TRUST AGREEMENT
BETWEEN
WARWICK COMMUNITY BANCORP, INC.
AND
ORANGE COUNTY TRUST COMPANY
FOR THE
RECOGNITION AND RETENTION PLAN
OF WARWICK COMMUNITY BANCORP, INC.
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ENTERED INTO AS OF JUNE 24, 1998
TABLE OF CONTENTS
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ARTICLE I
TRUST FUND
SECTION 1.1 TRUST FUND.............................................1
SECTION 1.2 COLLECTION OF CONTRIBUTIONS............................2
SECTION 1.3 NON-DIVERSION OF FUNDS.................................2
ARTICLE II
INVESTMENT AND ADMINISTRATION
SECTION 2.1 IN GENERAL.............................................2
SECTION 2.2 LIQUIDITY..............................................2
SECTION 2.3 TRUSTEE'S ADMINISTRATIVE AUTHORITY.....................3
SECTION 2.4 INVESTMENT DECISIONS...................................4
SECTION 2.5 EXERCISE OF VOTING RIGHTS WITH RESPECT TO SHARES.......5
SECTION 2.6 RESPONSE TO TENDER OFFERS AND SIMILAR EVENTS...........5
ARTICLE III
TRUSTEE AND COMMITTEE
SECTION 3.1 COMMITTEE..............................................6
SECTION 3.2 TRUSTEE'S RELIANCE.....................................6
SECTION 3.3 LEGAL COUNSEL..........................................6
SECTION 3.4 LIABILITY UNDER THE PLAN...............................7
SECTION 3.5 INDEMNIFICATION........................................7
ARTICLE IV
DISTRIBUTIONS FROM THE TRUST FUND
SECTION 4.1 IN GENERAL.............................................7
SECTION 4.2 DIRECTION BY THE COMMITTEE.............................7
SECTION 4.3 METHOD OF PAYMENT......................................8
ARTICLE V
TRUSTEE'S ACCOUNTS
SECTION 5.1 ACCOUNTS...............................................8
(i)
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SECTION 5.2 VALUATION OF TRUST FUND................................8
SECTION 5.3 REPORTS TO THE COMMITTEE...............................8
SECTION 5.4 RIGHT OF JUDICIAL SETTLEMENT...........................9
SECTION 5.5 ENFORCEMENT OF AGREEMENT...............................9
ARTICLE VI
TAXES; COMPENSATION OF TRUSTEE
SECTION 6.1 TAXES.................................................10
SECTION 6.2 COMPENSATION OF TRUSTEE; EXPENSES.....................10
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 7.1 RESIGNATION OR REMOVAL OF TRUSTEE.....................10
SECTION 7.2 APPOINTMENT OF SUCCESSOR..............................10
SECTION 7.3 SUCCESSION............................................11
SECTION 7.4 SUCCESSOR BOUND BY AGREEMENT..........................11
ARTICLE VIII
AMENDMENT AND TERMINATION
SECTION 8.1 AMENDMENT AND TERMINATION.............................11
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 BINDING EFFECT; ASSIGNABILITY.........................12
SECTION 9.2 GOVERNING LAW.........................................12
SECTION 9.3 NOTICES...............................................12
SECTION 9.4 SEVERABILITY..........................................13
SECTION 9.5 WAIVER................................................13
SECTION 9.6 NON-ALIENATION........................................13
SECTION 9.7 COMPLIANCE WITH SECURITIES LAWS.......................13
SECTION 9.8 HEADINGS..............................................14
SECTION 9.9 CONSTRUCTION OF LANGUAGE..............................14
SECTION 9.10 COUNTERPARTS..........................................14
(ii)
TRUST AGREEMENT
FOR THE
RECOGNITION AND RETENTION PLAN
OF WARWICK COMMUNITY BANCORP, INC.
