THE TALBOTS, INC. RETIREMENT SAVINGS VOLUNTARY PLAN
TRUST AGREEMENT
THIS TRUST AGREEMENT is made and entered into as of the 1st day of
OCTOBER, 1999 by and among The Talbots, Inc. ("Company"), the Administrator for
The Talbots, Inc. Retirement Savings Voluntary Plan and American Express Trust
Company ("Trustee").
RECITALS
FIRST: The Company has established The Talbots, Inc. Retirement Savings
Voluntary Plan; and
SECOND: The Company has previously established a trust to fund benefits under
the Plan; and
THIRD: The Company desires to amend and restate Trust and to appoint American
Express Trust Company as Trustee hereunder;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
ARTICLE 1
Definitions
1.1 Incorporation of Definitions Used in Plan
Unless otherwise defined herein, the definitions stated in the Plan, as
defined in Section 1.2 of this Agreement, are hereby incorporated by
reference into this Trust Agreement.
1.2 Definitions of Terms
(a) "Administrator" means the Plan Administrator as defined under
the document establishing The Talbots, Inc. Retirement Savings
Voluntary Plan.
(b) "Business Day" means any day the New York Stock Exchange is
open for business.
(c) "Code" means the Internal Revenue Code of 1986, as amended, or
its successor.
(d) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or its successor.
(e) "Investment Funds" mean the investment funds designated by the
Administrator pursuant to Section 4.2 of this Trust Agreement.
(f) "Investment Manager" means the person appointed pursuant to
Section 4.3 of this Trust Agreement to manage all or a portion
of the assets of the Trust Fund.
(g) "Plan" means The Talbots, Inc. Retirement Savings Voluntary
Plan, as from time to time amended.
(h) "Trust Fund" means the fund maintained pursuant to this Trust
Agreement for the exclusive purpose of funding the Plan as
provided herein.
(i) "Valuation Date" means each Business Day.
ARTICLE 2
Trust Fund
2.1 Title
The title of the trust created by this Trust Agreement is the Talbots,
Inc. Retirement Savings Voluntary Plan Trust (the "Trust").
2.2 Trust Fund
The Trust Fund shall consist of such sums of money or other property as
shall from time to time be paid or delivered to the Trustee pursuant to
the Plan, plus all income and gains, less losses, distributions and
expenses chargeable thereto, The Trust Fund shall be held in trust and
dealt with in accordance with the provisions of this Trust Agreement.
2.3 Tax Status of Trust
The Company intends by this Trust Agreement to create a trust forming a
part of the Plan which shall meet the requirements for qualification
under Section 401(a) of the Code and which shall be exempt from tax
pursuant to Section 501(a) of the Code.
2.4 Appointment of and Acceptance by Trustee
The Company hereby appoints American Express Trust Company as
nondiscretionary trustee of the Trust. The Trustee shall function as a
directed Trustee as defined in Section 403(a) of ERISA. American
Express Trust Company hereby accepts the Trust imposed upon it by this
Trust Agreement and covenants and agrees to perform the same as herein
expressed.
2.5 Right of the Company to Trust Assets
The Company shall have no rights or claims of any nature in or to the
Trust Fund.
2.6 Exclusive Benefit of Participants and Beneficiaries
(a) Notwithstanding anything to the contrary contained in this
Trust Agreement, or in any amendment thereto, it shall be
impossible, except as otherwise provided under ERISA, at any
time prior to the satisfaction of all liabilities with respect
to the Participants and Beneficiaries of the Plan, for any
part of the Trust Fund, other than such part as is required to
pay taxes and expenses of administration of the Plan and the
Trust (including the payment of Trustee's fees), to be used
for, or diverted to, purposes other than for the exclusive
benefit of the Participants and Beneficiaries.
(b) The Company shall have no beneficial interest in the assets of
the Trust, and no part of the Trust shall ever revert to or be
repaid to the Company, directly or indirectly, except that
upon written request, the Company shall have a right to
recover:
(1) a contribution to the Plan made by mistake of fact if
such contribution (to the extent made by mistake of
fact) is returned to the Company within one year
after payment of such contribution;
(2) any contributions to the Plan conditioned upon
initial qualification of the Plan under section
401(a) of the Code if the Plan does not so qualify
and such contributions are returned to the Company
within one year after the denial of qualification of
the plan and only if a determination letter request
is filed by the time prescribed by law for filing the
Company's tax return for the taxable year in which
the Plan is adopted;
(3) a contribution to the Plan which is disallowed as a
deduction under section 404 of the Code if such
contribution (to the extent disallowed) is returned
to the Company within one year after the deduction is
disallowed; and
(4) any residual assets due to a section 415 excess
contribution upon termination of the Plan if all
liabilities of the Plan to Participants and their
Beneficiaries have been satisfied and the reversion
does not contravene any provision of law.
