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Exhibit 4.5
TRUST AGREEMENT
between
Xxxxxxx Xxxxx Trust Company, the Trustee and
The Xxxxx Bristol Health Corp. as the Employer
ARTICLE PAGE
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I STATUS OF TRUST AND APPOINTMENT AND ACCEPTANCE OF TRUSTEE
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1.01 Status of Trust 1
1.02 Appointment of Trustee 1
1.03 Acceptance of Appointment 1
1.04 Title of Trust 1
1.05 Effectiveness 1
II ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
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2.01 Named Administrative and Investment Fiduciaries 1
2.02 Identification of Named Fiduciaries and Designees 1
III RECEIPTS AND TRUST FUND
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3.01 Receipt by Trustee 2
3.02 Trust Fund 2
3.03 Second Trust Fund 2
IV PAYMENTS, ADMINISTRATIVE DIRECTIONS AND EXPENSES
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4.01 Payments by Trustee 2
4.02 Named Administrative Fiduciary's Directions 3
4.03 Disputed Payments 3
4.04 Trustee's Compensation and Expenses 3
4.05 Taxes 3
4.06 Expenses of Administration 3
4.07 Restriction on Alienation 4
4.08 Payment on Court Order 4
V INVESTMENTS
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5.01 Investment Management 4
5.02 Investment Managers 4
5.03 Direction of Voting and Other Rights 5
5.04 Investment Directions 5
5.05 Communication of Proxy and Other Materials 5
5.06 Common and Collective Trust Funds 6
VI RESPONSIBILITIES AND INDEMNITY
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6.01 Relationship of Fiduciaries 6
6.02 Benefit of Participants 6
6.03 Status of Trustee 6
6.04 Location of Indicia of Ownership 6
6.05 Trustee's Reliance 6
6.06 Indemnification 6
6.07 Protection of Designees 7
VII POWERS OF TRUSTEE
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7.01 Nondiscretionary Investment Powers 7
7.02 Additional Powers of Trustee 8
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ARTICLE PAGE
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VIII RECORDS, ACCOUNTINGS AND VALUATIONS
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8.01 Records 8
8.02 Accountings 8
8.03 Valuation 8
IX RESIGNATION AND REMOVAL OF TRUSTEE
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9.01 Resignation 9
9.02 Removal 9
9.03 Appointment of a Successor 9
9.04 Settlement of Account 9
9.05 Expenses and Compensation 9
9.06 Termination of Responsibility and Liability 9
X AMENDMENT AND TERMINATION
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10.01 Amendment 9
10.02 Termination 9
XI MISCELLANEOUS
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11.01 Exclusive Benefit Rule 10
11.02 Refunds to Employer 10
11.03 Authorized Action 10
11.04 Text of Plan 10
11.05 Conflict with Plan 10
11.06 Failure to Maintain Qualification 10
11.07 Governing Law and Construction 10
11.08 Arbitration 10
11.09 Successors and Assigns 11
11.10 Gender 11
11.11 Headings 11
11.12 Counterparts 11
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TRUST AGREEMENT
between
Xxxxxxx Xxxxx Trust Company, as the Trustee
The Xxxxx Bristol Health Corp., as the Employer
Trust Agreement entered into as April 16, 1993 by and between the
above-named employer (the "Employer") and Xxxxxxx Xxxxx Trust Company, a New
Jersey corporation (the "Trustee"), with respect to a trust ("Trust") forming
part of the The Xxxxx Bristol Health Services 401(K) (the "Plan").
The Employer and the Trustee hereby agree as follows:
ARTICLE I
STATUS OF TRUST AND APPOINTMENT
AND ACCEPTANCE OF TRUSTEE
-------------------------
1.01 STATUS OF TRUST. The Trust is intended to be a qualified trust under
section 401(a) of the Internal Revenue Code of 1986, as amended from
time to time (the "Code"), and exempt from taxation pursuant to section
501(a) of the Code.
1.02 APPOINTMENT OF TRUSTEE. The Employer represents that all necessary
action has been taken for the appointment of Xxxxxxx Xxxxx Trust
Company (the "Trust Company") as trustee of the Trust and that the
Trust Agreement constitutes a legal, valid and binding obligation of
the Employer.
1.03 ACCEPTANCE OF APPOINTMENT. The Trustee accepts its appointment as
trustee of the Trust
1.04 TITLE OF TRUST. The Trust shall be known as the ________________Trust.
1.05 EFFECTIVENESS. This Trust Agreement shall not become effective until
executed and delivered by both the Employer and the Trustee.
ARTICLE II
ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
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2.01 NAMED ADMINISTRATIVE AND INVESTMENT FIDUCIARIES. For purposes of this
Trust Agreement, the term "Named Administrative Fiduciary" refers to
the person named or provided for in the Plan as responsible for the
administration and operation of the Plan, and the term "Named
Investment Fiduciary" refers to the person provided for in the Plan as
responsible for the investment and management of Plan assets to the
extent provided for in this Trust Agreement The Named Administrative
Fiduciary and the Named Investment Fiduciary may be the same person. If
any such person is not named or provided for in the Plan, or if so
named or provided for, is not then serving, the Employer shall be the
Named Administrative Fiduciary or the Named Investment Fiduciary or
both, as the case may be.
