THE MACERICH PROPERTY MANAGEMENT COMPANY
PROFIT SHARING PLAN
TRUST AGREEMENT
THE MACERICH PROPERTY MANAGEMENT COMPANY
PROFIT SHARING PLAN
TRUST AGREEMENT
This Trust Agreement (this "Agreement") is between the
Macerich Property Management Company (the "Company") and Xxxxxxx
Xxxxx, Xxxxxx Xxxxxxx, and Xxxxxx X'Xxxx (Messrs. Bayer, Coppola,
and X'Xxxx are each referred to herein as a "Trustee" and,
collectively, as the "Trustees"). This Agreement supercedes any
prior trust agreement between the parties hereto with respect to
The Macerich Property Management Company Profit Sharing Plan (the
"Plan") (including, without limitation, the Xxxxx Xxxxxxx &
Associates, Inc. Master Trust Agreement).
RECITALS
WHEREAS, the Company established and maintains the Plan;
WHEREAS, the Plan provides, among other things, that the
Company will execute a trust agreement for the purpose of
carrying out the Plan; and that contributions made or caused to
be made by the Company (or any "Participating Affiliate" under
and as such term is defined in the Plan) and any employees of the
Company or any Participating Affiliate pursuant to the Plan shall
be paid over to the trust formed pursuant to this Agreement (the
"Trust");
WHEREAS, the Company desires to establish the Trust as
provided in the Plan to implement and carry out the provisions
thereof; and this Agreement is so designed for that purpose and
has been designated as a part of the Plan intended to meet the
requirements of Sections 401 and 501 of the Internal Revenue Code
of 1986, as amended; and
WHEREAS, the Company desires the Trustees to act as trustee
of the Trust and the Trustees are willing to so act pursuant to
the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein, and the mutual benefits to be derived
herefrom, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following words and phrases when used herein shall have
the following meanings, unless the context clearly indicates
otherwise. All definitions included in the Plan shall be deemed
to be incorporated herein to the extent necessary.
1.1 "Administrator" shall mean the "Committee" appointed
pursuant to and in accordance with the Plan.
1.2 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.3 "Company" shall mean the Macerich Property Management
Company, and its successor or successors.
1.4 "Employer" or "Employers" shall mean the Company and each
other Participating Affiliate which has adopted the Plan (if
any).
1.5 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
1.6 "Investment Manager," shall have the meaning given to such
term in the Plan, if any is appointed by the Administration in
accordance with the terms of this Agreement and the Plan.
1.7 "Member" shall mean any participant in the Plan, former Plan
participant, or any Beneficiary (as such term is defined in the
Plan) of a participant or former participant in the Plan.
1.8 "Plan" shall mean The Macerich Property Management Company
Profit Sharing Plan, as amended from time to time.
1.9 "Trust" shall mean the trust formed pursuant to this
Agreement.
1.10 "Trust Fund" shall mean all sums contributed or transferred
to the Trust, together with all other property and accruals
therefrom, which may hereafter become subject to the Trust.
1.11 "Trustee" or "Trustees" shall mean the trustee or trustees,
as applicable, named on the first page of this Agreement. The
power to act as the trustee of the Trust shall require a majority
of Trustees acting together.
If there is a change in Trustee pursuant to Sections 4.8 and
4.9, the Plan and this Agreement need not be amended to include
such changes. In lieu of an amendment, the written notice of
resignation, removal or appointment/acceptance, or the formal
resolution of the Company shall constitute the amendment and be
made a part of the Plan and this Agreement.
ARTICLE II
FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
2.1 FIDUCIARIES
The following persons are hereby named as fiduciaries under this Trust
(each a "Fiduciary").
(a) Fiduciaries With Respect to Appointment of Others
(i) The Company: Acting through its Board of Directors, the
Company shall be responsible for the appointment, removal, or
replacement of any appointed Administrator or any Trustee.
(ii) The Administrator: The Administrator shall be
responsible for the appointment, removal, or replacement of any
Investment Manager.
(b) Fiduciary With Respect to Control or Management of Trust
Assets
(i) The Trustees: The Trustees shall be the named fiduciary
with respect to the investment of Trust assets only during such
times as they have exclusive authority and discretion to manage
and control the investment of the Trust Fund. Otherwise, the
Administrator shall be the named fiduciary with respect to the
investment of the Trust Fund, unless the Administrator appoints
an Investment Manager.
(ii) Investment Manager: In its discretion, the Administrator
may appoint one or more Investment Managers to manage, acquire,
and dispose of all or a portion of the Trust Fund designated by
the Administrator.
(iii) Administrator: The Administrator may assume the
authority to manage, acquire, and dispose of all or a portion of
the Trust Fund.
(c) Fiduciary With Respect to Plan Administration: The
Administrator shall be the Fiduciary with respect to the
administration of the Plan. The responsibilities and duties of
the Administrator are set forth in the Plan.
