TRUST AGREEMENT
BETWEEN
RSGROUP TRUST COMPANY
AND
ROMA BANK
THIS AGREEMENT OF TRUST (the "Agreement") made effective November 1,
2003 by and between ROMA BANK, (the "Company") and RSGROUP TRUST COMPANY, a
trust company incorporated under the laws of the State of Maine (the "Trustee"),
WITNESSETH
WHEREAS, the Company has adopted Roma Bank 401(k) Savings Plan in RSI
Retirement Trust (the "Plan"), as amended and restated effective January 1,
1997, including provisions effective through March 13, 2002, for the exclusive
purpose of providing benefits to participants and their beneficiaries under the
Plan;
WHEREAS, the Company previously appointed RSI Retirement Trust as a
trustee for Plan assets, effective July 1, 1994, under the RSI Retirement Trust
Agreement and Declaration of Trust ("RSI-RT Trust") and now desires to appoint a
successor Plan trustee to RSI-RT Trust;
WHEREAS, the Company has designated the Plan and this trust (the
"Trust") which forms part of the Plan, as a plan intended to qualify under
section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, the Trustee wishes to accept its appointment as trustee for
the Plan;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
ARTICLE I
ESTABLISHMENT OF TRUST
Section 1.1. The Company and the Trustee hereby agree to the
establishment of a trust consisting of such sums as shall from time to time be
paid to the Trustee under the Plan and such earnings, income and appreciation as
may accrue thereon which, less payments made by the Trustee to carry out the
purposes of the Plan, are referred to herein as the "Fund". The Trustee shall
carry out the duties and responsibilities herein specified, but shall be under
no duty to determine whether the amount of any contribution by the Company or
any affiliated entity or by
any participant under the Plan is in accordance with the terms of the Plan, nor
shall the Trustee be responsible for the collection of any contributions
required under the Plan.
Section 1.2. The Fund shall be held, invested, reinvested and
administered by the Trustee in accordance with the terms of the Plan and this
Agreement solely in the interest of participants and their beneficiaries under
the Plan and for the exclusive purpose of providing benefits to participants and
their beneficiaries and defraying the reasonable expenses of administering the
Plan. Except as provided in Section 4.2, no assets of the Plan shall inure to
the benefit of the Company or any affiliated entity.
Section 1.3. The Trustee shall pay benefits and expenses from the Fund
only upon the written direction of the Plan Administrator, the individual
specified in the Plan as the fiduciary responsible for the day-to-day operation
and administration of the Plan. The Trustee shall be fully entitled to rely on
such directions furnished by the Plan Administrator and shall be under no duty
to ascertain whether the directions are in accordance with the provisions of the
Plan.
ARTICLE II
INVESTMENT OF THE FUND
Section 2.1. The Trustee shall invest and reinvest the Fund without
distinction between principal and income in any property, real, personal or
mixed, wherever situate, and whether or not productive of income or consisting
of wasting assets, including, without limitation, common and preferred stock
(including stock of the Company, if any), stock options, convertible stocks and
securities, bonds, notes, debentures, obligations issued or guaranteed by the
United States of America (or any agency or instrumentality thereof), other
obligations such as certificates of deposit, commercial paper, bankers
acceptances, and repurchase agreements, leaseholds, mortgages (including without
limitation, any collective or part interest in any bond and mortgage or note and
mortgage), demand or time deposits, savings deposits, shares of investment
companies and mutual funds, interests in partnerships and trusts, insurance
policies and contracts, contracts for the immediate and future delivery of
financial instruments and other property of any issuer, and oil, mineral or gas
properties, royalties, interests or rights (including equipment pertaining
thereto), without being limited to the classes of property in which trustees are
authorized to invest trust funds by any law, or any rule of court, of any State
and without regard to the proportion any such property may bear to the entire
amount of the Trust Fund; provided, however, that investments shall be so
diversified as to minimize the risk of large losses unless under the
circumstances it is clearly prudent not to do so, in the sole judgment of the
person who is directing the investment of the Trust under the provisions of
Section 2.2, or in the sole judgment of the Trustees to the extent that they are
managing the Trust Fund under such provisions.
