EXHIBIT 10(Q)
FIRST AMENDMENT
TO
NBD BANCORP, INC.
BENEFIT PROTECTION TRUST AGREEMENT
----------------------------------
THIS AMENDATORY AGREEMENT made this____ day of November, 1995, by and
between NBD BANCORP, INC., a corporation duly organized and existing under the
laws of the State of Delaware and having its principal office and place of
business at Detroit, Michigan ("NBD"), and BANKERS TRUST COMPANY, a corporation
duly organized and existing under the laws of the State of New York and having
its principal office and place of business at New York, New York (the
"Trustee").
WITNESSETH:
WHEREAS, effective August 30, 1993, NBD established the NBD Bancorp, Inc.
Benefit Protection Trust (the "Trust") under agreement (the "Trust Agreement")
with the Trustee; and
WHEREAS, NBD now desires to amend the Trust Agreement to provide authority
for the investment of Trust assets in any registered investment company or
mutual fund for which the Trustee provides, for compensation, custodial,
advisory or other services; and
WHEREAS, NBD and the Trustee have reserved in Section 13 of the Trust
Agreement the right to amend the Trust Agreement by written instrument;
NOW, THEREFORE, NBD and the Trustee agree that the Trust Agreement is
hereby amended as follows:
I.
Effective Immediately Section 6(a) is amended in its entirety to read as
follows:
"(a) Subject to the provisions of paragraph (b), the Trustee shall, in is
sole discretion, invest and reinvest the Trust assets in any property, real or
personal, or part interest therein,
wherever situated, including but without being limited to, common and preferred
stocks, personal, corporate and governmental obligations, trust and
participation certificates, leaseholds, mortgages and other interests in realty,
notes and other evidences of indebtedness or ownership, secured or unsecured,
and including specifically real property, stocks, securities, obligations and
interests of NBD and its affiliates. Such investments shall be limited to
investments that are rated in one of the two highest rating categories by a
nationally recognized rating agency. Such investments shall not be restricted to
property and securities of the character authorized for investment by trustees
under any present or future laws. All rights, privileges, options and elections
contained in any policies or contracts issued by insurance companies and
acquired pursuant to the foregoing shall vest in the Trustee and shall be
exercised, assigned, or otherwise disposed of in its discretion. Without
liability for interest, the Trustee may keep a portion of the Trustee assets
uninvested and may deposit any uninvested assets with itself or other banks. The
Trustee is further authorized and empowered in its sole discretion to invest and
reinvest all or any part of the Trust assets to any registered investment
company or mutual fund for which the Trustee provides, for compensation,
custodial, advisory or other services."
II.
Except as hereinabove provided, the Trust Agreement as heretofore in effect
is hereby ratified and confirmed and shall continue unchanged in full force and
effect.
IN WITNESS WHEREOF, this Amendatory Agreement has been executed on the ____
day of November, 1995, by NBD BANCORP, INC., as Grantor, and on the ___ day of
November, 1995, by BANKERS TRUST COMPANY, as Trustee, and their respective
corporate seals affixed and attested by officers hereunto duly authorized.
ATTEST: NBD BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
---------------------------------- --------------------------------
Xxxxxx X. Xxxxxxxxx Xxxx X. Xxxxx
Its Vice President Its Senior Vice President
(Corporate Seal)
ATTEST: BANKERS TRUST COMPANY, Trustee
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxx
---------------------------------- --------------------------------
Xxxxxxx Xxxx Xxxxxxx Xxxx
Its Assistant Vice President Its Vice President
(Corporate Seal)
STATE OF MICHIGAN)
) SS.
COUNTY OF XXXXX )
On this 16th day of November, 1995, before me, a notary public in and for
said County, personally appeared XXXX X. XXXXX, who, being by me duly sworn, did
depose and say that he is a senior vice president of NBD BANCORP, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Xxxxxx X. Xxxxxxxxxxxxxx
----------------------------------------------
Notary Public, Xxxxx County,
State of Michigan
My Commission Expires 2/12/97
(Notarial Seal)
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this 4th day of December, 1995, before me, a notary public in and for
said County, personally appeared Xxxxxxx Xxxx, who, being by me duly sworn, did
depose and say that he/she is a Vice President of BANKERS TRUST COMPANY, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Notary Public, Queens County
State of New York
My Commission Expires: 8/5/97
(Notarial Seal)
3
NBD BANCORP, INC.