This TRUST AGREEMENT ("Agreement") is made as of June 24,
1998, by and between WARWICK COMMUNITY BANCORP, INC., a business corporation
organized under the laws of the State of Delaware and having its executive
offices at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000-0000 ("Company"), and
ORANGE COUNTY TRUST COMPANY, a New York chartered banking corporation with a
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000
("Trustee").
W I T N E S S E T H :
WHEREAS, the Company has, by action of its Board of Directors,
adopted the Recognition and Retention Plan of Warwick Community Bancorp, Inc.
(the "Plan") to promote the growth and profitability of the Company and to
provide certain key executives and directors ("Participants") of the Company
with an incentive to achieve corporate objectives, to attract and retain key
executives and directors of outstanding competence and to provide such
executives and directors with an equity interest in the Company; and
WHEREAS, the Company has, in accordance with the terms of the
Plan, appointed a Compensation Committee ("Committee") to administer the Plan;
and
WHEREAS, the Plan contemplates the establishment and
continuance of a trust so long as the Plan remains in effect, to which
contributions will be made from time to time, to be accepted, invested and
maintained in accordance with this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Company and the Trustee hereby agree as
follows:
ARTICLE I
TRUST FUND
SECTION 1.1 TRUST FUND.
The Company hereby establishes with the Trustee a trust,
pursuant to the Plan, in which shall be deposited such common stock, par value
$0.01 per share, of Warwick Community Bancorp, Inc. ("Shares") and such sums of
money as shall from time to time be paid or delivered to or deposited with the
Trustee by or with the approval of the Company in accordance with terms of the
Plan. All such Shares and all such sums of money, all investments and
reinvestments
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thereof and all earnings, appreciation and additions allocable thereto, less
losses, depreciation and expenses allocable thereto and any payments made
therefrom as authorized under the Plan or this Agreement shall constitute the
"Trust Fund." The Trust Fund shall be held, managed and admini stered by the
Trustee, IN TRUST, and dealt with in accordance with the provisions of this
Agree ment and in accordance with any funding policy or guidelines established
under the Plan that are communicated in writing to the Trustee.
SECTION 1.2 COLLECTION OF CONTRIBUTIONS.
The Trustee shall have no authority over and shall have no
responsibility for the administration of the Plan or for the collection of any
contributions to the Trust Fund required under the Plan, nor shall it have any
authority to bring any action or proceeding to enforce the collection of any
such amount or to make inquiry as to whether any such contributions received by
it were properly collected or computed in accordance with the terms of the Plan.
SECTION 1.3 NON-DIVERSION OF FUNDS.
Notwithstanding anything to the contrary contained in this
Agreement or any amendment hereto, no part of the Trust Fund other than such
part as may be used to defray expenses and taxes properly charged to the Trust
Fund under the Plan or this Agreement shall be used for or diverted to purposes
other than for the exclusive benefit of Participants and their beneficiaries
prior to the satisfaction of all of the Company's liabilities under the Plan.
ARTICLE II
INVESTMENT AND ADMINISTRATION
SECTION 2.1 IN GENERAL.
The Trust Fund shall be held by the Trustee and shall be
invested and reinvested as hereinafter provided in this Article II, without
distinction between principal and income and without regard to the restrictions
of the laws of the State of New York, or of any other jurisdiction, relating to
the investment of trust funds. The Trust Fund shall be invested pursuant to
directions given in accordance with section 2.4.
SECTION 2.2 LIQUIDITY.
Notwithstanding any provisions of this Article II to the
contrary, the Trustee, in its sole discretion or as the Committee shall request,
may retain uninvested cash or cash balances, and sell, to provide cash or cash
balances, such investments in whatever portion of the Trust Fund that it may
deem advisable, without being required to pay interest thereon. Pending
investment, the Trustee, in its sole discretion, may temporarily invest any
funds held or received by it for invest ment in investment grade commercial
paper rated A-1 or P-1 or in obligations of, or guaranteed by, the United States
government or any of its agencies.
