Exhibit 4(e)
TRUST AGREEMENT
between
XXXXXXX XXXXX TRUST COMPANY, FSB as the Trustee
and
SOUTHERN COMPANY SERVICES, INC. as the Employer
Trust Agreement entered into as of July 1, 2002 by and between SOUTHERN
COMPANY SERVICES, INC. (the "Employer") and Xxxxxxx Xxxxx Trust Company, FSB
(the "Trustee"), with respect to a trust ("Trust") forming part of the Southern
Company Employee Savings Plan (the "Plan").
The Employer and the Trustee hereby agree as follows:
ARTICLE I
STATUS OF TRUST AND APPOINTMENT
AND ACCEPTANCE OF TRUSTEE
1.01 Status of Trust. The Trust is intended to be a qualified trust under
section 401(a) of the Internal Revenue Code of 1986, as amended from time to
time (the "Code"), and exempt from taxation pursuant to section 501(a) of the
Code.
1.02 Appointment of Trustee. The Employer represents that all necessary
action has been taken for the appointment of the Trustee as trustee of the Trust
and that the Trust Agreement constitutes a legal, valid and binding obligation
of the Employer.
1.03 Acceptance of Appointment. The Trustee accepts its appointment as
trustee of the Trust.
1.04 Title of Trust. The Trust shall be known as the Southern Company
Employee Savings Plan Trust.
1.05 Effectiveness. This Trust Agreement shall not become effective until
executed and delivered by both the Employer and the Trustee.
ARTICLE II
ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
2.01 Named Administrative and Investment Fiduciaries. For purposes of this
Trust Agreement, the term "Named Administrative Fiduciary" refers to the
committee or its designee named or provided for in the Plan as responsible for
the administration and operation of the Plan, and the term "Named Investment
Fiduciary" refers to the committee or its designee provided for in the Plan as
responsible for the investment and management of Plan assets to the extent
provided for in this Trust Agreement. The Named Administrative Fiduciary and the
such committee or its designee(s) is not named or provided for in the Plan, or
if so named or provided for, is not then serving, the Employer shall be the
Named Administrative Fiduciary or the Named Investment Fiduciary or both, as the
case may be.
2.02 Identification of Named Fiduciaries and Designees. The Named
Administrative Fiduciary and the Named Investment Fiduciary under the Plan shall
each be identified to the Trustee in writing by the Employer, and specimen
signatures of each, or of each member thereof, as appropriate, shall be provided
to the Trustee by the Employer. The Employer shall promptly give written notice
to the Trustee of a change in the identity either of the Named Administrative
Fiduciary or the Named Investment Fiduciary, or any member thereof, as
appropriate, and until such notice is received by the Trustee, the Trustee shall
be fully protected in assuming that the identity of the Named Administrative
Fiduciary or Named Investment Fiduciary, and the members thereof, as
appropriate, is unchanged. Each person authorized in accordance with the Plan to
give a direction to the Trustee on behalf of the Named Administrative Fiduciary
or the Named Investment Fiduciary shall be identified to the Trustee by written
notice from the Employer or the Named Administrative Fiduciary or the Named
Investment Fiduciary, as the case may be, and such notice shall contain a
specimen of the signature. The Trustee shall be entitled to rely upon each such
written notice as evidence of the identity and authority of the persons
appointed until a written cancellation of the appointment, or the written
appointment of a successor, is received by the Trustee from the Employer, the
Named Administrative Fiduciary or the Named Investment Fiduciary, as the case
may be.
ARTICLE III
RECEIPTS AND TRUST FUND
3.01 Receipt by Trustee. The Trustee shall receive in cash or other assets
acceptable to the Trustee all contributions paid or delivered to it which are
allocable under the Plan and to the Trust and all transfers paid or delivered
under the Plan to the Trust from a predecessor trustee or another trust
(including a trust forming part of another plan qualified under section 401(a)
of the Code), provided that the Trustee shall not be obligated to receive any
such contribution or transfer unless prior thereto or coincident therewith, as
the Trustee may specify, the Trustee has received such reconciliation,
allocation, investment or other information concerning, or such direction,
instruction or representation with respect to, the contribution or transfer or
the source thereof as the Trustee may require. The Trustee shall have no duty or
authority to (a) require any contributions or transfers to be made under the
Plan or to the Trustee, (b) compute any amount to be contributed or transferred
under the Plan to the Trustee, or (c) determine whether amounts received by the
Trustee comply with the Plan.