BENEFIT PROTECTION TRUST AGREEMENT
This TRUST AGREEMENT made this 30 day of August, 1993, by and between NBD
---
BANCORP, INC., a corporation duly organized and existing under the laws of the
State of Delaware and having its principal office and place of business at
Detroit, Michigan ("NBD"), and BANKERS TRUST COMPANY, a corporation duly
organized and existing under the laws of the State of New York and having its
principal office and place of business at New York, New York (the "Trustee").
WITNESSETH:
WHEREAS, NBD has adopted the nonqualified deferred compensation plans (the
"Plans") listed in Appendix A;
WHEREAS, NBD has incurred and expects to incur liability under the terms of
such Plans with respect to the individuals participating in such Plans;
WHEREAS, NBD wishes to establish a trust (hereinafter called the "Trust")
and to contribute to the Trust assets that shall be held therein, subject to the
claims of NBD's creditors in the event of NBD's Insolvency, as herein defined,
until paid to Plan participants and their beneficiaries in such manner and at
such times as specified in the Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of NBD to make contributions to the Trust to
provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust
----------------------
(a) NBD hereby deposits with the Trustee in trust Ten Thousand Dollars
($10,000), which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust Agreement.
4
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which NBD is the
grantor, within the meaning of subpart E, part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust and any earnings thereon shall be held
separate and apart from other funds of NBD and shall be used exclusively for the
uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any rights
created under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against NBD. Any
assets held by the Trust will be subject to the claims of NBD's general
creditors under federal and state law in the event of insolvency, as defined in
Section 4(a) herein.
(e) NBD, in its sole discretion, may at any time or from time to time make
additional deposits of cash or other property in trust with the Trustee to
augment the principal, to be held, administered and disposed of by the Trustee
as provided in this Trust Agreement. Neither the Trustee nor any Plan
participant or beneficiary shall have any right to compel such additional
deposits.
(f) The Trustee accepts the Trust, and undertakes to hold, invest,
distribute and administer the Trust in accordance with the provisions of this
Agreement. If NBD fails to supply the Trustee with the amounts that are required
to satisfy the obligations of NBD under the Plans, the Trustee shall have no
duty to bring suit against NBD or otherwise to enforce payment by NBD of
sufficient funds to satisfy any remaining obligations of NBD under the Plans.
The Trustee shall be obligated to make payments to the Plan participants and
their beneficiaries only as directed by NBD and to the extent of Trust assets
actually received and held by the Trustee and after payment of and provision for
the expenses of Trust administration, including the reasonable compensation of
the Trustee.
Section 2. Authorities.
-----------
NBD shall file with the Trustee a certified list of the names and specimen
signatures of appropriate officers of NBD and any delegee authorized to act for
it. NBD shall promptly notify the Trustee of the addition or deletion of any
person's name to or from such list. Until receipt by the Trustee of notice that
any person is no longer authorized to so act, the Trustee may continue to rely
on the authority of the person. All certifications, notice and directions by any
such person or persons to the Trustee shall be in writing signed by such person
or persons. The Trustee may rely on any such certification, notice or direction
purporting to have been signed by or on behalf of such person or persons that
the Trustee believes to have been signed thereby. The Trustee may rely on any
certification, notice or direction of NBD that the Trustee believes to have been
signed by a duly authorized officer or agent of NBD. The Trustee shall have no
5
responsibility for acting or not acting in reliance upon any notification
believed by the Trustee to have been so signed by a duly authorized officer or
agent of NBD. NBD shall be responsible for keeping accurate books and records
with respect to the employees of NBD, their compensation and their rights and
interests in the Trust under the Plan.
Section 3. Payments to Plan Participants and Their Beneficiaries.