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SECTION 2.3 TRUSTEE'S ADMINISTRATIVE AUTHORITY.
(a) In addition to and not by way of limitation of any other
powers conferred upon the Trustee by law or by other provisions of this
Agreement, but subject to the provisions of section 1.3 and this
Article II, the Trustee is authorized and empowered:
(i) to sell, exchange, convey, transfer or dispose of
and also to grant options with respect to any property,
whether real or personal, at any time held by it, and any sale
may be made by private contract or by public auction, and for
cash or upon credit, or partly for cash and partly upon
credit, and no person dealing with the Trustee shall be bound
to see to the application of the purchase money or to inquire
into the validity, expediency or propriety of any such sale or
other disposition;
(ii) to 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;
(iii) unless otherwise agreed to and subject to
section 2.5, to vote in person or by proxy on any stocks,
bonds, or other securities 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;
(iv) with respect to any investment, to join in,
dissent from, or oppose any action or inaction of any
corporation, or of the directors, officers or stockholders of
any corporation, including, without limitation, any
reorganization, recapitalization, consolidation, liquidation,
sale or merger;
(v) to settle, adjust, compromise, or submit to
arbitration any claims, debts or damages due or owing to or
from the Trust Fund; and
(vi) 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.
In exercising such powers with respect to any portion of the Trust Fund that is
invested in the discretion of the Trustee pursuant to section 2.2, the Trustee
shall act in its discretion.
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(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 1.3 and this Article II, the Trustee
is authorized and empowered, in its discretion:
(i) to commence or defend suits or legal proceedings,
and to represent the Trust Fund in all suits or legal
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, or to hold
securities in bearer form, but the books and records of the
Trustee shall at all times show that such investments are part
of the Trust Fund;
(iii) to borrow or raise moneys for the purposes of
the Trust Fund 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 Fund, and no person
lending money to the Trustee shall be bound to see the
application of the money loaned or to inquire into the
validity, expediency or propriety of any such borrowing;
(iv) to make distributions in cash or in Shares upon
the direction of the Committee;
(v) to employ such agents, counsel and accountants as
the Trustee shall deem advisable and to pay their reasonable
expenses and compensation;
(vi) to make, execute, acknowledge, and deliver any
and all deeds, leases, assignments and instruments; and
(vii) generally to do all acts which the Trustee may
deem necessary or desirable for the administration and
protection of the Trust Fund.
SECTION 2.4 INVESTMENT DECISIONS.
The Trustee shall invest and reinvest the Trust Fund in
accordance with the directions of the Committee. The Trustee shall be under no
duty or obligation to review any investment to be acquired, held or disposed of
pursuant to directions of the Committee nor to make any recommendation with
respect to the disposition or continued retention of any such investment. The
Trustee shall have no liability or responsibility for its actions or inaction
pursuant to the direction of, or its failure to act in the absence of directions
from, the Committee. The Company hereby agrees to indemnify the Trustee and hold
it harmless from and defend it against any claim
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or liability which may be asserted against the Trustee by reason of any action
or inaction by it pursuant to a direction by the Committee or failing to act in
the absence of any such direction. To the extent that the Committee does not
furnish directions as to the investment of any portion of the Trust Fund that is
subject to its direction, the Trustee shall invest and reinvest the Trust Fund
(a) in Shares and (b) to the extent that it is not practicable to invest and
reinvest the Trust Fund in Shares, in any savings account, time or other
interest bearing deposit or in any other interest bearing obligation of any one
or more savings banks, savings and loan associations, banks and other financial
institutions, or any of them, including the Trustee and any subsidiary of the
Company.
SECTION 2.5 EXERCISE OF VOTING RIGHTS WITH RESPECT TO
SHARES.