3.02 Trust Fund. For purposes of this Trust Agreement, the "Trust Fund"
consists of all money and other property received by the Trustee pursuant to
Section 3.01 hereof, increased by any income or gains on or increment in such
assets and decreased by any investment loss or expense, benefit or disbursement
paid pursuant to this Trust Agreement. The Trustee shall hold the Trust Fund,
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without distinction between principal and income, as a nondiscretionary trustee
pursuant to the terms of this Trust Agreement. Assets of the Trust may, in the
Trustee's discretion, be held in an account maintained with an affiliate of the
Trustee.
3.03 Additional Trust Fund. Notwithstanding any other provision of this
Trust Agreement, to the extent that assets of the Plan are held in trust by a
trustee other than the Trustee (such other trustee to be referred to as a
"Second Trustee"), the Employer shall have created two trust funds under the
Plan. The appointment of a Second Trustee shall be deemed a representation by
the Employer that the Plan contains all appropriate provisions relating to the
Second Trustee. The Trustee (i) shall discharge its duties and responsibilities
hereunder solely with respect to those assets delivered into its possession,
(ii) shall have no duties, responsibilities or obligations with respect to
assets held in trust by the Second Trustee unless and until such assets are
delivered to the Trustee and (iii) except as otherwise required under the
Employee Retirement Income Security Act of 1974, as amended from time to time
("ERISA"), shall have no liability or responsibility for the acts or omissions
of the Second Trustee. To the extent that assets of the Plan are held in trust
by multiple trustees other than the Trustee, the foregoing shall apply to each
such other trustee.
ARTICLE IV
PAYMENTS, ADMINISTRATIVE DIRECTIONS
AND EXPENSES
4.01 Payments by Trustee. Payments of money or property from the Trust Fund
shall be made by the Trustee upon direction from the Named Administrative
Fiduciary or its designee. Payments by the Trustee shall be transmitted to the
Named Administrative Fiduciary or its designee for delivery to the proper payees
or to payee addresses supplied by the Named Administrative Fiduciary or its
designee, and the Trustee's obligation to make such payments shall be satisfied
upon such transmittal. The Trustee shall have no obligation to determine the
identity of persons entitled to payments under the Plan or their addresses.
4.02 Named Administrative Fiduciary's Directions . Directions from or on
behalf of the Named Administrative Fiduciary or its designee shall be
communicated to the Trustee or the Trustee's designee only in a manner and in
accordance with procedures acceptable to the Trustee. The Trustee's designee
shall not, however, be empowered to implement any such directions except in
accordance with procedures acceptable to the Trustee. The Trustee shall have no
liability for following any such directions or failing to act in the absence of
any such directions. The Trustee shall have no liability for the acts or
omissions of any person making or failing to make any direction under the Plan
or this Trust Agreement nor any duty or obligation to review any such direction,
act or omission.
4.03 Disputed Payments. If a dispute arises over the propriety of the
Trustee making any payment from the Trust Fund, the Trustee may withhold the
payment until the dispute has been resolved by a court of competent jurisdiction
or settled by the parties to the dispute. The Trustee may consult legal counsel
and shall be fully protected in acting upon the advice of counsel.
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4.04 Trustee's Compensation and Expenses. If the Employer so elects in a
manner satisfactory to the Trustee, the Employer shall (a) pay the Trustee
compensation for its services under this Trust Agreement in accordance with the
Trustee's fee schedule in effect and applicable at the time such compensation
becomes payable, and (b) pay or reimburse the Trustee for all expenses incurred
by the Trustee in connection with or relating to the performance of its duties
under this Trust Agreement or its status as Trustee, including reasonable
attorneys' fees. If the Employer does not so elect, such compensation and
expenses shall be charged against and withdrawn from the Trust Fund as provided
below.
Until paid by the Employer or charged against and withdrawn from the Trust
Fund, as the case may be, the Trustee's compensation and expenses shall be a
lien upon the Trust Fund. The Trustee is authorized to charge the Trust Fund for
and withdraw from the Trust Fund, without direction from the Named
Administrative Fiduciary or any other person, the amount of any such fees or
expenses which the Employer has not elected to pay and the amount of any such
fees or expenses which the Employer has so elected to pay but which remain
unpaid for a period of 60 days after presentation of a statement for such amount
to the Employer. Trust Fund assets shall be applied to pay such fees and
expenses in the following priority by asset category to the extent thereof held
at the time of withdrawal in the Trust Fund subfund or account to which the fee
or expense is allocated: (i) uninvested cash balances; (ii) shares of any money
market fund or funds held in the Trust Fund; and (iii) any other Trust Fund
assets. The Trustee is authorized to allocate its fees and expenses among these
subfunds or accounts to which the fees or expenses pertain in such manner as the
Trustee deems appropriate under the circumstances unless prior to such
allocation the Employer or the Named Administrative Fiduciary specifies the
manner in which the allocation is to be made. The Trustee is also authorized but
not required to sell any shares or other assets referred to above to the extent
necessary for the purpose.
