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Exhibit - 4.9
XXXX XXXXXXX FUNDS, INC. GROUP TRUST
GROUP TRUST AGREEMENT
This Group Trust Agreement, dated as of April 1, 1995, is entered into by and
between Xxxx Xxxxxxx Funds, Inc. ("JHFI"), and Investors Bank & Trust Company
(the "Trustee").
ARTICLE 1. PURPOSE: AUTHORITY
(1.1) The purpose of this Trust is to serve as the agency to fund benefits and
to purchase annuities for those defined contribution pension, benefit and profit
sharing plans qualified under Sections 401(a) or 401(a) and 401(k) of the
Internal Revenue Code of 1986 (the "Code") which adopt this Trust pursuant to
Section 3 below (each a "Participating Plan"). It is intended that this Trust be
exempt from taxation under Section 401(a) of the Code, and that it qualify as a
"group trust" under applicable Internal Revenue Service rules and regulations.
Therefore, this Trust is only open to tax qualified defined contribution plans
as described above that are "full service clients" of JHFI and are otherwise
acceptable to JHFI. By its execution and delivery of an Adoption Agreement in
the form of Exhibit C hereto, each Participating Plan shall (among other things)
(i) certify that it is so qualified and therefore exempt from federal income
taxation under Section 501(a) of the Code, (ii) agree to provide from time to
time such additional evidence of such qualification as the Trustee, JHFI or Xxxx
Xxxxxxx may reasonably request, (iii) agree to promptly notify the Trustee, JHFI
and Xxxx Xxxxxxx if at any time it fails to remain so qualified, and (iv)
incorporate by reference and adopt this Trust as part of such plan.
(1.2) In order to accomplish the purpose hereof, the Trustee is hereby
authorized and directed by each Participating Plan to utilize Contributions made
to the Trust by each Participating Plan to purchase one or more Group Annuity
Contracts to be issued from time to time by the Xxxx Xxxxxxx Mutual Life
Insurance Company ("Xxxx Xxxxxxx") substantially in the form of Exhibit A
hereto. The Group Annuity Contracts so purchased will be used to fund the stable
value investment option offered by each Participating Plan to its Participants.
ARTICLE 2. DEFINITIONS
(2.1) ADMINISTRATIVE SERVICES AGREEMENT - an agreement substantially in the form
of Exhibit B hereto, by and among the Trustee, JHFI and Xxxx Xxxxxxx Signature
Services, Inc. (as "Servicer"), pursuant to which the Servicer will perform
certain administrative services described therein as agent for and on behalf of
the Trustee.
(2.2) ADOPTION AGREEMENT - an agreement substantially in the form of Exhibit C
hereto entered into by a Participating Plan (acting through its duly authorized
representative) for the purpose of adopting and joining in this Trust. Pursuant
to the provisions of its Adoption Agreement, each Participating Plan will be
entitled to its Pro Rata Share of the Trust Fund, each Participating Plan will
appoint JHFI as its agent for the limited purpose of accepting Confirmation
Letters issued by Xxxx Xxxxxxx in connection with Group Annuity Contracts, and
Xxxx Xxxxxxx will acknowledge the beneficial interest of each Participating Plan
in and to the Group Annuity Contracts.
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(2.3) CODE - the Internal Revenue Code of 1986, as amended.
(2.4) CONFIRMATION LETTERS - letters produced quarterly by Xxxx Xxxxxxx
informing JHFI as agent for the Participating Plans of the interest rate
applicable to Contributions received in a given quarter, as more-fully described
in Section 5.3 below.
(2.5) CONTRIBUTIONS - all sums deposited into the Trust by a Participating Plan.
(2.6) EXPENSES - amounts billed to a Participating Plan, or deducted from
Contributions to the Trust by a Participating Plan (or from earnings thereon),
to compensate the Trustee for its services hereunder and to reimburse the
Trustee for all reasonable expenses incurred hereunder, including without
limitation the fees and expenses of the Servicer under the Administrative
Services Agreement.
(2.7) GROUP ANNUITY CONTRACT - any one of the Group Annuity Contracts issued
from time to time to the Trustee by Xxxx Xxxxxxx substantially in the form of
Exhibit A hereto.
(2.8) XXXX XXXXXXX - Xxxx Xxxxxxx Mutual Life Insurance Company, a Massachusetts
mutual life insurance company, and the issuer of the Group Annuity Contracts.
