TRUST UNDER THE WEINGARTEN REALTY INVESTORS SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Exhibit
10.23
TRUST
UNDER THE
XXXXXXXXXX
REALTY INVESTORS
THIS
AGREEMENT is made this 21 day of October, 2003, by and between
Xxxxxxxxxx Realty Investors, a real estate investment trust organized
under the
laws of the State of Texas and having its principal office and place
of business
in Houston, Texas (the "Company") and Reliance Trust Company, a trust
organization under the laws of the United States of America and having
its
principal office and place of business in Atlanta, Georgia, as trustee
(the
“Trustee”).
RECITALS
WHEREAS,
the Company previously has adopted the Xxxxxxxxxx Realty Investors Supplemental
Executive Retirement Plan which is an unfunded executive
benefit plan
providing deferred compensation benefits to a select group of its management
or
highly compensated employees (collectively, the “Plan”); and
WHEREAS,
the Plan provides for participation by certain identified employees of
the
Company and contemplates that other employees of the Company may become
participants in the Plan; and
WHEREAS,
the Company has incurred and expects to incur liability under the terms
of the
Plan with respect to the employees who participate in the Plan (the
“Participants”); and
WHEREAS,
the Company previously has established a trust (the "Trust") and now
wishes to
amend and restate the Trust to hold the Trust assets and to receive subsequent
contributions by the Company to be held therein, subject to the claims
of the
Company's creditors in the event of the Company's insolvency, as herein
defined,
until paid to the Plan participants and their beneficiaries in such manner
and
at such times as specified in the Plan or paid to the Company in accordance
herewith; and
WHEREAS,
it is the intention of the parties that the Trust shall constitute an
unfunded
arrangement and shall not affect the status of the Plan as an unfunded
Plan
maintained for the purpose of providing deferred compensation for a select
group
of management or highly compensated employees according to Title I of
the
Employee Retirement Income Security Act of 1974 as amended; and
WHEREAS,
it is the intention of the Company to make contributions to the Trust
to provide
a source of funds to assist it in the meeting of its liabilities under
the
Plan.
NOW,
THEREFORE, the parties do hereby amend and restate the Trust and agree
that the
Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST
(a) The
Company hereby deposits with Trustee in trust $100.00, which shall become
part
of the principal of the Trust to be held, administered and disposed of
by the
Trustee as provided in this Trust Agreement. The predecessor trustee
shall
transfer to the Trustee the amounts currently held in Trust hereunder
prior to
the appointment of the Trustee. The Company shall have the right to make
additional deposits from time to time in its sole discretion.
(b) The
Trust
as amended and restated hereunder shall be irrevocable.
(c) The
Trust
is intended to be a grantor trust, of which the Company is the grantor,
within
the meaning of Subpart E, part I, subchapter J, chapter I, subtitle A
of the
Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), and
shall be construed accordingly.
(d) The
Participants and their beneficiaries shall have no preferred claim on,
or any
beneficial ownership interest in, any assets of the Trust. Any rights
created
under the Plan and this Trust Agreement shall be mere unsecured contractual
rights of the Participants and their beneficiaries against their Employer.
Any
assets held by the Trust will be subject to the claims of the Company's
general
creditors under federal and state law in the event of Insolvency, as
defined in
Section 3(a) herein.
(e) The
Trustee agrees to accept additional deposits made by the Company pursuant
to
Section 1 (a) hereof, and contributions that are paid to it by the Company
in
accordance with the terms of this Trust Agreement. Such additional deposits
and
contributions shall be in cash or in such other form that may be acceptable
to
the Trustee, including but not limited to policies of life insurance.
The
Trustee shall have no duty to determine or collect contributions under
the Plan
and shall have no responsibility for any property until it is received
and
accepted by the Trustee. The Company shall have the sole duty and responsibility
for the determination of the accuracy and sufficiency of the deposits
and
contributions to be made under the Plan, the transmittal of the same
to the
Trustee and compliance with any statute, regulation or rule applicable
to
contributions.
