company regarding the appropriate investments of such funds;
(5) To hold uninvested cash awaiting investment or distribution, and such additional cash balances as it shall deem reasonable or necessary, without incurring any liability for the payment of interest thereon;
(6) Which respect to any securities forming part of the Trust created hereunder, to exercise all voting rights, either in person or by proxy, as directed by the Committee; to exercise conversation, subscription, option and similar rights: to enter or refuse to enter into any dissolution, liquidation, consolidation, recapitalization, reorganization, merger or other change in capital structure, and in connection therewith, to make exchanges of securities and to enter into agreements on such terms and conditions as it may deem advisable; and to enter into voting trusts and agreements with other stockholders, and other holders of securities, and the corporations which shall have issued such stocks or securities, any one or more of such persons, for such purposes and for such period of time (whether or not the same extends beyond the actual or probable duration of the trusts created hereunder), and upon such terms and conditions as it shall deem advisable;
(7) To enter into any lease or leases, without application to any court of any or all real or personal property held hereunder, for such period (whether or not the same expires prior to or extends beyond the actual or probable duration of the trusts created hereunder), and upon such terms and conditions as it shall deem advisable;
(8) To borrow money or property, either upon the security of any or all of the assets of the trusts created hereunder, or without security or otherwise, upon such terms and conditions and for such purposes in connection with the administration of the trusts as it shall deem proper;
(9) To grant, bargain, sell, exchange, mortgage, grant options to buy, or otherwise dispose of any or all personal property, at any time held hereunder, either at public or private sale, for cash or on credit, or partly for cash and partly on credit, upon such terms and conditions, in such manner and for such purposes, and either in whole or in part, as it may deem proper: and to make, execute, acknowledge and deliver good and sufficient instruments for that purpose. No purchaser, upon any sale or either disposition, shall be bound to see to the application of the moneys or property arising therefrom or to inquire into the validity, expediency or propriety of any such sale or disposition;
(10) to adjust, compromise or arbitrate claims or demands of, or, against. the Trust created hereunder, whether such claims are due or shall become due in the future, including without limitation any overpayment or refund claim, or any deficiency, additional assessment or other liability, relating to any federal, state, county, municipal or other tax, irrespective of the nature thereof; 14
(11) In any case where the applicable law is unclear or uncertain, to allocate to income or to principal, or to apportion between income and principal, receipts disbursements, depletion and depreciation in such manner as it shall deem proper;
(12) To execute and deliver all documents, contracts, and instruments necessary or advisable in connection with the administration of the Trust created hereunder:
(13) To invest in any investment company for which Trustee or any affiliate of Trustee receives a fee for investment, advisory, custodial services or other services Trustee is permitted to perform for said investment company and which said fee is in addition to the fees payable hereunder; and
(14) Notwithstanding anything in this Section to the contrary, if the authority to direct Trustee as to the investment of all or any part of the assets held in the Trust has been granted to the Plan participants, Trustee shall not have any obligation to investigate the prudence of any such investments and shall be indemnified and held harmless by Company for any act or failure to act made pursuant to such direction.
Appears in 1 contract
Samples: Directors' Deferred Compensation Plan (Summit Bancorp/Nj/)
Investment Authority. The (a) Prior to a Change in Control, the assets of the Trust shall be invested solely in shares of Company Stock and the Trustee shall have, without exclusion, all powers conferred on be relieved in complying with the Trustee by applicable law, unless expressly provided otherwise herein, and all prudent investor rule. All rights associated with assets of the Trust shall be exercised by Trustee or the Trustee person designated by Trustee, and shall in no event be exercisable by or rest with Participants. the Employee.
(b) The Trustee shall have full power and authoritynot be liable in discharging its duties hereunder, upon written instruction, including without limitation its duty to invest and reinvest the Fund, if it acts for the exclusive benefit of the Participants and their Beneficiaries, in good faith and as a prudent person would act in accomplishing a similar task and in accordance with the terms of this Trust Agreement and any applicable federal or state laws, rules or regulations; provided however, the Trustee's ability to invest the assets of the Trust, prior to a Change in Control, shall be limited exclusively to shares of Company Stock and the Trustee shall not be liable for failing to comply with the prudent investor rule.