2.2 JOINT FIDUCIARY RESPONSIBILITIES
This Article II is intended to allocate to each Fiduciary
the individual responsibility for the prudent execution of the
functions assigned to him. None of such responsibilities, nor
any other responsibility, shall be shared by two or more of such
Fiduciaries unless such sharing shall be provided by specific
provision of the Plan or of this Trust; and such Fiduciaries have
expressly accepted such responsibilities. Whenever one Fiduciary
is required by the Plan or the Trust to follow the directions of
another Fiduciary, the two Fiduciaries shall not be deemed to
have been assigned a shared responsibility. The responsibility
of the Fiduciary giving the directions shall be deemed his sole
responsibility. The responsibility of the Fiduciary receiving
those directions shall be to follow them, insofar as such
instructions are consistent with the provisions of this
instrument.
2.3 ALLOCATION OR DELEGATION OF FIDUCIARY RESPONSIBILITIES
By written instrument, each of the Fiduciaries (other than
the Trustees and any Investment Manager) may allocate to others
and delegate to others any of its rights, powers and duties,
terminable upon such notice as the delegating Fiduciary deems
prudent. Anyone may serve in more than one fiduciary capacity
with respect to the Plan and the Trust.
2.4 CO-FIDUCIARY LIABILITY
It is the intent of this Agreement that each of the
Fiduciaries under the Plan and the Trust shall be solely
responsible for its own acts or omissions. Except to the extent
imposed by ERISA, no Fiduciary shall have the duty to question
whether any other Fiduciary is fulfilling all of the
responsibilities imposed upon such other Fiduciary by ERISA, or
by any regulations or rulings issued thereunder. No Fiduciary
shall have any liability for a breach of fiduciary responsibility
of another Fiduciary with respect to the Plan and this Agreement
unless:
(a) he participates knowingly in such breach;
(b) he knowingly undertakes to conceal such breach;
(c) he has actual knowledge of such breach and fails to take
responsible remedial action to remedy said breach; or
(d) he has enabled such other Fiduciary to commit a breach of
the latter's fiduciary responsibilities through his negligence in
performing his own specific fiduciary responsibilities under this
Agreement.
If the Company establishes more than one trust with a
different trustee pursuant to the terms of the Plan, the Trustees
of the Trust and such other trustee(s) of such other trust(s)
shall not be co-trustees (as described in ERISA). The Trustees
shall act only with respect to the Trust established pursuant to
this Agreement.
2.5 INDEMNITY
The Company shall indemnify and hold harmless the Trustees
and the Trust Fund against any loss or liability, including
reasonable attorney fees imposed upon any Trustee as a result of
any acts taken in accordance with written directions; by reason
of failure to act because of no written directions from the
Administrator, Investment Manager or any other person designated
to act on their behalf, or by reason of the Trustee's good faith
execution of its duties in the administration of the Trust,
unless such loss or liability is due to the Trustee's negligence
or misconduct.
ARTICLE III
INVESTMENT OF THE TRUST FUND
3.1 POWERS AND RESPONSIBILITIES
Unless otherwise directed in writing by the Administrator,
the Trustees shall have the full power and authority to invest
the funds of the Trust in any investment permitted by law for the
investment of the assets of an employee benefit trust. The
Administrator may appoint an Investment Manager to direct the
investment and management of all or a portion of the Trust Fund,
or assume such responsibilities itself. The Administrator shall
notify the Trustees in writing of its assumption of investment
responsibilities, or of the appointment of an Investment Manager,
and may revoke any such appointment by giving written notice
thereof to the Trustees. The appointment, selection, and
retention of a qualified Investment Manager shall be solely the
responsibility of the Administrator. The Trustees are authorized
and entitled to rely upon the fact that said Investment Manager
is at all times a qualified Investment Manager under ERISA, until
such time as the Trustees have received a written notice from the
Administrator to the contrary, or otherwise have knowledge of the
disqualification of the Investment Manager. The Trustees shall
rely upon the fact that said Investment Manager is authorized to
direct the investment and management of the assets of the Trust,
until such time as the Administrator shall notify the Trustees in
writing that another Investment Manager has been appointed in the
place and stead of the Investment Manager named; or,
alternatively, that the Investment Manager named has been removed
and the responsibility for the investment and management of the
Trust assets has been transferred back to the Trustees.