-----------------------------------------------------
(a) NBD shall deliver to the Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect to each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions acceptable
to the Trustee for determining the amounts so payable, the form in which such
amount is to be paid (as provided for or available under the Plans), and the
time of commencement for payment of such amounts. Except as otherwise provided
herein, the Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The Trustee shall make
provisions for the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the payment of
benefits pursuant to the terms of the Plans and shall pay amounts withheld to
the appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by NBD.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plans shall be determined by NBD or such party as it shall
designate under the Plans, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plans.
(c) NBD may make payment of benefits directly to Plan participants or their
beneficiaries as they become due under the terms of the Plans. NBD shall notify
the Trustee of its decision to make payment of benefits directly prior to the
time amounts are payable to participants or their beneficiaries. In addition, if
the principal of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plans, NBD shall make
the balance of each such payment as it falls due. The Trustee shall notify NBD
where principal and earnings are not sufficient.
Section 4. Trustee Responsibility Regarding Payments to Trust Beneficiary When
-------------------------------------------------------------------
NBD Is Insolvent.
----------------
(a) The Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if NBD is insolvent. NBD shall be considered "Insolvent" for
purposes of this Trust Agreement if (i) NBD is unable to pay its debts as they
become due, or (ii) NBD is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of NBD
6
under federal and state law as set forth below.
(1) The Board of Directors and the Chairman and President of NBD shall have
the duty to inform the Trustee in writing of NBD's Insolvency. If a person
claiming to be a creditor of NBD alleges in writing to the Trustee that NBD has
become Insolvent, the Trustee shall determine whether NBD is Insolvent and,
pending such determination, the Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries.
(2) Unless the Trustee has actual knowledge of NBD's Insolvency, or has
received notice from NBD or a person claiming to be a creditor alleging that NBD
is Insolvent, the Trustee shall have no duty to inquire whether NBD is
Insolvent. The Trustee may in all events rely on such evidence concerning NBD's
solvency as may be furnished to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning NBD's solvency.
(3) If at any time the Trustee has determined that NBD is Insolvent, the
Trustee shall discontinue payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of NBD's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Plan participants or their beneficiaries to pursue their rights as general
creditors of NBD with respect to benefits due under the Plans or otherwise.
(4) The Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 3 of this Trust Agreement only
after the Trustee has determined that NBD is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by NBD in lieu of the payments provided for
hereunder during any such period of discontinuance.
Section 5. Payments to NBD.
---------------
Except as provided in Section 3 hereof, NBD shall have no right or power to
direct the Trustee to return to NBD or to divert to others any of the Trust
assets before all payments of benefits have been made to Plan participants and
their beneficiaries pursuant to the terms of the Plans.
Section 6. Investment Authority.
--------------------
(a) Subject to the provisions of paragraph (b) the Trustee shall, in its
sole discretion, invest and reinvest the Trust assets in any property, real or
personal, or part interest therein, wherever situated, including but without
being limited to, common and preferred stocks,
7
personal, corporate and governmental obligations, trust and participation
certificates, leaseholds, mortgages and other interests in realty, notes and
other evidences of indebtedness or ownership, secured or unsecured, and
including specifically real property, stocks, securities, obligations and
interests of NBD and its affiliates. Such investments shall be limited to
investments that are rated in one of the two highest rating categories by a
nationally recognized rating agency. Such investments shall not be restricted to
property and securities of the character authorized for investment by trustees
under any present or future laws. All rights, privileges, options and elections
contained in any policies or contracts issued by insurance companies and
acquired pursuant to the foregoing shall vest in the Trustee and shall be
exercised, assigned, or otherwise disposed of in its discretion. Without
liability for interest, the Trustee may keep a portion of the Trust assets
uninvested and may deposit any uninvested assets with itself or other banks. The
Trustee is further authorized and empowered in its sole discretion to invest and
reinvest all or any part of the Trust assets through the medium of any common,
collective or commingled trust fund, including those operated and maintained by
the Trustee, as the same may have heretofore been or may hereafter be
established or amended, subject to all of the terms of the declaration of trust
pursuant to which such trust fund was established.