Section 2.2. In accordance with the provisions of the Plan, the Named
Fiduciary of the Plan is authorized to appoint an "investment manager" as
defined in Section 3(38) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), to be responsible for managing one or more of the
designated investment options available under the Plan and selecting the
specific investments that comprise any such investment option. In such case, the
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Named Fiduciary shall establish the investment policies and guidelines that the
investment manager shall follow when managing the investment option for the
Plan, but the Named Fiduciary shall not be responsible for the selection of the
specific investments that comprise any such investment option. The Trustee shall
follow the directions of the investment manager regarding the designated
investment option(s) for which the investment manager is assigned
responsibility.
Section 2.3. In accordance with the provisions of the Plan, each
participant who is eligible to make an investment election shall direct the
Trustee as to the investment of that portion of his or her account subject to
such election. All investment directions by participants shall be timely
furnished to the Trustee by the Plan Administrator, except to the extent such
directions are transmitted telephonically or otherwise by participants and
beneficiaries directly to the Trustee in accordance with rules and procedures
established and approved by the Plan Administrator and the Trustee. In making
any such investment of the assets of the Fund, the Trustee shall be fully
entitled to rely on the directions from participants that are properly furnished
to the Trustee, and the Trustee shall be under no duty to make any inquiry or
investigation with respect thereto.
Section 2.4. Subject to the provisions of Section 2.1, 2.2, and 2.3,
the Trustee shall have the authority, in addition to any authority given by law,
to exercise the following powers in the administration of the Fund:
(a) to invest and reinvest all or a part of the assets of the
Fund in the available investment options under the Plan without
restriction to investments authorized for fiduciaries, including,
without limitation on the amount that may be invested therein, any
common, collective or commingled trust fund maintained by the Trustee,
investment company, mutual fund, or other security or investment option
offered by the Trustee. Any investment in, and any terms and conditions
of, any common, collective or commingled trust fund available only to
employee trusts which meet the requirements of the Code or
corresponding provisions of subsequent income tax laws of the United
States, shall constitute an integral part of this Agreement and the
Plan;
(b) to dispose of all or any part of the investments,
securities, or other property which may from time to time or at any
time constitute the Fund and to make, execute and deliver to the
purchasers thereof good and sufficient deeds of conveyance thereof, and
all assignments, transfers and other legal instruments, either
necessary or convenient for passing the title and ownership thereto,
free and discharged of all trusts and without liability on the part of
such purchasers to see to the application of the purchase money;
(c) to cause any investment of the Fund to be registered in
the name of the Trustee or the name of its nominee or nominees or to
retain such investment unregistered or in a form permitting transfer by
delivery; provided that the books and records of the Trustee shall at
all times show that all such investments are part of the Fund;
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(d) to consult and employ any suitable agent to act on behalf
of the Trustee and to contract for legal, accounting, clerical and
other services deemed necessary by the Trustee to manage and administer
the Fund according to the terms of the Plan and this Agreement;
(e) to pay from the Fund all taxes imposed or levied with
respect to the Fund or any part thereof under existing or future laws,
and to contest the validity or amount of any tax, assessment, claim or
demand respecting the Fund or any part thereof; and
(f) generally to exercise any of the powers of an owner with
respect to all or any part of the Fund.
Section 2.5. Each participant or beneficiary to whose account shares of
Company stock, if any, have been allocated shall, as a named fiduciary within
the meaning of Section 403(a)(1) of ERISA, direct the Trustee with respect to
the voting and, if applicable, tendering of shares of Company stock allocated to
his or her account, and the Trustee shall follow the directions of those
participants and beneficiaries who provide timely instructions to the Trustee.