By signing this Trust Agreement, the Employer authorizes the Trustee and/or
its affiliates to receive payments from certain mutual funds (and/or collective
trusts) for which no affiliate of the Trustee acts as investment manager or
adviser (or from the principal distributors and/or advisors of those funds or
trusts), in connection with the performance of reasonable and necessary services
(including recordkeeping, subaccounting, account maintenance, administrative and
other shareholder services). Because different mutual funds (or collective
trusts) may be subject to different fee arrangements, the Employer should
contact the Trustee or its designee to obtain further details on any specific
fee arrangements that may be applicable to investments under the Plan.
4.05 Taxes. The Trustee is authorized, with or without direction from the
Named Administrative Fiduciary or any other person, to withdraw from the Trust
Fund and pay any federal, state or local taxes, charges or assessments of any
kind levied or assessed against the Trust or assets thereof. Until paid, such
taxes shall be a lien against the Trust Fund. The Trustee shall give notice to
the Named Administrative Fiduciary of its receipt of a demand for any such
taxes, charges or assessments. The Trustee shall not be personally liable for
any such taxes, charges or assessments.
4.06 Expenses of Administration. Expenses incurred by the Employer, the
Named Administrative Fiduciary, the Named Investment Fiduciary, any Investment
Manager designated pursuant to Section 5.02 or any other persons designated to
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act on behalf of the Employer, the Named Administrative Fiduciary or the Named
Investment Fiduciary, including reimbursement for expenses incurred in the
performance of their respective duties, shall be the obligation of the Employer
or other person specified in the Plan. Such expenses, however, may be paid from
the Trust Fund upon the written direction to the Trustee of the Named
Administrative Fiduciary.
4.07 Restriction on Alienation. Except as provided in Section 4.08 or under
section 401(a)(13) of the Code, the interest of any Plan participant or
beneficiary in the Trust Fund shall not be subject to the claims of such
person's creditors and may not be assigned, sold, transferred, alienated or
encumbered. Any attempt to do so shall be void; and the Trustee shall disregard
any attempt. Trust assets shall not in any manner be liable for or subject to
debts, contracts, liabilities, engagement or torts of any Plan participant or
beneficiary, and benefits shall not be considered an asset of any such a person
in the event of the person's insolvency or bankruptcy.
4.08 Payment on Court Order. The Trustee is authorized to make any payments
directed by court order in any action in which the Trustee is a party or
pursuant to a "qualified domestic relations order" under section 414(p) of the
Code; provided that the Trustee shall not make such payment if the Trustee is
indemnified and held harmless by the Employer in a manner satisfactory to the
Trustee against all consequences of such failure to pay. The Trustee is not
obligated to defend actions in which the Trustee is named but shall notify the
Employer or Named Administrative Fiduciary of any such action and may tender
defense of the action to the Employer, the Named Administrative Fiduciary or the
participant or beneficiary whose interest is affected. The Trustee may in its
discretion defend any action in which the Trustee is named and any expenses,
including reasonable attorneys' fees, incurred by the Trustee in that connection
shall be paid or reimbursed in accordance with Section 4.04 hereof.
ARTICLE V
INVESTMENTS
5.01 Investment Management. The Named Investment Fiduciary shall manage the
investment of the Trust Fund except insofar as (a) a person (an "Investment
Manager") who meets the requirements of section 3(38) of ERISA has authority to
manage Trust assets as referred to in Section 5.02 hereof or (b) the Plan
provides for participant or beneficiary direction of the investment of assets
allocable under the Plan to the accounts of such participants and beneficiaries.
In the latter situation, a list of the participants and beneficiaries and such
information concerning them as the Trustee may specify shall be provided by the
Employer or the Named Administrative Fiduciary to the Trustee and/or such
person(s) as are necessary for the implementation of the directions in
accordance with the procedure acceptable to the Trustee. Except as required by
ERISA, the Trustee shall invest the Trust Fund as directed by the Named
Investment Fiduciary, an Investment Manager or a Plan participant or
beneficiary, as the case may be, and the Trustee shall have no discretionary
control over, nor any other discretion regarding, the investment or reinvestment
of any asset of the Trust. The Trustee may limit the categories of assets in
which the Trust Fund may be invested.