In the event an Investment Manager is appointed by the
Administrator, he shall direct the Trustees with respect to the
investment and management of all or a portion of the assets of
the Trust Fund. The Trustees shall not be liable nor responsible
for losses or unfavorable results arising from their compliance
with proper directions of the Investment Manager that are made in
accordance with the terms of the Plan and the Trust, and which
are not contrary to the provisions of any applicable Federal or
State statute regulating such investment and management of the
assets of an employee benefit trust. All Investment Manager
directions concerning investments shall be signed by such person
or persons, acting on behalf of the Investment Manager, as may be
duly authorized in writing. The Trustees shall be under no duty
to question any Investment Manager directions; nor to review any
securities or other property of the Trust constituting assets
thereof with respect to which an Investment Manager has
investment responsibility; nor to make any suggestions to such
Investment Manager in connection therewith. As promptly as
possible, the Trustees shall comply with any written direction
given by the Investment Manager hereunder. The Trustees shall
not be liable in any manner, nor for any reason, for the making
or retention of any investment pursuant to such directions of the
Investment Manager. The Investment Manager shall not direct the
purchase, sale, or retention of any assets of the Trust Fund, if
such directions are not in compliance with any applicable Federal
or State statute regulating such investment and management of the
assets of an employee benefit trust.
During any such period or periods of time an Investment
Manager is authorized to direct the investment and management of
the Trust assets, the Trustees shall have no obligation to
determine the existence of any conversion, redemption, exchange,
subscription, or other right relating to any securities. Unless
the Trustees receive written instructions from the Investment
Manager within a reasonable time prior to the expiration of any
right described in the preceding sentence, there shall be no
obligation by the Trustees to exercise any such right.
Except as may be provided in ERISA, the Trustees and
Investment Manager shall not be liable for the acts or omissions
of the Administrator or the Employer, nor shall they be liable or
responsible for the portion or portions of the Trust Fund managed
by persons other than themselves.
3.2 INSURANCE COMPANIES PROTECTED IN DEALING WITH TRUSTEES
Insurance companies issuing contracts to the Trustees under
this Agreement may deal with the Trustees alone in accordance
with the terms and conditions of such contracts. They shall be
fully protected in accepting and acting upon the request, advice
or representation of, or any instrument executed by, the
Trustees. For all such purposes, the Trustees shall be regarded
as sole owner of such contracts. No insurance company shall be
required to inquire into the terms of this Agreement, nor to
determine whether action taken by the Trustees is authorized
thereby. No insurance company dealing with the Trustees shall
have any obligation to determine that any person upon whose life
the Trustees make any contract application is, in fact, an
employee of the Employer or is otherwise eligible for retirement
benefits or otherwise participates in the Plan. Such insurance
company shall not be responsible for: the validity of the Trust;
the acts of any person or of the Company in its establishment,
maintenance or administration; or the proper application or
disposition of any money paid by such insurance company, either
as dividends or as annuity payments, as death proceeds under
contracts, under pledge, or pursuant to surrender thereof. It
shall be conclusively presumed in favor of insurance companies
and others dealing with the Trust in good faith, that any and all
actions taken by the Trustees in connection with any matter or
thing connected with this Trust has been duly authorized,
pursuant to the terms of this Agreement.
3.3 OWNERSHIP OF INSURANCE CONTRACTS AND PAYMENT OF INSURANCE
PREMIUMS
The Administrator may direct the Trustees to acquire
insurance or annuity contracts on the lives of individual
Participants, or may direct the Trustees to enter into a group
deposit administration contract or contracts with an insurance
company for the purpose of investing all or a portion of the
Trust Fund.
Subject to the power of the Administrator to direct the
Trustees as reserved in the preceding paragraph of this Section
3.3, the Trustees shall have all the rights and authority of a
legal owner of any insurance or annuity contracts held in the
Trust, including the right to execute all necessary receipts and
releases to the insurer. However, the Trustees shall have no
duty to make applications for the purchase of any such contracts,
or to pay any premiums thereon, or to exercise any rights,
privileges or options, or to take any other action with respect
to such contracts unless the Trustees receive written directions
to do so by the Administrator.
The Trustees shall notify the Administrator upon receipt of
notice of any premiums due on any such contracts held by them,
but shall not be liable for payment of any premiums on any such
contracts unless there are sufficient funds in the Trust
available for the payment of such premiums. The Trustees shall
not have any duty to pay premiums on any such contracts, except
out of funds designated by the Administrator as available
therefor.
3.4 STANDARD OF PRUDENCE
In carrying out each of its responsibilities under this
Trust, the Trustees, the Administrator, the Company, and
Investment Manager, if any, shall act solely in the interest of
the Members. They shall act with the care, skill, prudence, and
diligence, under the circumstances then prevailing and in the
conduct of an enterprise of a like character and with like aims,
as that used by a prudent man acting in a like capacity and
familiar with such matters.
ARTICLE IV
RIGHTS, POWERS AND DUTIES
4.1 GENERAL DUTIES OF THE TRUSTEES
It shall be the duty of the Trustees to hold the funds
received from time to time from the Employer; to manage, invest
and reinvest the Trust Fund pursuant to the provisions
hereinafter set forth; and to collect the income therefrom. Upon
receipt by the Trustees, such funds shall become a part of the
corpus of the Trust Fund, and shall be invested and reinvested as
such. The Trustees shall make payments from the Trust Fund
pursuant to the directions of the Administrator as hereinafter
provided. The Trustees shall be responsible only for such sums
as shall actually be received by them as Trustees. It shall not
be the duty of the Trustees to collect any sum from any Employer,
nor to determine or verify the accuracy thereof. The Trustees
shall not be concerned with the determination of the benefits
payable under the Plan to any Member.