(b) Subject to the provisions of paragraph (a) hereof, and in furtherance
and not in limitation of the Trustee's investment authority, the Trustee shall
have full power and authority to deal with all or any part of the Trust assets,
including, without limitation, the power to invest, reinvest, and change
investments; to acquire any property by purchase, subscription, lease, or other
means; to sell for cash or on credit, convey, lease for long and short terms, or
convert, redeem or exchange, all or any part of the Trust assets; to borrow, and
to pledge as security for such borrowings all or any part of the Trust assets;
to make loans with or without security; to improve, repair and develop real
property; to enforce, by suit or otherwise, or to waive its rights on behalf of
the Trust assets, and to defend claims asserted against it or Trust assets; to
compromise, adjust and settle any and all claims against or in favor of it or
the Trust assets other than claims for benefits by Plan participants or their
beneficiaries; to renew, extend or foreclose any mortgage or other security; to
bid on property in foreclosure; to take deeds in lieu of foreclosure, with or
without paying a consideration therefor; to vote, or give proxies to vote, any
stock or other security, and to waive notice of meetings; to oppose, participate
in and consent to the reorganization, merger, consolidation, or readjustment of
the finances of any enterprise, to pay assessments and expenses in connection
therewith, and to deposit securities under deposit agreements; to hold
securities unregistered, or to register them in its own name or in the names of
nominees; and to cause any investment to be registered and held in the name of
one or more nominees of any system for central handling of securities; to form
corporations and to create trusts to hold title to any securities or other
property, all upon such terms and conditions as may be deemed advisable; to
make, execute, acknowledge and deliver any and all instruments that it shall
deem necessary or appropriate to carry out the powers herein granted; and
generally to exercise any of the powers of an owner with respect to all or any
part of the Trust. No persons dealing with the Trustee shall be bound to see to
the application of any money or property paid or delivered to the Trustee or to
inquire into the validity or propriety of any transaction.
8
(c) NBD may direct the Trustee to transfer assets to an insurance company
to provide an alternative or additional funding medium or investment vehicle for
the management and control of Plan assets. If the Trustee agrees to hold any
insurance contract as an asset of the Trust at the request of NBD, the Trustee
shall not have any responsibility for the selection of the issuer and/or for
terms of the contract, or for performing any functions under any insurance
contract that it may be directed to purchase and hold as contractholder other
than the execution of any documents and the transfer of payments of any funds
incidental thereto on the directions of NBD.
Section 7. Disposition of Income.
---------------------
(a) During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 8. Accounting by the Trustee.
-------------------------
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between NBD
and the Trustee. Within ninety (90) days following the close of each calendar
year and within ninety (90) days after the removal or resignation of the
Trustee, the Trustee shall deliver to NBD a written account of its
administration of the Trust during such year, or during the period from the
close of the last preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and investments
purchased and sold, with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year or
as of the date of such removal or resignation, as the case may be. In the
absence of the filing in writing with the Trustee by NBD of exceptions or
objections to any such accounting within ninety (90) days, NBD shall be deemed
to have approved such accounting, and in such case or upon the written approval
of NBD of any such accounting, the Trustee shall be released, relieved and
discharged with respect to all matters and things disclosed in such accounting
as though such accounting had been settled by the decree of a court of competent
jurisdiction. NBD or the Trustee may nevertheless require judicial settlement of
the accounts of the Trustee.
Section 9. Responsibility of the Trustee.
-----------------------------
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by NBD that is contemplated by, and in
conformity with, the terms of the Plans or this Trust and is given in writing by
NBD. In the event of a dispute between NBD and a party, the Trustee may apply to
a court of competent jurisdiction to resolve the dispute.
9
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, NBD agrees to indemnify the Trustee against the
Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If NBD does not pay such costs, expenses and liabilities in a
reasonably timely manner, the Trustee may obtain payment from the Trust.