It is understood that the Trustee may, from time to time, have on hand
funds which are received as contributions or transfers to the Trust which are
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awaiting investment or funds from the sale of Trust assets which are awaiting
reinvestment. Absent receipt by the Trustee of a direction from the proper
person for the investment or reinvestment of such funds or otherwise prior to
the application of funds in implementation of such a direction, the Trustee
shall in accordance with the Trustee's normal procedures in this regard cause
such funds to be invested in shares of the money market fund acceptable to the
Trustee as the Employer or Named Investment Fiduciary may in writing to the
Trustee specify for this purpose from time to time. Any such fund may be
sponsored, managed or distributed by an affiliate of the Trustee. The Employer
or the Named Investment Fiduciary, as the case may be, hereby acknowledges that
prior to any such specification it has read or will have read the then current
prospectus for the specified fund.
5.02 Investment Managers . The Employer or the Named Investment Fiduciary
may appoint one or more Investment Managers, who may be an affiliate of the
Trustee, to direct the Trustee in the investment of all or a specified portion
of the assets of the Trust. Any such Investment Manager shall be directed by the
Employer or the Named Investment Fiduciary, as the case may be, to act in
accordance with the procedures referred to in Section 5.04. The Named Investment
Fiduciary shall notify the Trustee in writing before the effectiveness of the
appointment or removal of any Investment Manager. If there is more than one
Investment Manager whose appointment is effective under the Plan at any one
time, the Trustee shall, upon written instructions from the Employer or the
Named Investment Fiduciary, establish separate funds for control by each such
Investment Manager. The funds shall consist of those Trust assets designated by
the Employer or the Named Investment Fiduciary.
5.03 Direction of Voting and Other Rights. Notwithstanding anything in the
Plan document to the contrary:
(a) The voting and other rights in securities or other assets held in the
Trust shall be exercised by the Trustee as directed by the Named Investment
Fiduciary or other person who at the time has the right referred to in Section
5.01 hereof to select the investment or reinvestment of the security or other
asset involved to be held in the Trust, provided that such voting and other
rights in any "employer security" with respect to the Plan within the meaning of
Section 407(d)(1) of ERISA ("Employer Securities") which is held in an account
under the Plan over which a Plan participant or beneficiary has control as to
specific assets to be held therein or which is held in an account which consists
solely or primarily of Employer Securities shall be exercised by the Plan
participant or beneficiary having an interest in that account.
(b) If (i) a Plan participant or beneficiary, with respect to Employer
Securities, or an Investment Manager with any right under Section 5.03(a) to
direct a voting or other decision with respect to any security or other asset
held in the Trust does not communicate any decision on the matter to the Trustee
or the Trustee's designee by the time prescribed by the Trustee or the Trustee's
designee for that purpose or (ii) the Trustee notifies the Named Investment
Fiduciary either that it does not have precise information as to the securities
or other assets involved allocated on the applicable record date to the accounts
of all participants and beneficiaries or (iii) time constraints make it unlikely
that participant, beneficiary or Investment Manager direction, as the case may
be, can be received on a timely basis, then the decision shall be the
responsibility of the Named Investment Fiduciary and the Named Investment
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Fiduciary shall communicate such direction to the Trustee on a timely basis.
(c) If the Named Investment Fiduciary with any right under the Plan or this
Trust Agreement to direct a voting or other decision with respect to any
security or other asset held in the Trust, does not communicate any decision on
the matter to the Trustee or the Trustee's designee by the time prescribed by
the Trustee for that purpose, the Trustee may, at the cost of the Employer,
obtain advice from a bank, insurance company, investment adviser or other
investment professional (including any affiliate of the Trustee) or retain an
Investment Manager or other independent fiduciary with full discretion to make
the decision.
(d) Except as required by ERISA, the Trustee shall follow all directions
above-referred to in this Section and shall have no duty to exercise voting or
other rights relating to any such security or other asset.
5.04 Investment Directions . Directions for the investment or reinvestment
of Trust assets or directions of a type referred to in Section 5.03 from the
Employer, the Named Investment Fiduciary, an Investment Manager or a Plan
participant or beneficiary, as the case may be, shall, in a manner and in
accordance with procedures acceptable to the Trustee, be communicated to and
implemented by, as the case may be, the Trustee, the Trustee's designee or, with
the Trustee's consent, the broker/dealer designated for the purpose by the
Employer or the Named Investment Fiduciary. Communication of any such direction
to such a designee or broker/dealer shall conclusively be deemed an
authorization to the designee or broker/dealer to implement the direction even
though coming from a person other than the Trustee. The Trustee shall have no
liability for its or any other person's following such directions or failing to
act in the absence of any such directions. The Trustee shall have no liability
for the acts or omissions of any person directing the investment or reinvestment
of Trust Fund assets or making or failing to make any direction referred to in
Section 5.03. Neither shall the Trustee have any duty or obligation to review
any such investment or other direction, act or omission or, except upon receipt
of a proper direction, to invest or otherwise manage any asset of the Trust
which is subject to the control of any such person or to exercise any voting or
other right referred to in Section 5.03.