2.02 IDENTIFICATION OF NAMED FIDUCIARIES AND DESIGNEES. The Named
Administrative Fiduciary and the Named Investment Fiduciary under the
Plan shall each be identified to the Trustee in writing by the
Employer, and specimen signatures of each, or of each member thereof,
as appropriate, shall be provided to the Trustee by the Employer. The
Employer shall promptly give written notice to the Trustee of a change
in the identity either of the Named Administrative Fiduciary or Named
Investment Fiduciary, or any member thereof, as appropriate, and until
such notice is received by the Trustee, the Trustee shall be fully
protected in assuming that the identity of the Named Administrative
Fiduciary or Named Investment Fiduciary, and the members thereof, as
appropriate, is unchanged. Each person authorized in accordance with
the Plan to give a direction to the Trustee on behalf of the Named
Administrative Fiduciary or the Named Investment Fiduciary shall be
identified to the Trustee by written notice from the Employer or the
Named Administrative Fiduciary or the Named Investment Fiduciary, as
the case may be, and such notice shall contain a specimen of the
signature. The Trustee shall be entitled to rely upon each such written
notice as evidence of the identity and authority of the persons
appointed until a written cancellation of the appointment, or the
written appointment of a successor, is received by the Trustee from the
Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary; as the case may be.
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ARTICLE III
RECEIPTS AND TRUST FUND
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3:01 RECEIPT BY TRUSTEE. The Trustee shall receive in cash or other assets
acceptable to the Trustee all contributions paid or delivered to it
which are allocable under the Plan and to the Trust and all transfers
paid or delivered under the Plan to the Trust from a predecessor
trustee or another trust (including a trust forming part of another
plan qualified under section 401(a) of the Code), provided that the
Trustee shall not be obligated to receive any such contribution or
transfer unless prior thereto or coincident therewith, as the Trustee
may specify, the Trustee has received such reconciliation, allocation,
investment or other information concerning, or such direction,
contribution or representation with respect to, the contribution or
transfer or the source thereof as the Trustee may require. The Trustee
shall have no duty or authority to (a) require any contributions or
transfers to be made under the Plan or to the Trustee, (b)compute any
amount to be contributed or transferred under the Plan to the Trustee,
or (c) determine whether amounts received by the Trustee comply with
the Plan.
3.02 TRUST FUND. For purposes of this Trust Agreement, the "Trust Fund"
consists of all money and other property received by the Trustee
pursuant to Section 3.01 hereof, increased by any income or gains on or
increment in such assets and decreased by any investment loss or
expense, benefit or disbursement paid pursuant to this Trust
Agreement. The Trustee shall hold the Trust Fund, without distinction
between principal and income, as a nondiscretionary trustee pursuant
to the terms of this Trust Agreement. All assets of the Trust other
than those, if any, held by a second trustee as provided for in Section
3.03 shall be held in an account governed by the terms and conditions
of the Cash Management Account(R) Financial Service for Business
Retirement Plans Agreement (the "CMA(R) Account") which the Employer,
having reviewed and understood the CMA Account Program Description,
hereby directs the Trustee to establish for the Trust with Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or such other account or
accounts as the Employer and the Trustee may agree upon from time to
time.
3.03 SECOND TRUST FUND. If the Employer so elects, and the Trust Company
consents, the Employer may appoint a second trustee under the Plan with
respect to assets which the Employer desires to contribute or have
transferred to the Trust Company, as Trustee, but which the Trust
Company does not choose to accept. The appointment of a second trustee
shall be deemed a representation by the Employer that the Plan contains
all appropriate provisions relating to the second trustee. In the event
and upon the effectiveness of the acceptance of the second trustee's
appointment, the Employer shall be deemed to have created two trust
funds under the Plan each governed separately by this Trust Agreement
except that with respect to the second trust, this Trust Agreement
shall apply as if the second trustee were referred to by name in the
introductory paragraph and in Section 1.02 hereof. Each Trustee under
such an arrangement shall, however, discharge its duties and
responsibilities solely with respect to those assets of the Trust
delivered into its possession and, except pursuant to the Employer
Retirement Income Security Act of 1974, as amended from time to time
("ERISA"), shall have no duties, responsibilities or obligations with
respect to property of the other Trust nor any liability for the acts
or omissions of the other Trustee. As a condition to its consent to the
appointment of a second trustee, the Trust Company shall assure that
recordkeeping, distribution and reporting procedures are established
on a coordinated basis between it and the second trustee as the Trust
Company considers necessary or appropriate with respect to the Trust.
ARTICLE IV
PAYMENTS, ADMINISTRATIVE DIRECTIONS AND EXPENSES
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4.01 PAYMENTS BY TRUSTEE. Payments of money or property from the Trust Fund
shall be made by the Trustee upon direction from the Named
Administrative Fiduciary or its designee. Payments by the Trustee shall
be transmitted to the Named Administrative Fiduciary or its designee
for delivery to the proper payees or to payee addresses supplied by the
Named Administrative Fiduciary or its designee, and the Trustee's
obligation to make such payments shall be satisfied upon such
transmittal. The Trustee shall have no obligation to determine the
identity of persons entitled to payments under the Plan or their
addresses.
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4.02 NAMED ADMINISTRATIVE FIDUCIARY'S DIRECTIONS. Directions from or on
behalf of the Named Administrative Fiduciary or its designee shall be
communicated to the Trustee or the Trustee's designee for the purpose
only in a manner and in accordance with procedures acceptable to the
Trustee. The Trustee's designee shall not, however, be empowered to
implement any such directions except in accordance with procedures
acceptable to the Trustee. The Trustee shall have no liability for
following any such directions or failing to act in the absence of any
such directions. The Trustee shall have no liability for the acts or
omissions of any person making or failing to make any directions
under the Plan or this Trust Agreement nor any duty or obligation to
review any such direction, act or omission.