(2.9) NET CONTRIBUTIONS - at any time, a Participating Plan's Net Contributions
shall equal the sum of its Contributions, plus all earnings thereon, less all
withdrawals of such Participating Plan from the Trust Fund.
(2.10) PARTICIPANT - any person under a Participating Plan for whom benefits are
funded or annuities are purchased under this Trust.
(2.11) PARTICIPATING PLAN - any profit sharing plan qualified under Sections
401(a) or 401(a) and 401(k) of the Code which adopts this Trust pursuant to
Section 3 below.
(2.12) PRO RATA SHARE - at any time, a Participating Plan's Pro Rata Share shall
equal the ratio of its Net Contributions over the sum of the Net Contributions
of all Participating Plans.
(2.13) SERVICER - Xxxx Xxxxxxx Signature Services, Inc. or its successor as
Servicer under the Administrative Services Agreement.
(2.14) TRUST - the Trust created by this Agreement.
(2.15) TRUSTEE - the Investors Bank & Trust Company, not in its individual
capacity but solely as Trustee hereunder, and any successor trustee hereunder.
(2.16) TRUST FUND-all assets held by the Trustee in trust pursuant to this
Agreement, which assets shall consist of the Group Annuity Contracts and the
rights thereunder.
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ARTICLE 3. ADOPTION OF TRUST: INTEREST IN THE FUND
(3.1) Any pension, benefit or profit sharing plan qualified under Sections
401(a) or 401(a) and 401(k) of the Code and exempt from federal income taxation
by reason of Section 501(a) of the Code may (acting through its duly authorized
representative) join and adopt this Trust by executing and delivering to (or as
instructed by) the Trustee an Adoption Agreement in the form of Exhibit C
hereto. Upon execution and delivery thereof, the adopting plan shall become a
Participating Plan hereunder, entitled to the benefits of the Trust, including
the right to participate in all of the assets of the Trust Fund (net of all
Expenses), to the extent of its Pro Rata Share.
(3.2) A Participating Plan's Pro Rata Share (as defined in Section 2.12 above)
shall be determined by the Trustee as of the close of business on each day that
the Trustee is open for business. At any date, a Participating Plan's interest
in the Trust Fund shall be equal to its then current Pro Rate Share of all
assets (net of Expenses) held in the Trust Fund.
(3.3) A Participating Plan shall have the right to make Contributions to the
Trust from time to time, and shall have the right to withdraw amounts from the
Trust Fund from time to time, all as more fully described in Sections 5 and 6
below. To the extent that the Trust Fund consists of one or more Group Annuity
Contracts, however, a Participating Plan's interest in the Trust Fund (and its
ability to withdraw amounts attributable to its interest hereunder) will be
limited by and subject to all of the terms and conditions of such Group Annuity
Contracts.
(3.4) Pursuant to the provisions of each Adoption Agreement, Xxxx Xxxxxxx (as
issuer of the Group Annuity Contracts) will acknowledge the beneficial interest
of each Participating Plan (to the extent of its Pro Rata Share of the Trust
Fund) in and to each Group Annuity Contract outstanding from time to time; will
agree to make payments under such Group Annuity Contracts directly to the
Participating Plan (to the extent of its Pro Rata Share, net of Expenses) if
directed to do so by such Participating Plan; and will waive any defense or
right of set off that it may have against such payment as a result of any claim
that it may have against the Trustee, including without limitation any claim
arising out of any act or omission of the Trustee (or any agent of the Trustee),
reserving however its right to proceed independently against the Trustee (or its
agents).
ARTICLE 4. DECLARATION OF TRUST: USE OF TRUST ASSETS
(4.1) The Trustee hereby covenants and agrees to hold in trust, for the benefit
of all Participating Plans and their respective Participants, all Contributions,
all earnings thereon, and all Group Annuity Contracts purchased with such
Contributions or earnings - all upon and subject to the terms and conditions of
this Agreement.
(4.2) The Trustee hereby agrees to employ all available Contributions and all
available earnings thereon (net of Expenses and subject to any withdrawals by a
Participating Plan as may be permitted hereunder) to purchase Group Annuity
Contracts (and only Group Annuity Contracts), from time to time, it being
currently intended that the Trustee will generally purchase one Group Annuity
Contract each calendar quarter to the extent that funds are available for such
purpose, all as more fully described in the Adoption Agreement. In the exercise
of its powers
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and duties to purchase Group Annuity Contracts, the Trustee shall neither
exercise nor be deemed to exercise any investment discretion. and shall neither
provide nor be deemed to provide investment advice (and has no authority or
responsibility to do so).