5.05 Communication of Proxy and Other Materials. The Employer or Named
Administrative Fiduciary shall establish a procedure acceptable to the Trustee
for the timely dissemination to each person entitled to direct the Trustee or
its designee as to a voting or other decision called for thereby or referred to
therein of all proxy and other materials bearing on the decision. In the case of
Employer Securities, at such time as proxy or other materials bearing thereon
are disseminated generally to owners of Employer Securities in accordance with
applicable law, the Employer shall cause a copy of such proxy or other materials
to be delivered directly to the Trustee and, thereafter, shall promptly deliver
to the Trustee such number of additional copies of the proxy or other materials
as the Trustee may request.
5.06 Common and Collective Trust Funds . Any person authorized to direct
the investment of Trust assets may, if the Trustee and the Named Investment
Fiduciary so permit, direct the Trustee to invest such assets in a common or
collective trust maintained by the Trustee or its affiliate for the investment
of assets of qualified trusts under section 401(a) of the Code, individual
retirement accounts under section 408(a) of the Code and plans of governmental
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units described in section 818(a)(6) of the Code. The documents governing any
such common or collective trust fund maintained by the Trustee or its affiliate,
and in which Trust assets have been invested, are hereby incorporated into this
Trust Agreement by reference.
ARTICLE VI
RESPONSIBILITIES AND INDEMNITY
6.01 Relationship of Fiduciaries. Each fiduciary of the Plan and the Trust
shall be solely responsible for its own acts or omissions. The Trustee shall
have no duty to question any other Plan fiduciary's performance of fiduciary
duties allocated to such other fiduciary pursuant to the Plan. The Trustee shall
not be responsible for the breach of responsibility by any other Plan fiduciary
except as required under ERISA.
6.02 Benefit of Participants. Each fiduciary shall, within the meaning of
the Code and ERISA, discharge its duties with respect to the Trust solely in the
interest of participants in the Plan and their beneficiaries and for the
exclusive purpose of providing benefits to such participants and beneficiaries
and defraying reasonable expenses of administering the Plan.
6.03 Status of Trustee. The Trustee acknowledges its status as a
"fiduciary" of the Plan within the meaning of ERISA.
6.04 Location of Indicia of Ownership. Except as permitted by ERISA, the
Trustee shall not maintain the indicia of ownership of any assets of the Trust
outside the jurisdiction of the district courts of the United States.
6.05 Trustee's Reliance. The Trustee shall have no duty to inquire whether
directions by the Employer, the Named Administrative Fiduciary, the Named
Investment Fiduciary or any other person conform to the Plan, and the Trustee
shall be fully protected in relying on any such direction communicated in
accordance with procedures acceptable to the Trustee from any person who the
Trustee reasonably believes is a proper person to give the direction. The
Trustee shall have no liability to any participant, any beneficiary or any other
person for payments made, any failure to make payments, or any discontinuance of
payments, on direction of the Named Administrative Fiduciary, the Named
Investment Fiduciary or any designee of either of them or for any failure to
make payments in the absence of directions from the Named Administrative
Fiduciary or any person responsible for or purporting to be responsible for
directing the investment of Trust assets. The Trustee shall have no obligation
to request proper directions from any person. The Trustee may request
instructions from the Named Administrative Fiduciary or the Named Investment
Fiduciary and shall have no duty to act or liability for failure to act if such
instructions are not forthcoming. The Trustee shall have no responsibility to
determine whether the Trust Fund is sufficient to meet the liabilities under the
Plan, and shall not be liable for payments or Plan liabilities in excess of the
Trust Fund.
