EXHIBIT 10.87
SECURITY PACIFIC NATIONAL BANK
TRUST AGREEMENT FOR THE
XXXXXXX XXXXXX PROFIT SHARING
AND EMPLOYEE STOCK OWNERSHIP PLAN
SECURITY PACIFIC NATIONAL BANK
TRUST AGREEMENT FOR THE
XXXXXXX XXXXXX PROFIT SHARING
AND EMPLOYEE STOCK OWNERSHIP PLAN
INDEX
Page
ARTICLE I ACCEPTANCE OF TRUST............................... 1
1.01 Acceptance of the Trust....................... 1
ARTICLE II DEFINITIONS....................................... 1
2.01 Plan Definitions.............................. 1
2.02 Special Definitions........................... 1
ARTICLE III CONTRIBUTIONS..................................... 1
3.01 Contributions................................. 1
3.02 Fund Assets................................... 2
ARTICLE IV PAYMENTS FROM TRUST FUND.......................... 2
4.01 Payments by the Trustee....................... 2
4.02 Plan Administrator's Directions............... 2
4.03 The Trustee's Reliance on Directions.......... 3
4.04 Disputed Payments............................. 3
4.05 Trust Expenses................................ 3
4.06 Taxes......................................... 3
4.07 Expenses of Administration.................... 3
4.08 Restrictions on Alienation.................... 3
4.09 Payment on Court Order........................ 4
ARTICLE V INVESTMENTS....................................... 4
5.01 Management by the Trustee..................... 4
5.02 Investment Manager............................ 4
5.03 Participant Directed Accounts................. 5
5.04 Securities Voting Rights...................... 5
5.05 Employer Securities........................... 6
ARTICLE VI FIDUCIARY RESPONSIBILITIES AND INDEMNITIES........ 7
6.01 Relationship of Fiduciaries................... 7
6.02 Benefits of Participants...................... 8
6.03 Duty of Care.................................. 8
6.04 Indicia of Ownership.......................... 8
6.05 The Trustee's Reliance........................ 8
6.06 Indemnities................................... 8
6.07 Responsibility with Respect to Securities Law. 9
ARTICLE VII POWERS OF THE TRUSTEE............................. 9
7.01 Investment Powers............................. 9
7.02 Securities Depositories....................... 11
7.03 Investment in Common Trust Funds.............. 11
ARTICLE VIII ACCOUNTS OF THE TRUSTEE........................... 11
8.01 Records...................................... 11
8.02 Reports...................................... 11
8.03 Valuation.................................... 12
ARTICLE IX RESIGNATION AND REMOVAL OF THE TRUSTEE............ 12
9.01 Resignation.................................. 12
9.02 Removal...................................... 12
9.03 Appointment of a Successor................... 12
9.04 Settlement of Account........................ 13
9.05 Indemnity for Expenses and Compensation...... 13
ARTICLE X AMENDMENT AND TERMINATION......................... 13
10.01 Amendment.................................... 13
10.02 Termination.................................. 13
10.03 Failure to Maintain Qualification............ 14
ARTICLE XI MISCELLANEOUS..................................... 14
11.01 Participation by Affiliated Companies........ 14
11.02 Multiple Plans............................... 14
11.03 Exclusive Benefit Rule....................... 14
11.04 Refunds to Employer.......................... 14
11.05 Construction................................. 15
11.06 Execution and Counterparts................... 15
11.07 Successors and Assigns....................... 15
11.08 Gender....................................... 16
SECURITY PACIFIC NATIONAL BANK
TRUST AGREEMENT FOR THE
XXXXXXX XXXXXX PROFIT SHARING
AND EMPLOYEE STOCK OWNERSHIP PLAN
ARTICLE I
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ACCEPTANCE OF TRUST
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1.01 Acceptance of the Trust. The Trust agrees to hold and
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administer the assets of the Plan that are delivered to it pursuant to the
instructions of the Employer, together with additional contributions that
are delivered to the Trustee under the terms of the Plan.