(a) Except to the extent provided in section 2.5(b), the
Committee shall direct the Trustee as to the manner of exercise of
voting rights appurtenant to Shares held in the Trust Fund. The Trustee
shall act in accordance with the directions that it receives from the
Committee for each matter as to which voting rights are to be exercised
and shall refrain from exercising the voting rights appurtenant to
Shares held in the Trust Fund in the absence of such directions. The
Trustee shall have no discretion over or responsibility or liability
for its actions taken in accordance with such directions, or for its
failure to exercise such voting rights in the absence of such
directions.
(b) Notwithstanding section 2.5(a), if and to the extent
requested in writing by the Committee, the Trustee shall solicit and
accept directly from Participants directions as to the manner of
exercise of any voting rights in connection with Shares held in the
Trust Fund. In such event, the Trustee shall act in accordance with the
directions that it receives from each Participant for each matter as to
which voting rights are to be exercised and shall refrain from
exercising such voting rights in the absence of directions as to how to
exercise such voting rights. The Trustee shall have no discretion over
or responsibility or liability for its actions taken in accordance with
such directions, or for its failure to exercise such voting rights in
the absence of such directions.
SECTION 2.6 RESPONSE TO TENDER OFFERS AND SIMILAR EVENTS.
(a) Except to the extent provided in section 2.6(b), the
Committee shall direct the Trustee as to the manner of exercise of any
rights to tender Shares held in the Trust Fund or otherwise act in
response to any tender offer with respect to Shares or any other offer
to purchase, exchange, redeem or otherwise transfer such Shares. The
Trustee shall act in accordance with the directions that it receives
from the Committee for each matter as to which such rights are to be
exercised and shall refrain from taking any action in response to such
an offer in the absence of such directions. The Trustee shall have no
discretion over or responsibility or liability for its actions taken in
accordance with such directions, or for its failure to exercise such
rights in the absence of such directions.
(b) Notwithstanding section 2.6(a), if and to the extent
requested in writing by the Committee, the Trustee shall solicit and accept
directly from Participants directions as to the
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manner of exercise of any rights to tender Shares held in the Trust Fund or
otherwise act in response to any tender offer with respect to such Shares or any
other offer to purchase, exchange, redeem or otherwise transfer such Shares. In
such event, the Trustee shall act in accordance with the directions that it
receives from each Participant for each matter as to which rights are to be
exercised and shall refrain from taking any actions in response to such an offer
in the absence of such directions. The Trustee shall have no discretion over or
responsibility or liability for its actions taken in accordance with such
directions, or for its failure to exercise such rights in the absence of such
directions.
ARTICLE III
TRUSTEE AND COMMITTEE
SECTION 3.1 COMMITTEE.
The Company shall certify to the Trustee the names and
specimen signatures of the members of the Committee appointed by the Company to
administer the Plan and give directions to the Trustee. Such certification shall
include directions as to the number of signatures required for any communication
or direction to the Trustee. The Company shall promptly give notice to the
Trustee of changes in the identity of the membership of the Committee. The
Committee may also certify to the Trustee the name of any person, together with
a specimen signature of any such person, authorized to act for it in relation to
the Trustee. The Committee shall promptly give notice to the Trustee of any
change in any person authorized to act on behalf of it. For all purposes under
this Agreement, until any such notice is received by the Trustee, the Trustee
shall be fully protected in assuming that the membership of the Committee and
the authority of any person certified to act in its behalf remain unchanged.
SECTION 3.2 TRUSTEE'S RELIANCE.
The Trustee may rely and act upon any certificate, notice or
direction of the Committee, or of a person authorized to act on its behalf, or
of the Company which the Trustee believes to be genuine and to have been signed
by the person or persons duly authorized to sign such certificate, notice, or
direction.
SECTION 3.3 LEGAL COUNSEL.
The Trustee may consult with legal counsel (who may be counsel
to the Company) concerning any question which may arise under this Agreement,
and the opinion of such counsel shall be full and complete protection with
respect to any action taken, or omitted, by the Trustee hereunder in good faith
in accordance with the opinion of such counsel.