6.06 Indemnification. Except as prohibited by ERISA, the Employer hereby
indemnifies the Trustee against, and shall hold the Trustee harmless from, any
and all loss, claims, liability, and expense, including reasonable attorneys'
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fees, imposed upon the Trustee or incurred by the Trustee as a result of any
acts taken, or any failure to act, in accordance with the directions from the
Named Administrative Fiduciary, Named Investment Fiduciary, Investment Manager
(other than an Investment Manager which is an affiliate of the Trustee) or any
other person specified in Article IV or V hereof, or any designee of any such
person, or by reason of the Trustee's good faith execution of its duties with
respect to the Trust, including, but not limited to, its holding of assets of
the Trust as provided for in Section 3.02, unless the loss, claim, liability or
expense involved resulted from the negligence or willful misconduct of the
Trustee. The Employer's obligations in the forgoing regard shall be satisfied
promptly on request by the Trustee.
6.07 Protection of Designees. To the extent that any designee of the
Trustee is performing a function of the Trustee under this Trust Agreement, the
designee shall have the benefit of all of the applicable limitations on the
scope of the Trustee's duties and liabilities, all applicable rights of
indemnification granted hereunder to the Trustee and all other applicable
protections of any nature afforded to the Trustee.
ARTICLE VII
POWERS OF TRUSTEE
7.01 Nondiscretionary Investment Powers . At the direction of the person
authorized to direct such action as referred to in Article V hereof, but limited
to those assets or categories of assets acceptable to the Trustee as referred to
in Section 5.01, the Trustee, or the Trustee's designee or a broker/dealer as
referred to in Section 5.04, is authorized and empowered:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible preferred stock, bonds,
debentures, convertible debentures and bonds, mortgages, notes, commercial paper
and other evidences of indebtedness (including those issued by the Trustee),
shares of mutual funds (which funds may be sponsored, managed or offered by an
affiliate of the Trustee), guaranteed investment contracts, bank investment
contracts, other securities, policies of life insurance, annuity contracts,
options, options to buy or sell securities or other assets, and all other
property of any type (personal, real or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust in
savings accounts or certificates of deposit or other deposits in a bank or
savings and loan association or other depository institution, including the
Trustee or any of its affiliates; provided that, with respect to such deposits
with the Trustee or an affiliate, the deposits bear a reasonable interest rate;
(c) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund; to sell, convey, transfer, exchange,
partition, lease for any term, even extending beyond the duration of this Trust,
and otherwise dispose of the same from time to time;
(d) To have, respecting securities, all the rights, powers and privileges
of an owner, including the power to give proxies, pay assessments and other sums
deemed by the Trustee necessary for the protection of the Trust Fund; to vote
any corporate stock either in person or by proxy, with or without power of
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substitution, for any purpose; to participate in voting trusts, pooling
agreements, foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with or transfer
title to any protective or other committee; to exercise or sell stock
subscriptions or conversion rights; and, regardless of any limitation elsewhere
in this instrument relative to investments by the Trustee, to accept and retain
as an investment any securities or other property received through the exercise
of any of the foregoing powers;
(e) Subject to Section 5.01 hereof, to hold in cash such portion of the
Trust Fund which it is directed to so hold pending investments, or payment of
expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the
Trust from loss due to the default on mortgages held in the Trust including the
appointment of agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to grant to such
agents such powers as are necessary or desirable to protect the Trust Fund, to
direct such agent or trustee, or to delegate such power to direct, and to remove
such agent or trustee;
(g) To settle, compromise or abandon all claims and demands in favor of or
against the Trust Fund;
(h) To invest in any common or collective trust fund of the type referred
to in Section 5.06 hereof maintained by the Trustee or its affiliate;
(i) To exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws of the
state 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;
(j) To borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets as
security, subject to applicable requirements of the Code and ERISA; and
(k) To maintain accounts at, execute transactions through, and lend on an
adequately secured basis stocks, bonds or other securities to, any brokerage or
other firm, including any firm which is an affiliate of the Trustee.
7.02 Additional Powers of Trustee. To the extent necessary or which it
deems appropriate to implement its powers under Section 7.01 or otherwise to
fulfill any of its duties and responsibilities as trustee of the Trust Fund, the
Trustee shall have the following additional powers and authority:
(a) to register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the nominee name
designated by any affiliate, with or without indication of the capacity in which
property shall be held, or to hold securities in bearer form and to deposit any
securities or other property in a depository or clearing corporation;
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(b) to designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as the Trustee considers necessary or appropriate, any of whom may
be an affiliate of the Trustee or a person who renders services to such an
affilia te, and, as a part of its expenses under this Trust Agreement, to pay
their reasonable expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or appropriate for the accomplishment of any of the powers listed in
this Trust Agreement; and
(d) generally to do all other acts which the Trustee deems necessary or
appropriate for the protection of the Trust Fund.