ARTICLE II
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DEFINITIONS
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2.01 Plan Definitions. Words defined in the Plan shall have the
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same definition in this Trust Agreement except when such definition would be
inconsistent with the definitions in the Trust Agreement or would be
contrary to Trust Agreement terms.
2.02 Special Definitions. The following definitions are in
___________________
addition to those in the Plan.
(a) ERISA. The Employee Retirement Income Security Act of
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1974, as it may be amended from time to time.
(b) Investment Manager. A person, other than the Trustee,
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appointed by the Employer or Plan Administrator to manager the investment of
the Plan assets, who meets the requirements of Section 3(38) of ERISA.
(c) Code. The Internal Revenue Code of 1986, as it may be
____
amended from time to time.
ARTICLE III
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CONTRIBUTIONS
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3.01 Contributions. The Trustee shall receive contributions from
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the Employer or Plan Administrator in cash or other property acceptable to
the Trustee. The Trustee shall have no duty to collect or enforce payment
to it of any contributions, or to require any contributions to be made, and
shall have no duty to compute any amount to be paid to it nor to determine
whether amounts paid comply with the Plan.
3.02 Fund Assets. The trust fund assets consist of all money and
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property received as contributions, together with any income on or increment
in such assets. The Trustee shall hold the fund assets without distinction
between principal and income.
ARTICLE IV
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PAYMENTS FROM TRUST FUND
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4.01 Payments by the Trustee. Payments of money or property from
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the trust fund shall be made by the Trustee for any purpose authorized under
the Plan upon written direction from the Plan Administrator. The Trustee
shall have no duty to inquire whether directions by the Plan Administrator
conform to the Plan provisions.
If the Plan Administrator directs that any payment or payments be made
or continued contingent upon future events, it shall be the responsibility of
the Plan Administrator to notify the Trustee in writing that the event has
occurred and any payments made by the Trustee prior to the date of such
notification shall, as to the Trustee, be proper payments.
Payments by the Trustee shall be delivered or mailed to addresses
supplied by the Plan Administrator and the Trustee's obligation to make such
payments shall be satisfied upon such delivery or mailing. The Trustee
shall have no obligation to determine the identity of persons entitled to
benefits or their mailing addresses.
4.02 Plan Administrator's Directions. Directions by the Plan
_______________________________
Administrator to the Trustee shall be in writing and signed by the Plan
Administrator or persons authorized by the Plan Administrator.
The Plan Administrator shall be identified to the Trustee by a copy of
the resolution of the Board of Directors of the Employer appointing such Plan
Administrator. Persons authorized to give directions to the Trustee on
behalf of the Plan Administrator shall be identified to the Trustee by
written notice from the Board of Directors or the Plan Administrator
and such notice shall contain specimens of the authorized signatures. The
Trustee shall be entitled to rely upon 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.
4.03 The Trustee's Reliance on Directions. The Trustee may rely
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upon directions from the Plan Administrator in making payments from the
trust fund. The Trustee shall have no liability for payments made,
or for failure to make payments, or for discontinuing payments, on direction
of the Plan Administrator. The Trustee shall have no liability for failure
to make payments in the absence of proper written directions.
The Trustee shall have no responsibility to determine whether trust
assets are sufficient to meet the liabilities under the Plan, and shall not
be liable for payments or Plan liabilities in excess of trust assets.
4.04 Disputed Payments. If a dispute arises over the propriety of
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any payment from the trust fund, the Trustee may withhold payment until the
dispute has been resolved by a court of competent jurisdiction or settled by
the parties to the dispute. The Trustees may consult its legal counsel or
legal counsel of the Employer and shall be protected to the extent permitted
by law in acting upon advice of counsel.