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SECTION 3.4 LIABILITY UNDER THE PLAN.
The duties and obligations of the Trustee shall be limited to
those expressly set forth in this Agreement, notwithstanding any reference
herein to the Plan. The Trustee shall not be obliged to take or defend any
action or participate in or proceed with any suit or legal or administrative
proceeding which might subject it to substantial cost or expense or liability
unless first indemnified by the Company in an amount and by security
satisfactory to it against all losses, costs, damages and expenses which may
result therefrom or be occasioned thereby.
SECTION 3.5 INDEMNIFICATION.
The Company shall pay and shall protect, indemnify and save
harmless the Trustee and its officers, employees and agents from and against any
and all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs and expenses (including reasonable
attorneys' fees and expenses) of any nature arising from or relating to any
action or any failure to act by the Trustee, its officers, employees and agents
with respect to the transactions contemplated by this Trust Agreement, including
any claim made by the Company or its successors that this Trust Agreement is
invalid or ultra xxxxx, except to the extent that any such loss, liability,
action, suit, judgment, demand, damage, cost or expense is the result of the
gross negligence of the Trustee (determined by reference to customary trust
company standards) or willful misconduct of the Trustee, its officers, employees
or agents. The Trust assumes no obligation or responsibility with respect to any
action required by this Trust Agreement on the part of the Company.
ARTICLE IV
DISTRIBUTIONS FROM THE TRUST FUND
SECTION 4.1 IN GENERAL.
The Trustee shall make distributions from the Trust Fund in
such amounts, at such times, and to such persons as the Committee may, from time
to time, direct.
SECTION 4.2 DIRECTION BY THE COMMITTEE.
(a) A direction by the Committee to make a distribution from
the Trust Fund shall:
(i) be made in writing;
(ii) specify the amount of the payment or the number
of Shares to be distributed, the date such payment is to be
made, the person to whom payment is to be made, and the
address to which the payment is to be sent; and
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(iii) be deemed to certify to the Trustee that such
direction and any payment pursuant thereto are authorized
under the terms of the Plan.
(b) The Trustee shall be entitled to rely conclusively on the
Committee's certification of its authority to direct a payment without
independent investigation. The Trustee shall have no liability to any
person with respect to payments made in accordance with the provisions
of this Article IV.
SECTION 4.3 METHOD OF PAYMENT.
Payments of money by the Trustee may be made by its check
payable to the order of the payee designated by the Committee and mailed to the
payee in care of the Company. Distributions of Shares shall be made by causing
the Company, or its transfer agent, to issue to the distributee a stock
certificate evidencing ownership of the designated number of Shares. To the
extent that any distribution of Shares to any person requires the registration
of such Shares under the securities or blue sky laws of the United States or any
state, or otherwise requires any governmental approvals, the Company shall
undertake to complete such registration or obtain such approvals at its sole
expense.
ARTICLE V
TRUSTEE'S ACCOUNTS
SECTION 5.1 ACCOUNTS.
The Trustee shall keep accurate and detailed accounts of all
investments, reinvestments, receipts and disbursements, and other transactions
hereunder, and all such accounts and the books and records relating thereto
shall be open to inspection at all reasonable times by the Company or the
Committee or persons designated by them. The Trustee may rely and act upon any
direction by the Committee with respect to the allocation of Shares in
accordance with section 3.2.
SECTION 5.2 VALUATION OF TRUST FUND.
The Trustee shall value or cause to be valued the Trust Fund
as of the last business day of each fiscal year of the Company ("Valuation
Date"), and shall report to the Committee the value of the Trust Fund as of such
date, within a reasonable time after the first day of the month next succeeding
each Valuation Date.
SECTION 5.3 REPORTS TO THE COMMITTEE.