The Trustees shall use ordinary care and reasonable
diligence in the exercise of their powers and the performance of
their duties as Trustees hereunder. The Trustees shall not be
liable for: any mistake of judgment; any action taken in good
faith; or any loss, unless resulting from their own negligence or
willful misconduct; all, however, subject to the applicable
responsibilities imposed upon the Trustees under ERISA.
4.2 GENERAL DUTIES OF ADMINISTRATOR
The Administrator shall have the duty, authority and
responsibility to direct the administration of the Plan. To the
extent provided in the Plan and this Trust, the Trustees shall
follow the written directions of the Administrator.
When so directed in writing by the Administrator, the
Trustees shall segregate the Trust Fund, set up special trust
accounts, and disburse the Trust Fund when disbursement becomes
proper under the terms of the Plan. During the existence of the
Plan, the Administrator may not direct that any payments be made
which would cause any portion of the Trust Fund to be used for or
diverted to purposes other than for the exclusive benefit of the
Members.
4.3 THIRD PERSONS DEALING WITH TRUSTEES
With respect to any action whatsoever concerning the money,
funds or property in the hands of the Trustees, the signature of
at least two Trustees shall be sufficient as to any persons not a
party hereto. No person not a party hereto shall be required to
interpret the terms and conditions of the Plan or of this
Agreement as to the authority of the Trustees; nor be responsible
for ascertaining that any action of the Trustees is authorized by
the terms of the Plan or of this Agreement.
4.4 SPECIFIC POWERS OF TRUSTEES
Except for those of the following powers which are
investment powers, and which have been delegated specifically by
the Administrator to an Investment Manager separate from the
Trustees, and subject to all limitations stated elsewhere in the
Plan and this Agreement, the Trustees shall have the following
powers affecting the Trust and Trust Fund:
(a) To hold, invest and reinvest, the principal or income of the
Trust Fund in bonds, common or preferred stock, other securities,
or property (personal, real or mixed, improved or unimproved, and
tangible or intangible).
(b) To hold, invest and reinvest, in any type of interest-
bearing account maintained by any bank or savings and loan
association selected by the Trustee, including: any owned by a
Trustee or any of its affiliates; or any common or collective
trust fund, or pooled investment fund, established and maintained
by the Trustees for trusts exempt under Section 501 of the Code.
The assets so invested shall be subject to all the
provisions of the instruments establishing and governing
such funds. Those instruments of group trusts, including
any subsequent amendments, are hereby incorporated and made
a part of this Agreement.
(c) To acquire an interest as a limited partner in any
partnership or joint venture, all in accordance with the
provisions of ERISA and any regulations issued pursuant thereto.
(d) To manage, control, purchase, sell, convey, exchange,
partition, divide, subdivide, improve, or repair, any or all
property of the Trust Fund. In connection with any disposal of
property, to grant options and sell upon deferred payments. Upon
termination of the Trust, to sell forthwith any or all property
of the Trust Fund and convert the same into cash.
(e) To borrow or raise money for the purpose of the Trust upon
such terms as the Trustees may determine.
(f) If the Trust Fund shall at any time contain any real
property, to lease such property or any part thereof, for terms
within or extending beyond the duration of the Trust. To grant
for like terms the right to mine or drill for and remove
therefrom gas, oil, and other minerals; to create restrictions,
easements, and other servitudes thereon.
(g) With respect to bonds, shares of stock, and other
securities: to have all the rights, powers, and privileges of an
owner, including though without limiting the foregoing, the power
of voting, giving proxies, payment of calls, assessments, and
other powers deemed expedient for the protection of the interests
of the Trust Fund; to participate in voting trusts, pooling
agreements, assenting to corporate sales, leases and
encumbrances, regardless of any limitations elsewhere in the Plan
and this Agreement relative to investments by the Trustees; to
have the power of selling or exercising stock subscription or
conversion rights, participating in foreclosures,
reorganizations, consolidations, mergers, and liquidations. In
connection with any such proceedings, to deposit securities with
and transfer titles to any protective or other committee, under
such terms respecting deposit thereof as the Trustees shall
determine.
(h) To hold, sell, collect, xxx for, or change any investments,
in their own name or in their names Trustees or in the name of
their nominee or nominees, with or without disclosure of
fiduciary relationship, with the Trustees being responsible for
the acts of any such nominee affecting such property, and the
books of the Trustees showing at all times that all such
investments are part of the Trust Fund.