4.05 Trust Expenses. The Trustee shall be entitled to reasonable
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compensation for its services as from time to time agreed upon in writing
between the Trustee and Xxxxxxx Xxxxxx & Co., Inc. If the Trustee and
Xxxxxxx Xxxxxx & Co., Inc. fail to agree upon a compensation, the Trustee
shall be entitled to compensation at a rate equal to the rate charged for
similar services rendered by it during the preceding fiscal year. The
Trustee shall be entitled to reimbursement for actual expenses incurred by
it in the performance of its duties as the Trustee, including reasonable
fees for legal counsel.
4.06 Taxes. If the trust fund becomes liable for the payment of
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any taxes, charges or assessments by federal, state or local units, the
Trustee may pay such taxes, charges, or assessments out of the trust fund
and deduct those amounts from payments due to the person whose interest in
the trust fund was the cause of the tax, charge, or assessment; provided,
however, that the Trustee shall give ten days notice by mail to the Plan
Administrator of its intention to make such payment.
4.07 Expenses of Administration. Expenses incurred by the
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Employer or Plan Administrator, Investment Managers, or other persons
designated to act on behalf of the Employer or Plan Administrator, shall be
the obligation of the Employer. However, such expenses may be paid from the
Trust and upon the written request of the Employer.
4.08 Restrictions on Alienation. The interest of any Participant
__________________________
or Beneficiary in the trust fund shall not be subject to the claims of their
creditors and may not be assigned, transferred, alienated, or encumbered.
Any attempt at alienation shall be void, and the Trustee shall disregard any
attempted alienation. The trust assets shall not be liable for or subject
to debts or torts of any Participant or Beneficiary, and benefits shall not
be considered an asset of a Participant in bankruptcy. This does not preclude
the Trustee from complying with a qualified domestic relations order, as
that term is defined in the Code.
4.09 Payment on Court Order. To the extent permitted under ERISA
______________________
and the Code, the Trustee is authorized to make any payments directed by
court order in any action in which the Trustee has been named as a party.
The Trustees is not obligated to defend actions in which the Trustee is
named by shall notify the employer or Plan Administrator or any such
action and may tender defense of the action to the Employer, Plan
Administrator, or 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 incurred by the Trustee shall be a charge upon the
Trust Fund unless paid by the Employer; provided, however, that in the
event of a decision by a court of competent jurisdiction that the Trustee
has breached its duty under the terms of this Agreement or ERISA, the
Trustee shall make reimbursement of such expenses, in whole or in part,
pursuant to the decision of the court.
ARTICLE V
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INVESTMENTS
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5.01 Management by the Trustee. The Trustee shall manage the
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investment of the trust fund unless the Plan Administrator has given the
Trustee written notice of the appointment of an Investment Manager or
other person designated to direct Investment of all or a portion of the
trust fund.
5.02 Investment Manager. Subject to Section 5.05, the Plan
__________________
Administrator may appoint one or more Investment Managers to direct the
Trustee in the investment of all or a specified portion of the assets of the
trust fund. The Plan Administrator may also remove any Investment Manager.
The Plan Administrator shall promptly notify the Trustee in writing of the
appointment or removal of any Investment Manager.
If there is more than one Investment Manager under appointment at any
one time, the Trustee shall, upon instructions from the Plan Administrator,
establish separate funds for control by each Investment Manager. The funds
shall consist of those trust assets or that portion of the trust fund
designated by the Plan Administrator.
Investment instructions from Investment Mangers to the Trustee shall be
made in writing unless the Trustee consents to receive oral instructions
from an Investment Manager. An Investment Manager may issue orders for the
purchase or sale of securities directly to a broker dealer provided the
Investment Manger immediately notifies the Trustee in writing of the
issuance of such order and requires the broker dealer to confirm execution
of the order to the Trustee.
The Trustee shall have no liability for the acts or omissions of any
Investment Manager or be under any obligation to invest or otherwise manage
any assets of the trust fund which are subject to control of an Investment
Manager. If any foreign securities are purchased by the Investment Manager,
it shall be the responsibility of the Investment Manager to advise the
Trustee in writing of any laws or regulations, either foreign or domestic,
which apply to such foreign securities or to the receipt of dividends or
interest on such securities.