(a) Within seventy-five (75) days following the last day of
each fiscal year of the trust, and within seventy-five (75) days
following the effective date of the resignation or removal of the
Trustee as provided in section 8.1, the Trustee shall render to the
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Committee a written account setting forth all investments, receipts,
disbursements and other transactions affecting the Trust Fund, which
account shall be signed by the Trustee and mailed to the Committee.
(b) The Committee shall notify the Trustee in writing of any
objection or exception to an account so rendered not later than sixty
(60) days following the date on which the Account was mailed to the
Committee, whereupon the Committee and the Trustee shall cooperate in
resolving such objection or exception.
(c) If the Committee has not communicated in writing to the
Trustee within sixty (60) days following the mailing of the account to
the Committee any exception or objection to the account, the account
shall become an account stated at the end of such sixty (60) day
period. If the Committee does communicate such an exception or
objection, as to which it later becomes satisfied, the Committee shall
thereupon indicate in writing its approval of the account, or of the
account as amended, and the account shall thereupon become an account
stated.
(d) Whenever an account shall have become an account stated as
aforesaid, such account shall be deemed to be finally settled and shall
be conclusive upon the Trustee, the Company and all persons having or
claiming to have any interest in the Trust Fund or under the Plan, and
the Trustee shall be fully and completely discharged and released to
the same extent as if the account had been settled and allowed by a
judgment or decree of a court of competent jurisdiction in an action or
proceeding in which the Trustee, the Company, and all persons having or
claiming to have any interest in the Trust Fund or under the Plan were
parties.
SECTION 5.4 RIGHT OF JUDICIAL SETTLEMENT.
Notwithstanding the provisions of section 5.3, the Trustee,
the Committee, and the Company, or any of them, shall have the right to apply at
any time to a court of competent jurisdiction for the judicial settlement of the
Trustee's account. In any such case, it shall be necessary to join as parties
thereto only the Trustee, the Committee and the Company; and any judgment or
decree which may be entered therein shall be conclusive upon all persons having
or claiming to have any interest in the Trust Fund or under the Plan.
SECTION 5.5 ENFORCEMENT OF AGREEMENT.
To protect the Trust Fund from expenses which might otherwise
be incurred, the Company and the Committee shall have authority, either jointly
or severally, to enforce this Agreement on behalf of all persons claiming any
interest in the Trust Fund or under the Plan, and no other person may institute
or maintain any action or proceeding against the Trustee or the Trust Fund in
the absence of written authority from the Committee or a judgment of a court of
competent jurisdiction that in refusing authority the Committee acted
fraudulently or in bad faith.
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ARTICLE VI
TAXES; COMPENSATION OF TRUSTEE
SECTION 6.1 TAXES.
Any taxes that may be imposed upon the Trust Fund or the
income therefrom shall be deducted from and charged against the Trust Fund.
SECTION 6.2 COMPENSATION OF TRUSTEE; EXPENSES.
The Trustee shall receive for its services hereunder such
compensation as may be agreed upon in writing from time to time by the Company
and the Trustee and shall be reimbursed for its reasonable expenses, including
counsel fees, incurred in the performance of its duties hereunder. The Trustee
shall deduct from and charge against the Trust Fund such compensation and all
such expenses unless previously paid by the Company. Any such deduction and
charge shall be applied first to any assets of the Trust Fund that have not been
allocated to any employee under the terms of the Plan, and second, if and to the
extent necessary proportionately to the assets allocated to employees under the
terms of the Plan.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 7.1 RESIGNATION OR REMOVAL OF TRUSTEE.
The Trustee may resign as trustee hereunder at any time by
giving sixty (60) days prior written notice to the Company. The Company may
remove the Trustee as trustee hereunder at any time by giving the Trustee prior
written notice of such removal, which shall include notice of the appointment of
a successor trustee. Such removal shall take effect not earlier than sixty (60)
days following receipt of such notice by the Trustee unless otherwise agreed
upon by the Trustee and the Company.