SECTION
2. PAYMENTS
TO PARTICIPANTS AND THEIR BENEFICIARIES
(a) From
time
to time, the Company may deliver to the Trustee a schedule (the “Payment
Schedule”) that indicates the amounts payable in respect of each Participant
(and his or her beneficiaries), that provides a formula or other instructions
for determining the amounts payable, the form in which such amounts are
to be
paid (as provided for or available under the Plan), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, the
Trustee
shall make payments to the Participants and their beneficiaries in accordance
with such Payment Schedule. The Trustee shall make provision for the
reporting
and withholding of any federal, state or local taxes that may be required
to be
withheld with respect to the payment of benefits pursuant to the terms
of the
Payment Schedule and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amount have been reported, withheld
and paid
by the Company. If the principal of the Trust, and any earnings thereon,
are not
sufficient to make payments of benefits in accordance with the terms
of the
Payment Schedule, the Company shall make the balance of each such payment
as it
falls due. The Trustee shall notify the Company where principal and earnings
are
not sufficient.
(b) Upon
the
receipt by the Trustee of (i) a written notice from the Company, indicating
that
the Plan has been completely terminated and (ii) a Payment Schedule,
indicating
how payments shall be made as a result of the termination of the Plan,
the
Trustee shall pay to each Participant his or her account balance under
the Plan
in accordance with the terms of such Payment Schedule. Notwithstanding
the
foregoing, upon the termination of the Plan the Company shall be entitled
to
make payment of benefits directly to the Participant or their beneficiaries
in
accordance with subsection (f) below.
(c) The
Company hereby agrees that the Authorized Party (as defined below) shall
have
the exclusive responsibility, and the Trustee shall not have any responsibility
or duty under this Trust Agreement for determining that the Payment Schedule
is
in accordance with the terms of the Plan and applicable law, including
without
limitation, the amount, timing or method of payment and the identity
of each
person to whom such payments shall be made. The Trustee shall have no
responsibility or duty to determine the tax effect of any payment or
to see to
the application of any payment.
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(d) The
entitlement of a Participant or his or her beneficiaries to the benefits
under
the Plan shall be determined by the Company or such party as it shall
designate
under the Plan, and any claim for such benefits shall be considered and
reviewed
under the procedures set out in the Plan.
(e) The
Company may make payment of benefits directly to the Participants or
their
beneficiaries as they become due under the terms of the Plan. The Company
shall
notify the Trustee of its decision to make payment of benefits directly
to
Participants or their beneficiaries. If the Company makes payments according
to
this subsection the Company shall make provision for the reporting and
withholding of any federal, state or local taxes that may be required
to be
withheld with respect to the payment of benefits pursuant to the terms
of the
Plan and shall pay amounts withheld to the appropriate taxing authorities.
(f) Company
shall furnish the Trustee with a written list of the names, signatures
and
extent of authority of all persons authorized to direct Trustee and otherwise
act on behalf of the Company and the Participants under the terms of
this Trust
Agreement (“Authorized Party”). The Trustee shall be entitled to rely on and
shall be fully protected in acting upon direction from an Authorized
Party until
notified in writing by the Company, as appropriate, of a change of the
identity
of an Authorized Party.
(g) In
accordance with the procedures mutually acceptable to the Company and
Trustee,
all directions and instructions to the Trustee from an Authorized Party,
including but not limited to the Payment Schedule, shall be in writing,
transmitted by mail or by facsimile or shall be an electronic transmission,
provided the Trustee may, in its discretion, accept oral directions and
instructions and may require confirmation in writing (“Authorized
Instructions”).
SECTION
3. TRUSTEE
RESPONSIBILITY REGARDING PAYMENT TO TRUST BENEFICIARY WHEN COMPANY IS
INSOLVENT
(a) The
Trustee shall cease payment of benefits to the Participants who are current
or
former employees of the Company and their beneficiaries if it receives
notice
that the Company is Insolvent. The Company shall be considered “Insolvent” for
purposes of this Trust Agreement if (i) the Company is unable to pay
its debts
as they become due, or (ii) the Company is subject to a pending proceeding
as a
debtor under the United States Bankruptcy Code.
(b) At
all
times during the continuance of this Trust, as provided in Section 1(d)
hereof,
the principal and income of the Trust shall be subject to claims of general
creditors of the Company under federal and state law as set forth
below.
(1) The
Board
of Directors and the Chief Executive Officer of the Company shall have
the duty
to inform the Trustee in writing of the Company's Insolvency. If a person
claiming to be a creditor of the Company alleges in writing to the Trustee
that
the Company has become Insolvent, the Trustee shall determine whether
the
Company is Insolvent and, pending such determination, the Trustee may
discontinue payment of benefits to the Participants or their
beneficiaries.