2.7 Administrator shall direct Trustee
Company authorizes the Administrator to direct and instruct Trustee as
provided in this Agreement.
ARTICLE 3
Contributions to and Distributions from the Trust
3.1 Receipt of Contributions
The Trustee shall receive and hold as part of the Trust Fund such
assets of the Plan as may be transferred to it from time to time and
any contributions to the Plan made to the Trust Fund from time to time.
The Trustee shall not be required to determine that any contributions
are in compliance with the Plan, ERISA or the Code, and shall be
accountable only for the funds actually received by it. In the case of
assets transferred from another trustee or any other fiduciary, the
Trustee shall not be responsible for any actions or inactions of such
trustee or other fiduciary either prior to or after the transfer of
Trust Fund assets. Company represents that any such assets, from time
to time so transferred, were part of a qualified trust at the time of
the transfer.
3.2 Distributions to Participants
The Trustee, upon the written direction of the Administrator or by any
other method authorized by the Administrator and agreed to by the
Trustee, shall make distributions from the Trust Fund to such persons,
in such manner, in such amounts (but not exceeding the then value of
the Trust Fund), and for such purposes as may be specified in the
direction of the Administrator. The Trustee may reserve from a
distribution such reasonable amounts as the Trustee shall deem
necessary to pay its expenses and any income, estate, inheritance or
other tax, charge or assessment attributable to a distribution or may
require such release from a taxing authority or such indemnification
from the distributee as the Trustee shall deem necessary for the
protection of the Trustee.
The Trustee shall not be liable for making any distribution, failing to
make any distribution, or discontinuing any distribution on the
direction of the Administrator, or for failing to make any distribution
by reason of the Administrator's failure to direct that such
distribution be made. The Trustee has no duty to inquire whether any
direction or absence of direction is in conformity with the provisions
of the Plan or whether it is made in good faith without actual notice
or knowledge of the changed condition or status of any recipient. The
Company warrants that all such directions are and shall be in
accordance with the provisions of the Plan with respect to which such
distribution is made. The Trustee shall not be required to determine or
make any investigation to determine the identity or mailing address of
any person entitled to benefits under the Plan, and shall be discharged
of any obligation in that respect when the Trustee shall have sent
checks and other papers by regular mail, postage prepaid, to such
persons and at such addresses as may be furnished by the Company.
ARTICLE 4
Investment of the Trust Fund
4.1 Title to Assets
The Trustee is vested with title to all the assets of the Trust Fund
and shall have full power and authority to do all acts necessary to
carry out its duties hereunder. Participants and Beneficiaries shall
not have any right or interest in the Trust Fund except as provided in
the Plan. Prior to the time of distribution, neither a Participant nor
a Beneficiary (nor a legal representative of a Participant or a
Beneficiary) shall have any right, by way of anticipation or otherwise,
to assign, encumber, or in any manner dispose of any interest in the
Trust except as permitted under the Plan or as required by law or
directed by a court of competent jurisdiction.
4.2 Direction
(a) The Administrator will direct the Trustee as to the Investment
Funds to be established for investment of Trust Fund assets in
accordance with the provisions of the Plan. Except for those
Investment Funds that are mutual funds or that are under the
investment control of an Investment Manager, the Administrator
shall exercise exclusive investment direction and control of
the Investment Funds. To such extent:
(1) the Administrator shall have the power and authority to
invest, acquire, manage or dispose of the assets of the Trust
Fund and to direct the Trustee with respect to the investment,
reinvestment and sale of such assets; and (2) the Trustee does
not have any duty to question any direction, to review any
securities or other property, or to make any suggestions in
connection therewith. The Trustee will promptly comply with
any direction given by the Administrator.
(b) The Trustee shall invest in the Investment Funds in accordance
with investment directions given by the Participants and
Beneficiaries for whose accounts such assets are held, to the
extent so provided for in the Plan. All such directions by the
Participants or Beneficiaries to the Trustee will be made in
writing or by telephone or in such other manner as is
acceptable to the Trustee. Participants and Beneficiaries will
be deemed fiduciaries for purposes of such investment
selection.
(c) Where the Administrator, a Participant, a Beneficiary or an
Investment Manager (except the Trustee as Investment Manager
of any assets as provided herein), has the power and authority
to direct the investment of any assets of the Trust Fund, the
Trustee does not have any duty to question any direction, to
review any securities or other property, or to make any
suggestions in connection therewith. The Trustee will promptly
comply with any direction given by the Administrator, a
Participant, a Beneficiary or Investment Manager.
(d) The Trustee will not be liable in any manner or for any reason
for any loss or other unfavorable investment results arising
from its compliance with direction under this Section, nor be
liable for failing to invest any assets of the Trust Fund
under the management and control of the Administrator, a
Participant, a Beneficiary or an Investment Manager in the
absence of investment directions regarding such assets.