4.03 DISPUTED PAYMENTS. If a dispute arises over the propriety of the
Trustee making any payment from the Trust Fund, the Trustee may
withhold the payment until the dispute has been resolved by a court of
competent jurisdiction or settled by the parties to the dispute. The
Trustee may consult legal counsel and shall be fully protected in
acting upon the advice of counsel.
4.04 TRUSTEE'S COMPENSATION AND EXPENSES. If the Employer so elects on the
Client Authorization Form submitted to the Trust Company with respect
to the Plan (the "Client Authorization Form") or otherwise, the
Employer shall (a) pay the Trustee compensation for its services
under this Trust Agreement in accordance with the Trustee's fee
schedule in effect and applicable at the time such compensation
becomes payable, and (b)pay or reimburse the Trustee for all expenses
incurred by the Trustee in connection with or relating to the
performance of its duties under this Trust Agreement or its status as
Trustee, including reasonable attorneys fees. If the Employer does not
so elect, such compensation and expenses shall be charged against and
withdrawn from the Trust Fund as provided below.
Until paid by the Employer or charged against and withdrawn from the
Trust Fund, as the case may he, the Trustee's compensation and expenses
shall be a lien upon the Trust Fund. The Trustee is authorized to
charge the Trust Fund for and withdraw from the Trust Fund, without
direction from the Named Administrative Fiduciary or any other person,
the amount of any such fees or expenses which the Employer has not
elected to pay and the amount of any such fees or expenses which the
Employer has so elected to pay but which remain unpaid for a period of
60 days after presentation of a statement for such amount to the
Employer. Trust Fund assets shall be applied to pay such fees and
expenses in the following priority by asset category to the extent
thereof held at the time of withdrawal in the Trust Fund subfund or
account to which the fee or expense is allocated: (i) uninvested cash
balances; (ii) shares of any money market fund or funds held in the
Trust Fund; and (iii) any other Trust Fund asset. The Trustee is
authorized to allocate its fees and expenses among these subfunds or
accounts to which the fees or expenses pertain in such manner as the
Trustee deems appropriate under the circumstances unless prior to such
allocation the Employer or the Named Administrative Fiduciary specifies
the manner in which the allocation is to be made. The Trustee is also
authorized but not required to sell any shares or other assets referred
to above to the extent necessary for the purpose.
4.05 TAXES. The Trustee is authorized, with or without direction from the
Named Administrative Fiduciary or any other person, to withdraw from
the Trust Fund and pay any federal, state or local taxes, charges or
assessments of any kind levied or assessed against the Trust or assets
thereof. Until paid, such taxes shall be a lien against the Trust Fund.
The Trustee shall give notice to the Named Administrative Fiduciary of
its receipt of a demand for any such taxes, charges or assessment. The
Trustee shall not be personally liable for any such taxes, charges or
assessments
4.06 EXPENSES OF ADMINISTRATION. Expenses incurred by the Employer, the
Named Administrative Fiduciary, the Named Investment Fiduciary, any
Investment Manager designated pursuant to Section 5.02 or any other
persons designated to act on behalf of the Employer, the Named
Administrative Fiduciary or the Named Investment Fiduciary, including
reimbursement for expenses incurred in the performance of their
respective duties, shall be the obligation of the Employer or other
person specified in the Plan. Such expenses, however, may be paid from
the Trust Fund upon the written direction to the Trustee of the Named
Administrative Fiduciary.
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4.07 RESTRICTION ON ALIENATION. Except as provided in Section 4.08 or under
section 401(a)(13) of the Code, the interest of any Plan participant
or beneficiary in the Trust Fund shall not be subject to the claims of
such person's creditors and may not be assigned, sold, transferred,
alienated or encumbered. Any attempt to do so shall be void; and the
Trustee shall disregard any attempt. Trust assets shall not in any
manner be liable for or subject to debts, contracts, liabilities,
engagement or torts of any Plan participant or beneficiary, and
benefits shall not be considered an asset of any such a person in the
event of the persons insolvency or bankruptcy.
4.08 PAYMENT ON COURT ORDER. The Trustee is authorized to make any payments
directed by court order in any action in which the Trustee is a party
or pursuant to a "qualified domestic relations order" under section
414(p) of the Code; provided that the Trustee shall not make such
payment if the Trustee is indemnified and held harmless by the
Employer in a manner satisfactory to the Trustee against all
consequences of such failure to pay. The Trustee is not obligated to
defend actions in which the Trustee is named but shall notify the
Employer or Named Administrative Fiduciary of any such action and may
tender defense of the action to the Employer, the Named Administrative
Fiduciary or the participant or beneficiary whose interest is
affected. The Trustee may in its discretion defend any action in which
the Trustee is named and any expenses, including reasonable attorneys
fees, incurred by the Trustee in that connection shall be paid or
reimbursed in accordance with Section 4.04 hereof.