(2) Unless
the Trustee has actual knowledge of the Company's Insolvency, or has
received
notice from the Company or a person claiming to be a creditor alleging
that the
Company is Insolvent, the Trustee shall have no duty to inquire whether
the
Company is Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the Trustee
and that
provides the Trustee with a reasonable basis for making a determination
concerning the Company's solvency.
(3) If
at any
time the Trustee has determined that the Company is Insolvent, the Trustee
shall
discontinue payments of benefits to the Participants and their beneficiaries
and
shall hold the assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish
any rights
of the Participants or their beneficiaries to pursue their rights as
general
creditors of the Company with respect to benefits due under the Plan
or
otherwise.
(4) The
Trustee shall resume the payment of benefits to the Participants or their
beneficiaries in accordance with Section 2 of this Trust Agreement only
after
the Trustee has determined that the Company is not Insolvent (or is no
longer
Insolvent). The Trustee may rely on evidence concerning Insolvency as
may be
furnished to the Trustee and that provides the Trustee with a reasonable
basis
for making a determination concerning Insolvency. If there is a dispute
about
Insolvency, the Trustee shall have the right to require the Company to
employ
and pay for the services of an independent expert to render a written
opinion to
the Trustee addressing the question of Insolvency.
(c) Provided
that there are sufficient assets, if the Trustee discontinues the payment
of
benefits from the Trust pursuant to Section 3(a) and (b) hereof and subsequently
resumes such payments, the first payment following such discontinuance
shall
include the aggregate amount of all payments due to the Participants
or their
beneficiaries according to the terms of the Plan for the period of such
discontinuance, less the aggregate amount of any payments made to Participants
or their beneficiaries by the Company in lieu of the payments provided
for
hereunder during any such period of discontinuance. The Trustee may require
a
new Payment Schedule from the Company in such event.
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SECTION
4. PAYMENTS
TO COMPANY
(a) Except
as
provided in Sections 3 and in this Section 4 (b), because the Trust is
irrevocable, in accordance with Section 1(b) hereof, the Company shall
not have
the right or the power to direct the Trustee to return to the Company
or to
divert to others any of the Trust assets before all payment of benefits
have
been made to Participants or their beneficiaries pursuant to the terms
of the
Plan.
(b) In
the
event the Company makes payment of benefits directly pursuant to Section
1 (e)
hereof, the Company may file proof of such payment with the Trustee and
request
to be reimbursed for said payment. The Trustee shall reimburse the Company
for
amounts not exceeding the Company’s costs of making Plan payments. The Trustee
shall not be obligated to verify the amount of payment beyond receipt
of
reasonable proof (e.g. cancelled check).
SECTION
5. INVESTMENT
AUTHORITY
(a) The
Trustee shall invest and reinvest the principal and income of the Trust
as
directed by Company or its properly designated agent which directions
may be
changed from time to time. To the maximum extent permitted by law, the
Trustee
shall have no duty or responsibility (i) to advise with respect to, or
inquire
as to the propriety of, any such investment direction or (ii) for any
investment
decisions made with respect to the Trust by the Company. In the absence
of
investment direction, the Trustee shall have no obligation to invest
Trust
assets, but may invest Trust assets in any manner permitted under Section
5(d).
(b) The
Trustee may invest in securities (including stock or rights to acquire
stock) or
obligations issued by the Company. All rights associated with assets
of the
Trust shall be exercised by the Trustee and shall in no event be exercised
by or
rest with Plan participants, except that voting rights with respect to
Trust
assets will be exercised by the Company, unless an investment adviser
has been
appointed pursuant to Section 5(a) and voting authority has been delegated
to
such investment adviser.
(c) The
Company shall have the right at any time, and from time to time in its
sole
discretion, to substitute assets of equal fair market value, for any
asset held
by the Trust. This right is exercisable by the Company in a non-fiduciary
capacity without the approval or consent of any person in a fiduciary
capacity.
