EXHIBIT 10.28
TRUST AGREEMENT
THIS TRUST AGREEMENT (as amended, restated, supplemented or otherwise
modified from time to time, the "Agreement") dated as of May 3, 2004, between
XXXXXX BANCORP, INC. (the "Grantor") and AMERICAN STOCK TRANSFER & TRUST
COMPANY, and any successor Trustee appointed as provided in this Agreement (the
"Trustee").
RECITALS
WHEREAS, the Grantor desires to create a trust (the "Trust"), and
transfer the assets listed on SCHEDULE A to the Trust, on the terms which are
detailed below, and the Trustee has consented to accept and perform said Trust
in accordance with such terms.
NOW, THEREFORE, in consideration of the mutual covenants and promises
of the parties hereto, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. TRUST ASSETS.
A. TRANSFER OF ASSETS TO THE TRUST. The Grantor assigns and transfers to
the Trustee, and the Trustee, by the execution of this Agreement, acknowledges
receipt from the Grantor of the assets described on SCHEDULE A, consisting
entirely of common stock of Independence Federal Savings Bank (the "Assets").
The Assets, together with any additions thereto, shall constitute the "Trust
Estate." The term Trust Estate shall also include any other property which the
Grantor or any other persons transfer to the Trustee, as well as the proceeds
from the sale or investment of such Assets, and the securities or other assets
in which such proceeds may be invested and reinvested, in accordance with the
terms of this Agreement.
B. ADDITIONAL ASSETS CONTRIBUTED TO THE TRUST. The Grantor, or any other
person, may assign or transfer after the date of this Agreement, to the Trustee,
securities or other property, whether real or personal, tangible or intangible,
reasonably acceptable to the Trustee as an addition to the Trust Estate (an
"Addition"). All Additions shall be added to the Trust Estate.
C. TRUSTEE DEALING WITH ADDITIONS. The Trustee shall accept and hold any
Addition, if such property is reasonably acceptable to the Trustee, as part of
the Trust Estate subject to the terms and provisions of this Agreement. The
Trustee shall then deal with, manage, operate, invest, reinvest and dispose of
any Additions as part of the Trust Estate, as provided in this Agreement. The
Trustee shall not be under any duty to accept any Addition not acceptable in the
Trustee's discretion.
II. GRANTOR'S POWERS AND RIGHTS UNDER THE TRUST.
The Grantor has been advised with respect to the difference between revocable
and irrevocable trusts and hereby declares that any trust formed under this
Agreement, and the Trust Estate created hereby, are to be revocable, so that
Grantor may change, amend or modify, in any
manner and to any extent, the provisions of this Agreement; PROVIDED, HOWEVER,
that any such amendment or modification shall not be effective unless or until
it is approved in writing by the Regional Director of the Northeast Regional
Office of the Office of Thrift Supervision ("OTS"). Subject to the foregoing,
the Grantor has retained every right and power to alter, amend, revoke or
terminate any Trust provision or interest, whether under this Agreement or any
rule of law.
III. OPERATIVE TRUST PROVISIONS.
A. ASSET MAINTENANCE DURING THE TERM OF THE TRUST. During the term of this
Trust, the Trustee shall hold the Trust Estate in trust without distributing,
paying out or otherwise disposing of all or any portion of the Trust Estate, to
the Grantor or otherwise.
B. ADDITIONS DURING THE TERM OF THE TRUST. The Trustee shall immediately
transfer to the Grantor, and shall not add to the Trust Estate, any cash
dividends or other cash amounts or cash payments attributable to the Assets.
C. TERMINATION OF THE TRUST. In addition to termination pursuant to
section V(H) of this Agreement, the Trust shall immediately terminate and cease
to exist upon the earlier of (i) the date on which the Grantor is no longer the
beneficial or record owner of more than 5% of the outstanding voting stock of
Independence Federal Savings Bank or (ii) the date on which the Grantor receives
the approval of the OTS to retain more than 5% of the outstanding voting stock
of Independence Federal Savings Bank.
IV. TRUSTEE SELECTION, REMOVAL AND RESIGNATION.
A. SUCCESSOR TRUSTEE. If the company named above to serve as Trustee is
unable or unwilling to serve, then:
1. The Grantor may appoint a successor Trustee (where the successor
Trustee is independent of the Grantor).
2. If the Grantor is unable or unwilling to appoint a successor trustee or
fails to do so within a reasonable period of time after being advised
that the Trustee is unable or unwilling to serve, then the Trustee may
appoint a successor Trustee (where the successor Trustee is independent
of the Grantor).
B. EXCLUSION. The foregoing authorizations specifically exclude the right
to designate the Grantor as a Trustee.
C. DESIGNATION AND REVOCATION PROCESS. Any permissible designation shall
be made by written instrument signed and acknowledged by the party making the
appointment and shall become effective upon the successor Trustee qualifying as
required under applicable law. Any designation of a successor Trustee, or any
revocation of such designation, pursuant to the authority granted in this
provision, shall be in a written instrument, duly executed and acknowledged by
the party exercising such authority and filed in the Court which has
jurisdiction over this Trust.
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D. REMOVAL OF TRUSTEE. The Grantor may remove the Trustee and appoint a
successor Trustee (where the successor Trustee is independent of the Grantor) if
such removal is for "cause," as defined by the following factors:
1. The willful or negligent mismanagement by the Trustee of the Trust
Estate.
2. The abuse or abandonment of, or inattention to, the Trust Estate by the
Trustee.
3. A federal or state charge against the Trustee involving the commission
of a felony.
4. An act of stealing, dishonesty, fraud, embezzlement, moral turpitude or
moral degeneration by the Trustee.
5. The continued failure by the Trustee to comply with a material
provision of this Agreement, after notice of non-compliance.
6. Any other reason for which a court of competent jurisdiction, in the
State of New York, would remove a trustee.
E. TRUSTEE ACCEPTANCE. The acceptance of trusteeship by any Trustee not a
party to this Agreement shall be evidenced by an execution of a counterpart to
this Agreement.
F. TRUSTEE RESIGNATION.
1. Any Trustee hereunder may resign at any time without obtaining prior
judicial approval. Such resignation shall be deemed complete upon the
delivery of an instrument in writing declaring such resignation to the
Grantor and to the successor Trustee hereunder. Such resigning Trustee
shall promptly deliver the Assets of the Trust Estate to the successor
Trustee.
2. The resigning Trustee shall, at the request of the successor Trustee,
promptly deliver such assignments, transfers and other instruments as
may be reasonably required for fully vesting in such successor Trustee
all right, title and interest in the Trust Estate.
V. TRUSTEE RIGHTS AND OBLIGATIONS.
A. TRUSTEE COMPENSATION.
1. In exchange for the services provided for in this Agreement, the
Grantor shall deliver to the Trustee, upon the execution of this
Agreement, a non-refundable fee of $10,000 , which amount shall be
compensation for all services contemplated herein.
2. In the event the Trustee incurs significant unexpected or unusual fees
or expenses, such as legal fees, attorneys' fees or similar fees and
expenses, in the administration of the Trust, the Trustee shall deliver
to the Grantor a written invoice detailing such fees or expenses, and
the Grantor shall pay such fees or expenses within 30 days of receipt
of such invoice. If the Grantor fails to deliver payment within 60 days
of receipt of such invoice, the Trustee shall be entitled to withdraw
from the Trust Estate, without obtaining
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court or other approval, the compensation which is allowed to a trustee
under the laws of the State of New York.
B. NO BOND OR SECURITY. No bond or security of any kind shall be required
of any Trustee acting hereunder or appointed pursuant to the provisions
hereof.
C. ACCOUNTING.
1. No Trustee acting under this Agreement is under any duty to render a
judicial accounting upon resignation or otherwise. However, the Trustee
may submit any account to a court for approval and settlement.
2. The Trustee may render an accounting upon the termination of this
Trust, and at any other times which the Trustee may deem necessary or
advisable. The written approval of all persons who are entitled to
receive the net income and principal of this Trust, as to all matters
and transactions shown in the account, shall be final, binding and
conclusive upon all such persons, and upon all persons who may then be,
or thereafter become, entitled to any income or principal of the Trust.
The written approval or assent of the persons mentioned in this
provision shall have the same force and effect in discharging the
Trustee as a decree by a court of competent jurisdiction.
D. TRUSTEE RESPONSIBLE FOR CARE OF ASSETS COMPRISING TRUST ESTATE. The
Trustee shall have the entire care and custody of the Assets comprising the
Trust Estate and shall keep the Assets with the same care as given to other
property held by it in a fiduciary capacity. The Trustee shall become
responsible for the Trust Estate only when, as and if the same shall have been
received by such Trustee. No Trustee shall be responsible for any act or
omission of any prior Trustee, nor shall any Trustee be under a duty to take any
proceedings against any prior Trustee, but shall be entitled to rely on the
propriety of the actions of the prior Trustee as such actions appear from the
records and accounts of the prior Trustee.
E. DISCRETION AND LACK OF DIVERSIFICATION. The Grantor hereby acknowledges
and agrees that the Trustee has no investment discretion with respect to the
Assets comprising the Trust Estate. Accordingly, the Trustee shall hold, as
custodian, the Assets comprising the Trust Estate, without regard to
diversification or investment decisions that may otherwise be imposed under
applicable prudent investor standards or otherwise.
F. LIMITATION ON TRUSTEE LIABILITY.
1. No Trustee shall be individually liable for any loss to, or
depreciation in, the value of the Trust Estate occurring for any
reason, so long as the Trustee shall have been acting in good faith.
2. Every act done, power exercised or obligation assumed by the Trustee,
pursuant to the provisions of this Agreement, shall be held to be done,
exercised or assumed, as the case may be, by the Trustee acting in the
Trustee's fiduciary capacity and not otherwise, and every person, firm
or corporation contracting or otherwise dealing with the Trustee shall
look only to the Assets of the Trust Estate for payment under such
contract or payment of any money that may become due or payable under
any obligation arising under this
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Agreement, in whole or in part, and no Trustee shall be individually
liable for such matter even though the Trustee did not exempt itself
from individual liability when entering into any contract, obligation
or transaction in connection with or growing out of the Trust Estate.
3. The Trustee shall be liable for gross negligence and for such acts,
neglect and defaults which constitute a breach of trust or which are
committed in bad faith.
G. TRUSTEE CONSULTATION WITH COUNSEL. The Trustee may consult with legal
counsel (who may, but is not required to, be counsel to the Grantor) concerning
any question which may arise with reference to the Trustee's duties or
obligations under this Agreement, and the opinion of such counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered by the Trustee in good faith and in accordance with the opinion of such
counsel.
H. RECEIPT BY GRANTOR BENEFICIARY DISCHARGES TRUSTEE. The receipt of the
Grantor upon distribution hereunder shall discharge the Trustee from any further
obligation with respect to the property so distributed. Upon final distribution,
the Trustee shall be fully discharged, and this entire Trust shall terminate.
VI. TRUSTEE ADMINISTRATIVE POWERS.
A. TRUSTEE POWERS. Except as specifically provided to the contrary in this
Agreement, the Trustee shall have in addition to, and not in limitation of, the
powers granted elsewhere in this Agreement, or the powers allowed by law, the
following powers:
1. To employ or retain accountants, custodians, agents, legal counsel and
other experts as the Trustee shall deem advisable, and to (i) rely on
the information and advice furnished by such persons; (ii) fix the
compensation of such persons; and (iii) make payments on account of
services provided by such person.
3. To the extent permitted by the laws of the State of New York, the
Trustee may hold securities in the name of a nominee without indicating
the trust character of such holdings, and may hold unregistered
securities, or securities in a form that will pass by delivery.
4. To retain and continue for any period any Asset included in the Trust
Estate.
5. To sell at public or private sale and to exchange or otherwise dispose
of any stocks or other Asset constituting the Trust Estate at the time,
price, and terms as the Trustee deems advisable.
6. To grant options for the sale or exchange of any Asset comprising the
Trust Estate, at times, prices and terms which the Trustee deems
advisable, without applying to or procuring the authority of any court.
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7. To compromise, adjust, settle or submit to arbitration upon terms the
Trustee deems advisable, in absolute discretion, any claim in favor of
or against the Trust Estate. To release with or without consideration
any claim in favor of the Trust Estate.
8. To participate in any refunding, reorganization, repurchase, splitting
or readjustment of stocks or other securities or obligations comprising
the Trust Estate, in connection with any merger, consolidation,
dissolution or otherwise.
9. To borrow money for the purpose of raising funds to pay taxes or for
any other purpose deemed by the Trustee beneficial to the Trust Estate,
and upon such terms as the Trustee may determine. To pledge as security
for the repayment of any loan any Assets included in the Trust Estate.
10. To exercise for the benefit of the Trust Estate, and for any Assets
included in the Trust Estate, all rights, powers and privileges of
every nature, which might or could be exercised by any person owning
similar property absolutely and in his or her own right. To exercise
any or all of such rights, powers and privileges, even where such
right, power or privilege may not have been specifically mentioned in
this Agreement. Notwithstanding the foregoing, the Trustee does not
have the power to, and shall not, vote any of the shares of common
stock of Independence Federal Savings Bank held in the Trust Estate.
11. To negotiate, draft, enter into, re-negotiate or otherwise modify any
contracts or other written instruments which the Trustee deems
advisable, and to include in them the covenants, terms and conditions
as the Trustee deems proper.
B. MODIFICATION OF THE AGREEMENT BY THE TRUSTEE.
1. The Trustee may modify or amend the Trust formed under this Trust
Agreement to facilitate the administration of the Trust Estate or to
conform such Trust to laws or regulations affecting trusts.
2. No such modification or amendment, however, shall affect the possession
or enjoyment of the Trust Estate, nor shall any action under this
provision be undertaken in a manner that frustrates the general
purposes of this Agreement.
3. Such modification or amendment shall be affected by an instrument
executed by the Trustee and delivered to the Grantor.
C. THIRD PARTY RELIANCE. No bank or trust company, corporation,
partnership, association, firm or other person dealing with the Trustee, or
keeping any Assets of the Trust Estate, shall be required to investigate the
authority of the Trustee for entering into any transaction involving Assets of
the Trust Estate. Nor shall such person be required to see to the application of
the proceeds of any transaction with the Trustee, or to inquire into the
appropriateness, validity, expediency or propriety thereof, or be under any
obligation or liability whatsoever, except to the Trustee; and any such person,
bank or trust company, corporation, partnership, association or firm shall be
fully protected in making disposition of any Assets of the Trust Estate in
accordance with the directions of the Trustee.
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D. FURTHER ASSURANCES. The Grantor agrees to execute any documents
reasonably necessary for the Trustee to implement the Trustee's duties under
this Agreement.
E. RULE AGAINST PERPETUITIES. Notwithstanding any provision to the
contrary:
1. If the Trust created under this Agreement shall violate any applicable
rule against perpetuities, accumulations or any similar rule or law,
the Trustee is hereby directed to terminate such Trust on the date
limited by such rule or law, and thereupon the Assets held in any Trust
under this Agreement affected by this provision shall be distributed to
the Grantor or the persons then entitled to share the Trust Estate in
the proportions in which they are then entitled to share.
2. No power of appointment granted under this Agreement shall be so
exercised so as to violate any such rule or law, and any attempted
exercise of any such power which violates such rule or law shall be
void.
F. CONSTRUCTION.
1. The validity, construction and effect of the provisions of this Trust
shall be governed by the laws of the State of New York.
2. This Agreement may be executed in more than one counterpart, each of
which is an original, but all taken together shall be deemed one and
the same instrument.
3. Captions, provision numbers and headings have been inserted for
convenience only and such shall not be construed to affect the
interpretation of any provision of this Agreement or to limit or
broaden the terms of any provision.
4. This Trust Agreement shall extend to and be binding upon the successors
and assigns of the Grantor and the Trustee.
5. Any provision of this Agreement prohibited by law shall be ineffective
to the extent of such prohibition without invalidating the rest of this
Agreement which shall be interpreted to conform, to the extent
permitted by law, with the original intent hereof.
IN WITNESS WHEREOF, the undersigned Grantor and Trustee have executed
this Agreement as of the date first-above written.
AMERICAN STOCK TRANSFER &
XXXXXX BANCORP, INC. TRUST COMPANY
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
--------------------- ---------------------
By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Its: President and Chief Executive Officer Its: Vice President
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SCHEDULE A
ASSETS TRANSFERRED TO THE TRUST
72,400 shares of common stock, par value $0.01 per share, of Independence
Federal Savings Bank
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