ARTICLE V
INVESTMENTS
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5.01 INVESTMENT MANAGEMENT. The Named Investment Fiduciary shall manage the
investment of the Trust Fund except insofar as (a) a person (an
"Investment Manager") who meets the requirements of section 3(38) of
ERISA has authority to manage Trust assets as referred to in Section
5.02 hereof or (b) the Plan provides for participant or beneficiary
direction of the investment of assets allocable under the Plan to the
accounts of such participants and beneficiaries and the Trustee
notifies the Employer that such directions will be acceptable. In the
latter situation, a list of the participants and beneficiaries and
such information concerning them as the Trustee may specify shall be
provided by the Employer or the Named Administrative Fiduciary to the
Trustee and/or such person(s) as are necessary for the implementation
of the directions in accordance with the procedure acceptable to the
Trustee. Except as required by ERISA, the Trustee shall invest the
Trust Fund as directed by the Named Investment Fiduciary, an
Investment Manager or a Plan participant or beneficiary, as the case
may be, and the Trustee shall have no discretionary control over, nor
any other discretion regarding, the investment reinvestment of any
asset of the Trust. The Trustee may limit the categories of assets in
which the Trust Fund may be invested.
It is understood that the Trustee may, from time to time, have on hand
funds which are received as contributions or transfers to the Trust
which are awaiting investment or funds from the sale of Trust assets
which are awaiting reinvestment. Absent receipt by the Trustee of
a direction from the proper person for the investment or reinvestment
of such funds or otherwise prior to the application of funds in
implementation of such a direction, the Trustee shall in accordance
with the applicable CMA(R) Account procedures cause such funds to be
invested in shares of the money market fund specified by the Employer
on the Client Information Form or such other money market fund
acceptable to the Trust Company as the Employer or Named Investment
Fiduciary may in writing to the Trust Company specify for this purpose
from time to time. Any such fund may be sponsored, managed or
distributed by an affiliate of the Trust Company. The Employer or the
Named Investment Fiduciary, as the case may be, hereby acknowledges
that prior to any such specification it has read or will have read the
then current prospectus for the specified fund.
5.02 INVESTMENT MANAGERS. Notwithstanding any provision of the Plan to the
contrary, the Employer or the Named Investment Fiduciary may appoint
one or more Investment Managers, who may be an affiliate of the Trust
Company, to direct the Trustee in the investment of all or a
specified portion of the assets of the Trust. Any such Investment
Manager shall be directed by the Employer or the Named Investment
Fiduciary; as the case may be, to act in accordance with the procedures
referred to in Section 5.04. The Named Investment Fiduciary shall
notify the Trustee in writing before the effectiveness of the
appointment or removal of any Investment Manager.
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If there is more than one Investment Manager whose appointment is
effective under the Plan at any one time, the Trustee shall, upon
written instructions from the Employer or the Named Investment
Fiduciary, establish separate funds for control by each such Investment
Manager. The funds shall consist of those Trust assets designated by
the Employer or the Named Investment Fiduciary.
5.03 DIRECTION OF VOTING AND OTHER RIGHTS. The voting and other rights in
securities or other assets held in the Trust shall be exercised by the
Trustee as directed by the Named Investment Fiduciary or other person
who at the time has the right as referred to in Section 5.01 hereof to
direct the investment or reinvestment of the security or other asset
involved, provided that notwithstanding any provision of the Plan to
the contrary, (a) except as provided in cause (b) of this Section, such
voting and other rights in any such security or other asset selected by
the Employer or the Named Investment Fiduciary shall be exercised by
the Named Investment Fiduciary and (b) such voting and other rights in
any "employer security" with respect to the Plan within the meaning of
Section 407(d)(1) of ERISA which is held in an account under the Plan
over which a Plan participant or beneficiary has control as to
specific assets to be held therein or which is held in an account which
consists solely or primarily of "employer securities" shall be
exercised by the participants or beneficiaries having interests in
that account. Notwithstanding any provision hereof or of the Plan to
the contrary, (i) in the event a Plan participant or beneficiary or an
Investment Manager with the right to direct a voting or other decision
with respect to any security or other asset held in the Trust does not
communicate any decision on the matter to the Trustee or the Trustee's
designee by the time prescribed by the Trustee or the Trustee's
designee for that purpose or if the Trustee notifies the Named
Investment Fiduciary either that it does not have precise information
as to the securities or other assets involved allocated on the
applicable record date to the accounts of all participants and
beneficiaries or that time constraints make it unlikely that
participant, beneficiary or Investment Manager direction, as the case
may be, can be received on a timely basis, the decision shall be the
responsibility of the Named Investment Fiduciary and shall be
communicated to the Trustee on a timely basis, and (ii) in the event
the Named Investment Fiduciary with any right under the Plan or
hereunder to direct a voting or other decision with respect to any
security or other asset held in the Trust, including any such right
under clause (a) or clause (i) of this Section, does not communicate
any decision on the matter to the Trustee or the Trustee's designee by
the time prescribed by the Trustee for that purpose, the Trustee may,
at the cost of the Employer, retain an Investment Manager with full
discretion to make the decision. Except as required by ERISA, the
Trustee shall (a) follow all directions above-referred to in this
Section and (b) shall have no duty to exercise voting or other rights
relating to any such security or other asset.