(4.3) Notwithstanding any other provision of this Agreement, no part of the
Trust Fund shall ever be used for or diverted to purposes other than (i) the
exclusive benefit of the Participating Plans and their respective Participants,
and (ii) defraying Expenses hereunder.
ARTICLE 5. CONTRIBUTIONS TO THE TRUST FUND
(5.1) All Contributions to the Trust Fund shall be made by check or by wire
transfer in U.S. dollars to the Trustee or its agent, all as more fully set
forth in the Adoption Agreement, and shall be applied as provided in Section 4.2
above. Neither the Trustee nor its agent, however, shall be required to verify
that amounts received are in accordance with the terms of the Participating
Plan's governing documents.
(5.2) If Contributions are made to the Trust Fund under a mistake of fact or if
a deduction for such Contributions is disallowed under the Code, an amount equal
to such Contributions may be paid to the Participating Plan upon written notice
thereof, to the extent permitted by the Participating Plan's governing
documents. The Trustee and its agent shall be entitled to act upon any such
notice without independent investigation and without incurring any liability on
account of any action taken or omitted pursuant to such notice.
(5.3) Pursuant to the terms of each Adoption Agreement, JHFI shall be appointed
the agent for each Participating Plan for the limited purpose of (a) providing
quarterly estimates to Xxxx Xxxxxxx of the amount of each Participating Plan's
anticipated Net Contributions, and (b) accepting from Xxxx Xxxxxxx quarterly
Confirmation Letters quoting the interest rate applicable to Contributions
received during the immediately following calendar quarter (which rate shall be
based upon such estimates and may be adjusted at the end of such calendar
quarter in accordance with the terms of the Group Annuity Contracts if the
aggregate amount of Net Contributions actually made by all Participating Plans
varies from the estimates).
ARTICLE 6. PAYMENTS FROM THE TRUST FUND: TERMINATION OF PARTICIPATION
(6.1) To the extent of its Pro Rata Share, and to the extent that funds are
available under the Group Annuity Contracts, a Participating Plan may request a
withdrawal of funds from the Trust Fund from time to time in order to make
distributions to its Participants, to purchase fixed annuities under a Group
Annuity Contract, or for other proper purposes of the plan in accordance with
such Participating Plan's governing documents. Upon receipt of any such request,
the Trustee (or its agent) shall inform Xxxx Xxxxxxx and shall promptly
liquidate and pay over to such Participating Plan the amount of the requested
withdrawal, which amount shall not exceed its Pro Rata Share of the Trust Fund
(net of any unpaid Expenses, and net of any expenses incurred in the liquidation
of such assets); subject, however, to the terms of the Group Annuity Contracts,
it being expressly understood that under certain circumstances (described in the
Group
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Annuity Contracts) the transfer or withdrawal of funds thereunder may be delayed
or may be subject to adjustments or additional expenses. In no event shall the
Trust, the Trustee or JHFI be liable for interest or any other payment proceeds
of any withdrawal from the date of withdrawal to the date of payment. The
Trustee may delay payment on any withdrawal if the Trustee or JHFI determines
that such delay is reasonably necessary for reasons (including but not limited
to) related to court or government directives, orders, etc. or other causes
reasonably beyond the control of the Trustee.
(6.2) In the event that a Participating, Plan desires to terminate its
participation in the Trust, it shall so notify the Trustee (or its agent). Upon
receipt of any such notice, the Trustee (or its agent) shall promptly inform
Xxxx Xxxxxxx. Such Participating Plan shall be entitled to receive an amount in
U.S. dollars equal to its Pro Rata Share (net of any unpaid Expenses, and net of
any expenses incurred in the liquidation of such assets) of the Trust Fund
assets, it being understood however that the withdrawal and distribution of
assets held under the Group Annuity Contracts shall be governed by the terms of
such Group Annuity Contracts. Upon distribution to or as directed by such
Participating Plan of its Pro Rata Share of the Trust Fund, such Participating
Plan shall cease to be a Participating Plan.
(6.3) Under certain circumstances described in the Group Annuity Contracts,
including the failure of a Participating Plan to be or remain qualified under
the Code. Xxxx Xxxxxxx may terminate such Participating Plan's account under the
Group Annuity Contracts and transfer the balance thereof to the Trustee on
behalf of the Participating Plan, subject to such adjustments as may be
permitted under the Group Annuity Contracts. In such event, the Trustee shall
forward the sums so received to (or as directed by) the affected Participating
Plan and such Participating Plan shall cease to be a Participating Plan.