The Trustee shall vote and, if applicable, tender the shares of Company stock
allocated to the accounts of participants for whom no timely instructions have
been received in the same proportion as those shares of Company stock for which
instructions were timely received, provided that the Plan requires that
participants and beneficiaries be given advance notice as to the consequences of
any failure to instruct the Trustee as to the voting and, if applicable,
tendering of allocated shares of Company stock. The Company or an independent
fiduciary (approved of by the Trustee) shall direct the Trustee with respect to
the voting and, if applicable, tendering of shares of Company stock which have
not been allocated to the accounts of participants or beneficiaries; provided,
however, that the Trustee may require, in its sole discretion, that an
independent fiduciary (approved of by the Trustee) direct the Trustee with
respect to the voting, and, if applicable, tendering of shares of Company stock
which have not been allocated with respect to any corporate matter which
involves the voting of Company stock with respect to the approval or disapproval
of any corporate merger or consolidation, recapitalization, reclassification,
liquidation, dissolution, a sale of substantially all assets of the business, or
any similar transaction.
Section 2.6. Except as may be authorized by regulations promulgated by
the Secretary of Labor, the Trustee shall not maintain the indicia of ownership
in any assets of the Fund outside of the jurisdiction of the district courts of
the United States.
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1. The Trustee, Company, Named Fiduciary and Plan
Administrator shall each discharge their assigned fiduciary duties and
responsibilities under this Agreement and the Plan solely in the interest of
participants and their beneficiaries in the following manner:
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(a) for the exclusive purpose of providing benefits to
participants and their beneficiaries and defraying reasonable expenses
of administering the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(c) by selecting a broad and diversified range of investments
so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so; and
(d) in accordance with the provisions of the Plan and this
Trust Agreement insofar as they are consistent with the provisions of
ERISA.
Section 3.2. The Trustee shall keep full and accurate accounts of all
receipts, investments, disbursements and other transactions hereunder, including
such specific records as may be agreed upon in writing between the Company and
Trustee. All such accounts, books and records shall be open to inspection and
audit at all reasonable times by any authorized representative of the Company,
the Named Fiduciary or the Plan Administrator. If the Plan is an individual
account plan as defined in section 3(34) of ERISA ("Individual Account Plan"),
then any participant or beneficiary under the Plan may examine those account
records pertaining directly to that participant or beneficiary.
Section 3.3. The Trustee shall determine the value of the Fund at such
times as are mutually agreed upon by the Trustee and the Company but in no case
less frequently than annually. The value of shares of Company Stock, if any,
held in the Fund shall be determined at their fair market value defined as their
closing market price on the relevant valuation date; provided, however, that in
the event such shares of Company Stock have no readily-ascertainable fair market
value because they are thinly-traded, at their fair value as determined in good
faith and pursuant to written procedures recommended by the Company and approved
by the Trustee as of such times as the Trustee determines to be appropriate, and
from such financial publications, pricing services, or other services or sources
as the Trustee reasonably believes appropriate. All other securities and the
value of other assets held in the Fund shall be valued by the Trustee at their
market values on the relevant valuation date under procedures established by the
Trustee. For purposes of this Section, Company Stock shall be considered "thinly
traded" if it is publicly traded on a national exchange or other generally
recognized market, but not in sufficient volume and/or with sufficient frequency
to assure prompt execution of buy and sell orders. The Trustee may seek an
opinion from an independent investment advisor or legal counsel as to whether a
given stock is "thinly traded."
Section 3.4. Within 120 days after the end of each plan year for the
Plan or within 120 days after its removal or resignation, the Trustee shall file
with the Named Fiduciary a written account of the administration of the Fund
showing all transactions effected by the Trustee with respect to the assets of
the Plan subsequent to the period covered by the last preceding account to the
end of such plan year or date of removal or resignation and all property held at
its fair market
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value at the end of the accounting period. Such accounting shall show the net
value of the Plan's interest in each investment option maintained by the Trustee
for the Fund and shall include financial information necessary for the
completion of the annual reports required for the Plan under ERISA. The Named
Fiduciary may approve such accounting by written notice of approval delivered to
the Trustee or by failure to express objection to such accounting in writing
delivered to the Trustee within 120 days from the date on which the accounting
is delivered to the Named Fiduciary.
Section 3.5. If the Plan is an Individual Account Plan, then, in
accordance with the terms of the Plan, the Trustee shall establish and maintain
separate accounts in the name of each participant in order to record all
contributions by or on behalf of the participant to the Plan and any earnings,
losses and expenses attributable thereto. The Plan Administrator shall furnish
the Trustee with participant enrollment data in a format acceptable to the
Trustee identifying the name, address, social security number, and current
investment directions of each participant for whom one or more separate accounts
are to be established by the Trustee under this Agreement. With respect to all
contributions to the Plan and other amounts that are transmitted to the Trustee,
the Plan Administrator shall furnish the Trustee with participant allocation
data in a format acceptable to the Trustee identifying each participant on whose
behalf an amount is being transmitted to the Trustee and the dollar amount to be
allocated to each of the participant's separate account under the Plan. In
allocating amounts to participants' separate accounts under the Plan, the
Trustee shall be fully entitled to rely on the participant enrollment and
allocation data furnished to it by the Plan Administrator and shall be under no
duty to make any inquiry or investigation with respect thereto.
Section 3.6. If the Plan is an Individual Account Plan, then the
Trustee shall, at least annually, furnish each participant in the Plan with
statements reflecting the current fair market value of the participant's
separate accounts under the Plan and all activities occurring within such
accounts during the most recent reporting period, including Plan contributions,
earnings, investment exchanges, distributions, and withdrawals.
Section 3.7. The Trustee shall not be required to determine the facts
concerning the eligibility of any participant to participate in the Plan, the
amount of benefits payable to any participant or beneficiary under the Plan, or
the date or method of payment or disbursement. The Trustee shall be fully
entitled to rely solely upon the written advice and directions of the Plan
Administrator as to any such question of fact.
Section 3.8. Unless resulting from the Trustee's gross negligence,
willful misconduct, lack of good faith, or breach of its fiduciary duties under
this Agreement or ERISA, the Company shall indemnify and save harmless the
Trustee from, against, for and in respect of any and all damages, losses,
obligations, liabilities, liens, deficiencies, costs and expenses, including
without limitation, reasonable attorney's fees incident to any suit, action,
investigation, claim or proceedings suffered, sustained, incurred or required to
be paid by the Trustee in connection with the Plan or this Agreement.
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ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2, at no time prior to the
satisfaction of all liabilities with respect to participants and their
beneficiaries under the Plan shall any part of the corpus or income of the Fund
be used for, or diverted to, purposes other than for the exclusive benefit of
participants or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
Section 4.2. The provisions of Section 4.1 notwithstanding,
contributions made by the Company or any affiliated entity under the Plan will
be returned to the Company or affiliated entity under the following conditions:
(a) If a contribution is made by mistake of fact, such
contributions may be returned within one year of the payment of such
contribution upon demand of the Company or affiliated entity; and
(b) Contributions to the Plan are specifically conditioned
upon their deductibility under the Code. To the extent a deduction is
disallowed for any such contribution, it will be returned within one
year after the disallowance of the deduction upon demand of the Company
or affiliated entity. Contributions which are not deductible in the
taxable year in which made but are deductible in subsequent taxable
years shall not be considered to be disallowed for purposes of this
subsection; and
(c) Contributions to the Plan are specifically conditioned on
initial qualification of the Plan under the Code. If a Plan is
determined by the Internal Revenue Service to not be initially
qualified, upon demand of the Company or affiliated entity any employer
contributions made incident to that initial qualification will be
returned within one year after the date the initial qualification is
denied, provided that the determination of the Internal Revenue Service
is made pursuant to an application for determination made by the time
prescribed by law for filing the return of the Company or affiliated
entity for the taxable year in which the Plan is adopted or such later
date as is prescribed by the Secretary of the Treasury.
ARTICLE V
COMMUNICATION WITH FIDUCIARIES
Section 5.1. Whenever the Trustee is permitted or required to act upon
the directions or instructions of the Company, any named fiduciary, any
investment manager or the Plan Administrator, the Trustee shall be entitled to
rely upon any written communication signed by any person or agent designated to
act as or on behalf of any such fiduciary. Such person or agent shall be so
designated either under the provisions of the Plan or in writing by the Company
and such authority shall continue until revoked in writing. The Trustee shall
incur no liability for failure to act on such person's or agent's instructions
or orders without written communication, and the Trustee shall be fully
protected in all actions taken in good faith in reliance upon any
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instructions, directions, certifications and communications believed to be
genuine and to have been signed or communicated by the proper person.
Section 5.2. The Company shall notify the Trustee in writing of the
appointment, removal or resignation of any person designated to act as or on
behalf of the Company, the Named Fiduciary, any investment manager, or the Plan
Administrator. After such notification, the Trustee shall be fully protected in
acting upon the directions of any person designated to act as or on behalf of
any such fiduciary until the Trustee receives notice from the Company to the
contrary. The Trustee shall have no duty to inquire into the qualifications of
any person designated to act as or on behalf of the Company, the Named
Fiduciary, any investment manager or the Plan Administrator.
ARTICLE VI
TRUSTEE'S COMPENSATION
Section 6.1. The Trustee shall be entitled to reasonable compensation
for its services as is agreed upon with the Company. The Trustee shall also be
entitled to reimbursement for all direct expenses properly and actually incurred
on behalf of the Plan. Such compensation or reimbursement shall be paid to the
Trustee out of the Fund unless paid directly by the Company.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written notice to
the Company which shall be effective 60 days after delivery unless prior thereto
a successor trustee shall have been appointed.
Section 7.2. Subject to the following paragraph of this Section, the
Trustee may be removed by the Company at any time upon 60 days written notice to
the Trustee; such notice, however, may be waived by the Trustee.
Notwithstanding the foregoing, removal of the Trustee
by the Company shall be subject to the same restrictions concerning the transfer
or distribution of any assets of the Fund upon receipt of certain rulings or
determinations, as are set forth in the first sentence of Section 22.7 of the
prior RSI-RT Trust, which sentence is incorporated herein by reference.
Section 7.3. The appointment of a successor trustee hereunder shall be
accomplished by and take effect upon the delivery to the Trustee of written
notice of the Company appointing such successor trustee, and an acceptance in
writing of the successor trustee hereunder executed by the successor so
appointed. A successor trustee may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals. All of the
provisions set forth herein with respect to the Trustee shall relate to each
successor trustee so appointed with the same force and effect as if such
successor trustee had been originally named herein as the trustee hereunder. If
within 60 days after notice of resignation or removal shall have been given
under the provisions of this Article VII a successor trustee shall not have been
appointed, the Trustee or
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Company may apply to any court of competent jurisdiction for the appointment of
a successor trustee.
Section 7.4. Upon the appointment of a successor trustee, the Trustee
shall transfer and deliver the Fund to such successor trustee, after reserving
such reasonable amount as it shall deem necessary to provide for its expenses in
the settlement of its account, the amount of any compensation due to it and any
sums chargeable against the Fund for which it may be liable. If the sums so
reserved are not sufficient for such purposes, the resigning or removed Trustee
shall be entitled to reimbursement for any deficiency from the successor trustee
and the Company who shall be jointly and severally liable therefor.
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
Section 8.1. The Company may, by delivery to the Trustee of an
instrument in writing, terminate this Agreement at any time.
Section 8.2. The Company may partially terminate this Agreement at any
time by delivering to the Trustee a written direction to transfer such part of
the Fund as may be specified in such direction to any other trust established
for the purpose of funding benefits under the Plan or under any other plan
qualifying under Section 401 of the Code, established for the benefit of
participants in the Plan or their beneficiaries by the Company or any affiliated
entity or any successor transferee of the Company or any affiliated entity;
provided such transfer shall be in conformity with the requirements of Federal
law.
Section 8.3. This Agreement may be amended from time to time by the
Company; provided, however, that no amendment shall increase the duties or
liabilities of the Trustee without the Trustee's consent; and, provided further,
that no amendment shall divert any part of the Fund to any purpose other than
providing benefits to participants and their beneficiaries under the Plan or
defraying the reasonable expenses of administering the Plan.
Section 8.4. If the Plan is terminated in whole or in part, the Trustee
shall distribute the Fund or any part thereof in such manner and at such times
as the Plan Administrator shall direct in writing in accordance with the
provisions of the Plan; provided, however, that the Trustee may delay
distribution of the Fund until it has received from the Company a copy of an
Internal Revenue Service favorable determination letter addressing the Plan's
tax-qualified status upon termination, or, in lieu thereof at the Trustee's sole
discretion, an opinion from Company's legal counsel that the Plan met all
qualification requirements at the date of termination.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Unless the context of this Agreement clearly indicates
otherwise, the terms defined in the Plan shall, when used herein, have the same
meaning as in the Plan.
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Section 9.2. Except as otherwise required by law in the case of any
qualified domestic relations order within the meaning of Section 414(p) of the
Code, to the extent of any offset of a Participant's benefits as a result of any
judgment, order, decree or settlement agreement provided in Section
401(a)(13)(C), or any federal tax levy made pursuant to Section 6331 of the
Code, or except as otherwise provided in the Plan with respect to any loan to a
leveraged ESOP described in Section 4975(d)(3) of the Code or loan from the Fund
to a participant in accordance with the provisions of the Plan, the benefits or
proceeds of any allocated or unallocated portion of the assets of the Fund and
any interest of any participant or beneficiary arising out of or created by the
Plan either before or after the participant's retirement shall not be subject to
execution, attachment, garnishment or other legal or judicial process whatsoever
by any person, whether creditor or otherwise, claiming against such participant
or beneficiary. Except as otherwise provided in the Plan with respect to any
loan from the Fund to a participant in accordance with the provisions of the
Plan, no participant or beneficiary shall have the right to alienate, encumber
or assign any of the payments or proceeds or any other interest arising out of
or created by the Plan and any action purporting to do so shall be void. The
provisions of this Section shall apply to all participants and beneficiaries,
regardless of their citizenship or place of residence.
Section 9.3. Any person dealing with the Trustee may rely upon a copy
of this Agreement and any amendments thereto certified to be true and correct by
the Trustee.
Section 9.4. The Trustee hereby acknowledges receipt of a copy of the
Plan. The Company will cause a copy of any amendment to the Plan to be delivered
to the Trustee.
Section 9.5. The construction, validity and administration of this
Agreement shall be governed by ERISA and, to the extent not preempted by ERISA,
the laws of the State of Maine, without regard to its rules regarding conflict
of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names by their duly authorized officers under their
corporate seals as of the day and year first above written.
ROMA BANK
BY:
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TITLE
RSGROUP TRUST COMPANY
BY:
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XXXXX XX XXX XXXXXX )
: ss.:
COUNTY OF )
On this day of , in the year 2003, before me, the undersigned, a Notary Public
in and for the said state, personally appeared , personally known to me or
proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies) and that by
his/her/their signature(s) on the instrument, the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
SEAL:
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Notary Public of
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My Commission expires
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , in the year 2003, before me, the undersigned, a Notary Public
in and for the said state, personally appeared personally known to me or proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies) and that by
his/her/their signature(s) on the instrument, the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
SEAL:
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Notary Public of
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My Commission expires
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