5.04 INVESTMENT DIRECTIONS. Directions for the investment or reinvestment of
Trust assets or of a type referred to in Section 5.03 from the
Employer, the Named Investment Fiduciary; an Investment Manager or a
Plan participant or beneficiary, as the case may be, shall, in a
manner and in accordance with procedures acceptable to the Trustee, be
communicated to and implemented by, as the case may be, the Trustee,
the Trustee's designee or, with the Trustee's consent, broker/dealer
designated for the purpose by the Employer or the Named Investment
Fiduciary. Communication of any such direction to such a designee or
broker/dealer shall conclusively be deemed an authorization to the
designee or broker/dealer to implement the direction even though
coming from a person other than the Trustee. The Trustee shall have no
liability for its or any other person's following such directions or
failing to act in the absence of any such directions. The Trustee
shall have no liability for the acts or omissions of any person
directing the investment or reinvestment of Trust Fund assets or
making or failing to make any direction referred to in Section 5.03.
Neither shall the Trustee have any duty or obligation to review any
such investment or other direction, act or omission or, except upon
receipt of a proper direction, to invest or otherwise manage any asset
of the Trust which is subject to the control of any such person or to
exercise any voting or other right referred to in Section 5.03.
5.05 COMMUNICATION OF PROXY AND OTHER MATERIALS. The Employer or Named
Administrative Fiduciary shall establish a procedure acceptable to the
Trustee for the timely dissemination to each person entitled to direct
the Trustee or its designee as to a voting or other decision called for
thereby or referred to therein of all proxy and other materials bearing
on the decision.
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5.06 COMMON AND COLLECTIVE TRUST FUNDS. Any person authorized to direct the
investment of Trust assets may, if the Trustee and the Named Investment
Fiduciary so permit, direct the Trustee to invest such assets in a com-
mon or collective trust maintained by the Trustee for the investment of
assets of qualified trusts under section 401(a) of the Code, individual
retirement accounts under section 408(a) of the Code and plans or
governmental units described in section 818(a)(6) of the Code. The
documents governing any such common or collective trust fund maintained
by the Trustee, and in which Trust assets have been invested, are
hereby incorporated into this Trust Agreement by reference.
ARTICLE VI
RESPONSIBILITIES AND INDEMNITY
------------------------------
6.01 RELATIONSHIP OF FIDUCIARIES. Each fiduciary of the Plan and this Trust
shall be solely responsible for its own acts or omissions. The Trustee
shall have no duty to question any other Plan fiduciary's performance
of fiduciary duties allocated to such other fiduciary pursuant to the
Plan. The Trustee shall not be responsible for the breach of
responsibility by any other Plan fiduciary except as provided for in
ERISA.
6.02 BENEFIT OF PARTICIPANTS. Each fiduciary shall, within the meaning of
the Code and ERISA, discharge its duties with respect to the Trust
solely in the interest of participants in the Plan and their
beneficiaries and for the exclusive purpose of providing benefits to
such participants and beneficiaries and defraying reasonable expenses
of administering the Plan.
6.03 STATUS OF TRUSTEE. The Trustee acknowledges its status as a
"fiduciary" of the Plan within the meaning of ERISA.
6.04 LOCATION OF INDICIA OF OWNERSHIP. Except as permitted by ERISA, the
Trustee shall not maintain the indicia of ownership of any assets of
the Trust outside the jurisdiction of the district courts of the United
States.
6.05 TRUSTEE'S RELIANCE. The Trustee shall have no duty to inquire whether
directions by the Employer, the Named Administrative Fiduciary, the
Named Investment Fiduciary or any other person conform to the Plan, and
the Trustee shall be fully protected in relying on any such direction
communicated in accordance with procedures acceptable to the Trustee
from any person who the Trustee reasonably believes is a proper person
to give the direction. The Trustee shall have no liability to any
participant, any beneficiary or any other person for payments made, any
failure to make payments, or any discontinuance of payments, on
direction of the Named Administrative Fiduciary, the Named Investment
Fiduciary or any designee of either of them or for any failure to
make payments in the absence of directions from the Named
Administrative Fiduciary or any person responsible for or purporting to
be responsible for directing the investment of Trust assets. The
Trustee shall have no obligation to request proper directions from
any person. The Trustee may request instructions from the Named
Administrative Fiduciary or the Named Investment Fiduciary and shall
have no duty to act or liability for failure to act if such
instructions are not forthcoming. The Trustee shall have no
responsibility to determine whether the Trust Fund is sufficient to
meet the liabilities under the Plan, and shall not be liable for
payments or Plan liabilities in excess of the Trust Fund.
6.06 INDEMNIFICATION. The Employer hereby indemnifies the Trustee against
and shall hold the Trustee harmless from, any and all loss, claims,
liability, and expense, including reasonable attorneys fees, imposed
upon the Trustee or incurred by the Trustee as a result of any acts
taken, or any failure to act, in accordance with the directions from
the Named Administrative Fiduciary, Named Investment Fiduciary,
Investment Manager or any other person specified in Article IV or V
hereof, or any designee of any such person, or by reason of the
Trustee's good faith execution of its duties with respect to the Trust,
including, but not limited to, its holding of assets of the Trust as
provided for in Section 3.02, the Employer's obligations in the
foregoing regard to be satisfied promptly on request by the Trustee,
provided that in the event that the loss, claim, liability or expense
involved is determined by a no longer appealable final judgment entered
in a lawsuit or proceeding to have resulted from the gross negligence
or willful misconduct of the Trustee, the Trustee shall promptly
thereafter return to the Employer any amount previously received by the
Trustee under this Section with respect to such loss, claim, liability
or expense.