(c) Subject to investment guidelines agreed to in writing from time to time by the Company and the Trustee prior to a Change in Control, the Trustee shall have the power in investing and reinvesting the Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerits sole discretion:
(a1) To invest and reinvest in any readily marketable common and preferred stocks, bonds, notes, debentures (including convertible stocks and securities but not including any stock or security of the Trustee or the Company other than a de minimis amount held in a mutual fund), certificates of deposit or demand or time deposits (including any such deposits with the Trustee) and shares of investment companies and mutual funds, without being limited to the classes or property in which the Trustees are authorized to invest by any law or any rule of court of any state and without regard to the proportion any such property may bear to the entire amount of the Fund;
(2) To invest and reinvest all or any portion of the Fund collectively through the medium of any proprietary mutual fund that may be established and maintained by the Trustee;
(3) To retain any property at any time received by the Trustee;
(4) To sell or exchange any property held by it at public or private sale, for cash or on credit, to grant and exercise options for the purchase or exchange thereof, to exercise all conversion or subscription rights pertaining to any such property and to enter into any covenant or agreement to purchase any property in the future;
(5) To participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan relating to property held by it 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;
(6) To deposit any property held by it with any protective, reorganization or similar committee, to delegate discretionary power thereto, and to pay part of the expenses and compensation thereof any assessments levied with respect to any such property deposited;
(7) To extend the time of payment of any obligation held by it;
(8) To hold uninvested any moneys received by it, without liability for interest thereon, but only in anticipation of payments due for investments, reinvestments, expenses or disbursements;
(9) To exercise all voting or other rights with respect to any property held by it and to grant proxies, discretionary or otherwise;
(10) For the purposes of the Trust, to borrow money from others, to issue its promissory note or notes therefor, and to secure the repayment thereof by pledging any property held by it;
(11) To employ suitable contractors and counsel, who may be counsel to the Company or to the Trustee, and to pay their reasonable expenses and compensation from the Fund to the extent not paid by the Company;
(12) To register investments in its own name or in the name of a nominee; to hold any investment in bearer form; and to combine certificates representing securities with certificates of the same issue held by it in other fiduciary capacities or to deposit or to arrange for the deposit of such securities with any depository, even though, when so deposited, such securities may be held in the name of the nominee of such depository with other securities deposited therewith by other persons, or to deposit or to arrange for the deposit of any securities issued or guaranteed by the United States government, or any agency or instrumentality thereof, including securities evidenced by book entries rather than by certificates, with the United States Department of the Treasury or a Federal Reserve Bank, even though, when so deposited, such securities may not be held separate from securities deposited therein by other persons; provided, however, that no securities held in the Fund shall be deposited with the United States Department of the Treasury or a Federal Reserve Bank or other depository in the same account as any individual property of the Trustee, and provided, further, that the books and records of the Trustee shall at all times show that all such securities are part of the Trust Fund;
(13) To settle, together with compromise or submit to arbitration any claims, debts or damages due or owing to or from the income therefromTrust, respectively, to commence or defend suits or legal proceedings to protect any interest of the Trust, and to represent the Trust in common stockall suits or legal proceedings in any court or before any other body or tribunal; provided, preferred stockhowever, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued that the Trustee shall not be required to take any such action unless it shall have been indemnified by the Trustee Company to its reasonable satisfaction against liability or any of its affiliates), other securities, expenses it might incur therefrom;
(14) To hold and retain policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all which policies are contributed to the Trust by the Company or any part subsidiary of the assets of the Trust Fund in savings accounts Company or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected purchased by the Trustee;
(l15) To institutehold any other class of assets which may be contributed by the Company and that is deemed reasonable by the Trustee, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectibleunless expressly prohibited herein;
(m16) To use securities, depositories loan any securities at any time held by it to brokers or custodians and to allow dealers upon such securities security as may be held by a depository or custodian deemed advisable, and during the terms of any such loan to permit the loaned securities to be registered in transferred into the name of such depository and voted by the borrower or its nominee or in the name of such custodian or its nominee;others; and
(n17) To Generally, to do all acts, whether or not expressly authorized, that the Trustee may deem necessary or desirable for the protection of the Fund.
(c) Prior to a Change in Control, the Company shall have the right, subject to this Section to direct the Trustee with respect to investments.
(1) The Company may at any time direct the Trustee to segregate all or a portion of the Fund in a separate investment account or accounts and may appoint one or more investment managers and/or an investment committee established by the Company to direct the investment and reinvestment of each such investment account or accounts. In such event, the Company shall notify the Trustee of the appointment of each such investment manager and/or investment committee. No such investment manager shall be related, directly or indirectly, to the Company, but members of the investment committee may be employees of the Company.
(2) Thereafter (until a Change in Control), the Trustee shall make every sale or investment with respect to such investment account as directed in writing by the investment manager or investment committee. It shall be the duty of the Trustee to act strictly in accordance with each direction. The Trustee shall be under no duty to question any such direction of the investment manager or investment committee, to review any securities or other property held in such investment account or accounts acquired by it pursuant to such directions or to make any recommendations to the investment managers or investment committee with respect to such securities or other property.
(3) Notwithstanding the foregoing, the Trustee, without obtaining prior approval or direction from an investment manager or investment committee, shall invest the Trust Fund cash balances held by it from time to time in one short term cash equivalents including, but not limited to, through the medium of any short term common, collective or more investment funds registered under commingled trust fund established and maintained by the Investment Company Act of 1940 Trustee subject to the instrument establishing such trust fund, U.S. Treasury Bills, commercial paper (including companies such forms of commercial paper as may be available through the Trustee's Trust Department), certificates of deposit (including certificates issued by the Trustee in its separate corporate capacity), and similar type securities, with a maturity not to exceed one year; and, furthermore, sell such short term investments as may be necessary to carry out the instructions of an investment manager or investment committee regarding more permanent type investment and directed distributions.
(4) The Trustee shall neither be liable nor responsible for any loss resulting to the Fund by reason of any sale or purchase of an investment directed by an investment manager or investment committee nor by reason of the failure to take any action with respect to any investment which was acquired pursuant to any such direction in the absence of further directions of such investment manager or investment committee.