4.3 Investment Managers
(a) The Administrator has the power and authority to appoint one
or more Investment Managers as defined in and subject to the
requirements of ERISA. Each Investment Manager so appointed
will have the power and authority to invest, acquire, manage
or dispose of the assets of the Trust Fund under its
management and to direct the Trustee with respect to the
investment, reinvestment and sale of such assets.
(b) If the Administrator elects to delegate investment authority
for the assets of all or any portion of the Trust Fund to an
Investment Manager pursuant to subsection (a), the
Administrator will inform the Trustee in writing of such
designation and such written notice shall describe the portion
of the Trust Fund affected. Upon receipt of such notice, the
Trustee will be obligated to follow the investment directions
of the Investment Manager with respect to the assets of the
specified portion of the Trust Fund until the Trustee receives
written notice that such Investment Manager has resigned or
has been removed or replaced by the Administrator. The Trustee
will not be a party to any agreement between the Administrator
and an Investment Manager, and will have no responsibility
with respect to the terms and conditions of such agreement.
(c) In exercising its authority to delegate investment authority
to an Investment Manager, the Administrator shall have the
duty, responsibility and power to (i) examine and analyze the
performance of prospective Investment Managers; (ii) select an
Investment Manager or Managers; (iii) determine the portion of
the Trust Fund that will be under the management of each
Investment Manager; (iv) issue appropriate instructions to the
Trustee and to each Investment Manager regarding the
allocation of investment authority; (v) review the performance
of each Investment Manager at periodic intervals; and (vi)
remove any Investment Manager when the Administrator deems
such removal to be necessary or appropriate.
(d) All directions by an Investment Manager to the Trustee
concerning the investment, reinvestment, sale or management of
assets of the Trust Fund will be made, in writing or in such
other manner as is acceptable to the Trustee, by such person
or persons as the Investment Manager designates in writing to
the Trustee from time to time.
(e) An Investment Manager who engages any investment advisor or
investment counselor that it deems necessary or appropriate,
may provide that directions concerning the investment and
reinvestment of the assets of the Trust Fund under its
management and control to be made directly to the Trustee by
such advisor or counselor as the Investment Manager's agent;
provided, however, that prior to any such direction by the
investment advisor or investment counselor, the Trustee
receives written notice from the Investment Manager that the
directions of such agent will be considered the directions of
the Investment Manager and that the Investment Manager will be
responsible for the directions of such agent.
(f) If an Investment Manager resigns or is removed by the
Administrator, the Administrator will notify the Trustee in
writing of such resignation or removal. Upon actual receipt of
such notice, the power and authority to invest and reinvest
the assets of the Trust Fund formerly under the control and
management of the Investment Manager will return to the
Administrator unless the Administrator indicates that a
successor Investment Manager has been appointed with respect
to such assets.
(g) The fees and expenses of each Investment Manager, except to
the extent paid by the Company, shall be paid from the Trust
Fund. The Trustee may request a representation from the
Company that such payments are allowed under ERISA.
4.4 Investment in a Collective Fund
When so directed by the Administrator or pursuant to investment
directions given by Participants or Beneficiaries pursuant to Section
4.2, the Trustee shall invest and reinvest all or a portion of the
Trust Fund through any common or collective trust fund or pooled
investment fund, including collective investment funds maintained by
American Express Trust Company or its successor, for the collective
investment of funds held by it in a fiduciary capacity. The 1998
Amended and Restated Declaration of Trust creating the American Express
Trust Collective Investment Funds for Employee Benefit Trusts
("Declaration of Trust") is hereby incorporated by reference and made a
part of this Agreement. Notwithstanding any other provision of this
Agreement, the Trustee may commingle the designated assets from the
Trust Fund with the money of trusts created by others, by causing such
assets to be invested as a part of any one or more of the collective
funds created by the others' declaration of trust and assets of this
Trust Fund so added to any of the collective funds at any time shall be
subject to all of the provisions of the declaration of trust as it is
amended from time to time.
4.5 Trustee as Investment Manager
The Administrator hereby appoints Trustee to serve as Investment
Manager with respect to the Investment Funds set forth in Exhibit A,
which Exhibit may be amended from time to time (said Investment Funds
hereinafter referred to as the "Account"):
Trustee shall have full discretionary authority to formulate and
execute an investment program for the management and investment of the
Account, including the authority to:
(a) buy, sell, exchange, convert or otherwise trade in any stocks,
bonds and other investments including money market instruments
and investment contracts; and
(b) place orders for the execution of such investment transactions
with or through such brokers, dealers or issuers as Trustee
may select; and
(c) request the issuance of average price confirmations by
participating brokers.
Such authority shall be subject to the terms and conditions of this
Agreement, the provisions of the Declaration of Trust with respect to
any assets in the collective funds as provided in Section 4.4 of this
Trust Agreement and any written investment objectives and guidelines
that are executed by the Administrator or Company and accepted by the
Trustee. Such guidelines are incorporated herein by reference.