(i) To retain all or any portion of the Trust Fund in cash
temporarily awaiting investment without liability for interest
thereon; to retain in cash without liability for interest thereon
so much of the Trust Fund as the Trustees may deem advisable for
the purpose of meeting contemplated payments under the Plan; and
to deposit cash in any bank or savings and loan association
selected by it, including any owned by the Trustees or any of
their affiliates.
(j) To abandon, compromise, contest, and arbitrate claims and
demands; to institute, compromise, and defend actions at law or
equity (but without obligation to do so); and to employ such
counsel as the Trustees shall deem advisable, all at the risk and
expense of the Trust Fund.
(k) To make loans to participants, if provided for in the Plan,
and only upon the direction of the Administrator.
(l) To advance their own funds to the Trust, if permitted by
law, for any Trust purpose. Such advances with legal interest
thereon shall be a first lien on the principal and the gross
income of the Trust Fund, and to be first repaid out of the gross
income or principal of the Trust Fund.
(m) Upon any division, or partial or final distribution of the
Trust Fund, to partition, allot, and distribute the Trust Fund in
undivided interest or in kind, or partly in money and partly in
kind, at fair market values determined by the Trustees; and in
the Administrator's sole discretion, to sell such property as the
Administrator may deem necessary to make division or
distribution.
(n) To hold, invest and reinvest, in any single premium contract
or group annuity contract of deposit administration, immediate
participation or other group-type or individual-type contract
issued by a life insurance company authorized to do business
under the laws of two or more states and qualified to be an
Investment Manager. However, the Trustees shall not be liable
for the validity of any statements contained in any application
for any such contract, which statements cover information beyond
the Trustee's knowledge.
(o) To pay expenses of administering the Plan and the Trust
pursuant to Section 4.7, to the extent such expenses are not paid
by the Employer.
All discretions in this Agreement conferred upon the
Trustees shall, unless specifically limited, be absolute. The
enumeration of certain powers and discretions of the Trustees is
not to be construed as limiting their general powers and
discretions. The Trustees are hereby vested with and have, as to
the Trust Fund, and in the execution of this Agreement (but
subject at all times to any specific provisions and limitations
in the Plan and this Agreement contained), all the powers and
discretions that any absolute owner of property has or may have.
4.5 RECORDS TO BE MAINTAINED BY TRUSTEES
The Trustees shall maintain full and complete records of
their transactions for, and funds held for the account of, the
Trust. The Trustees' books and records relating thereto shall be
open to inspection and audit at all reasonable times by the
Company, the Administrator, or their duly authorized
representatives.
4.6 REPORTS TO BE FURNISHED BY THE TRUSTEES
Within sixty (60) days after the end of each Plan Year and
at such other times determined by the Administrator, the Trustees
shall file with the Administrator a written statement of account
setting forth all investments, transactions, receipts, and
disbursements effected by them during the period. Such statement
shall contain an exact description of all property purchased and
sold, the cost or proceeds of sale, and show the investments held
on the last day thereof, including the cost of each item as
carried on the books of the Trustees, and the fair market value
thereof, if applicable.
When the Trustees are unable to arrive at a value based upon
information from independent sources, they may rely upon
information from the Company, Administrator, appraisers, or other
sources; and shall not incur any liability for inaccurate
valuation based on good faith reliance upon such information.
The reasonable costs incurred in establishing values of Trust
assets shall be a charge against the Trust Fund.
The Administrator may approve the Trustees' written
statement of account by written notice of approval delivered to
the Trustees, or by failure to deliver to the Trustees' written
objections to such statement of account within sixty (60) days
from the date the statement of account was delivered to the
Administrator.
The statement of account shall be deemed approved upon
receipt by the Trustees of the Administrator's written approval
of the statement of account, or upon the passage of the sixty day
period of time, except for any matters covered by written
objections that have been delivered to the Trustees by the
Administrator and for which the Trustees have not given an
explanation or made an adjustment satisfactory to the
Administrator.
4.7 COMPENSATION OF THE TRUSTEES, PAYMENT OF TAXES, ETC.
All expenses of administering the Plan and Trust, including
the Trustees' compensation for their services as may from time to
time be agreed upon, shall be paid from the Trust Fund unless
paid by the Employer. However, if any Trustee is an Employee
receiving full-time pay from an Employer, he shall not receive
compensation for his services. The Trustees are authorized to
determine and pay out of the Trust all other expenses, including
taxes, fees, and investment and other expenses incurred in
connection with the administration of the Trust Fund; or for
which the Trust, or the Trustees in discharge of their duties as
Trustees thereunder, may become liable, unless paid by the
Employer. If the Trust or any part of it shall become liable for
the payment of any property, estate, inheritance, income, or
other charge, tax or assessment which the Trustees shall be
required to pay, the Trustees shall be authorized to pay such
item out of any monies or other property in their hands for the
account of the persons whose interest hereunder is liable
therefor. At least ten (10) days prior to making any such
payment, the Trustees shall give the Administrator written notice
of their intention to do so. Prior to making any transfers or
distributions from the Trust Fund, the Trustees also may require
such release or other documents from any lawful taxing authority
as they shall deem necessary or advisable.