5.03 Participant Directed Accounts. In plans providing for
_____________________________
Participant directed accounts, the Trustee may, upon written instructions
from the Plan Administrator with the Trustee's consent, segregate assets
representing the value of an individual Participant's account under the Plan
and allow the Participant to manage the investment of those assets
attributable to his account. The Trustee shall have no obligation to invest
or otherwise manage assets earmarked for an individual Participant's account
until written notice is received from the Plan Administrator terminating the
Participant directed account. The Participant shall have full investment
responsibility for the assets aggregated for his account and the Trustee
shall have no duty to oversee the Participant's investment except that the
Trustee shall not accept a Participant's direction to invest in
"collectibles" [within the meaning of Section 408(m)(2) of the Code]
including, but not limited to, tangible personal property such as a work of
art, rug, antique, metal, gem, stamp, coin, alcoholic beverage or any other
such property specified by the Internal Revenue Service. Neither the
Trustee nor any other fiduciary shall be liable for any loss which results
from a Participant's or his Beneficiary's exercise of control over the assets
segregated to his individual account.
5.04 Securities Voting Rights. Except as provided in Section 5.05
________________________
regarding Employer Securities, voting or other rights in securities held
in the Trust shall be exercised by the Trustee, unless an Investment Manager
has been appointed or the Plan Administrator has reserved to itself the
authority, or subsequently elects to assume the authority, to exercise
voting and other rights in such securities. Where an Investment Manger has
been authorized to acquire and dispose of all or a portion of the assets
of the Trust, the Investment Manger shall be responsible and liable for
voting or exercising other rights in the securities subject to its
management and control.
5.05 Employer Securities.
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(a) Employer Securities are required to be purchased
pursuant to the Plan (i) to be the primary investment under the employee
stock ownership plan part of the Plan and (ii) to accommodate investment
directions given by Participants with respect to the investment of their
Accounts under the profit sharing plan part of the Plan (including salary
deferrals and Employer matching contributions credited to such Accounts).
Investment in such Employer Securities shall be made from time to time by a
direct issue of such Employer Securities from the Employer (in the event of
Employer Securities used to fund the employee stock ownership plan only) or
by purchase through securities dealers or by private purchase. However, no
private purchase of such Employer Securities shall be made at a total cost
greater than the total cost (including brokers' fees and other expenses of
purchase) of purchasing such shares at the then prevailing price of such
shares on the open market, such prevailing price to be determined by the
Trustee as nearly as practicable.
(b) Employer Securities purchased as an investment of the
employee stock ownership plan shall be purchased pursuant to directions to
the Plan Administrator with regard to such purchase. Employer Securities
purchased as an investment of the profit sharing plan shall be purchased at
such prices, in such amounts, in such manner, at such times and through such
broker-dealer as the Trustee may determine in its absolute and uncontrolled
discretion.
(c) Cash dividends received on any Employer Securities held as
part of the profit sharing plan shall be invested as soon as possible in
additional shares of Employer Securities. Cash dividends received on any
Employer Securities held as an investment of the employee stock ownership
plan shall be invested as directed by the Plan Administrator.
(d) The Trustee shall invest funds awaiting investment in
Employer Securities in the manner authorized by Section 7.01(e).
(e) All Employer Securities purchased by the Trustee
shall be registered in the name of the Trustee or its nominee and legal
title to such Employer Securities shall remain in the Trustee until the
Participant shall become entitled to distribution thereof pursuant
to the Plan.
(f) Voting or proxy or other rights with respect to
Employer Securities shall be disposed of as provide in this Section.