(5) Notwithstanding anything in this Agreement to the contrary, the Trustee shall be indemnified and saved harmless by the Company from and against any and all personal liability to which the Trustee may be subjected by carrying out any directions of an investment manager or an affiliate is investment committee issued pursuant hereto or for failure to act in the absence of directions of the investment adviser manager or provides investment committee including all expenses reasonably incurred in its defense in the event the Company fails to provide such defense; provided, however, the Trustee shall not be so indemnified if it participates knowingly in, or knowingly undertakes to conceal, an act or omission of an investment manager or investment committee, having actual knowledge that such act or omission is a breach of a fiduciary duty; provided further, however, that the Trustee shall not be deemed to have knowingly participated in or knowingly undertaken to conceal an act or omission of an investment manager or investment committee with knowledge that such act or omission was a breach of fiduciary duty by merely complying with directions of an investment manager or investment committee or for failure to act in the absence of directions of an investment manager or investment committee. The Trustee may rely upon any order, certificate, notice, direction or other servicesdocumentary confirmation purporting to have been issued by the investment manager or investment committee which the Trustee believes to be genuine and to have been issued by the investment manager or investment committee. The Trustee shall not be charged with knowledge of the termination of the appointment of any investment manager or investment committee until it receives written notice thereof from the Company.
(d) Following a Change in Control, the Trustee shall have, subject to any investment guidelines delivered to it prior to a Change in Control, the sole and absolute discretion in the management of the Trust assets and shall have all the powers set forth under Section 6(b). In investing the Trust assets, the Trustee shall consider:
(1) the needs of the Arrangements;
(o2) To the need for matching of the Trust assets with the liabilities of the Arrangements; and
(3) the duty of the Trustee to act solely in the best interests of the Participants and their Beneficiaries.
(e) The Trustee shall have the right, in its sole discretion, to delegate its investment responsibility to an investment manager who may be an affiliate of the Trustee. In the event the Trustee shall exercise this right, the Trustee shall remain, at all times responsible for the acts of an investment manager. The Trustee shall have the right to purchase an insurance policy or an annuity to fund the benefits of the Plans; andArrangements.
(pf) To do all The Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets (other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made than securities issued by the Trustee or the Company) of equal fair market value for any asset held by the Trust. This right is exercisable by the Company in its a nonfiduciary capacity as trustee under this Trust Agreement. Notwithstanding without the approval or consent of any powers granted to person in a fiduciary capacity; provided, however, that, following a Change in Control, no such substitution shall be permitted unless the Trustee pursuant to this Trust Agreement or applicable law, determines that the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 fair market values of the Procedure and Administrative Regulations promulgated pursuant substituted assets are equal.
(g) The Trustee is authorized to the Code. In no event may the Trustee invest in securities use an affiliated broker, Wachovia Securities Inc (including stock or rights to acquire stock"WSI") or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investsits successor to execute purchases or sales. WSI is authorized to collect and retain fees or commissions related to its services.
Appears in 1 contract
Investment Authority. (a) The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee Trustee, and shall in no event be exercisable by or rest with Participantsthe Executives or Beneficiaries. The Subject to the provisions of the Contracts, and except as expressly provided otherwise herein, the Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto exercising the judgment and any amendment to such Exhibitcare that persons of prudence, discretion and intelligence would exercise under the circumstances then prevailing considering the probable income and safety of their capital, including, without limiting the generality of the foregoing, the power:
(a1) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b2) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c3) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this the Trust, and otherwise dispose of the same from time to time in such manner manner, for such consideration and upon such terms and conditions as the Trustee shall determine;
(d4) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e5) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses expenses, or the distribution of benefitsdeferred compensation;
(f6) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, Trust including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem seem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g7) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust Fund assets;
(h) 8) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i9) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of stateNew York, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j10) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages mortgages, or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l11) To institute, compromise and defend actions and proceedings, ; to pay or contest any claim, ; to settle a claim by or against the Trustee by compromise, arbitration arbitration, or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m12) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n13) To invest the Trust Fund from time to time in one or more investment funds, which funds shall be registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans1940; and
(p14) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or to applicable law, the Trustee shall not have any power that could give this the Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code.
(b) Notwithstanding any other provision in this Trust Agreement to the contrary:
(1) Prior to a Change of Control, the Company may in its sole discretion appoint one or more investment advisors to manage the investment of any part or all of the Trust Fund. The Company shall notify the Trustee of any such appointment by delivering to the Trustee an executed copy of the instrument making such appointment. Any such instrument shall require that the investment advisor provide its directions to the Trustee or directly to the Trustee’s agent or custodian, provided the Trustee receives copies of any instructions, confirmations, and notifications given to the custodian or agent; and permit the Trustee, after a Change of Control, to terminate the investment advisor pursuant to, and in accordance with, the terms of this Trust Agreement. During the term of the investment advisor’s appointment, the investment advisor shall have the sole responsibility for the investment and reinvestment of that portion of the Trust Fund subject to its investment management. The Trustee shall have no responsibility for, or liability with respect to, the selection of the investment advisor by the Company, the investment of such portion of the Trust Fund, or the acts or omissions of such investment advisor.