SECTION 7.2 APPOINTMENT OF SUCCESSOR.
In the event of the resignation or removal of the Trustee, a
successor trustee shall be appointed by the Company. Except as is otherwise
provided in section 8.l, such appointment shall take effect upon delivery to the
Trustee of an instrument so appointing the successor and an instrument of
acceptance executed by such successor, both of which instruments shall be duly
acknowledged before a notary public. If within sixty (60) days after notice of
resignation shall have been given by the Trustee a successor shall not have been
appointed as aforesaid, the Trustee may apply to any court of competent
jurisdiction for the appointment of such successor.
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SECTION 7.3 SUCCESSION.
(a) Upon the appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund to such successor; provided,
however, that the Trustee may reserve such sum of money as it shall in
its sole discretion deem advisable for payment of its fees and all
expenses in connection with the settlement of its account, and any
balance of such reserve remaining after the payment of such charges
shall be paid over to the successor trustee. If such reserve shall be
insufficient to pay such charges, the Trustee shall be entitled to
recover the amount of any deficiency from the Company, from the
successor trustee, or from both.
(b) Upon the completion of the succession and the rendering of
its final accounts, the Trustee shall have no further responsibilities
whatsoever under this Agreement.
SECTION 7.4 SUCCESSOR BOUND BY AGREEMENT.
All the provisions of this Agreement shall apply to any
successor trustee with the same force and effect as if such successor had been
originally named herein as the trustee hereun der.
ARTICLE VIII
AMENDMENT AND TERMINATION
SECTION 8.1 AMENDMENT AND TERMINATION.
(a) The Company may, at any time and from time to time, by
instrument in writing executed pursuant to authorization of its Board
of Directors, (i) amend in whole or in part any or all of the
provisions of this Agreement, or (ii) terminate this Agreement and the
trust created hereby; provided, however, that no amendment which
affects the rights, duties or responsibilities of the Trustee may be
made without the Trustee's consent.
(b) Any such amendment shall become effective upon receipt by
the Trustee of the instrument of amendment and endorsement thereon by
the Trustee of its consent thereto, if such consent is required. Any
such termination shall become effective upon the receipt by the Trustee
of the instrument of termination; thereafter the Trustee, upon the
direction of the Committee, shall liquidate the Trust Fund to the
extent required for distri bution and, after the final account of the
Trustee has been approved or settled, shall distribute any Shares (and
any related dividends or other related proceeds) allocated to
Participants to such Participants and shall distribute the remaining
balance of the Trust Fund in its hands to the Company.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 BINDING EFFECT; ASSIGNABILITY.
This Agreement shall be binding upon, and the powers granted
to the Company and the Trustee, respectively, shall be exercisable by the
respective successors and assigns of the Company and the Trustee. Any
corporation which shall, by merger, consolidation, purchase, or otherwise,
succeed to substantially all the trust business of the Trustee shall, upon such
succession and without any appointment or other action by the Company, be and
become successor trustee hereunder.
SECTION 9.2 GOVERNING LAW.
Except to the extent that the federal law of the United States
of America is applicable, this Agreement and the trust created and the Trust
Fund held hereunder shall be inter preted, construed and administered in
accordance with the law of the State of New York without giving effect to the
conflict of law provisions thereof. All contributions to the Trust Fund shall be
deemed to take place in the State of New York.
SECTION 9.3 NOTICES.
Any communication requested or permitted to be given under
this Agreement, including any notice, direction, designation, certification,
order, instruction, or objection shall be in writing and signed by the person
authorized under the Plan to give the communication. The person receiving such a
communication shall be fully protected in acting in accordance therewith. Any
notice required or permitted to be given to a party hereunder shall be deemed
given if in writing and hand delivered or mailed, postage prepaid, certified
mail, return receipt requested, to such party at the following address or at
such other address as such party may by notice specify:
If to the Company:
Warwick Community Bancorp, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
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If to the Trustee:
Orange County Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Vice President and Senior Trust Officer
SECTION 9.4 SEVERABILITY.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions.