ARTICLE 7. NATURE AND VALUATION OF TRUST FUND: TRUST INTERESTS NOT ASSIGNABLE
(7.1) Each Participating Plan shall have a beneficial interest in the Trust Fund
and in all assets thereof equal to its Pro Rata Share. No Participating Plan
(and no Participant thereof), however, shall own any particular asset held in
the Trust Fund or any part thereof.
(7.2) The value of the Trust Fund on any given date shall be the aggregate value
of each outstanding Group Annuity Contract (determined in accordance with the
provisions thereof) as of such date.
(7.3) Notwithstanding any other provision of this Agreement, the interest of a
Participating Plan in this Trust (or in the Trust Fund) shall not be
transferable or assignable.
ARTICLE 8. MAINTENANCE OF RECORDS: REPORTS: ROLE OF SERVICER
(8.1) The Servicer, on behalf of the Trustee, shall maintain records of all
Trust Fund assets; shall maintain records of account for each Participating
Plan, which shall include a record of each Participating Plan's Contributions,
earnings, withdrawals, Net Contributions, and Pro Rata Share; all as set forth
in and in accordance with the terms of the Administrative Services
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Agreement. Each Participating Plan, by the execution and delivery of its
Adoption Agreement, agrees that the Servicer (and not the Trustee) shall be
solely responsible for the accuracy and completeness of such records.
(8.2) The Servicer shall furnish to each Participating Plan a quarterly report
showing (among other things) such Participating Plan's Net Contributions
(expressed in U.S. dollars) as of the close of business on the last business day
of such quarter. Such reports shall be prepared and distributed no later than 20
business days following the end of each quarter.
(8.3) Pursuant to the terms of the Administrative Services Agreement, in
addition to the record keeping and reporting described above, the Servicer shall
collect and forward all Contributions to the Trust Fund, receive all notices and
other requests from Participating Plans, forward the same to Xxxx Xxxxxxx (to
the extent that such notices or requests relate to the Group Annuity Contracts),
distribute to Participating Plans (and to their Participants) payments made by
Xxxx Xxxxxxx to the Trustee pursuant to the Group Annuity Contracts, and serve
as custodian of each Group Annuity Contract.
ARTICLE 9. THE TRUSTEE
(9.1) The Trustee shall have the following powers and rights, in addition to
those vested in it elsewhere in this Agreement or by law:
a) To enter into the Administrative Services Agreement, to
perform all of the services to be performed by Servicer
thereunder, and to employ the Servicer as its agent for all
purposes hereunder and thereunder, provided that the Trustee
shall be and remain the legal owner of, and Contract Holder
under, each Group Annuity Contract.
b) To enter into any Group Annuity Contract.
c) To accept each Adoption Agreement.
d) To enter into any other contract or relationship, and to take
such other action as may be reasonably necessary in
furtherance of the purposes of this Trust, as directed by JHFI
or with the consent of JHFI.
e) To begin, maintain or defend any suit or legal proceeding
necessary in connection with the administration of this Trust.
f) To employ suitable agents and to employ counsel.
g) To settle, compromise or abandon all claims and demands in
favor of or against the Trust, with the consent of JHFI;
provided, however, that the Trustee shall have the right, in
its sole discretion, to settle, compromise or abandon any such
suit or legal proceeding (after written notice to JHFI) where
it may be adversely affected
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by the outcome, individually or as Trustee, or where it is
advised i by counsel that such action is required on its part
under applicable law.
(9.2) The parties agree, and by executing and delivering an Adoption Agreement
each Participating Plan agrees, that the Servicer is designated as agent of the
Trustee for all Trustee functions under this Agreement, and that the Servicer
(and not the Trustee) shall be responsible therefor; provided however that the
Trustee shall be and remain the legal owner of, and Contract Holder under, each
Group Annuity Contract.
(9.3) The parties agree, and by executing and delivering an Adoption Agreement
each Participating Plan agrees, that Xxxx Xxxxxxx (and not the Trustee) shall be
solely responsible for making payments and providing benefits under and in
accordance with the terms of the Group Annuity Contracts, and that nothing
contained in this Trust Agreement or in any amendment or supplement hereto shall
in any way enlarge. change, vary or otherwise affect the obligations of Xxxx
Xxxxxxx under the Group Annuity Contracts.