With respect to Employer Securities that are allocated to Participants'
Accounts, each Participant shall be entitled to direct the Trustee as
to the manner in which such Employer Securities then allocated to his
Account shall be voted. Such directions may be achieved through the use of
proxy or similar statements delivered to the Participants with respect to
the Employer Securities allocated to their Accounts. The Plan Administrator
shall provide any information requested by the Trustee that is necessary
or convenient in connection with obtaining and preserving the
confidentiality of the Participants' directions. Any allocated Employer
Securities with respect to which Participants are entitled to issue
directions pursuant to the foregoing and for which such directions are not
received by the Trustee shall not be voted by the Trustee unless the Trustee
is required to exercise its discretion in voting such Employer Securities
pursuant to ERISA. All unallocated Employer Securities shall be voted by the
Trustee at the direction of the Plan Administrator; provided, however, that
subject to the requirements of ERISA, the Plan Administrator shall direct
the Trustee to vote such unallocated Employer Securities in the same
proportion as the share of Employer Securities for which Participant voting
instructions have been received as provided in the agreement between the
Employer and the New York Stock Exchange.
ARTICLE VI
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FIDUCIARY RESPONSIBILITIES AND INDEMNITIES
__________________________________________
6.01 Relationship of Fiduciaries. Each fiduciary of the Plan and
___________________________
this Trust shall be solely responsible for his own acts or omissions. The
Trustee shall have no duty to question any other fiduciary's performance of
fiduciary duties allocated to other fiduciaries by the Plan Administrator.
No fiduciary shall be responsible for breach by another fiduciary unless he
participates knowingly in, or knowingly undertakes to conceal, an act or
omission of such other fiduciary, knowing such act or omission is a breach;
he has actual knowledge of a breach by such other fiduciary and fails to
make reasonable effort under the circumstances to remedy the breach; or his
failure to perform his own specific fiduciary duties has enabled another
fiduciary to commit a breach.
6.02 Benefits of Participants. A fiduciary shall discharge his
________________________
duties with respect to the Plan and Trust solely in the interest of the
Participants and their Beneficiaries and for the exclusive purpose of
providing benefits to Participants and their Beneficiaries and defraying
reasonable expenses of the Plan.
6.03 Duty of Care. A fiduciary shall discharge his duties with the
____________
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims; and in accordance with the documents and instruments governing the
Plan and this Trust. A fiduciary managing investments shall diversify
investments so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so.
6.04 Indicia of Ownership. Except as authorized by regulation by
____________________
the Secretary of the Department of Labor, the Trustee shall not maintain
the indicia of ownership of any assets of the trust fund outside the
jurisdiction of the district courts of the United States.
6.05 The Trustee's Reliance. The Trustee shall have no liability
______________________
to any Participant, Beneficiary, or any other person for payments made,
failure to make payments, or discontinuance of payments, on direction of the
Plan Administrator; or for failure to make payments in the absence of
instructions from the Plan Administrator.
Except as provided in Section 5.05, the Trustee may request
instructions from the Plan Administrator. The Trustee shall have no duty to
act or liability for failure to act if such instructions are not forthcoming
from the Plan Administrator. If requested instructions are not received
within a reasonable time, the Trustee may, but is under no duty to, act on
its direction to carry out the provisions of the Plan and Trust.
6.06 Indemnities. The Employer shall indemnify and hold the Trustee
___________
and trust fund harmless against any loss or liability, including reasonable
attorney's fees, imposed upon the Trustee as a result of any acts taken in
accordance with written directions (or failure to act in the absence of such
directions) from the Plan Administrator, Investment Manger, or any other
person designated to act on their behalf, or by reason of the Trustee's good
faith execution of its duties in the administration of this trust, except in
the event of the Trustee's negligence in performing its own specific
fiduciary duties as described under this Trust Agreement and under ERISA.
If the trust ceases to be a tax-exempt trust under Section 401 and
Section 501 of the Code, the Employer shall indemnify the Trustee for any
federal or state taxes which the Trustee is required to pay as a result of
the distribution made at the direction of the Plan Administrator.
6.07 Responsibility with Respect to Securities Law. It shall be the
_____________________________________________
responsibility of the Plan Administrator, and not the Trustee, to assure
compliance with all requirements imposed under the securities laws of the
United States or any State, including, but not limited to, registration and
filing requirements. The Trustee is hereby specifically indemnified and
held harmless for any loss or liability it may incur, or for any penalties
that may be imposed as a result of the Plan Administrator's failure to
comply with such requirements.