SECTION 9.5 WAIVER.
Failure of any party to insist at any time or times upon
strict compliance with any provision of this Agreement shall not be a waiver of
such provision at such time or any later time unless in a writing designated as
a waiver and signed by or on behalf of the party against whom enforcement of the
waiver is sought.
SECTION 9.6 NON-ALIENATION.
No interest, right or claim in or to any part of the Trust
Fund or any payment therefrom shall be assignable, transferable or subject to
sale, mortgage, pledge, hypothecation, commutation, anticipation, garnishment,
attachment, execution, or levy of any kind, and the Trustee and the Committee
shall not recognize any attempt to assign, transfer, sell, mortgage, pledge,
hypothecate, commute, or anticipate the same, except to the extent required by
law.
SECTION 9.7 COMPLIANCE WITH SECURITIES LAWS.
In the event that the Plan or any portion thereof, or any
interest therein, by virtue of investments made in Shares, shall be deemed to be
a "security" for purposes of the Securities Act of 1933, the Securities Exchange
Act of 1934 or any other federal or state law, for which there is no exemption
from the registration, reporting, blue sky or other requirements applicable to
securities under such laws, the Company shall, at its sole cost and expense,
take all such actions as are necessary or appropriate to comply with the
requirements of such laws. The Company hereby agrees to indemnify the Trustee
and hold it harmless from and against any claim or liability, including any and
all fees, costs and expenses arising from the registration and continuing
registration of the Plan, any portion thereof or any interest therein, which may
be asserted against the Trustee by reason of any determination that the Plan or
any portion thereof, or any interest therein, constitutes such a security.
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SECTION 9.8 HEADINGS.
The headings of Articles and sections are included solely for
convenience of reference. If there is any conflict between such headings and the
text of the Agreement, the text shall control.
SECTION 9.9 CONSTRUCTION OF LANGUAGE.
Whenever appropriate in this Agreement, words used in the
singular may be read in the plural; words used in the plural may be read in the
singular; and words importing the masculine gender shall be deemed equally to
refer to the female gender or the neuter. Any reference to a section number
shall refer to a section of this Agreement, unless otherwise indicated.
SECTION 9.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Trustee, respectively,
have caused this Agreement to be executed in their corporate names and their
corporate seals to be hereunto affixed and duly attested, all as of the date
first above written.
WARWICK COMMUNITY BANCORP, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President and
Chief Operating Officer
Attest:
/s/ Xxxxx X. Xxxxxxx-Xxxxxxx
-----------------------------
Secretary
[Seal]
ORANGE COUNTY TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Vice President and Senior
Attest: Trust Officer
----------------------------
Secretary
[Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On this 16th day of June, 1998, before me personally came
XXXXXX X. XXXXXXX, to me known, who, being by me duly sworn, did depose and say
that he resides at 00 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000; that he is
the Executive Vice President and Chief Operating Officer of WARWICK COMMUNITY
BANCORP, INC., the business corporation described in and which executed the
foregoing instrument; that he knows the seal of said business corporation; that
the seal affixed to said instrument is such business corporation's seal; that it
was so affixed by order of the Board of Directors of said business corporation;
and that he signed his name thereto by like order.
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On this 23rd day of June, 1998, before me personally came
XXXXXX X. XXXXXX, to me known, who, being by me duly sworn, did depose and say
that he resides at 00 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, that he is a
Vice President and Senior Trust Officer of ORANGE COUNTY TRUST COMPANY, the
banking corporation described in and which executed the foregoing instrument;
that he knows the seal of said banking corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by order of the Board of
Directors of said banking corporation; and that he signed his name thereto by
like order.
/s/ Xxxx X. Xxxx
---------------------------------------
Notary Public