(2) In exercising the powers granted to it hereunder, the Trustee, or its agent or custodian, shall follow the direction of any investment advisor with respect to the portion of the Trust Fund subject to the management by such investment advisor. The investment advisor may provide its directions in writing, signed by an officer of the investment advisor, or transmit its directions to the Trustee or directly to the Trustee’s agent or custodian by such other means of communication as the investment advisor, with the consent of the Trustee, may deem appropriate or necessary. The Trustee shall be under no duty to question, or make inquiries as to, any action or direction of any investment advisor taken as provided herein, or any failure to give directions, or to review the securities held pursuant to any investment advisor’s direction, or to make suggestions to the investment advisor or the Company with respect to the investment, reinvestment, or disposition of any assets subject to management by the investment advisor.
(3) After a Change of Control, the Trustee shall have the exclusive authority to retain or to terminate any and all investment advisors, and appoint successor investment advisors (including any affiliate of the Trustee), to manage the Trust Fund assets in accordance with the terms of the Contracts, provided that any such appointments shall be subject to the approval of the Executives as provided in the Contracts.
(4) All rights associated with Trust Fund assets shall be exercised by the Trustee, a person designated by the Trustee, or the investment advisor, and shall in no event may be exercisable by or rest with the Executives or Beneficiaries, except that prior to a Change of Control voting rights with respect to the Trust Fund assets shall be exercised by the Company or its agent.
(c) Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, to the extent that the Trustee directly exercises investment authority, the Trustee shall not invest Trust Fund assets in securities (including stock or rights to acquire stock) or obligations issued by the CompanyCompany or any of its subsidiaries or affiliates, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 1 contract
Samples: Trust Agreement (Time Inc.)
Investment Authority. The (a) Trustee shall havemay invest in life insurance policies, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, any and all securities or obligations (including stock or rights to acquire stock) including securities or obligations issued by Company. All rights associated with assets of the Trust shall be exercised by Trustee or the Trustee person designated by Trustee, and shall in no event be exercisable by or rest at the direction of the Plan participants.
(b) Company shall have the right, at any time, and from time to time in Its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by Company in a nonfiduciary capacity Without the approval or consent of any person in a fiduciary capacity.
(c) The Company may maintain in force all life insurance policies held in the Trust by paying premiums and other charges due thereon; but if any such premiums or other charges are not paid directly by the Company, the Trustee shall pay such premiums and other charges on or before the due date thereof. Subject to the Trustee's obligation, as set forth in Section 2, to use Trust assets for payment of benefits that are not paid directly by the Company as and when due, if premiums are due upon any life insurance policy held in the Trust and those premiums are not paid when due by the Company, (i) to the extent the Trustee has cash or its equivalent readily available for the payment of premiums due or policy loans and/or dividends are available for such purpose, the Trustee shall pay premiums due with Participantssuch cash or its equivalent or policy loans and/or dividends, as the Trustee may deed best; and (ii) if the Trustee does not have sufficient cash or its equivalent readily available and policy loans and dividends are not available, then the Trustee shall dispose of or otherwise use other assets held by it in the Trust to generate the necessary cash or, if no such other assets are available, the Trustee shall surrender one or more of the life insurance policies in order to generate cash with which to pay premiums on one or more of the other life insurance policies. The Trustee shall have full power and authority, upon written instruction, no liability to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee Company or any other person if, as a result of an insufficiency of cash or its affiliates)equivalent, other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assetspolicy loans and dividends, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to that can be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor disposed of or against the Trust assets;
(h) To cause title otherwise used to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable lawgenerate cash, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant is unable to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee investspay premiums as they become due.
Appears in 1 contract
Samples: Trust Agreement (Om Group Inc)
Investment Authority. The Section 5.1 Except as provided below, prior to a Change in Control, Company shall have the sole power and responsibility for the management, disposition and investment of the Trust assets, and Trustee shall havecomply with written directions from Company or its designated agent, without exclusionwhich may include a recordkeeper for the Plan. Prior to a Change in Control, Trustee shall have no duty or responsibility to review, initiate action or make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them. Prior to issuing any such directions, Company shall certify to Trustee the person(s) at Company or its agent who have the authority to issue such directions. On and after a Change in Control, Trustee shall have the sole power and responsibility for the management, disposition and investment of the Trust assets.
Section 5.2 In the administration of the Trust, Trustee shall have the following powers; however, prior to a Change in Control, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by the solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, unless Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, has been properly delegated investment authority pursuant to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerSection 5.4 below:
(a1) To hold assets of any kind (other than securities or obligations of the Company or any affiliate of the Company), including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To sell, exchange, assign, transfer and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)accumulated income) as directed;
(b4) To deposit vote, tender or invest exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation any security of which is held in the Trust, as directed;
(6) To sell or exercise any “rights” issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates the name of deposit or other deposits Trustee (which bear a reasonable interest rate in a banksuch instance need not disclose its fiduciary capacity) or, including as permitted by laws, in the commercial department name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trustee, if Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d8) To make such distributions in accordance with the provisions of this Trust Agreement;
(9) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection hold a portion of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power for the ordinary administration and for the disbursement of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold funds in cash, without liability for interest, interest thereon for such portion period of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions time as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form notwithstanding that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate of Trustee may benefit directly or indirectly from such uninvested amounts. It is the investment adviser acknowledged that Trustee’s handling of such amounts is consistent with usual and customary banking and fiduciary practices, and any earnings realized by Trustee or provides other services);
(o) To purchase an insurance policy or an annuity its affiliates will be compensation for its bank services in addition to fund the benefits of the Plansits regular fees; and
(p10) To do all invest in deposit products of Trustee or its affiliates, or other acts necessary bank or desirable for similar financial institution, subject to the proper administration rules and regulations governing such deposits, and without regard to the amount of the Trust Fundsuch deposit, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Codedirected. In no event may event, however, shall assets held in the Trustee invest Trust be invested in securities (including stock or rights to acquire stock) or obligations issued by the Company or any affiliate of the Company.