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6.07 PROTECTION OF DESIGNEES. To the extent that any designee of the Trustee
is performing a function of the Trustee under this Trust Agreement, the
designee shall have the benefit of all of the applicable limitations
on the scope of the Trustee's duties and liabilities, all applicable
rights of indemnification granted hereunder to the Trustee and all
other applicable protections of any nature afforded to the Trustee.
ARTICLE VII
POWERS OF TRUSTEE
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7.01 NONDISCRETIONARY INVESTMENT POWERS. At the direction of the person
authorized to direct such action as referred to in Article V hereof,
hut limited to those assets or categories of assets acceptable to the
Trustee as referred to in Section 5.01, the Trustee, or the Trustee's
designee or a broker/dealer as referred to in Section 5.04, is
authorized and empowered:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and
bonds, mortgages, notes, commercial paper and other evidences of
indebtedness (including those issued by the Trustee), shares of
mutual funds (which funds may be sponsored, managed or offered by
an affiliate of the Trustee), guaranteed investment contracts,
bank investment contracts, other securities, policies of life
insurance, annuity contracts, options, options to buy or sell
securities or other assets, and all other property of any type
(personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or other
deposits in a bank or savings and loan association or other
depository institution, including the Trustee or any of its
affiliates, provided with respect to such deposits with the
Trustee or an affiliate the deposits bear a reasonable interest
rate;
(c) To hold, manage, improve, repair and control all property, real
or personal, forming part of the Trust Fund; to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the
same from time to time;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee necessary for the
protection of the Trust Fund; to vote any corporate stock either
in person or by proxy; with or without power of substitution, for
any purpose; to participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities
with or transfer title to any protective or other committee; to
exercise or sell stock subscriptions or conversion rights; and,
regardless of any limitation elsewhere in this instrument relative
to investments by the Trustee, to accept and retain as an
investment any securities or other property received through the
exercise of any of the foregoing powers;
(e) Subject to Section 5.01 hereof, to hold in cash, without liability
for interest, such portion of the Trust Fund which it
is directed to so hold pending investments, or payment of
expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect
the Trust from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such
other jurisdictions as may seem desirable, to transfer property to
such agents or trustees, to grant to such agents such powers as
are necessary or desirable to protect the Trust Fund, to direct
such agent or trustee, or to delegate such power to direct, and to
remove such agent or trustee;
(g) To settle, compromise or abandon all claims and demands in favor
of or against the Trust Fund;
(h) To invest in any common or collective trust fund of the type
referred to in Section 5.06 hereof maintained by the Trustee;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally
under the laws of the State of New Jersey, so that the powers
conferred upon the Trustee herein shall not be in limitation of
any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any
trust assets as security, subject to applicable requirements of
the Code and ERISA; and
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(k) To maintain accounts at, execute transactions through, and
lend on an adequately secured basis stocks, bonds or other
securities to, any brokerage or other firm, including any firm
which is an affiliate of the Trustee.
7.02 ADDITIONAL POWERS OF TRUSTEE. To the extent necessary or which it deems
appropriate to implement its powers under Section 7.01 or otherwise to
fulfill any of its duties and responsibilities as trustee of the Trust
Fund, the Trustee shall have the following additional powers and
authority:
(a) to register securities, or any other property in its name or in
the name of any nominee, including the name of any affiliate or
the nominee name designated by any affiliate, with or without
indication of the capacity in which property shall be held, or to
hold securities in bearer form and to deposit any securities or
other property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate
powers and responsibilities to such agents, representatives,
advisers, counsel and accountants as the Trustee considers
necessary or appropriate, any of whom may be an affiliate of the
Trustee or a person who renders services to such an affiliate,
and, as a part of its expenses under this Trust Agreement and to
the extent permissible under ERISA, to pay their reasonable
expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds,
leases, mortgages, conveyances, waivers, releases or other
instruments in writing necessary or appropriate for the
accomplishment of any of the powers listed in this Trust
Agreement; and
(d) generally to do all other acts which the Trustee deems necessary
or appropriate for the protection of the Trust Fund.
ARTICLE VIII
RECORDS, ACCOUNTINGS AND VALUATIONS
-----------------------------------
8.01 RECORDS. The Trustee shall maintain or cause to be maintained accurate
records and accounts of all Trust transactions and assets. The
records and accounts shall be available at reasonable times during
normal business hours for inspection or audit by the Named
Administrative Fiduciary and the Named Investment Fiduciary or any
person designated for the purpose by either of them.
8.02 ACCOUNTINGS. Within 90 days following the close of each fiscal year of
the Plan or the effective date of the removal or resignation of the
Trustee, the Trustee shall file with the Named Administrative Fiduciary
a written accounting setting forth all transactions since the end of
the period covered by the last previous accounting. The accounting
shall include a listing of the assets of the Trust showing the value of
such assets at the close of the period covered by the accounting. On
direction of the Named Administrative Fiduciary, and if previously
agreed to by the Trustee, the Trustee shall submit to the Named
Administrative Fiduciary interim valuations, reports or other
information pertaining to the Trust.
The Named Administrative Fiduciary may approve the accounting by
written approval delivered to the Trustee or by failure to deliver
written objections to the Trustee within 60 days after receipt of the
accounting. Any such approval shall be binding on the Employer, the
Named Administrative Fiduciary; the Named Investment Fiduciary and, to
the extent permitted by ERISA, all other persons.