To the extent the Trustee is an Investment Manager, it shall invest and
reinvest the principal and income of the Account 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.
ARTICLE 5
Trustee's Powers
5.1 Powers Exercisable by the Trustee in its Sole Discretion
In addition to all other powers and authorities elsewhere in this
Agreement specifically granted to the Trustee, the Trustee shall have
the following powers and authority, to be exercised in its sole
discretion:
(a) To keep any or all securities or other property in the name of
a nominee with or without power of attorney for a transfer or
in its own name without disclosing its capacity, or in bearer
or book-entry form.
(b) To make, execute, acknowledge and deliver any and all
instruments deemed necessary or appropriate to carry out the
powers herein granted.
(c) To employ suitable agents, including, but not limited to,
auditors, actuaries, accountants, and legal and other counsel,
and to pay their expenses and reasonable compensation for
services to the Trust from the Trust Fund. The Trustee may
from time to time consult with legal counsel who may, but need
not be, legal counsel for the Company.
(d) To settle securities trades through a securities depository
that utilizes an institutional delivery system, in which event
the Trustee may deliver or receive securities in accordance
with appropriate trade reports or statements given to the
Trustee by such depository.
5.2 Powers exercisable by the Trustee, Subject to the Direction of the
Administrator, or an Investment Manager
The Trustee will exercise the following powers upon the direction of
the Administrator, or the designated Investment Manager.
(a) To invest and reinvest Trust Fund assets in common stocks,
preferred stocks, bonds, notes, debentures, mortgages,
insurance policies, individual or group annuity contracts,
investment contracts, commercial paper, fixed time deposits,
money market instruments, mutual funds, collective investment
funds or other investments, including investments offered by
the Trustee or its affiliates.
(b) To invest and reinvest in stocks and other securities issued
by the Company or any subsidiary or affiliate thereof.
(c) To borrow money for the purposes of this Trust upon such terms
and conditions as deemed appropriate, and to obligate the
Trust Fund for repayment.
(d) To hold cash uninvested and unproductive of income or deposit
same with any banking or savings institution, including its
own banking department or the banking department of an
affiliate.
(e) To exercise any or all conversion and subscription rights
with respect to properties held in the Trust Fund.
(f) To hold, acquire, or invest in qualifying Employer securities
as defined in section 407(d)(5) of ERISA or qualifying
Employer real property as defined in section 407(d)(4) of
ERISA (or both) to the extent that the aggregate fair market
value of such securities and property does not exceed the
limitations set forth in section 407 of ERISA.
(g) To pool all or any of the assets of the Trust with assets
belonging to any other employee benefit trust created by the
Employer or an affiliate of the Employer, and to commingle
such assets and make joint or common investment carry joint
accounts on behalf of the Trust and such other trust or
trusts, and allocated undivided shares or interest in such
investments or accounts or in any pooled assets to the two or
more trusts in respect to their respective interests in the
pooled investment.
5.3 Powers Exercisable by the Trustee Only Upon the Direction of the
Administrator
Upon the direction of the Administrator, the Trustee will accept,
compromise or otherwise settle any claims by or against the Trust Fund
or disputed liabilities due to or from the Trustee with respect to the
Trust Fund, including any claim that may be asserted for taxes under
present or future laws, or to enforce or contest the same by
appropriate legal proceedings.
5.4 Proxies and Other Incidents of Ownership
The Administrator has assigned to the Participants the right to vote
proxies or exercise other rights of ownership with respect to Company
Stock. Unless otherwise agreed in writing: (i) the Administrator shall
be responsible for distributing proxies and proxy related materials to
the Participants and (ii) the Trustee shall deliver or cause to be
delivered to the Administrator all notices, prospectuses and finance
statements relating to Company Stock. The Trustee shall not vote any
proxy or tender offer election, participate in any voting trust,
exercise any option or subscription right or join in, dissent from or
oppose any merger, reorganization, consolidation, liquidation or sale
with respect to Company Stock except in accordance with the timely
written instructions of the Participants. Solely for this purpose, each
Participant shall act as the Named Fiduciary, as defined in ERISA, in
providing direction to the Trustee. Unless contrary to the terms of the
Plan, and to the extent practicable, all unallocated Company Stock and
all Company Stock for which the Trustee has not received instructions,
shall not be voted.
For purposes of this Section, it is understood and agreed that the
Company or the Administrator shall, if requested by the Trustee, select
an independent third party to notify Participants of their rights
hereunder, to collect Participants' voting instructions, to tabulate
such instructions, and to notify the Trustee of such results so that
the Trustee may act thereon. Any fees and expenses incurred, as a
result of using such third party shall be paid by the Trust; provided
however, the Company may choose to pay such amount on behalf of the
Trust.