Section 5.3 From time to time, prior to a Change in Control, Company may appoint one or more investment managers who, prior to a Change in Control, shall have investment management and control over all or a portion of the assets of the Trust (“Investment Managers”). Company shall notify Trustee in writing of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager’s management and control. Such Investment Manager shall, prior to a Change in Control, direct Trustee as to the investment of assets and any voting, tendering and other than a de minimis amount appurtenant rights of all securities held in common investment vehicles in the portion of the Trust over which the Investment Manager is appointed. Prior to a Change in Control, Trustee investsshall have no duty or responsibility to review, initiate action or make recommendations regarding the investment of the Trust assets and shall retain such assets until directed in writing to dispose of them.
Section 5.4 Company may delegate to Trustee the responsibility to manage all or a portion of the Trust prior to a Change in Control if Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as provided herein, subject to any investment guidelines provided by Company.
Appears in 1 contract
Investment Authority. (a) The Trustee shall invest and manage the assets of the Trust in accordance with written directions from the Governing Committee.
(b) Subject to the foregoing provisions of this Section 4.01, the Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund funds in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, law without limiting the generality of the foregoing, the power:
(ai) To hold, invest and reinvest the principal or income of the Trust Fundin bonds, together with the income therefrom, in common stock, or preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and mixed tangible or intangible)intangible property;
(bii) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(eiii) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments investments, or payments payment of expenses expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(giv) To employ such agents, agents including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(hv) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee Trustee, or in the name of its nominee(s) or agentsagent(s), or in such form that title will pass by delivery;
(ivi) To exercise all of the further rights, powers, options and privileges granted, provided for for, or vested in trustees generally under the laws of the State of stateNew York, so that the powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(lvii) To institute, compromise and defend actions and proceedings, ; to pay or contest any claim, ; to settle a claim by or against the Trustee by compromise, arbitration arbitration, or otherwise otherwise; to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(mviii) To use securities, securities depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(nix) To invest the Trust Fund from time to time in one or more investment funds, which funds shall be registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans1940; and
(px) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under the operations of this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 1 contract
Samples: Trust Agreement (WebMD Health Corp.)
Investment Authority. The SECTION 5.1 In the administration of the Trust, Trustee shall have, without exclusionhave the following powers; however, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by executed solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, unless Trustee has been properly delegated investment authority pursuant to section 5.3 below provided that prior to issuing any such directions, Company shall certify to Trustee the Trustee and shall in no event be exercisable by person(s) at Company or rest with Participants. The Trustee shall its agent who have full power and authority, upon written instruction, the authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to issue such Exhibit, including, without limiting the generality of the foregoing, the powerdirections:
(a1) To hold assets of any kind (other than securities or obligations of the Company or any affiliate of the Company), including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To sell, exchange, assign, transfer, and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)accumulated income) as directed;
(b4) To deposit vote, tender, or invest exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust, as directed;
(6) To sell or exercise any "rights" issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates the name of deposit or other deposits Trustee (which bear a reasonable interest rate in a banksuch instance need not disclose its fiduciary capacity) or, including as permitted by laws, in the commercial department name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trustee, if Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d) 8) To have, respecting securities, all make such distributions in accordance with the rights, powers and privileges provisions of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the this Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powersAgreement;
(e9) To hold in cash, without liability for interest, such a portion of the Trust Fund which, for the ordinary administration and for the disbursement of funds in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Planscash; and
(p10) To do all invest in deposit products of Trustee or its affiliates, or other acts necessary bank or desirable for similar financial institution, subject to the proper administration rules and regulations governing such deposits, and without regard to the amount of the Trust Fundsuch deposit, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Codedirected. In no event may event, however, shall assets held in the Trustee invest Trust be invested in securities (including stock or rights to acquire stock) or obligations issued by the Company or any affiliate of the Company. Without limiting the foregoing, the parties hereto acknowledge that in order to provide for an accumulation of assets comparable to the contractual liabilities of the Company under the Plan, the Company may direct the Trustee to invest the assets held in the Trust to correspond to the notional investments made for Trust beneficiaries under the Plan, and that to the extent specified by the Company, other than and subject to a de minimis amount change by the Company in or revocation by the Company of such specifications and directions at any time, the Trustee shall accomplish such conforming investments by following notional investment elections communicated to the Trustee by Trust beneficiaries as hereinafter provided. Trust beneficiaries may communicate their notional elections by use of the telephone exchange or similar system maintained for such purpose by the Trustee or its affiliates. Any election so communicated by a Trust beneficiary to the Trustee with respect to the notional investment or reinvestment of all or a portion of his or her interest in the Plan shall be treated as a corresponding investment direction by the Company with respect to assets held in common the Trust.