ARTICLE VIII
RECORDS, ACCOUNTINGS AND VALUATIONS
8.01 Records. The Trustee shall maintain or cause to be maintained accurate
records and accounts of all Trust transactions and assets. The records and
accounts shall be available at reasonable times during normal business hours for
inspection or audit by the Named Administrative Fiduciary and the Named
Investment Fiduciary or any person designated for the purpose by either of them.
8.02 Accountings. Within 60 days following the close of each fiscal year of
the Plan or the effective date of the removal or resignation of the Trustee, the
Trustee shall file with the Named Administrative Fiduciary a written accounting
setting forth all transactions since the end of the period covered by the last
previous accounting. The accounting shall include a listing of the assets of the
Trust showing the value of such assets at the close of the period covered by the
accounting. On direction of the Named Administrative Fiduciary, and if
previously agreed to by the Trustee, the Trustee shall submit to the Named
Administrative Fiduciary interim valuations, reports or other information
pertaining to the Trust. The Named Administrative Fiduciary may approve the
accounting by written approval delivered to the Trustee or by failure to deliver
written objections to the Trustee within 60 days after receipt of the
accounting. Any such approval shall be binding on the Employer, the Named
Administrative Fiduciary, the Named Investment Fiduciary and, to the extent
permitted by ERISA, all other persons.
8.03 Valuation. The assets of the Trust shall be valued as of each
valuation date under the Plan at fair market value as determined by the Trustee
based upon such sources of information as it may deem reliable, including, but
not limited to, stock market quotations, statistical evaluation services,
newspapers of general circulation, financial publications, advice from
investment counselors or brokerage firms, or any combination of sources. The
reasonable costs incurred in establishing values of the Trust Fund shall be a
charge against the Trust Fund, unless paid by the Employer.
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When the Trustee is unable to arrive at a value based upon information from
independent sources, it may rely upon information from the Employer, Named
Administrative Fiduciary, Named Investment Fiduciary, appraisers, or other
sources, and shall not incur any liability for inaccurate valuation based in
good faith upon such information.
8.04 Loans. In the event that participant loans are available under the
Plan, the Trustee shall reflect one aggregate balance for participant loans
under the Plan and shall reflect changes thereto only as directed by the
Employer or Named Administrative Fiduciary. The Trustee has no responsibility
with respect to maintenance of promissory notes or monitoring of loan
amortization schedules.
ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.01 Resignation. The Trustee may resign at any time upon at least 60 days'
written notice to the Employer.
9.02 Removal. The Employer may remove the Trustee upon at least 60 days'
written notice to the Trustee.
9.03 Appointment of a Successor. Upon resignation or removal of the
Trustee, the Employer shall appoint a successor trustee. Upon failure of the
Employer to appoint, or the failure of the effectiveness of the appointment by
the Employer of, a successor trustee by the effective date of the resignation or
removal, the Trustee may apply to any court of competent jurisdiction for the
appointment of a successor.
Promptly after receipt by the Trustee of notice of the effectiveness of the
appointment of the successor trustee, the Trustee shall deliver to the successor
trustee such records as may be reasonably requested to enable the successor
trustee to properly administer the Trust Fund and all property of the Trust
after deducting therefrom such amounts as the Trustee deems necessary to provide
for expenses, taxes, compensation or other amounts due to or by the Trustee
pursuant to Sections 4.04 or 5.03 hereof not paid by the Employer prior to the
delivery.
9.04 Settlement of Account. Upon resignation or removal of the Trustee, the
Trustee shall have the right to a settlement of its account, which settlement
shall be made, at the Trustee's option, either by an agreement of settlement
between the Trustee and the Employer or by a judicial settlement in an action
instituted by the Trustee.
9.05 Expenses and Compensation. The Trustee shall not be obligated to
transfer Trust assets until the Trustee is provided assurance by the Employer
satisfactory to the Trustee that all fees and expenses reasonably anticipated
will be paid.
9.06 Termination of Responsibility and Liability. Upon settlement of the
account and transfer of the Trust Fund to the successor trustee, all rights and
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privileges under this Trust Agreement shall vest in the successor trustee and
all responsibility and liability of the Trustee with respect to the Trust and
assets thereof shall, except as otherwise required by ERISA, terminate subject
only to the requirement that the Trustee execute all necessary documents to
transfer the Trust assets to the successor trustee.