With respect to investments other than Company Stock, the Trustee shall
deliver or cause to be delivered, to the Administrator or the
designated Investment Manager, all notices, prospectuses, financial
statements, proxies and proxy soliciting materials relating to
investments held hereunder. Except for those Trust Fund assets for
which American Express Trust is the Investment Manager, the Trustee
shall not vote any proxy or tender offer election, participate in any
voting trust, exercise any option or subscription right or join in,
dissent from or oppose any merger, reorganization, consolidation,
liquidation or sale with respect to the assets held hereunder, other
than Company Stock, except in accordance with the timely written
instructions of the Administrator. If no such written instructions are
received, such proxy and tender offer elections and voting trust votes
shall not be voted; such options or subscription rights shall not be
exercised; and such mergers, reorganizations, consolidation,
liquidations or sales shall not be joined, dissented from or opposed.
ARTICLE 6
Accounting
6.1 Valuation
(a) The Trustee will determine the current fair market value of
the assets and liabilities of the Trust Fund as of the end of
each Valuation Date.
(b) The fair market value of assets of the Trust Fund will be
determined by the Trustee on the basis of such sources of
information as it may deem reliable, including (but not
limited to) information reported in (i) newspapers of general
circulation, (ii) standard financial periodicals or
publications, (iii) statistical and valuation services, (iv)
records of securities exchanges, (v) reports of any Investment
Manager, insurance company or financial institution that has
issued an investment contract to the Trustee or brokerage firm
deemed reliable by the Trustee, or (vi) any combination of the
foregoing. If the Trustee is unable to value assets from such
sources, it may rely on information from the Company, the
Administrator, appraisers or other sources, and will not be
liable for inaccurate valuation based in good faith on such
information.
(c) The Administrator may, for administrative purposes, establish
unit values for one or more Investment Funds (or any portion
thereof) and maintain the accounts setting forth each
Participant's interest in such Investment Fund (or any portion
thereof) in terms of such units, all in accordance with such
rules and procedures as the Administrator shall deem to be
fair, equitable and administratively practicable. In the event
that unit accounting is thus established for any Investment
Fund, the value of a Participant's interest in that Investment
Fund (or any portion thereof) at any time shall be an amount
equal to the then value of a unit in such Investment Fund (or
any portion thereof) multiplied by the number of units then
credited to the Participant.
6.2 Records
The Trustee will keep complete accounts of all investments, receipts
and disbursements, other transactions hereunder, and gains and losses
resulting from same. Such accounts will be sufficiently detailed to
meet the Trustee's duties of reporting and disclosure required under
applicable federal and state law. All accounts, books, contracts and
records relating to the Trust Fund will be open to inspection and audit
at all reasonable times by any person designated by the Administrator.
6.3 Reports
(a) Within 90 days following the close of each Plan Year, and as
otherwise directed by the Administrator, and within 90 days
following the Trustee's resignation or removal under Article 8
of this Agreement, the Trustee will furnish the Administrator
with a written report setting forth the transactions effected
by the Trustee during the period since it last furnished such
a report and any gains or losses resulting from same, any
payments or disbursements made by the Trustee during such
period, the assets of the Trust Fund as of the last day of
such period (at cost and at fair market value), and any other
information about the Trust Fund that the Administrator may
reasonably request. The Trustee will certify the accuracy of
the report if such certification is required by any applicable
federal or state law or regulation.
(b) Each report submitted pursuant to subsection (a) will be
promptly examined by the Administrator. If the Administrator
approves of such report, the Trustee will be forever released
from any liability or accountability with respect to the
propriety of any of its accounts or transactions so reported
with the exception of acts that constitute negligence or
misconduct, as if such account had been settled by judgment or
decree of a court of competent jurisdiction in which the
Trustee, the Administrator, the Company, and all persons
having or claiming any interest in the Trust Fund were made
parties. The foregoing, however, is not to be construed to
deprive the Trustee of the right to have its account
judicially settled if it so desires.
(c) The Administrator may approve of any report furnished by the
Trustee under subsection (a) either by written statement of
approval furnished to the Trustee or by failure to file a
written objection to the report with the Trustee within 90
days of the date on which the Administrator receives such
report.
ARTICLE 7
Compensation, Rights and Indemnities of the Trustee
7.1 Compensation and Reimbursement
(a) The Trustee will receive reasonable compensation for its
services, including investment management services as provided
in Section 4.5 herein, as agreed upon in writing from time to
time between the Administrator and the Trustee. The Trustee
will, as part of its compensation for services provided to the
Plan, receive the earnings from any uninvested cash awaiting
investment into or distributions from the Trust Fund. The
Company agrees that the Trustee may hold such uninvested cash
without incurring any liability for the payment of earnings on
such uninvested cash.
(b) The Trustee will be reimbursed for all reasonable expenses it
incurs in the performance of its duties under this Trust
Agreement. In this regard, reasonable expenses include (but
are not limited to) accounting, consulting, actuarial,
valuation of assets and, subject to Section 5.1, legal fees
for professional services related to the administration of the
Plan and this Agreement.