(9.4) The Trustee shall perform its duties hereunder in accordance with
applicable law and with the care, skill, prudence and diligence under the
circumstances then prevailing as a prudent man acting in a like capacity and
familiar with such matters would use. The Trustee undertakes to perform such
duties and only such duties as are specifically set forth herein and in any
separate written agreement signed by the Trustee and no implied duties,
covenants or obligations (except as implied by any applicable law) shall be read
into this Group Trust Agreement against the Trustee: provided, however, that, to
the extent set forth in section 9.2 herein, the Trustee shall be entitled to
rely on the Servicer to perform the Trustee functions enumerated in the
Administrative Services Agreement. No provision hereof shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to the Trustee. Notwithstanding the foregoing, the
Trustee shall not take any action or omit to take any action that would
adversely affect its qualifications to act as Trustee. The Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order or other paper or document reasonably believed by the Trustee to
be genuine and to have been signed or presented by the proper party or parties.
(9.5) The Trustee shall prepare, certify and submit on a timely basis such
returns and reports with respect to the Trust as may be required under the
Employee Retirement Income Security Act of 1974, as amended, the Code or any
other applicable law; provided, however, that the Trustee shall be entitled to
rely upon the Servicer to perform such duties and the parties agree, and by
signing and delivering an Adoption Agreement, each Participating Plan agrees,
that the Servicer is designated as the agent of the Trustee for such duties and
the Servicer (and not the Trustee) shall be solely responsible therefor.
(9.6) The Trustee may resign at any time by giving at least sixty (60) days'
prior written notice to JHFI. JHFI may remove the Trustee at anytime by giving
at least sixty (60) days' prior written notice to the trustee. In either case,
JHFI shall appoint a successor Trustee. Upon the
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resignation or removal of the Trustee and the appointment of a successor
Trustee, the Trustee shall promptly furnish to the successor Trustee and JHFI an
account of its administration of the Trust from the date of its last accounting
(if any). Each successor Trustee will succeed the Trustee without the signing or
filing of any instrument, but a predecessor Trustee shall sign all documents and
do all acts as may be necessary to effect the succession of the successor
Trustee. Each successor Trustee shall have all the powers conferred by the Trust
as if originally named Trustee. No successor Trustee will be liable for the acts
or omissions of a predecessor Trustee, and no predecessor Trustee shall be
liable for the acts or omissions of a successor Trustee.
(9.7) This Trust Agreement shall be binding upon the Trustee, its successors and
assigns. Any corporation which shall, by merger, consolidation, purchase or
otherwise succeed to substantially all of the trust business of a corporation
acting as Trustee shall, upon such succession and without any appointment or
other action by any person, be and become a successor Trustee.
ARTICLE 10. PAYMENT OF FEES AND EXPENSES: INDEMNIFICATION
(10.1) The Trustee shall receive from JHFI such compensation for its services
hereunder as may be agreed to from time to time by the Trustee and JHFI.
(10.2) All Expenses (including without limitation the fees payable pursuant to
Section 10.1 above, the fees and expenses of the Servicer under the
Administrative Services Agreement, and the reasonable fees and expenses of legal
counsel to the Trustee, if any) may be billed to the Participating Plans (each
according to its Pro Rata Share) or charged to and deducted from the Trust Fund.
(10.3) JHFI shall indemnify and hold the Trustee, in its capacity as trustee
hereunder and individually, and its officers, directors, employees, shareholders
and any person who is deemed to control the Trustee (within the meaning of
Section 15 of the Securities Act of 1933, as amended), each in their capacities
as such and individually, harmless against any and all loss, damage, liability,
claims, demands, disbursements and expenses, including taxes, penalties and
reasonable counsel fees (collectively referred to as a "Claim"), which may be
incurred by reason of the Trustee being trustee hereunder or for any other
reason arising out of or relating to this Group Trust Agreement, the Adoption
Agreements, or any transaction contemplated by such agreements, including but
not limited to the purchase of the Group Annuity Contracts and the offer and
sale of the interests in the Trust to the Participating Plans; provided that the
Trustee (or other indemnified person) shall inform JHFI within a reasonable time
after learning of a Claim, shall provide JHFI an opportunity to defend (and
direct the defense of) any Claim at JHFI's sole expense and shall not settle any
Claim without the prior consent of JHFI. It is further understood that the
distribution by the Trustee (or by the Servicer as agent of the Trustee) of all
or any part of the Trust Fund shall not impair the right of the Trustee (or
other indemnified person) to indemnity, payment and reimbursement as herein
provided. In the event the Trustee (or other indemnified person) makes any
advance at any time to pay or to provide for the payment of any Claim, then the
Trustee (or other indemnified person) shall be entitled, in addition to
reimbursement of the sum so advanced, to interest on the amount of such advances
at the rate charged by The First National Bank of Boston, Boston, Massachusetts,
as its "prime" or "base" rate. The provisions of this section shall continue in
full force and effect notwithstanding the
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termination of the Trust for any reason or the resignation, inability or
incapacity to act or removal of the Trustee.