ARTICLE X
AMENDMENT AND TERMINATION
10.01 Amendment. The Employer reserves the right to amend this Trust
Agreement, provided that no amendment of this Trust Agreement or the Plan shall
be effective which would (a) cause any assets of the Trust Fund to be used for,
or diverted to, purposes other than the exclusive benefit of Plan participants
or their beneficiaries other than an amendment permissible under the Code and
ERISA, or (b) affect the rights, duties, responsibilities, obligations or
liabilities of the Trustee without the Trustee's written consent. The Employer
shall amend this Trust Agreement as requested by the Trustee to reflect changes
in law which counsel for the Trustee advises the Trustee require such changes.
Amendments to the Trust Agreement or a certified copy of the amendments shall be
delivered to the Trustee promptly after adoption, and if practicable under the
circumstances, any proposed amendment under consideration by the Employer shall
be communicated to the Trustee to permit the Trustee to review and comment
thereon in due course before the Employer acts on the proposed amendment.
10.02 Termination. The Trust may be terminated by the Employer upon at
least 60 days' written notice to the Trustee. Upon such termination, and subject
to Section 11.01 hereof, the Trust Fund shall be distributed as directed by the
Named Administrative Fiduciary.
ARTICLE XI
MISCELLANEOUS
11.01 Exclusive Benefit Rule. Except as provided in Section 11.02, or as
otherwise permitted or required by ERISA or the Code, no asset of the Trust
shall be used for, or diverted to, purposes other than the exclusive benefit of
Plan participants or their beneficiaries or for the reasonable expenses of
administering the Plan and Trust until all liabilities for benefits due Plan
participants or their beneficiaries have been satisfied.
11.02 Refunds to Employer. The Trustee shall, upon the written direction of
the Named Administrative Fiduciary which shall include a certification that such
action is proper under the Plan, ERISA and the Code specifying any relevant
sections thereof, return to the Employer any amount referred to in section
403(c)(2) of ERISA.
11.03 Authorized Action. Any action to be taken under this Trust Agreement
by an Employer or other person which is: (a) a corporation shall be taken by the
board of directors of the corporation or any person or persons duly empowered by
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the board of directors to take the action involved, (b) a partnership shall be
taken by an authorized general partner of the partnership, and (c) a sole
proprietorship by the sole proprietor.
11.04 Text of Plan. The Employer represents that, prior to the execution of
this Trust Agreement by both parties, it delivered to the Trustee the text of
the Plan as in effect as of the date of this Trust Agreement. The Employer shall
deliver to the Trustee promptly after adoption thereof a certified copy of any
amendment of the Plan.
11.05 Conflict with Plan. The rights, duties, responsibilities, obligations
and liabilities of the Trustee are as set forth in this Trust Agreement, and no
provision of the Plan or any other document shall be deemed to affect such
rights, duties, responsibilities, obligations and liabilities. If there is a
conflict between provisions of the Plan and this Trust Agreement with respect to
any subject involving the Trustee, including but not limited to the
responsibility, authority or powers of the Trustee, the provisions of this Trust
Agreement shall be controlling.
11.06 Failure to Maintain Qualification. If the Trust fails to qualify as a
qualified trust under section 401(a) of the Code, or loses its status as such a
qualified trust, the Employer shall immediately so notify the Trustee, and the
Trustee shall, without further notice or direction, remove the Trust assets from
any common or collective trust fund maintained by the Trustee or its affiliate
for investments by qualified trusts.
11.07 Governing Law and Construction. This Trust Agreement and the Trust
shall be construed, administered and governed under ERISA and other pertinent
federal law, and to the extent that federal law is inapplicable, under the laws
of the state in which the Trustee has its principal place of business. If any
provision of this Trust Agreement is susceptible to more than one
interpretation, the interpretation to be given is that which is consistent with
the Trust being a qualified trust under section 401(a) of the Code. If any
provision of this Trust Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, the remaining provisions shall continue to be
fully effective to the extent possible under the circumstances.
11.08 Successors and Assigns . This Trust Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
11.09 Gender. As used in this Trust Agreement, the masculine gender shall
include the feminine and the neuter genders and the singular shall include the
plural and the plural the singular, as the context requires.
11.10 Headings. Headings and subheadings in this Trust Agreement are for
convenience of reference only and are not to be considered in the construction
of the provisions of the Trust Agreement.
11.11 Counterparts. This Trust Agreement may be executed in several
counterparts, each of which shall be deemed an original, and these counterparts
shall constitute one and the same instrument which may be sufficiently evidenced
by any one counterpart.
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IN WITNESS WHEREOF, the Employer and the Trustee have
executed this Trust Agreement each by action of a duly authorized person.
Xxxxxxx Xxxxx Trust Company, FSB SOUTHERN COMPANY SERVICES, INC.
By: By:
Name/Title: Name/Title:
Date: Date:
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