(c) Compensation and expenses payable under this Section 7.1 will
be paid from the Trust Fund (and may be charged, if
applicable, to an appropriate sub-account or subtrust), unless
the Company pays such compensation and expenses directly to
the Trustee. In addition, the Trustee is directed to pay
compensation, expenses, or fees for other services provided to
the Plan (including but not limited to record-keeping services
by American Express Trust) under separate agreement from the
Trust Fund, unless the Company pays such compensation, and
expenses or fees. The Company in its discretion may reimburse
the Trust Fund for any compensation and expenses paid from the
Trust Fund.
(d) In the event the Company files or declares bankruptcy, the
Company authorizes the Trustee to make payment from the Trust
Fund for any and all fees, expenses or other forms of
compensation due under this Section whether or not the fees,
expenses or other forms of compensation were earned but not
yet paid prior to or after the bankruptcy filing.
7.2 Rights of the Trustee
(a) Whenever in the administration of the Plan a certification or
direction is required to be given to the Trustee, or the
Trustee deems it necessary that a matter be approved prior to
taking, permitting or omitting any action hereunder, such
certification or direction will be fully made, or such matter
may be deemed to be conclusively approved, by delivery to the
Trustee of an instrument signed either (i) in the name of the
Company by its Secretary or Assistant Secretary; or (ii)
unless the matter concerns the authority of the Administrator,
in the name of the Administrator by the Administrator; and the
Trustee may rely upon such instrument to the extent permitted
by law. Notwithstanding the foregoing, the Trustee may in its
sole discretion accept such other evidence of a matter or
require such further evidence as may seem reasonable to it, in
lieu of such instrument. The Trustee will be protected in
acting upon any notice, resolution, order, certificate,
opinion, telegram, letter or other document reasonably
believed by the Trustee to be genuine and to have been signed
by the proper party or parties, and may act thereon without
notice to a Participant or Beneficiary.
(b) The Company will provide the Trustee with specimen signatures
of the Administrator and its delegates and the current
authorized signers of each Investment Manager. The Trustee
will be entitled to rely in good faith upon any directions
signed by the Administrator or its appointed delegate, or by
any authorized signer of an Investment Manager, and will incur
no liability for following such directions.
(c) The Trustee may accept communications by photostatic
teletransmissions with duplicate or facsimile signatures as a
delivery of such communications in writing until notified in
writing by the Administrator or the Investment Manager that
the use of such devices is no longer authorized.
7.3 Indemnification for Following Direction
Upon demand, the Company will immediately indemnify and hold harmless
the Trustee from all losses or liabilities, costs and expenses
(including reasonable attorneys' fees) to which the Trustee may be
subject by reason of any acts taken in good faith in accordance with
directions or instructions from the Company, Administrator, an
Investment Manager (other than the Trustee acting in such capacity) or
their delegates, Participants or Beneficiaries, or acts omitted in good
faith due to absence of directions from the Company, the Administrator,
an Investment Manager (other than the Trustee acting in such capacity),
Participants or Beneficiaries unless such loss or liability is due to
the Trustee's negligence or willful misconduct. This Section 7.3 shall
survive the termination of this Trust Agreement.
7.4 Limitation of Liability of Trustee
(a) If the Trustee makes a written request for directions from the
Company, the Administrator or an Investment Manager, the
Trustee may await such directions without incurring liability.
The Trustee has no duty to act in the absence of such
requested directions, but may in its discretion take such
action as it deems appropriate to carry out the purposes of
this Agreement.
(b) The Trustee is not responsible for determining the adequacy of
the Trust Fund to meet liabilities under the Plan, and is not
liable for any obligations of the Plan or the Trust Fund in
excess of the assets of the Trust Fund.
(c) The Company indemnifies and holds the Trustee harmless from
and against all taxes, expenses (including reasonable attorney
fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against the Trustee resulting
directly or indirectly from any act or omission of a
predecessor trustee or other entity acting as a fiduciary.
7.5 Undertaking for Costs
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties
hereunder, or in the exercise of any of its rights or powers as
trustee. In the event that the Trustee must commence or defend any
action, administrative, judicial or otherwise, the Trustee may retain
professionals including legal or financial advisors to represent the
Trustee in its capacity as Trustee hereunder. The Company shall
promptly pay for the entire cost to retain such professionals. In the
event Company does not pay for the cost to retain such professionals,
such costs will be paid from the Trust Fund.
7.6 Necessary Parties to Legal Actions
Except as required by Section 502(h) of ERISA, only the Company, the
Administrator, the Plan and the Trustee will be considered necessary
parties in any legal action or proceeding with respect to the Trust
Fund, and no Participant, Beneficiary or other person having an
interest in the Trust Fund will be entitled to notice. Any judgment
entered on any such action or proceeding will be binding on all persons
claiming under the Trustee. Nothing in this Section 7.6 is intended to
preclude a Participant or Beneficiary from enforcing his or her legal
rights.