8.03 Valuation. The assets of the Trust shall be valued as of each valuation
date under the Plan at fair market value as determined by the Trustee
based upon such sources of information as it may deem reliable,
including, but not limited to, stock market quotations, statistical
evaluation services, newspapers of general circulation, financial
publications, advice from investment counselors or brokerage firms, or
any combination of sources. The reasonable costs incurred in
establishing values of the Trust Fund shall be a charge against the
Trust Fund, unless paid by the Employer.
When the Trustee is unable to arrive at a value based upon information
from independent sources, it may rely upon information from the
Employer, Named Administrative Fiduciary, Named Investment Fiduciary,
appraisers, or other sources, and shall not incur any liability for
inaccurate valuation based in good faith upon such information.
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ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
----------------------------------
9.01 RESIGNATION. The Trustee may resign at any time upon at least 30 days
written notice to the Employer.
9.02 REMOVAL. The Employer may remove the Trustee upon at least 30 days
written notice to the Trustee.
9.03 APPOINTMENT OF A SUCCESSOR. Upon resignation or removal of the
Trustee, the Employer shall appoint a successor trustee. Upon failure
of the Employer to appoint, or the failure of the effectiveness of the
appointment by the Employer of, a successor trustee by the effective
date of the resignation or removal, the Trustee may apply to any court
of competent jurisdiction for the appointment of a successor.
Promptly after receipt by the Trustee of notice of the effectiveness of
the appointment of the successor trustee, the Trustee shall deliver to
the successor trustee such records as may be reasonably requested to
enable the successor trustee to properly administer the Trust Fund and
all property of the Trust after deducting therefrom such amounts as the
Trustee deems necessary to provide for expenses, taxes, compensation or
other amounts due to or by the Trustee pursuant to Sections 4.04 or
5.03 hereof not paid by the Employer prior to the delivery.
9.04 SETTLEMENT OF ACCOUNT. Upon resignation or removal of the Trustee, the
Trustee shall have the right to a settlement of its account, which
settlement shall be made, at the Trustee's option, either by an
agreement of settlement between the Trustee and the Employer or by a
judicial settlement in an action instituted by the Trustee. The
Employer shall bear the cost of any such judicial settlement,
including reasonable attorneys fees.
9.05 EXPENSES AND COMPENSATION. The Trustee shall not be obligated to
transfer Trust assets until the Trustee is provided assurance by the
Employer satisfactory to the Trustee that all fees and expenses
reasonably anticipated will be paid.
9.06 TERMINATION OF RESPONSIBILITY AND LIABILITY. Upon settlement of the
account and transfer of the Trust Fund to the successor trustee, all
rights and privileges under this Trust Agreement shall vest in the
successor trustee and all responsibility and liability of the Trustee
with respect to the Trust and assets thereof shall, except as otherwise
required by ERISA, terminate subject only to the requirement that the
Trustee execute all necessary documents to transfer the Trust assets to
the successor trustee.
ARTICLE X
AMENDMENT AND TERMINATION
-------------------------
10.01 AMENDMENT. The Employer reserves the right to amend this Trust
Agreement, provided that no amendment of this Trust Agreement or the
Plan shall be effective which would (a) cause any assets of the Trust
Fund to be used for, or diverted to, purposes other than the exclusive
benefit of Plan participants or their beneficiaries other than an
amendment permissible under the Code and ERISA, or (b)affect the
rights, duties, responsibilities, obligations or liabilities of the
Trustee without the Trustee's written consent. The Employer shall amend
this Trust Agreement as requested by the Trustee to reflect changes in
law which counsel for the Trustee advises the Trustee require such
changes. Amendments to the Trust Agreement or a certified copy of the
amendments shall be delivered to the Trustee promptly after adoption,
and if practicable under the circumstances, any proposed amendment
under consideration by the Employer shall be communicated to the
Trustee to permit the Trustee to review and comment thereon in due
course before the Employer acts on the proposed amendment.
10.02 TERMINATION. The Trust may be terminated by the Employer upon at least
60 days written notice to the Trustee. Upon such termination, and
subject to Section 11.01 hereof, the Trust Fund shall be distributed
as directed by the Named Administrative Fiduciary.
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ARTICLE XI
MISCELLANEOUS
-------------
11.01 EXCLUSIVE BENEFIT RULE. Except as provided in Section 11.02, or as
otherwise permitted as required by ERISA or the Code, no asset of this
Trust shall be used for, or diverted to, purposes other than the
exclusive benefit of Plan participants or their beneficiaries or for
the reasonable expenses of administering the Plan and Trust until all
liabilities for benefits due Plan participants or their beneficiaries
have been satisfied.
11.02 REFUNDS TO EMPLOYER. The Trustee shall, upon the written direction of
the Named Administrative Fiduciary which shall include a certification
that such action is proper under the Plan, ERISA and the Code
specifying any relevant sections thereof, return to the Employer any
amount referred to in section 403(c)(2) of ERISA.
11.03 AUTHORIZED ACTION. Any action to be taken under this Trust Agreement by
an Employer or other person which is: (a) a corporation shall be taken
by the board of directors of the corporation or any person or persons
duly empowered by the board of directors to take the action involved,
(b) a partnership shall be taken by an authorized general partner of
the partnership, and (c) a sole proprietorship by the sole proprietor.