(10.4) The Trustee acknowledges and agrees that the rights and obligations of
Xxxx Xxxxxxx are solely those of the issuer of, and are described in, the Group
Annuity Contracts. Xxxx Xxxxxxx is not responsible for the terms of this
Agreement or for the performance of any party hereunder or under the
Administrative Services Agreement, nor is it a sponsor of this Trust.
ARTICLE 11. AMENDMENTS: TERMINATION
(11.1) This Trust maybe amended from time to time by a supplement agreement in
writing duly executed by JHFI and the Trustee, and not otherwise; provided that
no amendment shall be effective that would cause this Trust to fail to qualify
under Section 401(a) of the Code.
(11.2) This Trust may be terminated by JHFI in its sole discretion (and shall
terminate upon resignation of the Trustee unless a successor Trustee shall be
appointed as provided in Section 9.6 above) if JHFI determines to discontinue
its sponsorship of this Trust. In such event, JHFI shall notify in writing the
Trustee, the Servicer, Xxxx Xxxxxxx and each Participating Plan. Within ninety
(90) days after its receipt of such notice, Xxxx Xxxxxxx will distribute to the
successor funding agencies designated by each Participating Plan such
Participating Plan's Pro Rata Share of the Trust Fund assets held by Xxxx
Xxxxxxx pursuant to the Group Annuity Contracts, all as provided therein. If at
the end of such ninety (90) day period Xxxx Xxxxxxx does not receive such a
designation from any Participating Plan, Xxxx Xxxxxxx may (in its sole
discretion) withdraw the amounts attributable to such Participating Plan (net of
expenses) and may hold such amounts apart from all other monies of the Trust
Fund in a non-interest bearing suspense account pending receipt of designation
of a successor funding agency from such Participating Plan.
ARTICLE 12. MISCELLANEOUS
(12.1) The Trustee shall be fully protected in acting upon and in conformity
with the advice of counsel with respect to the meaning of this Trust, the
Trustee's powers and duties hereunder, or any other matter relating hereto.
(12.2) In all judicial proceedings affecting the Trust, the Trustee shall be the
only necessary party and may represent JHFI and all persons, natural or legal,
having interests in the Trust. Notwithstanding the foregoing, JHFI may represent
itself in any judicial proceeding affecting the Trust in which it is named as a
party.
(12.3) This Trust is being organized in the Commonwealth of Massachusetts and
shall be maintained at all times as a domestic trust in the United States. To
the extent not superseded by Federal law, the substantive laws (as opposed to
the choice of laws rules) of the Commonwealth of Massachusetts shall be
controlling in all matters relating to this Trust.
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(12.4) In the interpretation of this Agreement, words of the singular shall
include the plural, and words of the plural shall include the singular, when the
context so requires.
(12.5) Notices, accountings and reports given or required to be given by either
party to the other hereunder, may be delivered in person (including by
commercial courier service) or by U.S. mail, postage prepaid and properly
addressed to the last known address of the recipients. If given by mail, the
notice shall be deemed to be received and shall be effective one business day
after deposit with the U.S. Postal Service. Otherwise, the notice shall be
effective when actually received. Notices, reports and other communications to
and from Participating Plans shall be given as provided in the applicable
Adoption Agreement.
(12.6) The Trust created hereby is intended to constitute a qualified tax-exempt
trust under Sections 401(a) and 501(a) of the Code.
(12.7) This Agreement and any amendment or supplement hereto may be executed in
any number of counterparts, each of which shall be deemed an original.
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In witness whereof, the undersigned parties have caused this Agreement
to be executed as of the day and year first written above.
XXXX XXXXXXX FUNDS, INC.
/s/ Xxxxx X. Xxxxxxx
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Signature
Xxxxx X. Xxxxxxx
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Name
Executive Vice President
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Title
INVESTORS BANK & TRUST COMPANY, AS TRUSTEE
/s/ Xxxxxx X. Xxxxxxxx
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Signature
Xxxxxx X. Xxxxxxxx
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Name
Director
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Title
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