ARTICLE VII
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POWERS OF THE TRUSTEE
_____________________
7.01 Investment Powers. The Trustee, except as provided in Article
_________________
V, and only to the extent it has not received directions pursuant to Article V,
is authorized and empowered in its sole discretion:
(a) To invest and reinvest trust assets, together with the
income therefrom, in common stock, preferred stock, convertible preferred
stock, bonds, debentures, convertible debentures and bonds, mortgages, notes,
time certificates of deposit, commercial paper and other evidence of
indebtedness (including those issued by the Trustee or any affiliate), other
securities, policies of life insurance, annuity contracts, options or buy or
sell securities or other assets, and property (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
which bear a reasonable interest rate in a bank, including the commercial
department of the Trustee, if such bank is supervised by the United States
or a State;
(c) To hold, manage, improve, repair and control all
property, real or personal, forming part of the trust assets; 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 in such manner, for such consideration, and upon such terms and
conditions as the Trustee shall determine.
(d) To have, respecting securities, all the rights, powers
and privileges of an owner, including the power to give proxies, pay
assessment and other sums deemed by the Trustee to be necessary for the
protection of the trust fund, to vote any corporate stock either in person
or by proxy, with or without power of 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 and transfer title to any protective
or other committee under such terms as the Trustee may deem advisable; to
exercise or sell stock subscriptions or conversion rights; and, regardless of
any limitation elsewhere in this instrument relative to investment 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) In the ordinary course of administration of the trust
fund, all uninvested cash balances shall be invested in short term
obligations, including obligations of the United States of America or any
agency or instrumentality thereof, trust and participation certificates,
beneficial interests in any trust and such other short term obligations as the
Trustee deems to be appropriate for such interim investment purposes,
including the Short Term Investment Fund maintained by the Trustee; provided,
however, that the Trustee may hold in cash without liability for interest
such portion of the trust fund that in its discretion shall be reasonable
under the circumstances, 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, 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 such powers as are necessary
or desirable to protect the trust or its assets, to direct such agent or
trustee, or to delegate such power to direct, and to remove such agent or
trustee;
(g) To employ such agents including custodians and counsel
as may be reasonably necessary and to pay them reasonable compensation; to
settle, compromise or abandon all claims and demands in favor of or against
the trust assets;
(h) To cause title to property of the trust to be issued,
held or registered in the individual name of the Trustee, or in the name of its
nominee(s) or agents, or in such form that title will pass by delivery;
(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 of California, 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 to purchase
Employer Securities and to execute promissory notes or other obligations and
to pledge or mortgage any trust assets as security, subject to applicable
requirements of the Code and ERISA; provided, however, that any money needed
for the purchase of Employer Securities shall not be borrower from the
Trustee;
(k) To lend certificates representing stocks, bonds, or
other securities to any brokerage or other firm selected by the Trustee,
provided such loans are adequately secured; and
(l) To do all other acts necessary or desirable for the
proper administration of the Trust assets, as if the Trustee were the
absolute owner thereof.
7.02 Securities Depositories. Notwithstanding anything herein to
_______________________
the contrary, the Trustee in its discretion is authorized to use securities
depositories or custodians. Further, such securities as are held by a
depository or custodian may be registered in the name of such depository or
its nominee or in the name of such custodian or its nominee.
7.03 Investment in Common Trust Funds. Notwithstanding any
________________________________
provision herein to the contrary, the Trustee is hereby expressly authorized
to invest in any common, collective or pooled fund maintained by the Trustee
or any other bank or trust company and the Declarations of Trust
establishing or amending such funds are hereby incorporated by reference
into this Agreement.
ARTICLE VIII
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ACCOUNTS OF THE TRUSTEE
_______________________
8.01 Records. The Trustee shall maintain accurate records and
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accounts of all trust transactions and assets. The records and accounts
shall be available at reasonable times for inspection or audit by any
person or persons designated by the Plan Administrator.