(c) The Trustee may consult with counsel who may be counsel for NBD or for
the Trustee in its individual capacity, and the Trustee shall not be deemed
imprudent by reason of its taking or refraining from taking any action in
accordance with the opinion of counsel. The Trustee shall be liable only for its
own imprudence, negligence or willful misconduct in carrying out or in failing
to carry out its duties and responsibilities under the terms of this Agreement.
The Trustee shall be fully protected in relying upon the directions of NBD
issued in accordance with this Agreement and shall be under no duty to inquire
into the validity or propriety of any such direction. The Trustee shall not be
required to give any bond or any other security for the faithful performance of
its duties under this Agreement, except such as may be required by a law that
prohibits the waiver thereof.
(d) The Trustee shall be entitled, as it may deem appropriate from time to
time, to require of NBD, any of its affiliates, or any other person involved in
the administration of the Plans or investment of the Trust assets, or having any
interest under the Plans or in, to, or under this Agreement or to the Trust
assets held hereunder, such certificates and proofs of facts as shall permit the
Trustee to exercise the powers granted the Trustee under this Agreement.
(e) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(f) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(g) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 10. Trustee Compensation, Trustee Expenses and Taxes.
------------------------------------------------
(a) The Trustee shall be paid by NBD such reasonable compensation as shall
from time to time be agreed upon, in writing, by NBD and the Trustee. Such
compensation of the Trustee
10
and reasonable and proper expenses of administration of the Trust, including
counsel fees, shall be withdrawn by the Trustee out of the Trust assets unless
paid by NBD, but such expenses shall be paid by NBD if the same cannot be
withdrawn from the Trust.
(b) NBD shall pay all federal, state and local income taxes or other taxes
of any and all kinds levied or assessed under existing or future laws against
the Trust, except to the extent applicable law requires that such taxes be paid
directly out of the Trust. NBD shall indemnify and reimburse the Trust for all
taxes paid by the Trust, including, to the extent permitted by law, any
applicable penalties and interest.
Section 11. Resignation and Removal of the Trustee.
--------------------------------------
(a) The Trustee may resign at any time by written notice to NBD, which
shall be effective sixty (60) days after receipt of such notice unless NBD and
the Trustee agree otherwise.
(b) The Trustee may be removed by NBD on sixty (60) days' written notice or
upon shorter notice accepted by the Trustee.
(c) Upon resignation or removal of the Trustee and appointment of a
successor trustee, all assets shall subsequently be transferred to the successor
trustee. The transfer shall be completed within ninety (90) days after receipt
of notice of resignation, removal or transfer, unless NBD extends the time
limit.
(d) If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 12 hereof, by the effective date of resignation or
removal under paragraph (a) or (b) of this section. If no such appointment has
been made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee in
connection with such proceeding shall be allowed as administrative expenses of
the Trust.
Section 12. Appointment of Successor.
------------------------
(a) If the Trustee resigns or is removed in accordance with Section 11(a)
or (b) hereof, NBD may appoint any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law (but
which shall not be NBD or any corporation affiliated with NBD), as a successor
to replace the Trustee upon resignation or removal. The appointment shall be
effective when accepted in writing by the new trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by NBD or the successor trustee to evidence the transfer.
(b) The successor trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor
11
trustee shall not be responsible for and NBD shall indemnify and defend the
successor trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any condition
existing at the time it becomes successor trustee.
Section 13. Amendment or Termination.
------------------------
(a) This Trust Agreement may be amended by a written instrument executed by
the Trustee and NBD. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plans or shall make the Trust revocable.
(b) The Trust shall not terminate until the earlier of the date on which
Plan participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans or the date the assets of the Trust have been
depleted. Upon termination of the Trust any assets remaining in the Trust shall
be returned to NBD.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plans, NBD may terminate this
Trust prior to the time all benefit payments under the Plans have been made. All
assets in the Trust at termination shall be returned to NBD.
Section 14. Miscellaneous.
-------------
(a) No person shall have any right title, or interest in or to any of the
assets of the Trust or in or to any contribution thereto, except as otherwise
provided herein.