Any amount hereunder due the Trustees, or for which the
Trustees may become liable as Trustees under the Plan and this
Agreement, which has not been paid by the Employer within a
reasonable time shall become a lien on the Trust Fund and said
amount may be paid by the Trustees from the Trust Fund as an
expense thereof.
In the event any distribution made to a Member shall
constitute taxable income under the Federal Insurance
Contributions Act, the Federal Unemployment Tax Act, or any
amendments thereto, or under the laws of any State, then at the
time distribution is made and upon direction of the Administrator
to the Trustees, any Federal or State income tax due thereon
shall be withheld from any distribution made to the Member. The
amounts so withheld by the Trustees shall be paid to the
respective Federal and State governments.
4.8 RESIGNATION OR REMOVAL
Any Trustee may resign by mailing to the Administrator and
the Company, at their last known addresses, written notice of
resignation, which shall become effective upon the expiration of
thirty (30) days following the date of mailing or upon written
acceptance of the resignation by the Company prior to that time.
The Company may remove any Trustee on thirty (30) days
written notice, by mailing to the Trustee written notice of
removal (which notice may be waived by the Trustee).
In the event of resignation of or removal of a Trustee, such
Trustee shall transfer, assign and deliver the Trust Fund to the
successor Trustee(s), after retaining such reasonable amount it
deems necessary to provide for its expenses in the settlement of
its accounts, its compensation, and any taxes or advances
chargeable against or payable out of the Trust Fund and known to
the Trustee. The Trustee shall render a full and complete
accounting of all assets and funds held by it within thirty (30)
days of its giving notice of resignation or the receipt by the
Trustee of notice of removal.
Upon acceptance of the Trust and without further assignment
or transfer, the successor shall become vested with all the
title, estate, rights and powers (including discretionary
powers), and be subject to all the duties and obligations of the
Trustee originally appointed. The resigned or removed Trustee
shall have no further responsibility to act hereunder except as
to the rendering of a final accounting.
Until the date it shall have become such successor Trustee,
no successor Trustee shall be liable or responsible for anything
done or omitted in the administration of the Trust; nor, except
upon the Administrator's written direction, shall it be required
to inquire into or take any action concerning the acts of any
predecessor Trustee.
Upon the failure of the Company to appoint a successor
Trustee by the effective date of the resignation or removal of
the Trustee, the remaining Trustees shall continue as the sole
Trustees of the Trust, or, if there are no remaining Trustees,
the Administrator shall become successor Trustee until another
successor Trustee is appointed.
4.9 FILLING VACANCIES
Vacancies occurring in the trusteeship of the Trust, however
caused, shall be filled by written designation of the Company of
a successor Trustee and the successor Trustee's written
acceptance of the Trust and this Agreement. Within sixty (60)
days after its occurrence, any vacancy not filled under the
foregoing provisions may be filled by appointment of a Trustee by
a court of competent jurisdiction on application by the Company
or any person interested in the Trust.
4.10 INTERPLEADER, ETC., IN CASE OF DISPUTES
In the event that any dispute shall arise as to the person
or persons to whom payment or delivery of any funds, contracts or
property shall be made, the Trustees may retain such funds,
contracts or property without liability for interest. Until a
satisfactory agreement covering such dispute, or a final
adjudication concerning it, shall have been made, the Trustees
may decline to make delivery. In such event, the Trustees may
file an appropriate action in interpleader, the costs of same to
be borne by the parties thereto, and not by the Trustees.
However, if the costs described are not borne by the parties,
then they shall be costs of administering the Trust.
4.11 COURT PROCEEDINGS
In any application to the courts, or proceeding or action in
the courts, only the Company and the Trustees shall be necessary
parties, and no Member or other person shall be entitled to any
notice or service of process. After all appeals, if any, any
judgment entered in such a proceeding or action shall be
conclusive upon all claimants under the Trust.
4.12 ADEQUACY OF TRUST FUND
The Trustees shall not be responsible for the adequacy of
the Trust Fund to meet and discharge any or all payments and
liabilities under the Plan. Except for the Administrator, all
persons dealing with the Trustees are released from the necessity
of inquiring into the decision or authority of the Trustees to
act, and from responsibility for the application of any monies,
securities or other property paid or delivered to the Trustees.