11.04 TEXT OF PLAN. The Employer represents that prior to the execution of
this Trust Agreement by both parties it delivered to the Trustee the
text of the Plan as in effect as of the date of this Trust Agreement.
The Employer shall deliver to the Trustee promptly after adoption
thereof a certified copy of each other amendment of the Plan.
11.05 CONFLICT WITH PLAN. The rights, duties, responsibilities, obligations
and liabilities of the Trustee are as set forth in this Trust
Agreement, and no provision of the Plan or any other document shall be
deemed to affect such rights, duties, responsibilities, obligations and
liabilities. If there is a conflict between provisions of the Plan
and this Trust Agreement with respect to any subject involving the
Trustee, including but not limited to the responsibility, authority or
powers of the Trustee, the provisions of this Trust Agreement shall be
controlling.
11.06 FAILURE TO MAINTAIN QUALIFICATION. If the Trust falls to qualify as a
qualified trust under section 401(a) of the Code, or loses its status
as such a qualified trust, the Employer shall immediately so notify the
Trustee, and the Trustee shall, without further notice or direction,
remove the Trust assets from any common or collective trust fund
maintained by the Trustee for investments by qualified trusts.
11.07 GOVERNING LAW AND CONSTRUCTION. THIS TRUST AGREEMENT AND THE TRUST
SHALL BE CONSTRUED, ADMINISTERED AND GOVERNED UNDER ERISA AND OTHER
PERTINENT FEDERAL LAW, AND TO THE EXTENT THAT FEDERAL LAW IS
INAPPLICABLE, UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY
PROVISION OF THIS TRUST AGREEMENT IS SUSCEPTIBLE TO MORE THAN ONE
INTERPRETATION, THE INTERPRETATION TO BE GIVEN IS THAT WHICH IS
CONSISTENT WITH THE TRUST BEING A QUALIFIED TRUST UNDER SECTION 401(a)
OF THE CODE. IF ANY PROVISION OF THIS TRUST AGREEMENT IS HELD BY A
COURT OF COMPETENT JURISDICTION TO BE INVALID OR UNENFORCEABLE, THE
REMAINING PROVISIONS SHALL CONTINUE TO BE FULLY EFFECTIVE TO THE EXTENT
POSSIBLE UNDER THE CIRCUMSTANCES.
11.08 ARBITRATION.
- Arbitration is final and binding on the parties.
- The parties are waiving their right to seek remedies
in court, including the right to jury trial.
- Pre-arbitration discovery is generally more limited
than and different from court proceedings.
- The arbitrators' award is not required to include
factual findings or legal reasoning and any party's
right to appeal or to seek modification of rulings by
the arbitrators is strictly limited.
- The panel of arbitrators will typically include a
minority of arbitrators who were or are affiliated
with the securities industry.
The Employer agrees that all controversies which may arise between the
Employer and either or both the Trustee and its affiliate Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S") in connection
with the trust, including, but not limited to, those involving conduct
of the CMA Account, and any transactions therein, or the construction,
performance, or breach of this or any other agreement between the
Employer and either or both the Trustee and MLPF&S, whether entered
into prior, on, or subsequent to the date thereof, shall be determined
by arbitration. Any arbitration under this agreement shall be conducted
only before the New York Stock Exchange, Inc., The American Stock
Exchange, Inc., or arbitration facility provided by any other
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exchange of which MLPF&S is a member, The National Association of
Securities Dealers, Inc., or the Municipal Securities Rulemaking Board,
and in accordance with its arbitration rules then in force. The
Employer may elect in the first instance whether arbitration shall be
conducted before The New York Stock Exchange, Inc., The American Stock
Exchange, Inc., other exchange of which MLPF&S is a member, The
National Association of Securities Dealers, Inc., or The Municipal
Securities Rulemaking Board, but if the employer fails to make such
election, by registered letter or telegram addressed to Xxxxxxx Xxxxx
Trust Company, Employee Benefit Trust Operations, X.X. Xxx 00000,
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000-0000, before the expiration of five
days after receipt of a written request from MLPF&S and/or the
Trustee to make such election, then MLPF&S and/or the Trustee may
make such election. Judgment upon the award or arbitrators may be
entered in any court, state or federal, having jurisdiction.
11.09 SUCCESSORS AND ASSIGNS. This Trust Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
11.10 GENDER. As used in this Trust Agreement, the masculine gender shall
include the feminine and the neuter genders and the singular shall
include the plural and the plural the singular as the context requires.
11.11 HEADINGS. Headings and subheadings in this Trust Agreement are for
convenience of reference only and are not to be considered in the
construction of the provisions of the Trust Agreement.
11.12 COUNTERPARTS. This Trust Agreement may be executed in several
counterparts, each of which shall be deemed an original, and these
counterparts shall constitute one and the same instrument which may be
sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the Employer and the Trustee have executed this
Trust Agreement each by action of a duly authorized person.
By signing this Agreement, the undersigned Employer acknowledges (1)
that, in accordance with paragraph 11.08 on page 10 of this Agreement, the
Employer is agreeing in advance to arbitration any controversies which may arise
with either or both Xxxxxxx Xxxxx Trust Company or Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, and (2) receipt of a copy of this Agreement.
The Xxxxx Bristol Health Services Corporation
---------------------------------------------
(Employer)
By:/s/ Xxxxxxx X. Gold
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
XXXXXXX XXXXX TRUST COMPANY, TRUSTEE
By:/s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: V.P. - Section Manager
-----------------------------------
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