(d) In
administering the Trust and carrying out the instructions of the Company
in
accordance with Section 5(a) above, the Trustee shall be specifically
authorized
to:
(1) To
invest
and reinvest the Trust assets, 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, guaranteed investment contracts, bank investment contracts,
other
securities, policies of life insurance, other insurance contracts, 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);
(2) 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, provided such deposits bear
a
reasonable interest rate;
(3) To
submit
or cause to be submitted to the Company, all information received by
the Trustee
regarding ownership rights pertaining to property held in the
Trust;
(4) To
hold,
manage, improve, repair and control all property, real or personal, forming
part
of the Trust; 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;
(5) To
make,
execute and deliver any and all documents, agreements or other instruments
in
writing as are necessary or desirable for the accomplishment of any of
the
powers and duties set forth in this Trust Agreement;
(6) To
hold
in cash, without liability for interest, such portion of the Trust as
is pending
investment, or payment of expenses, or the distribution of
benefits;
(7) 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 with the consent
of an
Authorized Party the appointment of agents or trustees in such other
jurisdictions as may seem desirable, the transfer of property to such
agents or
trustees as is necessary, or the grant to such agents such powers as
are
necessary or desirable to protect the Trust.
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(8) To
vote
in person or by general or limited proxy, as directed by an Authorized
Party,
any securities in which the Trust is invested and similarly to exercise,
personally or by general or limited power of attorney, as directed by
an
Authorized Party, any right appurtenant to any authorized investment
held in the
Trust.
(9) 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 Trustee;
(10) 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
in
which the Trustee has its principal place of business 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.
(e) The
Trustee may exercise the powers described in this Section 5(d) with or
without
Authorized Instructions, but where the Trustee acts on Authorized Instructions,
the Trustee shall be fully protected as described in Section 9.
SECTION
6. ADDITIONAL
POWERS OF TRUSTEE.
(a) To
the
extent necessary or which it deems appropriate to implement its powers
under
Section 5 or otherwise to fulfill any of its duties and responsibilities
as
Trustee of the Trust, the Trustee shall have the following additional
powers and
authority:
(1) 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;
(2) Upon
receiving the consent of an Authorized Party, 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 and, as part of its expenses under this Trust
Agreement, to pay their reasonable expenses and compensation;
(3) 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
(4) Generally
to do all other acts which the Trustee deems necessary or appropriate
for the
protection of the Trust.
(5) The
Trustee at the direction of the Company may appoint a Custodian, acceptable
to
the Company, to safeguard the assets of the Trust. The Company hereby
authorizes
and directs the Trustee to enter into such agreements with the Custodian
as may
be necessary to establish an account with the Custodian. For administrative
purposes, contributions deposited to the appointed Custodian shall be
deemed as
contributions deposited with the Trustee on behalf of the Trust.
SECTION
7. DISPOSITION
OF INCOME.
During
the term of this Trust, all income received by the Trust, net of expenses
and
taxes, shall be accumulated and reinvested.
SECTION
8. ACCOUNTING
BY TRUSTEE.
(a) The
Trustee shall keep accurate and detailed records of all investments,
receipts,
disbursements, and all other transactions required to be made, including
such
specific records as shall be agreed upon in writing between the Company
and the
Trustee. Within 90 days following the close of each calendar quarter,
or at such
other additional times as may be reasonably requested by the Company,
and within
90 days after removal or resignation of the Trustee, the Trustee shall
deliver
to the Company a written account of its administration of the Trust during
such
year or during the period from the close of the last preceding year to
the date
of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description
of
all securities and investments purchased and sold with the cost or net
proceeds
of such purchases or sales (accrued interest paid or receivable being
shown
separately), and showing all cash, securities and other property held
in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
(b) The
Trustee shall be entitled to rely on the Recordkeeper (the provider of
recordkeeping services for the Plan Administrator) or the Custodial Agent
(the
custodian of investments), if any other than Trustee, for the maintenance
and
provision of all records specified in this Section 8.
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SECTION
9. RESPONSIBILITY
AND INDEMNITY OF THE TRUSTEE.
(a) The
Trustee shall act with the care, skill, prudence and diligence under
the
circumstances then prevailing that a prudent person acting in like capacity
and
familiar with such matters would use in the conduct of an enterprise
of a like
character and with like aims, provided, however, that the Trustee shall
incur no
liability to any person for any action taken pursuant to a direction,
request or
approval given by the Company which is contemplated by, and in conformity
with,
the terms of the Plan(s) and this Trust and is given in writing by the
Company
or in such other manner prescribed by the Trustee. In the absence of
direction,
request or approval from the Company, the Trustee shall also incur no
liability
to any person for any failure to perform an act not contemplated by or
in
conformity with, the terms of this Trust. In the event of a dispute between
the
Company and a party, the Trustee may apply to a court of competent jurisdiction
to resolve the dispute.
(b) The
Company hereby indemnifies the Trustee and each of its affiliates (collectively,
the "Indemnified Parties") against, and shall hold them harmless from,
any and
all loss, claims, liability, and expense, including reasonable attorneys'
fees,
imposed upon or incurred by any Indemnified Party as a result of any
acts taken,
or any failure to act, in accordance with the directions from the Company
or any
designee of the Company, or by reason of the Indemnified Party's good
faith
execution of its duties with respect to the Trust, including, but not
limited
to, its holding of assets of the Trust, except the Trustee’s right of
indemnification shall not extend to any and all loss, claims, liability
or
expense arising from its own negligence or willful misconduct. The Company's
obligations in the foregoing regard shall be satisfied promptly by the
Company,
provided that in the event 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 negligence or misconduct of the
Trustee,
the Trustee shall promptly on request thereafter return to the Company
any
amount previously received by the Trustee under this Section 9(b) with
respect
to such loss, claim, liability or expense. If the Company does not pay
such
costs, expenses and liabilities in a reasonably timely manner, the Trustee
may
obtain payment from the Trust without direction from the Company.
(c) The
Trustee shall incur no liability to anyone for any action that it or
the
Custodian as its delegate takes pursuant to a direction, request or approval
given by the Company, Participants, the Investment Committee, the Administrator
or by any other party (including, without limitation, the Recordkeeper
and any
of its agents) to whom authority to give such directions, requests or
approvals
is delegated under the powers conferred upon the Company, Participants,
the
Investment Committee, the Administrator or such other party under this
Agreement.
(d) The
Trustee, upon receipt of the consent of an Authorized Party, at the expense
of
the Trust or the Company, may consult with legal counsel (who may also
be
counsel for Company generally) with respect to any of its duties or obligations
hereunder.
(e) The
Trustee, upon receipt of the consent of an Authorized Party, may hire
agents,
accountants, actuaries, investment advisers, financial consultants or
other
professionals to assist it in performing any of its duties or obligations
hereunder.
(f) The
Trustee shall have, without exclusion, all powers conferred on the Trustee
by
applicable law, unless expressly provided herein, provided, however,
that if an
insurance policy is held as an asset of the Trust, the Trustee shall
not have
the power to name a beneficiary of the policy other than the Trust, to
assign
the policy (as distinct from conversion of the policy to a different
form) other
than to a successor trustee, or to loan to any person the proceeds of
any
borrowing against such policy.
(g) Notwithstanding
any powers granted to the Trustee pursuant to this Trust Agreement or
applicable
law, the Trustee shall not have any power that could give this Trust
the
objective of carrying on a business and dividing the gains therefrom,
within the
meaning of section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
(h) The
Trustee shall not be liable for any expense, loss, claim or damage (including
counsel fees) suffered by the Participants arising out of or caused by
any delay
in, or failure of, performance by the Trustee, in whole or in part, arising
out
of, or caused by, circumstances beyond the Trustee’s control, including without
limitation: acts of God, interruption, delay in, or loss (partial or
complete)
of electrical power or external computer (hardware or software) or communication
services (including access to book-entry securities systems maintained
by
Federal Reserve Bank of New York and/or any clearing corporation); act
of civil
or military authority; sabotage; natural emergency; epidemic; war or
other
government actions; civil disturbance; flood, earthquake, fire, other
catastrophe; strike or other labor disturbance by employees of nonaffiliates;
governmental, judicial, or self regulatory organization order, rule or
regulation; riot; energy or natural resource difficulty or shortage;
and
inability to obtain materials, equipment or transportation except to
the extent
any such expense, loss, claim or damage (including counsel fees) arises
from
Trustee’s failure to take commercially reasonable precautions then prevailing
with respect to any or all of the foregoing.
6
(i) If
(1)
there is any disagreement or dispute in connection with the Trust or
the subject
matter hereof, including any dispute between the Trustee, the Company
or any
Participant, or between the Company, any Participant or any person not
a party
to the Trust or (2) there are adverse or inconsistent claims or demands
upon, or
inconsistent with instructions to the Trustee, or (3) the Trustee in
good faith
is in doubt as to what action to take pursuant to the Trust, the Trustee
may at
its election refuse to comply with any such claims, demands or instructions,
or
refuse to take any other action pursuant to this Trust until (i) the
rights of
all persons involved in the dispute have been fully and finally adjudicated
by a
court of competent jurisdiction or the Trustee has resolved any such
doubts to
its good faith satisfaction; or (ii) all disputes have been resolved
between the
persons involved and the Trustee has received written notice thereof
satisfactory to it from all such persons. Without limiting the generality
of the
foregoing, the Trustee may at its election interplead the subject matter
of this
Trust Agreement with a court of competent jurisdiction, or commence judicial
proceedings for a declaratory judgment, and the Trustee shall be entitled
to
recover from the Company or the Trust, both collectively and individually,
the
Trustee’s attorneys’ fees, expenses and costs in connection with any such
interpleader or declaratory judgment action
(j) The
Trustee is not a party to, and has no duties or responsibilities under,
the Plan
other than those that may be expressly contained in this Trust Agreement.
In any
case in which a provision of this Trust Agreement conflicts with any
provision
of the Plan, the Plan shall control. The Trustee shall have no duties,
responsibilities or liability with respect to the acts or omissions of
any prior
or successor trustee.
SECTION
10. COMPENSATION
AND EXPENSES OF TRUSTEE
(a) The
Company shall pay all administrative and Trustee's fees and expenses
under this
Trust Agreement as mutually agreed and, if not so paid, such fees and
expenses
may be withdrawn from the Trust by the Trustee. If the Trustee advances
cash or
securities for any purpose, including the purchase or sale of foreign
exchange
or of contracts for foreign exchange, or in the event that the Trustee
shall
incur or be assessed taxes, interest, charges, expenses, assessments,
or other
liabilities in connection with the performance of this Trust Agreement,
except
such as may arise from its own negligent action, negligent failure to
act or
misconduct, any property at any time held for the Trust shall be security
therefor and the Trustee shall be entitled to collect from the Company
or, if
not paid, from the Trust sufficient cash for reimbursement of such taxes,
interest, charges, expenses, assessments or other liabilities. If cash
is
insufficient, the Trustee may dispose of the assets of the Trust to the
extent
necessary to obtain the aforesaid reimbursement. To the extent the Trustee
advances funds to the Trust for disbursements or to effect the settlement
of
purchase transactions, the Trustee shall be entitled to collect from
the Company
or, if not so paid, from the Trust either (i) with respect to domestic
assets,
an amount equal to what would have been earned on the sums advanced (an
amount
approximating the “federal funds” interest rate) or (ii) with respect to
non-domestic assets, the rate applicable to the appropriate foreign
market.
SECTION
11. RESIGNATION
AND REMOVAL OF TRUSTEE
(a) The
Trustee may resign at any time by written notice to the Company, which
shall be
effective sixty (60) days after receipt of such notice unless the Company
and
the Trustee agree otherwise.
(b) The
Trustee may be removed by the Company on sixty (60) days notice or upon
shorter
notice accepted by the Trustee. However, upon a Change of Control, as
defined
herein, the Trustee may not be removed by the Company for four years
after the
Change of Control unless the persons who are then Participants agree
to the
removal.
(c) If
the
Trustee resigns within four years after a Change of Control, as defined
herein,
the Company shall apply to a court of competent jurisdiction for the
appointment
of a successor Trustee or for instructions, unless the then Participants
and the
Company agree to the selection of a successor trustee.
(d) Upon
resignation or removal of the Trustee and appointment of a successor
trustee,
all assets shall subsequently be transferred to the successor trustee.
The
transfer shall be completed within one hundred twenty (120) days after
receipt
of notice of resignation, removal or transfer, unless the Company extends
the
time limit.
(e) If
Trustee resigns or is removed, a successor shall be appointed, in accordance
with Section 12 hereof, by the effective date of resignation or removal
under
paragraphs (a) or (b) of this Section. If no such appointment has been
made, the
Trustee may apply to a court of competent jurisdiction for appointment
of a
successor or for instructions. All expenses of the Trustee in connection
with
the proceeding shall be allowed as administrative expenses of the
Trust.
7
SECTION
12. APPOINTMENT
OF SUCCESSOR.
(a) If
the
Trustee resigns or is removed in accordance with Section 11(a) or (b)
hereof,
subject to the requirements of Section 11, the Company may appoint any
third
party, such as a bank trust department or other entity that may be granted
corporate trustee powers under state law, as a successor to replace the
Trustee
upon resignation or removal. The appointment shall be effective when
accepted in
writing by the new trustee, who shall have all of the rights and powers
of the
former trustee, including ownership rights in the Trust assets. The former
trustee shall execute any instrument necessary or reasonably requested
by the
Company or the successor trustee to evidence the transfer.
(b) The
successor trustee need not examine the records and acts of any prior
trustee and
may retain or dispose of existing Trust assets, subject to Sections 8
and 9
hereof. The successor trustee shall not be responsible for and the Company
shall
indemnify and defend the successor trustee from any claim or liability
resulting
from any action or inaction of any prior trustee or from any other past
event,
or any condition existing at the time it becomes successor trustee.
SECTION
13. AMENDMENT
OR TERMINATION
(a) This
Trust Agreement may be amended by a written instrument executed by the
Trustee
and the Company. Notwithstanding the foregoing, no such amendment shall
conflict
with the terms of the Plan or shall make the Trust revocable.
(b) The
Trust
shall not terminate until the date on which the Participants and their
beneficiaries are no longer entitled to benefits pursuant to the terms
of the
Plan. Upon termination of the Trust, any assets remaining in the Trust
shall be
returned to the Company.
(c) Upon
written approval of the Participants or beneficiaries entitled to payment
of
benefits pursuant to the terms of the Plan, the Company may terminate
this Trust
prior to the time all benefit payments under the Plan have been made.
All assets
in the Trust at termination shall be returned to the Company.
SECTION
14. MISCELLANEOUS.
(a) Any
provision of this Trust Agreement prohibited by law shall be ineffective
to the
extent of any such prohibition, without invalidating the remaining provisions
hereof.
(b) Benefits
payable to Participants and their beneficiaries under this Trust Agreement
may
not be anticipated, assigned (either at law or in equity), alienated,
pledged,
encumbered or subjected to attachment, garnishment, levy, execution or
other
legal equitable process.
(c) This
Trust Agreement shall be governed by and construed in accordance with
the laws
of the State of Georgia.
(d) For
purposes of this Trust Agreement, a Change of Control is determined pursuant
to
Section 2.6 of the Plan.
(e) Neither
the Company nor the Trustee may assign this Trust Agreement without the
prior
written consent of the other. This Trust Agreement shall be binding upon,
and
inure to the benefit of, the Company, the Trustee and their respective
successors and permitted assigns. Any entity, which shall by merger,
consolidation, purchase, or otherwise, succeed to substantially all the
trust
business of the Trustee shall, upon each succession and without any appointment
or other action by the Company, be and become successor trustee hereunder,
upon
notification to Company.
(f) The
provisions of this Trust Agreement are intended to benefit only the parties
hereto, their respective successors and assigns, and the Participants
and their
beneficiaries under the Plan. There are no other third party
beneficiaries.
(g) The
Company and the Trustee hereby each represents and warrants to the other
that it
has full authority to enter into this Trust Agreement upon the terms
and
conditions hereof and that the individual executing this Trust Agreement
on its
behalf has the requisite authority to bind the Company or the Trustee
to this
Trust Agreement.
(h) This
Trust Agreement may be executed in any number of counterparts, each of
which
shall be deemed an original, and such counterparts shall constitute but
one and
the same instrument and may be sufficiently evidenced by one
counterpart.
SECTION
15. EFFECTIVE
DATE
(a) The
effective date of this Trust Agreement shall be November 1, 2003.
8
IN
WITNESS WHEREOF, the Company and the Trustee have executed this Trust
Agreement
each by action of a duly authorized person.
Xxxxxxxxxx
Realty Investors
By:
/s/ Xxxxxxx
Xxxxxxx
Name/Title:
Xxxxxxx Xxxxxxx, Xx. VP, CFO
Date:
10/21/2003
Reliance
Trust Company
By: /s/
Xxxxxxxx Xxxx
Name/Title:
Xxxxxxxx Xxxx, AVP
Date:
11/03/2003