SECTION 5.2 From time to time the Company may appoint one or more investment vehicles managers who shall have investment management and control over all or a portion of the assets of the Trust ("Investment Managers"). The Company shall notify the Trustee in writing of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager's management and control. Such Investment Manager shall direct Trustee investsas to the investment of assets and any voting, tendering, and other appurtenant rights of all securities held in the portion of the Trust over which the Investment Manager is appointed. Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of the Trust assets and shall retain such assets until directed in writing to dispose of them.
SECTION 5.3 Company may delegate to Trustee the responsibility to manage all or a portion of the Trust if Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as provided herein, subject to any investment guidelines provided by Company.
Appears in 1 contract
Investment Authority. (a) Except as provided below, CCC, in its capacity as plan administrator, shall have the sole power and responsibility for the management, disposition, and investment of the Trust assets, and the Trustees shall comply with directions from CCC or its designated agent, which may include a recordkeeper for the SES-CAP. The Trustee Trustees shall havehave no duty or responsibility to initiate action, without exclusionor make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them.
(b) In the administration of the Trust, the Trustees shall have the following powers; however, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust assets shall be exercised by the Trustee and shall in no event be exercisable by solely pursuant to direction of CCC or rest with Participants. The Trustee shall have full power and authority, upon written instruction, to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerits delegated agent:
(a1) To hold assets of any kind, including shares of any registered investment company;
(2) To sell, exchange, assign, transfer, and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit);
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangibleaccumulated income);
(b4) To deposit vote, tender, or invest exercise any right appurtenant to any securities held in the Trust;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust;
(6) To sell or exercise any “rights” issued on any securities held in the Trust;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department name of the TrusteeTrustees (which in such instance need not disclose its fiduciary capacity) or, if as permitted by laws, in the name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d8) To make such distributions in accordance with the provisions of this Trust Agreement;
(9) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection hold a portion of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power for the ordinary administration and for the disbursement of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold funds in cash, without liability for interest, interest thereon for such portion period of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefitstime as necessary;
(f10) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trustappoint custodians, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trusteessubcustodians, or to delegate such power to direct and to remove such agents subtrustees, domestic or trustees;
foreign (g) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property affiliates of the Trust Trustees or CCC, as to be issued, held part or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;Trust.
(jc) To borrow money from any source (including Notwithstanding the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to releaseforegoing, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee Trustees invest in securities (including stock or rights to acquire stock) or obligations issued by the CompanyCCC, CNA Financial Corporation, or any other subsidiary of Loews Corporation, other than a de minimis amount held in common investment vehicles in which the Trustee Trust invests. All rights associated with assets of the Trust shall be exercised by the Trustees or the person designated by the Trustees, and shall in no event be exercisable by or rest with SES-CAP participants.
Appears in 1 contract
Samples: Trust Agreement (Cna Financial Corp)
Investment Authority. The Section 5.1 Except as provided below, Company shall have the sole power and responsibility for the management, disposition, and investment of the Trust assets, and Trustee shall havecomply with written directions from Company or its designated agent, without exclusionwhich may include a recordkeeper for the Plan. Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding the investment of Trust assets and shall retain such assets until directed in writing to dispose of them. Prior to issuing any such directions, Company shall certify to Trustee the person(s) at Company or its agent who have the authority to issue such directions.
Section 5.2 In the administration of the Trust, Trustee shall have the following powers; however, all powers conferred on regarding the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets investment of the Trust shall be exercised by the solely pursuant to direction of Company or its delegated agent or, if applicable, an Investment Manager, unless Trustee and shall in no event be exercisable by or rest with Participants. The Trustee shall have full power and authority, upon written instruction, has been properly delegated investment authority pursuant to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto and any amendment to such Exhibit, including, without limiting the generality of the foregoing, the powerSection 5.4 below:
(a1) To hold assets of any kind, including shares of any registered investment company, whether or not Trustee or any of its affiliates provides investment advice or other services to such company and receives compensation for the services provided;
(2) To sell, exchange, assign, transfer, and convey any security or property held in the Trust, at public or private sale, at such time and price and upon such terms and conditions (including credit) as directed;
(3) To invest and reinvest assets of the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible)accumulated income) as directed;
(b4) To deposit vote, tender, or invest exercise any right appurtenant to any stock or securities held in the Trust, as directed;
(5) To consent to and participate in any plan for the liquidation, reorganization, consolidation, merger or any similar action of any corporation, any security of which is held in the Trust, as directed;
(6) To sell or exercise any “rights” issued on any securities held in the Trust, as directed;
(7) To cause all or any part of the assets of the Trust Fund to be held in savings accounts or certificates the name of deposit or other deposits Trustee (which bear a reasonable interest rate in a banksuch instance need not disclose its fiduciary capacity) or, including as permitted by laws, in the commercial department name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trustee, if Trust shall at all times show that all such bank is supervised by the United States or any state;
(c) To hold, manage, improve and control all property, real or personal, forming investments are part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this Trust, and otherwise dispose of the same from time to time in such manner for such consideration and upon such terms and conditions as the Trustee shall determinehold evidence of title to all such investments;
(d8) To make such distributions in accordance with the provisions of this Trust Agreement;
(9) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection hold a portion of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power for the ordinary administration and for the disbursement of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e) To hold funds in cash, without liability for interestinterest thereon for such period of time as necessary, notwithstanding in respect thereof; and
(10) To invest in deposit products of Trustee or its affiliates, or other bank or similar financial institution, subject to the rules and regulations governing such deposits, and without regard to the amount of such deposit, as directed.
Section 5.3 From time to time the Company may appoint one or more investment managers who shall have investment management and control over all or a portion of the assets of the Trust (“Investment Managers”). The Company shall notify the Trustee in writing of the appointment of the Investment Manager. In the event more than one Investment Manager is appointed, the Company shall determine which assets shall be subject to management and control by each Investment Manager and shall also determine the proportion in which funds withdrawn or disbursed shall be charged against the assets subject to each Investment Manager’s management and control. Such Investment Manager shall direct Trustee as to the investment of assets and any voting, tendering, and other appurtenant rights of all securities held in the portion of the Trust Fund whichover which the Investment Manager is appointed. Trustee shall have no duty or responsibility to review, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, including the appointment of agents or trustees in such other jurisdictions as the Trustee may deem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trusteesinitiate action, or to delegate such power to direct and to remove such agents or trustees;
(g) To employ such agents, including make recommendations regarding the investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, and to pay them reasonable compensation, to settle, compromise or abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust assets and shall retain such assets until directed in writing to be issued, held dispose of them.
Section 5.4 Company may delegate to Trustee the responsibility to manage all or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of state, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings, to pay or contest any claim, to settle a claim by or against the Trustee by compromise, arbitration or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans; and
(p) To do all other acts necessary or desirable for the proper administration portion of the Trust Fundif Trustee agrees to do so in writing. Upon written acceptance of that delegation, Trustee shall have full power and authority to invest and reinvest the Trust in investments as if the Trustee were the absolute owner thereof. Howeverprovided herein, nothing in this Section 5 shall be construed subject to mean the Trustee assumes any responsibility for the performance of any investment made guidelines provided by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code. In no event may the Trustee invest in securities (including stock or rights to acquire stock) or obligations issued by the Company, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 1 contract
Samples: Rabbi Trust Agreement (Visant Corp)
Investment Authority. (a) The Trustee shall have, without exclusion, all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein, and all rights associated with assets of TWI/UST Trust Agreement the Trust shall be exercised by the Trustee Trustee, and shall in no event be exercisable by or rest with Participantsthe Executives or Beneficiaries. The Subject to the provisions of the Contracts, and except as expressly provided otherwise herein, the Trustee shall have full power and authority, upon written instruction, authority to invest and reinvest the Trust Fund in any investment permitted by law, subject to any investment guidelines provided in Exhibit B hereto exercising the judgment and any amendment to such Exhibitcare that persons of prudence, discretion and intelligence would exercise under the circumstances then prevailing considering the probable income and safety of their capital, including, without limiting the generality of the foregoing, the power:
(a1) To invest and reinvest the Trust Fund, together with the income therefrom, in common stock, preferred stock, mutual funds, bonds, mortgages, notes, time certificates of deposit, commercial paper and other evidences of indebtedness (including those issued by the Trustee or any of its affiliates), other securities, policies of life insurance, annuity contracts, options to buy or sell securities or other assets, and other property of any kind (personal, real or mixed, and tangible or intangible);
(b2) To deposit or invest all or any part of the assets of the Trust Fund in savings accounts or certificates of deposit or other deposits which bear a reasonable interest rate in a bank, including the commercial department of the Trustee, if such bank is supervised by the United States or any state;
(c3) To hold, manage, improve and control all property, real or personal, forming part of the Trust Fund and to sell, convey, transfer, exchange, partition, lease for any term, even extending beyond the duration of this the Trust, and otherwise dispose of the same from time to time in such manner manner, for such consideration and upon such terms and conditions as the Trustee shall determine;
(d4) To have, respecting securities, all the rights, powers and privileges of an owner, including the power to give proxies, pay assessments and other sums deemed by the Trustee to be necessary for the protection of the Trust Fund, to vote any corporate stock either in person or by proxy, with or without power of substitution for any purpose; to participate in voting trusts, pooling agreements, foreclosures, reorganizations, consolidations, mergers and liquidations and, in connection therewith, to deposit securities with and transfer title to any protective or other committee under such terms as the Trustee may deem advisable; to exercise or sell stock subscriptions or conversion rights; and regardless of any limitation elsewhere in this document relative to investment by the Trustee, to accept and retain as an investment any securities or other property received through the exercise of any of the foregoing powers;
(e5) To hold in cash, without liability for interest, such portion of the Trust Fund which, in its discretion, shall be reasonable under the circumstances, pending investments or payments of expenses expenses, or the distribution of benefitsdeferred compensation;
(f6) To take such actions as may be necessary or desirable to protect the Trust Fund from loss due to the default on mortgages held in the Trust, Trust including the TWI/UST Trust Agreement appointment of agents or trustees in such other jurisdictions as the Trustee may deem seem desirable, to transfer property to such agents or trustees, to grant such powers as are necessary or desirable to protect the Trust or its assets, to direct such agents or trustees, or to delegate such power to direct and to remove such agents or trustees;