4.13 DIRECTIONS TO TRUSTEES
As evidence of the authority of any person or persons acting
as Administrator, the Trustees may accept a certified copy of the
resolutions of the Board of Directors of the Company naming such
person or persons as the Administrator; and shall be entitled to
recognize as such and act upon the instructions, directions,
consents, and requests of the Administrator last certified to
them. The Trustees may accept, as evidence of any action taken
or resolution adopted by the Administrator, a written memorandum
or certificate signed by any one or more persons authorized in
writing by the Administrator to so sign. The Trustees may
continue to act in accordance with any such action or resolution
until receipt by them of notice rescinding or superseding such
action or resolution.
The Trustees shall be held harmless in relying upon any
certificate, notice, resolution, consent, order, or other
communication purporting to have been signed by the Administrator
which they believe to be genuine, and without obligation on the
part of the Trustees to ascertain whether or not the provisions
of the Plan are thereby being complied with.
The Trustees shall not be required to make any investigation
to determine the mailing address of any Member, or the identity
or mailing address of any Beneficiary (as such term is defined in
the Plan), and shall be entitled to withhold making any payments
until such information is certified to it by the Administrator.
Notices or communications from the Trustees to the
Administrator shall be addressed to such person or persons as
shall have been certified to the Trustees by the Administrator,
and shall be sent to such person or persons at whatever address
he or they shall have prescribed in writing to the Trustees.
4.14 ADVICE OF ADMINISTRATOR
If at any time the Trustees are in doubt concerning the
course which they shall follow in connection with any matter
relating to the administration of the Trust, they may request the
Administrator to advise them with respect thereto. The Trustees
may rely, without liability, upon the advice or direction which
they give by the Administrator in response to such request.
4.15 RECEIPT FOR BENEFIT PAYMENT
On final payment or distribution to any Member, or the legal
representative(s) of any such person in accordance with the
provisions of the Plan and this Agreement, the Trustees shall be
entitled to demand a receipt for full satisfaction of all claims
against the Trust, the Trustees, the Administrator, and the
Employers.
4.16 INVESTMENT IN SECURITIES OF THE COMPANY
The Administrator may direct that the Trust Fund be invested
and reinvested in the common stock, preferred stocks, bonds, or
other securities of the Company; and to purchase from and to loan
to the Company any property (whether real, personal or mixed),
provided such investments are made in accordance with ERISA and
regulations issued thereunder. Up to 100% of the Trust Fund may
be so invested.
4.17 TRANSFER OF TRUST ASSETS
Upon the direction of the Administrator, the Trustees shall
transfer assets to the trust of another qualified retirement
plan, or to such other trust or trusts created pursuant to the
terms of the Plan; and accept the transfer of assets from a trust
created pursuant to a qualified retirement plan.
ARTICLE V
AMENDMENT, TERMINATION AND DURATION OF TRUST
5.1 AMENDMENT
The Company shall have the right at any time and from time-
to-time to modify or amend this Agreement in whole or in part.
However, except as otherwise expressly provided in the Plan and
Trust, no amendment shall be made at any time pursuant to which
the Trust Fund may be diverted to purposes other than for the
exclusive benefit of the Members. Further, no modification or
amendment which affects the rights, duties or responsibilities of
the Trustees may be made without each affected Trustee's consent.
Notwithstanding anything contained herein to the contrary,
upon reasonable notice to the Trustees, this Agreement may be
amended at any time by the Company if deemed necessary to conform
to the provisions and requirements of ERISA or the Code or
regulations promulgated pursuant thereto in order to maintain the
tax-exempt status hereof thereunder, or to conform to the
provisions and requirements of any law, regulation, order or
ruling affecting the character or purpose of the Plan or Trust.
5.2 TERMINATION
This Agreement may be terminated at any time by a written
instrument signed on behalf of the Company by its appropriate
officer or officers and delivered to the Trustees. As the result
of such termination, no part of the Trust Fund shall be used for
or diverted to purposes other than for the exclusive benefit of
the persons entitled to benefits under the Plan, except as
otherwise expressly provided for in the Plan and Trust.
5.3 TRUST IRREVOCABLE
The Trust hereby created shall be irrevocable. However,
nothing herein contained shall prevent the Company from
terminating the Trust in the manner provided in Section 5.2.
5.4 DURATION OF TRUST
The Trust hereby created shall continue in effect for the
maximum period of time permitted by law, unless this Trust is
terminated in accordance with Section 5.2.
ARTICLE VI
MISCELLANEOUS
6.1 RELATION TO PLAN
All words and phrases used herein, unless otherwise
expressly defined herein, shall have the same meaning as in the
Plan, and this Agreement and the Plan shall be read and construed
together. In the event of an irreconcilable conflict between
this Agreement and the Plan with regards to the duties,
liabilities, rights, and powers of the Trustees, this Agreement
shall prevail and control. Whenever in the Plan it is provided
that the Trustees shall act as therein provided, they shall be
empowered, and are hereby authorized, to do so for all purposes
as fully as though specifically so provided herein. However, no
amendments to the Plan made subsequent to the date hereof which
substantially increase the duties or responsibilities of the
Trustees shall bind or affect the Trustees until approved in
writing by each affected Trustee. The Administrator shall
furnish the Trustees with copies of the Plan and all amendments
thereto.