7.7 Binding Arbitration
Any unresolved controversy arising out of, or relating to, this
Agreement or the breach thereof, shall be settled by binding
arbitration, conducted pursuant to the Federal Arbitration Act, before
an independent arbitration panel which shall be mutually agreed upon by
the parties. In the event the parties are unable to agree upon a
suitable independent arbitration panel, arbitration shall be before the
American Arbitration Association ("AAA"). The arbitration panel shall
consist of three members, one selected by American Express Trust, one
selected by the Company and the third selected by the two arbitrators.
The decisions made by a majority of the panel shall be final and
binding on the parties. Such judgement may be entered and enforced in
any court of competent jurisdiction.
ARTICLE 8
Resignation or Removal of the Trustee
8.1 Resignation
Trustee may resign at any time by delivering to the Company a written
notice of resignation, to take effect not less than 60 days after
delivery, unless such time period is waived by the Company.
8.2 Removal
The Company may remove the Trustee at any time by delivering to the
Trustee a written notice of removal. Such removal will take effect no
less than 60 days after delivery of such notice to the Trustee, unless
such time period is waived by the Trustee.
8.3 Successor Trustee
Upon the resignation or removal of the Trustee, the Company will
appoint a successor trustee, which may accept such appointment by
execution of this Agreement. In the event that no successor trustee is
appointed, or accepts appointment, by the time that the resignation or
removal of the Trustee is effective, the Trustee may either: (i) apply
to a court of competent jurisdiction for the appointment of a successor
trustee or for instructions; or (ii) treat the individual signing this
Agreement on behalf of the Company, or his or her successor, as having
appointed himself or herself as Trustee and as having filed his or her
acceptance of appointment with the Trustee. Any expenses incurred by
the Trustee in connection with said application will be paid from the
Trust Fund as an expense of administration.
8.4 Settlement
After delivery of notice of the Trustee's resignation or removal, the
Trustee is entitled to a settlement of its account from the Trust Fund
unless otherwise paid by the Company. The settlement of the Trustee's
account may be made at the option of the Trustee either: (a) by
judicial settlement in an action instituted by the Trustee in a court
of competent jurisdiction, or (b) by agreement of settlement between
the Trustee and the Company.
8.5 Transfer to Successor Trustee
Upon settlement of the Trustee's account, the Trustee will transfer to
the successor trustee the Trust Fund as it is then constituted and true
copies of its records relevant to the Trust Fund. Upon the transfer of
Trust Fund assets, the Trustee's responsibilities under this Agreement
will cease and the Trustee will be discharged from further
accountability for all matters embraced in its settlement with respect
to those assets, provided, however, that the Trustee executes and
delivers the documents and written instruments which are necessary to
transfer and convey the right, title and interest in such Trust Fund
assets, to the successor trustee. Notwithstanding the foregoing, the
Trustee is authorized to reserve such amount as it may deem advisable
for payment of its fees and expenses in connection with the settlement
of its account. Any balance of such reserve remaining after the payment
of such fees and expenses will be paid over to the successor trustee.
Notwithstanding any provision of the Agreement to the contrary, the
Trustee may invest and reinvest such reserves in any investment or
investment vehicle appropriate for the temporary investment of cash
reserves of trusts.
8.6 Duties of the Trustee Prior to Transfer to Successor Trustee
The Trustee's powers, duties, rights and responsibilities under this
Agreement will continue, with respect to those Trust Fund assets held
by the Trustee, until the date on which the transfer of the Trust Fund
assets and delivery of the related documents to the successor trustee
under Section 8.5 is completed. The successor trustee will neither be
liable or responsible for any act or omission to act with respect to
the operation or administration of the Trust Fund under this Agreement
prior to the date it receives any Trust Fund assets and related
documents, nor be under any duty or obligation to audit or otherwise
inquire into or take any action concerning the acts or omissions of the
Trustee or any predecessor trustee.
8.7 Powers, Duties and Rights of the Successor Trustee
Upon its receipt of assets of the Trust Fund and the documents related
thereto, the successor trustee will become vested with all the estate,
power, duties and rights of the Trustee under this Agreement with
respect to such assets with the same effect as though the successor
trustee were originally named as Trustee hereunder.
ARTICLE 9
Amendment and Termination
9.1 Amendment
The Company reserves the right at any time and from time to time to
amend, retroactively, if necessary, in whole or in part, any or all of
the provisions of this Agreement by notice thereof in writing delivered
to the Trustee, provided that no such amendment which affects the
rights, duties, liabilities or responsibilities of the Trustee may be
made without its consent and provided further that no such amendment
shall authorize or permit any part of the corpus or income of the Trust
Fund to be used or diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries, or permit any portion of the
Trust Fund to revert to or become the property of the Company, except
as otherwise provided under ERISA.