8.02 Reports. Within ninety days following the close of each Plan
_______
Year, or the effective date of the removal or resignation of the Trustee,
the Trustee shall file with the Plan Administrator a written account setting
forth all transactions since the end of the period covered by the last
previous accounting. The report shall include a listing of the trust
assets, showing carrying and market values of such assets at the close of
the period covered by the account. On direction of the Plan Administrator,
the Trustee shall submit to the Plan Administrator interim valuations,
reports, or other information.
The Plan Administrator may approve the accounting by written approval
delivered to the Trustee or by failure to deliver written objection to the
Trustee within sixty days after receipt of the accounting.
8.03 Valuation. Trust assets shall be valued at fair market value
_________
on the date of valuation, 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 value of
unlisted or very thinly traded company stock shall be based on an appraisal
by a qualified independent appraiser acceptable to the Trustee.
The Plan Administrator shall instruct the Trustee as to the value of
assets for which market value is not readily obtainable by the Trustee. If
the Plan Administrator fails to provide values the Trustee may take whatever
action it deems reasonable, including employment of attorneys, appraisers or
other professions, the expense of which will be an expense of the
administration of the trust.
ARTICLE IX
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RESIGNATION AND REMOVAL OF THE TRUSTEE
______________________________________
9.01 Resignation. The Trustee may resign at any time upon at
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least thirty days written notice to Xxxxxxx Xxxxxx & Co., Inc.
9.02 Removal. Xxxxxxx Xxxxxx & Co., Inc. may remove the Trustee upon
_______
at least thirty days written notice to the Trustee.
9.03 Appointment of a Successor. Upon resignation or removal of
__________________________
the Trustee, Xxxxxxx Xxxxxx & Co., Inc., by resolution of its Board of
Directors, shall appoint a successor trustee. Upon failure of the Board of
Directors to appoint a successor trustee by the effective date of
resignation or removal, the individual members of the Board of Directors of
Xxxxxxx Xxxxxx & Co., Inc. shall become successor trustee until another
successor trustee is appointed.
Upon appointment of the successor trusteethe Trustee shall deliver to
the successor trustee such records as may be reasonably required to enable the
successor trustee properly to administer the trust fund, and shall deliver to
the successor trustee all property of the trust after deducting such amounts as
the Trustee deems necessary to provide for expenses, compensation, and taxes.
9.04 Settlement of Account. Upon resignation or removal, the
_____________________
Trustee shall have the right to a settlement of its account which settlement
shall be made, at the Trustee's options, either by a judicial settlement in
an action instituted by the Trustee, or by an agreement of settlement
between the Trustee and the Employer.
9.05 Indemnity for Expenses and Compensation. The Trustee shall
_______________________________________
not be obligated to transfer assets of the trust until the Trustee is
indemnified in a manner satisfactory to it for all fees and expenses
reasonably anticipated.
9.06 Termination of Liability. Upon settlement of its account and
________________________
transfer of the trust assets to the successor trustee, all rights and
privileges under the Plan and this Trust Agreement shall vest in the
successor trustee and thereafter liability of the Trustee shall terminate
with respect to acts of the successor trustee not related to prior acts of
the Trustee subject only to the requirement that the Trustee execute all
necessary documents to transfer the trust assets to the successor trustee.
ARTICLE X
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AMENDMENT AND TERMINATION
_________________________
10.01 Amendment. The Trustee and Xxxxxxx Xxxxxx & Co., Inc. may
_________
amend any or all of the provisions of this Trust Agreement. Amendments to
the Trust Agreement shall be executed by two officers of the Trustee and a
copy of such amendments shall be mailed to Xxxxxxx Xxxxxx & Co., Inc.
No amendment shall be made which will permit any part of the trust fund to
be used for, or diverted to, purposes other than the exclusive benefit of
Participants or their Beneficiaries.
