Powers of the Trustee. Except as otherwise provided in Section 7.9 and 7.10, the Trustee shall have all the powers granted by the terms of the Texas Trust Code as it now exists, or as it may be amended, and in addition thereto and not in modification or limitation thereof, the Trustee shall have the following powers: (a) To keep such portion of the Trust Fund in cash, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereon; (i) To hold or register securities or other property which may at any time be purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trustee, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery; (ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to the provisions of Section 7.5, to pay them reasonable compensation out of the Trust Fund; (iii) To transfer any assets of the Trust to a custodian or sub-custodian employed by the Trustee; (c) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest or otherwise dispose of any securities, investments or other property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper; (d) With respect to securities (other than Company Stock which is described in Section 7.9) and to the extent that the Plan provides or the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held as a part of the Trust Fund; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directions; (e) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof; (f) When directed by the Committee, to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust Fund, or to commence or defend suits or legal or administrative proceedings; provided, however, the Trustee shall have no obligation to take any legal action for the benefit of the Trust Fund unless it shall have been first indemnified for all expenses in connection therewith, including reasonable attorney’s fees; (g) To enter into any contracts with responsible insurance companies to provide for the payment of all or any part of the benefits provided under the Plan, and to disburse under any such contracts any funds held by it; (h) To make payments from the Trust in accordance with the written instructions of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper; (i) To make execute, acknowledge and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein; (j) Upon express direction by the Committee, to transfer assets of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of the Code and is exempt from tax under Section 501(a) of the Code, and which is maintained by it or such other trustee as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, and to withdraw any assets of the Trust so transferred; (k) To lend to Plan Participants amounts of money upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable; (l) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed upon, including but not limited to the maintenance of records of Accounts of Participants and the quarterly determination of value of each Participant’s Account; and (m) To do all other acts in its judgment which are legal, necessary and desirable for the proper administration of the Trust, in accordance with the provisions of the Plan, although the power to do such acts is not specifically set forth herein. The powers granted to the Trustee under this Section 7.2 shall be exercised by the Trustee; however, the Committee may at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approval.
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Samples: Trust Agreement (Radioshack Corp)
Powers of the Trustee. Except (a) Subject to the direction of the Employer, Committee, or Investment Manager, the Trustee or its designee is authorized and empowered to perform only those duties and functions expressly set out in this Agreement. The Trustee will not be under any duty to take any action other than those actions specified in this Agreement unless it expressly agrees in writing to do so. The Trustee or its designee is authorized and empowered:
(i) to invest and reinvest part or all of the Trust in accordance with investment policies which may be established by the Committee from time to time in such assets as otherwise provided the Committee or Investment Manager may direct (including common and preferred stocks of the Employer), bonds, debentures, mutual fund shares, notes, commercial paper, treasury bills, options, partnership interests, venture capital investments, any common, commingled, or pooled investment funds (including such funds for which the Trustee serves as investment manager), contracts and policies issued by an insurance company (including affiliates of the Trustee), endorsement split dollar insurance, any interest bearing deposits held by any bank or similar financial institution (including affiliates of the Trustee), and any other real or personal property;
(ii) in Section 7.9 accordance with directions from the Committee, to apply for, pay premiums on and 7.10maintain in force on the lives of Plan participants, individual ordinary or individual or group term or universal life insurance policies, variable universal life insurance policies, survivorship life insurance policies or annuity policies (“policies”) (including any policies issued by an affiliate of the Trustee) and to have with respect to such policies all of the rights, powers, options, privileges and benefits usually comprised in the term “incidents of ownership” and normally vested in an owner of such policies, except, however, the Trustee shall have all the powers granted by the terms no power to name a beneficiary of the Texas Trust Code policy other than the Trust, to assign the policy (as it now existsdistinct from conversion of the policy to a different form) other than to a successor trustee, or as it may be amendedto loan to any person the proceeds of any borrowing against such policy; provided, and in addition thereto and not in modification or limitation thereofhowever, notwithstanding the provisions above, the Trustee shall have may loan to the following powers:
(a) To keep such portion Employer the proceeds of any borrowing against an insurance policy held as an asset of the Trust Fund in cash, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereon;
(i) To hold or register securities or other property which may at any time be purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trustee, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery;
(ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to the provisions of Section 7.5, to pay them reasonable compensation out of the Trust FundTrust;
(iii) To transfer any assets of the Trust to a custodian or sub-custodian employed by the Trustee;
(c) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest transfer or otherwise dispose of and also to grant options with respect to any securitiesproperty, investments whether real or other property personal, at any time held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, and any sale may be made by private contract or at by public auction, and for such purposes cash or upon credit, or partly for cash and partly upon credit, and no person dealing with the Trustee may execute shall be bound to see to the application of the purchase money or to inquire into the validity, expediency or propriety of any such instruments and writings and so such things as it shall deem propersale or other disposition;
(div) With respect to securities (other than Company Stock which is described in Section 7.9) retain, manage, operate, repair and rehabilitate and to mortgage or lease for any period any real estate held by it and, in its discretion, cause to be formed any corporation or trust to hold title to any such real property;
(v) to borrow or raise monies for the extent that purposes of the Plan provides Trust from any lender, except the Trustee, in its individual capacity, and for any sum so borrowed to issue its promissory note as Trustee and to secure the repayment thereof by pledging all or any part of the Trust, and no person lending money to the Trustee receives shall be bound to see to the application of the money loaned or to inquire into the validity, expediency or propriety of any such borrowing;
(vi) to make distributions in cash upon the direction from of the Employer through the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, ;
(vii) to vote upon in person or by proxy on any stocks, bonds, or other securities held by it, including any shares of mutual funds held by it, to exercise any options appurtenant to any stocks, bonds or other securities for the conversion thereof into other stocks, bonds or securities, or to exercise any rights to subscribe for additional stocks, bonds or other securities and to make any and all necessary payment therefor and to enter into any voting trust;
(viii) with respect to any investment, to join in, dissent from, or oppose any action or inaction of any corporation, association or trust at of the directors, officers or stockholders of any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or including, without power of substitution; to exercise limitation, any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger liquidation, sale or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held as a part of the Trust Fund; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directionsmerger;
(eix) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(f) When directed by the Committee, to settle, compromise adjust, compromise, or submit to arbitration any claims, debts or damages due or owing to or from the Trust FundTrust;
(x) to deposit any property with any protective, reorganization or similar committee, to delegate power thereto and to pay and agree to pay part of its expenses and compensation and any assessments levied with respect to any property so deposited; and
(xi) to delegate administrative duties to a designee.
(b) In addition to and not by way of limitation of any other powers conferred upon the Trustee by law or other provisions of this Agreement, but subject to Section 1.4 and this Section 3, the Trustee is authorized and empowered, in its discretion:
(i) to commence or defend suits or legal proceedings, and to represent the Trust in all suits or administrative proceedings; providedlegal proceedings in any court or before any other body or tribunal;
(ii) to register securities in its name or in the name of any nominee or nominees with or without indication of the capacity in which the securities shall be held, howeveror to hold securities in bearer form;
(iii) to employ such agents, brokers, counsel, accountants, actuaries or other professionals, as the Trustee shall have no obligation deem advisable and to take any legal action be reimbursed by the Employer for the benefit of the Trust Fund unless it shall have been first indemnified for all their reasonable expenses in connection therewith, including reasonable attorney’s feesand compensation;
(giv) To enter into any contracts with responsible insurance companies to provide for the payment of all or any part of the benefits provided under the Planmake, and to disburse under any such contracts any funds held by it;
(h) To make payments from the Trust in accordance with the written instructions of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper;
(i) To make execute, acknowledge acknowledge, and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein;
(j) Upon express direction by the Committeedeeds, to transfer assets of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of the Code leases, assignments and is exempt from tax under Section 501(a) of the Code, and which is maintained by it or such other trustee as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, and to withdraw any assets of the Trust so transferred;
(k) To lend to Plan Participants amounts of money upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable;
(l) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed upon, including but not limited to the maintenance of records of Accounts of Participants and the quarterly determination of value of each Participant’s Accountinstruments; and
(mv) To generally to do all other acts in its judgment which are legal, the Trustee may deem necessary and or desirable for the proper administration and protection of the Trust, in accordance with the provisions of the Plan, although the power to do such acts is not specifically set forth herein. The .
(c) Notwithstanding any powers granted to the Trustee under pursuant to this Section 7.2 shall be exercised Agreement or by the Trustee; howeverapplicable law, the Committee may at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with not have any directions given by power that could give the Committee hereunder. The Trustee shall not be responsible for any loss which may result from Trust the failure or refusal objective of carrying on a business and dividing the gains therefrom, within the meaning of Section 301.7701-2 of the Committee Procedure and Administrative Regulations promulgated pursuant to give any such required approvalthe Code.
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Powers of the Trustee. Except (a) The Trustee is authorized to exercise from time to time in accordance with directions from the Plan Administrator, an investment manager, or a participant, as otherwise provided the case may be, the following powers in Section 7.9 respect of any property, real or personal, of the Trust Fund, it being intended that these powers be construed in the broadest possible manner:
(1) power to sell at public or private sale for cash or upon credit or partly for cash and 7.10partly upon credit and upon such terms and conditions as the directing party shall deem proper. No purchaser shall be bound to see to or be liable for the application of the proceeds of any such sale;
(2) power to vote in person or by proxy at corporate or other meetings and to participate in or consent to any voting trust, reorganization, dissolution, merger or other action affecting any securities in its possession or the issuers thereof, to make payments in connection therewith, and to respond to class actions in the following manner:
(i) With respect to mutual funds, except where held in participant-directed brokerage accounts, as directed by the Plan Administrator;
(ii) with respect to all investments held in participant-directed brokerage accounts, each participant who has such a brokerage account shall take all such actions directly;
(iii) with respect to individual securities maintained in a separately managed account for the Plan, as directed by the Plan Administrator or the investment manager for such separate account, as applicable under the provisions of the investment management agreement governing such separate account; and
(iv) with respect to the Employer Stock Fund, each participant in the Plan who has an interest in the Employer Stock Fund shall be entitled to direct the Trustee as to the manner in which the stock constituting “qualifying employer securities” having voting rights which is deemed to be allocated to such participant’s account is to be voted. The Trustee, itself or by its nominee, shall be entitled to vote and shall vote such stock with voting rights allocated to the accounts of such participants as follows:
(A) The Plan Administrator shall be responsible for ensuring that the issuer of the common stock in the Employer Stock Fund adopts reasonable measures to notify such participants of the date and purposes of each meeting of stockholders at which holders of shares of stock shall be entitled to vote, and to request instructions from such participants to the issuer, its agent or the Trustee as to the voting at such meeting of the number of shares of common stock (including fractional shares) in the account of each such participant whether or not vested;
(B) In each case, the Trustee, itself or by proxy, shall vote the shares of such stock (including fractional shares) in the account of each such participant in accordance with the directions of the participant as communicated directly to the Trustee or to the Trustee by the issuer, the Plan Administrator or their agent;
(C) If prior to the time of such meeting of stockholders (or a date prior thereto specified by the Trustee), the Trustee shall not have received timely directions from a participant, the Plan Administrator or the issuer as to the manner of voting any shares of allocated stock in the account of such participant, the Trustee shall, either as directed by the Plan Administrator, the issuer, or its agent vote, itself or by proxy, all such shares of common stock in all matters coming before the powers granted by meeting, in the same ratio in which the total shares with respect to which timely directions were received were voted in such matters except as provided in Schedule B. With respect to fractional shares, the Trustee shall aggregate the fractional shares for which instructions to vote have been received into whole shares and shall vote such whole shares as instructed. Any remaining fractional share shall not be voted.;
(D) With respect to the proxy vote for those shares described in Schedule B, the Plan Administrator shall provide written direction with respect to the voting of those shares for each proxy solicitation that includes an acknowledgement of the plan provision upon which the Plan Administrator is relying. The Plan Sponsor agrees to timely notify the Trustee of any Plan amendment that changes the proxy voting requirements for any qualifying employer securities held in the Plan. Plan Administrator represents that the Plan document will be consistent with the terms of the Texas Trust Code as collective bargaining agreements with respect to proxy voting.
(3) power to exchange securities or property held by it now existsfor other securities or property, or as it may be amendedpartly for such securities or property and partly for cash, and to exercise conversion, subscription, option and similar rights with respect to securities held by it, and to make payments in addition thereto and not in modification or limitation thereof, the Trustee shall have the following powers:
(a) To keep such portion of the Trust Fund in cash, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereonconnection therewith;
(i4) To hold power to compromise and adjust all debts or register securities claims due to or made against it, to participate in any plan or reorganization, consolidation, merger, combination, liquidation or other similar plan or any action thereunder, or any contract, lease, mortgage, purchase, sale or other action by any corporation or other entity;
(5) power to deposit any such property with any protective, reorganization or similar administrator; to delegate discretionary power to any such administrator; and to pay part of the expenses and compensation of any such administrator and any assessments levied with respect to any property so deposited;
(6) power to exercise any conversion privilege or subscription right available in connection with any such property; 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 purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trustee, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery;
(ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to do any act with reference thereto, including the provisions exercise of Section 7.5options, the making of agreements or subscriptions and the payments of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith and to pay them reasonable compensation out of the Trust Fundhold and retain any securities or other property which it may so acquire;
(iii7) To transfer any assets of the Trust power to a custodian make distributions in cash or sub-custodian employed by the Trusteein specific property, real or personal, or an undivided interest therein, or partly in cash and partly in such property;
(c) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest 8) power to commence or otherwise dispose of any securities, investments defend suits or other property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper;
(d) With respect to securities (other than Company Stock which is described in Section 7.9) legal proceedings and to the extent that the Plan provides or the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held as a part of represent the Trust Fundin all suits or legal proceedings; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directions;
(e) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(f) When directed by the Committee, to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust FundTrust, provided that the Trustee shall notify the Plan Administrator of all such suits, legal proceedings and claims and, except in the case of a suit, legal proceeding or claim involving solely the Trustee’s action or omissions to commence act, shall obtain the written direction of the Plan Administrator before settling, compromising or defend suits submitting to binding arbitration any claim, suit or legal proceeding of any nature whatsoever;
(9) power, upon the written direction of the Plan Administrator, to enter into any contract or administrative proceedings; providedpolicy with an insurance company or companies, howeverfor the purpose of insurance coverage or otherwise, provided that, except with respect to the purchase of annuity contracts for the payment of benefits, the Trustee shall have no obligation to take any legal action for be the benefit sole owner of all such contracts or policies and all such contracts or policies shall be held as assets of the Trust Fund unless it shall have been first indemnified for all expenses in connection therewith, including reasonable attorney’s fees;Fund; and
(g10) To enter into any contracts with responsible insurance companies to provide for the payment of all or any part of the benefits provided under the Plan, and to disburse under any such contracts any funds held by it;
(h) To make payments from the Trust in accordance with the written instructions of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper;
(i) To make execute, acknowledge and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein;
(j) Upon express direction by the Committee, power to transfer assets of the Trust Fund to itself a successor trustee as provided in Article TWELFTH.
(b) Notwithstanding the appointment of an investment manager, the Trustee or shall have the following ministerial powers and authority, to any other trustee of any trust which has been qualified under Section 401(abe exercised in its sole discretion, with respect to the Trust Fund:
(1) To employ suitable agents, custodians and counsel and to pay their reasonable expenses and compensation out of the Code and is exempt from tax under Section 501(aTrust Fund;
(2) of the Code, and which is maintained To register any securities or other property held by it hereunder in its own name or in the name of a nominee with or without the addition of words indicating that such securities or other trustee as property are held in a medium for fiduciary capacity and to hold any securities or other property in bearer form and to deposit any securities or other property in a depository or clearing corporation;
(3) To permit overdrafts in connection with the collective settlement of investment transactions relating to, or the distribution of funds of pensionfrom, profit-sharing or other employee benefit truststhe Trust Fund, in which event such trust (and the Plan Administrator or, if applicable, the investment manager shall be deemed to be a part of have requested the Plan, Trustee to permit such overdraft under the terms and conditions announced by the Trustee from time to withdraw time for overdrafts); to repay any assets such overdraft out of the Trust so transferredFund; to permit the party extending any such overdraft (including the Trustee in its corporate capacity) to set the overdraft off against any cash balances in the Trust Fund; and to pay reasonable compensation to the party extending the overdraft for its services (or reimburse that party for its expenses) to the extent permitted under law;
(k4) To lend reverse any erroneous or provisional credit entries to Plan Participants amounts of money the Trust Fund retroactively to the date upon such terms and conditions, as which the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicablecorrect entry or no entry should have been made;
(l5) To delegate to RadioShack and/or make, execute and deliver, as Trustee, any and all deeds, leases, mortgages, conveyances, waivers, releases or other instruments in writing necessary or desirable for the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed upon, including but not limited to accomplishment of any of the maintenance of records of Accounts of Participants and the quarterly determination of value of each Participant’s Accountforegoing powers; and
(m6) To Generally to do all other acts ministerial acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable in carrying out its judgment duties under this Agreement.
(c) The Trustee may consult with legal counsel concerning questions which are legalmay arise with reference to this Agreement and its powers and duties as trustee. To the extent permissible by law, necessary the written opinion of such counsel shall be full and desirable for the proper administration complete protection of the Trust, Trustee in accordance with the provisions of the Plan, although the power respect to do such acts is not specifically set forth herein. The powers granted to any action reasonably taken or suffered by the Trustee under this Section 7.2 shall be exercised by hereunder in good faith reliance on the Trustee; however, the Committee may at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approvalopinion.
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Powers of the Trustee. Except as otherwise provided in Section 7.9 and 7.10, the Trustee shall have all the powers granted by the terms of the Texas Trust Code as it now exists, or as it may be amended, and in addition thereto and not in modification or limitation thereof, the 6.1. The Trustee shall have the following powers:
(a) To keep such portion general supervision of the Trust Fund in cashmanagement, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereon;
(i) To hold or register securities or other property which may at any time be purchased for or held as investments and re- investment of the OPEB Fund and shall have the power to control and manage the Trust and the OPEB Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trusteeand to perform such acts, any nominee of enter into such a custodian and any depositorycontracts, clearing corporation or other similar system) or engage in such form that title will pass by delivery;
(ii) To employ such agentsproceedings, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to the provisions of Section 7.5, to pay them reasonable compensation out of the Trust Fund;
(iii) To transfer any assets of the Trust to a custodian or sub-custodian employed by the Trustee;
(c) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest or otherwise dispose of any securities, investments or other property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper;
(d) With respect to securities (other than Company Stock which is described in Section 7.9) and to the extent that the Plan provides or the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any and all rights and privileges, although not specifically mentioned herein, as the Trustee may deem necessary or advisable to administer the Trust and the OPEB Fund or to carry out the purposes of this Trust. In addition to the powers set forth elsewhere in this Trust Agreement, the powers of an owner the Trustee, in connection with respect to stocks, bonds, securities or other properties held as a part of their managing and controlling the Trust and the OPEB Fund; provided, howevershall include, unless otherwise directedbut shall not be limited to, the Trustee will not vote such securities or stock as to which it receives no written directions;following:
(e) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(f) When directed by the Committee, to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust Fund, or to commence or defend suits or legal or administrative proceedings; provided, however, the Trustee shall have no obligation to take any legal action for the benefit of the Trust Fund unless it shall have been first indemnified for all expenses in connection therewith, including reasonable attorney’s fees;
(g) 6.1.1. To enter into any an administrative services contract or other contracts with responsible one or more insurance companies companies, nonprofit hospital, medical or dental service corporations, or with one or more health care organizations or health maintenance organizations, or with one or more third-party administrators or other entities to organize, arrange, or provide for the delivery or payment of health care coverage or services (including dental services), whereby the funds for the payment of claims of eligible persons, including appropriate service charges of the insurance carrier, third party administrator or other intermediary, shall be furnished by the Trustee from the OPEB Fund for the payment by such intermediary to the health care vendors or persons entitled to such payments in accordance with the terms and provisions of said contract.
6.1.2. To purchase contracts of insurance or reinsurance through such broker or brokers as the Trustee may choose and to pay premiums on such policies.
6.1.3. To receive, hold, manage, invest and reinvest all monies which at any time form part of the Trust, whether principal or income, provided however that there shall be no investment directly in mortgages or in collateral loans and further provided that the Trustee shall comply with the provisions of Article 7 of this Trust Agreement, applicable law and any investment policy adopted by the Trustee concerning the investment and management of the OPEB Fund.
6.1.4. To borrow or raise money for the purposes of the Trust, in such amount, and upon such terms and conditions as the Trustee shall deem advisable, subject to applicable law and statutes; and for any sum so borrowed to issue the promissory note of the Trust, and to secure the repayment thereof by creating a security interest in all or any part of the benefits provided under Trust or the PlanOPEB Fund; and no person lending such money shall be obligated to see that the money loaned is applied to Trust purposes or to inquire into the validity, expedience or propriety of any such borrowing. The Trustee is not permitted to loan money from the OPEB Fund.
6.1.5. To hold cash, uninvested, for such length of time as the Trustee may determine without liability for interest thereon.
6.1.6. To employ suitable agents, advisors and counsel as the Trustee may deem necessary and advisable for the efficient operation and administration of the Trust, to delegate duties and powers hereunder to such agents, advisors and counsel, and to disburse under charge the expense thereof to the Trust. The Trustee are entitled to rely upon and may act upon the opinion or advice of any attorney approved by the Trustee in the exercise of reasonable care. The Trustee shall not be responsible for any loss or damage resulting from any action or non-action made in good faith reliance upon such contracts opinion or advice. All delegated authority shall be specifically defined in any funds held by-laws adopted by it;the Trustee.
(h) 6.1.7. To hire employees or independent contractors as the Trustee may deem necessary or advisable to render the services required and permitted for the proper operation of the Trust, and to charge the expense thereof to the OPEB Fund.
6.1.8. To continue to have and to exercise, after the termination of the Trust and until final distribution, all of the title, powers, discretions, rights and duties conferred or imposed upon the Trustee hereunder, by any by-laws adopted by the Trustee or by applicable law.
6.1.9. To construe and interpret this Trust Agreement and other documents related to the purposes of the Trust.
6.1.10. To maintain bank accounts for the administration of the Trust and the OPEB Fund and to authorize other appropriate persons designated by the Trustee to make payments from any appropriate account for purposes of the Trust in accordance with Trust.
6.1.11. To receive and review reports of the written instructions financial condition and of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper;
(i) To make execute, acknowledge receipts and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein;
(j) Upon express direction by the Committee, to transfer assets disbursements of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of and the Code and is exempt from tax under Section 501(a) of the CodeOPEB Fund.
6.1.12. To adopt by-laws, investment policies, rules, regulations, formulas, actuarial tables, forms, and which is maintained procedures by it or such other trustee resolution from time to time as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, advisable and to withdraw any assets of the Trust so transferred;
(k) To lend to Plan Participants amounts of money upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable;
(l) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed upon, including but not limited to the maintenance of records of Accounts of Participants and the quarterly determination of value of each Participant’s Account; and
(m) To do all other acts in its judgment which are legal, necessary and desirable appropriate for the proper administration of the Trust, including participation criteria, provided the same are consistent with the terms of this Trust Agreement.
6.1.13. To purchase as a general administrative expense of the Trust so-called directors and officers liability insurance and other insurance for the benefit of the Trust and/or the protection of the Trustee, Trust officers, employees, or agents against any losses by reason of errors or omissions or breach of fiduciary duty or negligence.
6.1.14. To enter into any and all contracts and agreements for carrying out the terms of this Trust Agreement and for the administration and operation of the Trust and to do all acts as s/he, in her/his discretion, may deem necessary or advisable.
6.1.15. To accept and/or receive gifts, grants, contributions or payments from any source whatsoever but such contributions or payments may not be utilized for any purpose unrelated to the provision of OPEB as herein provided or properly authorized expenses.
6.1.16. To pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the Trust.
6.1.17. To compromise, settle or arbitrate any claim, debt, or obligation of or against the Trust or OPEB Fund; to enforce or abstain from enforcing any right, claim, debt or obligation, and to abandon any shares of stock, bonds, or other securities, or interests determined by it to be worthless; to prosecute, compromise and defend lawsuits, but without the obligation to do so, all at the risk and expense of the Trust;
6.1.18. To hire one or more consultants, actuaries, accountants, attorneys or other professionals to assist with the administration of the OPEB Fund and to pay such amounts that the Trustee deems to be reasonable, including, without limiting the generality of the foregoing, third party firms to provide legal, tax, accounting and audit services to the Trust.
6.1.19. To serve as custodian with respect to the Trust assets, in accordance with the Act.
6.1.20. To comply with all requirements imposed by applicable provisions of law.
6.1.21. If so authorized in accordance with X.X. x. 32A, §24 and the PlanAct, take all steps necessary to invest the OPEB Fund in the State Retirement Benefits Trust Fund, established in X.X. x. 32A, §24.
6.1.22. To do all acts, whether or not expressly authorized herein, which the Trustee may deem necessary or proper in connection with the administration of the Trust, although the power to do such acts is not specifically set forth herein. The powers granted to the Trustee under this Section 7.2 shall be exercised by the Trustee; however, the Committee may at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approval.
Appears in 1 contract
Samples: Other Post Employment Benefits Declaration of Trust and Agreement
Powers of the Trustee. Except as otherwise provided in Section 7.9 Subject to this Article, Article 5 and 7.10, the Trustee shall have all the powers granted by the terms of the Texas Trust Code as it now exists, or as it may be amended, Sections and 9.2 and in addition thereto and not in modification or limitation thereofto the powers generally given to trustees by law, the Trustee shall have the following powersTrustee:
(a) To keep May own the Annuity Contracts as Trust investments and take such portion of the Trust Fund in cash, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereon;
(i) To hold or register securities or other property which may at any time be purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trustee, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery;
(ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to the provisions of Section 7.5, to pay them reasonable compensation out of the Trust Fund;
(iii) To transfer any assets of the Trust to a custodian or sub-custodian employed by the Trustee;
(c) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest or otherwise dispose of any securities, investments or other property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper;
(d) With respect to securities (other than Company Stock which is described in Section 7.9) and to the extent that the Plan provides or the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held contracts as a part of the Trust Fund; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directions;
(e) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(f) When directed by the Committee, to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust Fund, or to commence or defend suits or legal or administrative proceedings; provided, however, the Trustee shall have no obligation to take any legal action for the benefit of the Trust Fund unless it shall have been first indemnified for all expenses in connection therewith, including reasonable attorney’s fees;
(g) To enter into any contracts with responsible insurance companies to provide for the payment of all or any part of the benefits provided under the Plan, and to disburse under any such contracts any funds held by it;
(h) To make payments from the Trust in accordance with the written instructions of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper;
(i) To make execute, acknowledge and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein;
(j) Upon express direction by the Committee, to transfer assets terms of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of the Code and is exempt from tax under Section 501(a) of the Code, and which is maintained by it or such other trustee as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, and to withdraw any assets of the Trust so transferred;
(k) To lend to Plan Participants amounts of money upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable;
(l) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed uponTrust, including but not limited to the maintenance payment of records of Accounts of Participants premiums, but at any time that the Trustee determines that it is necessary to surrender or borrow against the Annuity Contracts, including without limitation partial surrenders, in order to raise funds to pay current or future benefits to the individual in whose Separate Account the Annuity Contracts are credited, the Trustee shall give written notification to the Company stating its intention. Thereupon, the Company shall have thirty (30) days in which to contribute additional assets to the Trust in the amount stated in the Trustee's written notification, and the quarterly determination Trustee shall then refrain from making surrenders until such subsequent time(s), if any, that the Trustee determines that it is necessary to make surrenders, whereupon the Trustee shall again give written notification of value intention to surrender an Annuity Contract and the Company shall again have the right to make additional contributions of each Participant’s Account; andassets in the manner set forth above.
(mb) To do all other acts May invest and reinvest the Trust Fund (except as provided in its judgment subsection (a), above, with respect to Annuity Contracts) in (i) obligations issued or guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States pursuant to authority granted by Congress; (ii) obligations issued or guaranteed by any state or political subdivision thereof having a rating equal to or higher than the current A rating classification of Xxxxx'x Investors Service, Inc. or the current A rating classification of Standard & Poor's Corporation, both of New York, New York, or their successors; (iii) commercial or finance paper of any corporation (through mutual funds or directly) having a net worth of $50,000,000 and having a rating classification equal to or higher than the current P-1 rating classification of Xxxxx'x Investors Service, Inc. or the current A-1 rating classification of Standard & Poor's Corporation, both of New York, New York or their successors; (iv) bankers' acceptance drawn on and accepted by banks or trust companies organized under the laws of the United States of America or any state thereof, having a reported capital and surplus of at least $50,000,000 in dollars of the United States of America or bankers' acceptance drawn on and accepted by the Trustee; (v) certificates of deposit maturing within twelve months of the Trustee or of banks or trust companies, organized under the laws of the United States of America or any state thereof, having a reported capital and surplus of at least $50,000,000 in dollars of the United States of America and which has a rating at least equal to the rating required in (iii) above; and (vi) repurchase agreements collateralized with obligations described in (i) above; (vii) money market funds the assets of which are legalof the types specified above; and (viii) preferred or common stock of any company (other than the Company or any successor thereto), provided that at the time any such security is acquired (directly or through a mutual fund)
(1) the security is listed for trading upon the New York Stock Exchange, Inc., or such securities are owned by a mutual fund that has at least 50% of its assets invested in securities listed for trading upon the New York Stock Exchange, Inc.
(2) no more than 2% of the assets of the Trust, determined at the time the investment is made, are invested in the preferred or common stock of any one company, unless the investment is owned through a mutual fund and (3) no more than 30% of the assets of the Trust are invested, determined at the time an investment pursuant to this clause is made, in preferred or common stock; provided that any such investment or deposit is not prohibited by law.
(c) May abandon, adjust, arbitrate, compromise, or otherwise settle any obligation or liability due to or from it as Trustee, including any tax claim, and/or enforce or contest any claim in legal or administrative proceedings. The Trustee shall not be required to contest any claim unless it has been indemnified against the costs and expenses of that action or unless available Trust Fund assets are sufficient to pay those expenses.
(d) May compensate from the Trust Fund, agents, accountants, brokers and counsel (who may be counsel for the Company) and other assistants and advisors which it believes are necessary and or desirable for the proper administration of the Trust, Trust Fund.
(e) May temporarily deposit uninvested funds in accordance with the provisions of the Plan, although the power to do such acts is not specifically set forth herein. The powers granted to the Trustee under this Section 7.2 shall be exercised a commingled temporary deposit medium maintained by the Trustee; however, the Committee may at any time and from time to time, which is composed of certificates of deposit or other obligations issued by written direction to the Trustee.
(f) May do all other acts, require not specifically mentioned above which are necessary to administer the Trustee Trust Fund and to obtain carry out the written approval purposes of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approvalTrust.
Appears in 1 contract
Powers of the Trustee. Except as otherwise provided in Section 7.9 and 7.10, the Trustee shall have all the powers granted by the terms of the Texas Trust Code as it now exists, or as it may be amended, and in addition thereto and not in modification or limitation thereof, the Trustee shall have the following powers:
(a) To keep such portion of the Trust Fund in cash, to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereon;
(i) To hold or register securities or other property which may at any time be purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee (including any custodian employed by the Trustee, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery;
(ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject to the provisions of Section 7.5, to pay them reasonable compensation out of the Trust Fund;
(iii) To transfer any assets of the Trust to a custodian or sub-custodian employed by the Trustee;
(cb) To sell, redeem, exchange, convey, transfer, pledge, invest and reinvest or otherwise dispose of any securities, investments or other property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper;
(dc) With respect to securities (other than Company Stock which is described in Section 7.9) and to the extent that the Plan provides or the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held as a part of the Trust Fund; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directions;
(ed) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(fe) When directed by the Committee, to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust Fund, or to commence or defend suits or legal or administrative proceedings; provided, however, the Trustee shall have no obligation to take any legal action for the benefit of the Trust Fund unless it shall have been first indemnified for all expenses in connection therewith, including reasonable attorney’s fees;
(gf) To enter into any contracts with responsible insurance companies to provide for the payment of all or any part of the benefits provided under the Plan, and to disburse under any such contracts any funds held by it;
(hg) To make payments from the Trust in accordance with the written instructions of Participants. All payments made to Participants will be to the last address recorded in the Plan’s records as maintained by the record keeper;
(ih) To make execute, acknowledge and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted herein;
(ji) Upon express direction by the Committee, to transfer assets of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of the Code and is exempt from tax under Section 501(a) of the Code, and which is maintained by it or such other trustee as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, and to withdraw any assets of the Trust so transferred;
(kj) To lend to Plan Participants amounts of money upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable;
(lk) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties as may be agreed upon, including but not limited to the maintenance of records of Accounts of Participants and the quarterly determination of value of each Participant’s Account; and
(ml) To do all other acts in its judgment which are legal, necessary and desirable for the proper administration of the Trust, in accordance with the provisions of the Plan, although the power to do such acts is not specifically set forth herein. The powers granted to the Trustee under this Section 7.2 shall be exercised by the Trustee; however, the Committee may at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approval.
Appears in 1 contract
Samples: Trust Agreement (Radioshack Corp)
Powers of the Trustee. Except as otherwise provided Subject to investment guidelines agreed to in Section 7.9 writing from time to time between the Company and 7.10, the Trustee shall have all the powers granted by the terms of the Texas Trust Code as it now exists, or as it may be amended, and in addition thereto and not in modification or limitation thereofTrustee, the Trustee shall have the following powerspower, in investing and reinvesting the Trust Fund, in its sole discretion:
(a1) To keep such portion exercise all powers conferred on the Trustee by applicable law, unless expressly provided otherwise herein; provided, however, that if a life insurance policy is held as an asset of the Trust Fund Trust, the Trustee shall have only those powers specified in cash, Section 6(e) hereof with respect to meet contemplated requisitions, as the Participant shall specify in written requests, and, in the Trustee’s discretion, to retain cash temporarily awaiting investment, without liability for interest thereonsuch policy;
(i2) To hold invest and reinvest in any readily marketable common and preferred stocks, bonds, notes, debentures, certificates of deposit or register securities demand or other property which may at any time be purchased for or held as investments of the Trust Fund in the name of the Trustee or in the name of its nominee deposits (including any custodian employed by such deposits with the Trustee) and shares of investment companies and mutual funds, any nominee of such a custodian and any depository, clearing corporation or other similar system) or in such form that title will pass by delivery;
(ii) To employ such agents, consultants, custodians, depositories, advisors, and legal counsel as may be reasonably necessary or desirable in the Trustee’s judgment in managing and protecting the Trust Fund and subject without being limited to the provisions classes or property in which the Trustees are authorized to invest by any law or any rule of Section 7.5, court of any state and without regard to pay them reasonable compensation out the proportion any such property may bear to the entire amount of the Trust Fund;
(iii3) To transfer commingle for investment purposes all or any assets 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, provided, however, that the Trustee shall create one or more sub-accounts if, prior to a custodian or sub-custodian employed Change in Control, the Company so directs;
(4) To retain any property at any time received by the Trustee;
(c5) To sellsell or exchange any property held by it at public or private sale, redeemfor cash or on credit, exchangeto grant and exercise options for the purchase or exchange thereof, conveyto 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, transferconsolidation, pledgemerger, invest combination, liquidation or other similar plan relating to property held by it and reinvest to consent to or otherwise dispose 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 any assessments levied with respect to any such property to deposit;
(8) To extend the time of payment of any securitiesobligation held by it;
(9) To hold uninvested any moneys received by it, investments without liability for interest thereon, but only in anticipation of payments due for investments, reinvestments, expenses or disbursements;
(10) To exercise all voting or other rights with respect to any property held by it and to grant proxies, discretionary or otherwise;
(11) For the purposes of the Trust Fund, to borrow money from others, to issue promissory note or notes therefor, and to secure the repayment thereof by pledging any property held by it, when directed by the Participants, Participant’s beneficiary or by the Committee, by private contract or at public auction, and for such purposes the Trustee may execute such instruments and writings and so such things as it shall deem proper;
(d12) With respect To register investments in its own name or in the name of a nominee; to securities (other than Company Stock which is described hold any investment in Section 7.9) bearer form; and to combine certificates representing securities with certificates of the extent 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 Plan provides or books and records of the Trustee receives direction from the Committee, a Participant, a Beneficiary or an Investment Manager who may be appointed pursuant to Section 7.10, to vote upon any stocks, bonds, or other securities of any corporation, association or trust shall at any time, or otherwise consent to or request any action on the part of such corporation, association or trust; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options; to make any payments incidental thereto; to oppose or consent to or otherwise participate in, corporate reorganization, recapitalization, consolidation, merger or similar transactions with respect to such corporate securities, or other change affecting corporate securities; to deposit all times show that all such securities or stock in any voting trust, or with any protective or like committee or with a trustee, or with depositories designated thereby; to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other properties held as a are part of the Trust Fund; provided, however, unless otherwise directed, the Trustee will not vote such securities or stock as to which it receives no written directions;
(e13) When directed by the Committee, to borrow money from any lender, including itself, and to mortgage or pledge assets of the Trust Fund as security for the repayment thereof;
(f) When directed by the Committee, to To settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust FundTrust, or 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 administrative proceedingslegal proceedings in any court or before any other body or tribunal; provided, however, that the Trustee shall have no obligation not be required to take any legal such action for the benefit of the Trust Fund unless it shall have been first indemnified for all by the Company to its reasonable satisfaction against liability or expenses in connection therewith, including reasonable attorney’s feesit might incur therefrom;
(g14) To enter into any contracts with responsible insurance companies to provide for the payment hold and retain policies of all or any part of the benefits provided under the Planlife insurance, annuity contracts, and other property of any kind which are transferred or contributed to disburse under any such contracts any funds held the Trust by ita prior trustee or the Company or are purchased by the Trustee;
(h15) To make payments from the Trust in accordance with the written instructions hold any other class of Participants. All payments made to Participants will assets which may be to the last address recorded in the Plan’s records as maintained contributed by the record keeper;
(i) To make executeCompany and deemed reasonable by the Trustee, acknowledge and deliver any and all instruments that it deems necessary or appropriate to carry out the powers granted unless expressly prohibited herein;
(j) Upon express direction by the Committee, to transfer assets of the Trust to itself as Trustee or to any other trustee of any trust which has been qualified under Section 401(a) of the Code and is exempt from tax under Section 501(a) of the Code, and which is maintained by it or such other trustee as a medium for the collective investment of funds of pension, profit-sharing or other employee benefit trusts, in which event such trust shall be deemed to be a part of the Plan, and to withdraw any assets of the Trust so transferred;
(k16) To lend any securities at any time held by it to Plan Participants amounts of money brokers or dealers upon such terms and conditions, as the Plan may direct, in accordance with the provisions of the Plan, the Participant Loan Policy Statement and the Loan Program, as applicable;
(l) To delegate to RadioShack and/or the Committee by agreement in writing, such ministerial and limited discretionary duties security as may be agreed upondeemed advisable, including but not limited and during the terms of any such loan to permit the maintenance loaned securities to be transferred into the name of records of Accounts of Participants and voted by the quarterly determination of value of each Participant’s Accountborrower or others; and
(m17) To do all other acts in its judgment which are legalemploy suitable contractors and counsel, necessary and desirable for the proper administration of the Trust, in accordance with the provisions of the Plan, although the power to do such acts is not specifically set forth herein. The powers granted who may be counsel to the Trustee under this Section 7.2 shall be exercised by the Trustee; however, the Committee may at any time and from time to time, by written direction Company or to the Trustee, require and to pay their reasonable expenses and compensation from the Trust Fund to the extent not paid by the Company;
(18) Generally, to do all acts, whether or not expressly authorized, that the Trustee to obtain may deem necessary or desirable for the written approval protection of the Committee before exercising any such powers. Any such direction may be of a continuing nature or otherwise, and may be revoked in writing by the Committee at any time. Neither the Trustee nor any other person shall be under any duty to question any such direction of the Committee, and the Trustee shall as promptly as possible comply with any directions given by the Committee hereunder. The Trustee shall not be responsible for any loss which may result from the failure or refusal of the Committee to give any such required approvalTrust Fund.
Appears in 1 contract