9.2 Termination
This Agreement and the Trust may be terminated at any time by the
Company, and this Agreement and the Trust shall terminate in the event
that a corporate successor to the Company notifies the Trustee in
writing within ninety (90) days following the date it becomes the
corporate successor that it does not intend to become a party to this
Agreement. In the event of the termination of the Trust as provided
herein, the Trustee shall dispose of the Trust Fund in accordance with
the written directions of the Company and upon its certification that
such direction is in accordance with the terms of the Plan, except that
the Trustee may reserve such reasonable amounts as the Trustee may deem
necessary for outstanding and accrued charges against the Plan
including Trustee's expenses. If the Company fails to provide the
Trustee with written directions regarding disposition of the Trust
Fund, the Trustee may apply to a court of competent jurisdiction for
directions as to the disposal of the Trust Fund. Upon termination of
this Trust, the Trustee shall continue to have all of the powers
provided in this Agreement as are necessary or desirable for the
orderly liquidation and distribution of the Trust Fund.
ARTICLE 10
Miscellaneous
10.1 Successors and Assigns
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns. No assignment (as
defined in the Investment Advisors Act of 1940) of this Agreement shall
be made by the Trustee without the written consent of the Company;
provided, however, that the Trustee may assign this Agreement to the
parent company of the Trustee or to a wholly-owned subsidiary of such
parent company if such company is organized and chartered as a trust
company. Company agrees to promptly notify Trustee in the event there
is a corporate successor to the Company.
10.2 Governing Law
This Agreement will be construed and governed in all respects in
accordance with applicable federal law, and, to the extent not
preempted by such federal law, in accordance with the laws of the State
of Minnesota.
10.3 Notices
All notices required to be given pursuant to this Agreement shall be in
writing and delivered first class U.S. mail, postage prepaid or by
telecopy, telex or facsimile addressed to the appropriate party(ies) at
their respective address set forth below, or at any other address of
which a party shall have notified the other parties in writing.
(a) If to Trustee:
American Express Trust Company
0000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000-0000
(b) If to Company or Administrator:
The Talbots, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
10.4 Allocation of Responsibility
The responsibilities and obligations of the Trustee shall be strictly
limited to those set forth in this Agreement. Except to the extent
imposed by ERISA, no fiduciary of the Plan shall have the duty to
question whether any other fiduciary is fulfilling all of the
responsibility imposed upon such other fiduciary by ERISA or by any
regulations or rulings issued thereunder. The Trustee shall not be
responsible in any way or any manner in which the Company or the
Administrator carry out their respective responsibilities under this
Agreement or, more generally, under the Plan.
10.5 Execution of Agreement
This Agreement may be executed in any number of counterparts and each
fully executed counterpart shall be deemed an original.
10.6 ERISA Bond
Company hereby represents and warrants that it has obtained a fidelity
bond that complies with the bonding provisions of Section 412 of ERISA
and that the bond covers every fiduciary of the Plan and every person
who handles funds or other property of the Plan including the Trustee
and its agents, if any.
10.7 Loans to Participants
Loan to Participants as provided for in the Plan shall be granted and
administered by the Administrator. The Trustee shall distribute cash to
such Participants who are granted loans in such amount and at such
times as the Administrator shall from time to time direct in writing or
by any other method authorized by the Administrator. Loan payments
collected by the Administrator shall be forwarded to the Trustee. The
amount of such loans shall be carried by the Trustee as an asset of the
trust equal to the combined unpaid principal balance of all
Participants. The Trustee shall rely conclusively upon the
determination of the Administrator with respect to the amount of the
combined unpaid principal balance of all Participants. The Trustee
shall have no responsibility (1) to ascertain whether a loan complies
with the provisions of the Plan, (2) for the decision to grant a loan,
or (3) for the collection and repayment of a loan.
10.8 Severability
If any provisions of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provisions hereof and this Agreement shall be construed and
enforced as if such provision, to the extent invalid or unenforceable
had not been included.
10.9 Effective Date
The effective date of this Agreement shall be the date assets of the
Trust Fund are received and accepted by the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
The Talbots Inc. American Express Trust Company
By: XXXXXX X. XXXXXX By: XXXX X. STONEHAUER
---------------- ------------------
Title: Senior VP, Finance & Chief Title: Vice President
Financial Officer
Plan Administrator for The Talbots, Inc.
Retirement Savings Voluntary Plan
By: XXXXXX X. XXXXXX
----------------
Committee Member
EXHIBIT A
Pursuant to Section 4.5, the Company hereby appoints American Express Trust to
serve as an Investment Manager for the following Investment Funds:
American Express Trust Income Fund II
American Express Trust Equity Index Fund II
American Express Trust Money Market Fund II