6.2 ASSIGNMENT
Except as may be provided in the Plan, none of the benefits,
payments, proceeds, claims or rights hereunder of any Member
shall be subject to any claims of any creditor of such person.
In particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor of any Member.
No Member shall have the right to alienate, anticipate, commute,
pledge, encumber, or assign any of the benefits which he may
expect to receive, contingently or otherwise, under this
Agreement and the Plan. The provisions of this Section shall not
apply in the case of a Qualified Domestic Relations Order (as
such term is defined in Section 414(p) of the Code).
6.3 SUCCESSOR COMPANY
If any successor to the Company continues the Plan, it shall
concurrently become a successor party to this Agreement by giving
to the Trustees written notice by duly authorized persons of its
adoption of the Plan and this Agreement. Said written notice
shall constitute such successor a signatory hereto.
6.4 USE OF TRUST FUNDS
Except as provided for in this Agreement and the Plan, under
no circumstances shall any contributions by an Employer to the
Trust, or any part of the Trust Fund, be recoverable by an
Employer from the Trustee, or be used for or diverted to purposes
other than for the exclusive purposes of providing benefits to
the Members; provided, however, that:
(a) In the event an Employer requests an initial letter of
determination from the Internal Revenue Service to the effect
that the Plan and this Trust satisfy the requirements of Sections
401 and 501 of the Code, but such request is denied, the
contributions of such Employer shall be returned by the Trustees
to the Employer within one (1) year of such denial, but only if
the request was made by the time prescribed by law for filing the
Employer's return for the taxable year in which the Plan is
adopted, or such later date as the Secretary of the Treasury may
prescribe.
(b) To the extent disallowed as a deduction under Section 404 of
the Code, a contribution of an Employer for any Plan Year shall
be returned by the Trustees to the Employer within one (1) year
after the final disallowance of the deduction by the Courts.
(c) A contribution made by an Employer due to a mistake of fact
may be returned to the Employer within one (1) year after payment
of the contribution.
6.5 UNENFORCEABLE PROVISIONS
If any provision of this Agreement shall be for any reason
invalid or unenforceable, the remaining provisions shall,
nevertheless, be carried into effect.
6.6 CONSTRUCTION
This Agreement shall be construed, administered, and
enforced fairly and equitably in accordance with the purposes of
the Plan and in accordance with ERISA and the Code; and where
state law is applicable, under laws of the State of California.
6.7 POOLING OF ASSETS
In the event the Company adopts or becomes a contributing
employer under another plan which is qualified under Section
401(a) of the Code, or any successor to such Section 401(a) plan,
the Trustees from time to time may pool all or any portion of the
assets of this Trust Fund with assets belonging to such other tax-
qualified plan into one single Trust Fund. The Trustees may
commingle such assets, make joint or common investments, and
carry joint accounts on behalf of this Trust Fund and such other
trust, allocating undivided shares or interests in such
investments or accounts or in any pooled assets to the two or
more trusts in accordance with their respective interests. The
Trustees may also buy or sell any assets or undivided interests
therein in this Trust Fund, or in any other trust with which the
assets of this Trust Fund may be pooled, to or from this Trust
Fund or such other trust at such prices or valuations as the
Trustees may in good faith determine to be the fair market value
of such assets or undivided interests.
6.8 INDEMNITY AND INSURANCE
This Section 6.8 shall apply only if the Trustees are
individuals employed by the Company or an Employer. This Section
shall not apply if the Trustee is a bank, trust company,
insurance company or other corporation.
In its discretion, the Company may obtain, pay for, and keep
current a policy or policies of insurance, insuring the Trustees
against any and all liabilities, costs and expenses (including
attorney's fees) incurred by the Trustees as a result of any act,
or omission to act, in connection with the performance of their
duties, responsibilities, and obligations under the Plan and
Trust and any applicable Federal or state law.
If the Company does not obtain, pay for, and keep current
any type of insurance policy or policies referred to in the
preceding paragraph, or if such insurance is provided but the
Trustees incur any costs or expenses which are not covered under
such policies, then, in either event, the Company, to the extent
permitted by law, shall indemnify and hold harmless such parties
against any and all costs, expenses, and liabilities incurred by
such parties in performing their duties and responsibilities
under the Plan and the Trust, including attorney's fees, provided
such party or parties were acting in good faith within what was
reasonably believed to have been in the best interests of the
Plan and Trust and the Members.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of this 20 day of December, 1998.
MACERICH PROPERTY MANAGEMENT
COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Print Name: Xxxxxxx X. Xxxxx
Its: General Counsel & Secretary
THE TRUSTEES
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxxxxx X'Xxxx
Xxxxxx X'Xxxx