(b) If a person entitled to benefits hereunder is deceased or is unable to
manage his or her affairs for any reason, the Trustee shall, upon the direction
of NBD, distribute any benefit payable to such person to his or her duly-
appointed legal representative, if there be one, and if not, to the spouse,
parents, children, or other relatives or dependents of such person as NBD in its
discretion may determine. Any payment so made shall be a complete discharge of
all liability with respect to such benefits.
(c) NBD shall enforce this Agreement on behalf of participants and
beneficiaries, to the extent of their rights hereunder and interests herein.
(d) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(e) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
12
(f) This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(g) Any corporation resulting from any merger or consolidation to which the
Trustee may be a party or succeeding to the trust business of the Trustee or to
which substantially all the trust assets of the Trustee may be transferred shall
be the successor to the Trustee hereunder without further act or formality with
like effect as if such successor trustee had originally been named trustee
herein; and in any such event it shall not be necessary for the Trustee or any
successor trustee to give notice thereof to any person, and any requirement,
statutory or otherwise, that notice shall be given is hereby waived.
(h) Except to the extent otherwise provided by law, necessary parties to
any accounting, litigation or other proceeding shall include only the Trustee
and NBD, and the settlement or judgment in any such case in which NBD is duly
served or cited shall be binding upon the participants and beneficiaries, and
upon any person claiming under them or claiming to represent them or any of
them.
(i) This Agreement shall be binding upon the parties and upon their
successors and assigns. This Agreement shall be binding upon and inure to the
benefit of any successor to NBD or its business as the result of merger,
consolidation, reorganization, transfer of assets or otherwise and any
subsequent successor thereto. In the event of any such merger, consolidation,
reorganization, transfer of assets or other similar transaction, the successor
to NBD or its business or any subsequent successor thereto shall promptly notify
the Trustee in writing of its successorship and furnish the Trustee with the
information specified in Section 3 of this Agreement. In no event shall any such
transaction described herein suspend or delay the rights of Plan participants or
the beneficiaries of deceased participants to receive benefits hereunder.
(j) This Agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which together shall constitute one and
the same instrument.
Section 15. Effective Date.
--------------
The effective xxxx of this Trust Agreement shall be August 30, 1993.
13
IN WITNESS WHEREOF, this Agreement has been executed on the 31st day of
August, 1993, by NBD BANCORP, INC., as Grantor, and on the 13th day of
September, 1993, by BANKERS TRUST COMPANY, as Trustee, and their respective
corporate seals affixed and attested by officers hereunto duly authorized.
ATTEST: NBD BANCORP, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------- --------------------------------
Xxxxx X. Xxxxxxx Xxxx X. Xxxxx
Its FirstVice President Its Senior Vice President
(Corporate Seal)
ATTEST: BANKERS TRUST COMPANY, Trustee
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- --------------------------------
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx
Its Vice President Its Vice President
(Corporate Seal)
STATE OF MICHIGAN)
) SS.
COUNTY OF XXXXX )
On this 31st day of August, 1993, before me, a notary public in and for said
County, personally appeared XXXX X. XXXXX, who, being by me duly sworn, did
depose and say that he is a senior vice president of NBD BANCORP, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Xxxxxx X. Xxxxxxxxxxxxxx
------------------------------------
Notary Public, Xxxxx County
State of Michigan
My Commission Expires 2/12/97
(Notarial Seal)
00
XXXXX XX XXX XXXX )
) SS.
COUNTY Of NEW YORK)
On this 13th day of September, 1993, before me, a notary public in and for
said County, personally appeared XXXXXX XXXXXX, who, being by me duly sworn, did
depose and say that he is a vice president of BANKERS TRUST COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Notary Public, New York County
State of New York
My Commission Expires 2/22/95
(Notarial Seal)
15
Appendix A
Plans Covered under NBD Bancorp, Inc.
Benefit Protection Trust Agreement
----------------------------------
1. NBD Bancorp, Inc. Pension Restoration/Supplemental Plan
2. Incentive compensation payments deferred at the option of participants under
the NBD Bancorp, Inc. Executive Incentive Plan.
16