(g7) To employ such agents, including investment advisors, custodians, sub-custodians and counsel as may be reasonably necessary, necessary and to pay them reasonable compensation, ; to settle, compromise or abandon all claims and demands in favor of or against the Trust Fund assets;
(h) 8) To cause title to property of the Trust to be issued, held or registered in the individual name of the Trustee or in the name of its nominee(s) or agents, or in such form that title will pass by delivery;
(i9) To exercise all of the further rights, powers, options and privileges granted, provided for or vested in trustees generally under the laws of the State of stateNew York, so that powers conferred upon the Trustee herein shall not be in limitation of any authority conferred by law, but shall be in addition thereto;
(j10) To borrow money from any source (including the Trustee) and to execute promissory notes, mortgages mortgages, or other obligations and to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds or other securities to any brokerage or other firm selected by the Trustee;
(l11) To institute, compromise and defend actions and proceedings, ; to pay or contest any claim, ; to settle a claim by or against the Trustee by compromise, arbitration arbitration, or otherwise to release, in whole or in part, any claim belonging to the Trust to the extent that the claim is uncollectible;
(m12) To use securities, depositories or custodians and to allow such securities as may be held by a depository or custodian to be registered in the name of such depository or its nominee or in the name of such custodian or its nominee;
(n13) To invest the Trust Fund from time to time in one or more investment funds, which funds shall be registered under the Investment Company Act of 1940 (including companies with respect to which the Trustee or an affiliate is the investment adviser or provides other services);
(o) To purchase an insurance policy or an annuity to fund the benefits of the Plans1940; and
(p14) To do all other acts necessary or desirable for the proper administration of the Trust Fund, as if the Trustee were the absolute owner thereof. However, nothing in this Section 5 section shall be construed to mean the Trustee assumes any responsibility for the performance of any investment made by the Trustee in its capacity as trustee under this Trust Agreement. Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or to applicable law, the Trustee shall not have any power that could give this the Trust the objective of carrying on a business and dividing the TWI/UST Trust Agreement gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Code.
(b) Notwithstanding any other provision in this Trust Agreement to the contrary:
(1) Prior to a Change of Control, the Company may in its sole discretion appoint one or more investment advisors to manage the investment of any part or all of the Trust Fund. The Company shall notify the Trustee of any such appointment by delivering to the Trustee an executed copy of the instrument making such appointment. Any such instrument shall require that the investment advisor provide its directions to the Trustee or directly to the Trustee's agent or custodian, provided the Trustee receives copies of any instructions, confirmations, and notifications given to the custodian or agent; and permit the Trustee, after a Change of Control, to terminate the investment advisor pursuant to, and in accordance with, the terms of this Trust Agreement. During the term of the investment advisor's appointment, the investment advisor shall have the sole responsibility for the investment and reinvestment of that portion of the Trust Fund subject to its investment management. The Trustee shall have no responsibility for, or liability with respect to, the selection of the investment advisor by the Company, the investment of such portion of the Trust Fund, or the acts or omissions of such investment advisor.
(2) In exercising the powers granted to it hereunder, the Trustee, or its agent or custodian, shall follow the direction of any investment advisor with respect to the portion of the Trust Fund subject to the management by such investment advisor. The investment advisor may provide its directions in writing, signed by an officer of the investment advisor, or transmit its directions to the Trustee or directly to the Trustee's agent or custodian by such other means of communication as the investment advisor, with the consent of the Trustee, may deem appropriate or necessary. The Trustee shall be under no duty to question, or make inquiries as to, any action or direction of any investment advisor taken as provided herein, or any failure to give directions, or to review the securities held pursuant to any investment advisor's direction, or to make suggestions to the investment advisor or the Company with respect to the investment, reinvestment, or disposition of any assets subject to management by the investment advisor.
(3) After a Change of Control, the Trustee shall have the exclusive authority to retain or to terminate any and all investment advisors, and appoint successor investment advisors (including any affiliate of the Trustee), to manage the Trust Fund assets in accordance with the terms of the Contracts, provided that any such appointments shall be subject to the approval of the Executives as provided in the Contracts. TWI/UST Trust Agreement
(4) All rights associated with Trust Fund assets shall be exercised by the Trustee, a person designated by the Trustee, or the investment advisor, and shall in no event may be exercisable by or rest with the Executives or Beneficiaries, except that prior to a Change of Control voting rights with respect to the Trust Fund assets shall be exercised by the Company or its agent.
(c) Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, to the extent that the Trustee directly exercises investment authority, the Trustee shall not invest Trust Fund assets in securities (including stock or rights to acquire stock) or obligations issued by the CompanyCompany or any of its subsidiaries or affiliates, other than a de minimis amount held in common investment vehicles in which the Trustee invests.
Appears in 1 contract
Samples: Trust Agreement (Time Warner Inc/)