10.02 Termination. The trust is irrevocable but may be terminated
___________
by Xxxxxxx Xxxxxx & Co., Inc. by resolution of its Board of Directors and
with at least sixty days written notice to the Trustee. Upon termination
of the trust, the trust assets shall be distributed as directed by the Plan
Administrator; provided, however, that the Trustee shall not be required to
make any distribution prior to receipt of a determination letter from the
Internal Revenue Service that the termination does not affect the tax exempt
status of the plan and trust. In the event the plan is not required to
obtain the prior approval of the Internal Revenue Service, the Trustee may,
in lieu of such determination letter, accept an indemnification of the
Trustee by the Employer for any liability the Trustee may incur for
compliance with directions to distribute the assets of the Trust, including
taxes and attorney's fees.
10.03 Failure to Maintain Qualification. If the Plan and Trust fail
_________________________________
to qualify or the Plan loses it status as a Qualified Plan, the Trustee may,
without notice or direction, remove the trust fund assets from any common or
collective trust fund or pooled investment fund maintained by the Trustee for
investments by Qualified Plans.
ARTICLE XI
__________
MISCELLANEOUS
_____________
11.01 Participation by Affiliated Companies. Any company affiliated
_____________________________________
with the Employer may become a party to this Trust Agreement by adopting the
Employer's Plan and this Trust Agreement.
11.02 Multiple Plans. With the consent of the Trustee, the assets of
______________
two or more Qualified Plans maintained by the Employer and affiliated
companies may be maintained as one trust and their assets may be commingled.
11.03 Exclusive Benefit Rule. Except as provided in Section 11.04,
______________________
no part of the principal or income of this trust shall be used for, or
diverted to, purposes other than the exclusive benefit of Participants or
their Beneficiaries or for the reasonable expenses of administering the Plan
until all liabilities for benefits due Participants or their Beneficiaries
have been satisfied.
11.04 Refunds to Employer. Notwithstanding the foregoing Section
___________________
11.03, if the Internal Revenue Service finds that this Plan does not
initially meet the requirements of a qualified plan whose trust is a
qualified trust exempt from federal income tax, the Trustee may within one
year after the date the initial qualification is denied and upon written
directions from the Employer, return any initial contribution made by the
Employer and the trust shall then be terminated.
The Trustee may, upon instructions from the Plan Administrator, return
to the Employer or individual Participants contributions made on mistake of
fact or in excess of the amount determined to be deductible by the Employer
within one year of the date the contribution was made, or within one year of
the date the deduction for the Employer was disallowed.
11.05 Construction. The Trust will be administered in the State of
____________
California, and its validity, construction and all rights hereunder shall
be governed by ERISA and, to the extent not preempted, by the laws of
California. If the provisions of this Trust Agreement and the Plan shall be
inconsistent or otherwise in conflict regarding the rights, duties or
obligations of the Trustee, the provisions of this Agreement shall control.
If any provisions of this Agreement shall be ruled invalid or unenforceable,
the remaining provisions thereof shall continue to be fully effective.
Headings or subheading are inserted for convenience of reference only
and are not to be considered in the construction of the provisions of
the Trust Agreement.
11.06 Execution and Counterparts. This Trust Agreement may be
__________________________
executed in several counterpart, each of which shall be deemed an original
and said counterparts shall constitute but one instrument which may be
sufficiently evidenced by any one counterpart.
11.07 Successors and Assigns. This Trust Agreement shall inure to
______________________
the benefit of any and shall be binding upon, the parties and their
successor and assigns.
11.08 Gender. As used in this Trust Agreement, the masculine gender
______
shall include the feminine and neuter genders and the singular shall include
the plural and the plural the singular as the context requires.
Executed by the Employer and the Trustee on 10/25, 1990, effective as
of 11/01, 1990.
XXXXXXX XXXXXX & CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Chairman/CEO
SECURITY PACIFIC NATIONAL BANK
By: /s/ Xxxx Xxx
Its: Assistant Vice President
By:
Its:
