EXHIBIT 10.16
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GRANTOR TRUST AGREEMENT
FOR THE BENEFIT RESTORATION PLAN OF
THE WARWICK SAVINGS BANK
THIS AGREEMENT (hereinafter referred to as the "Trust
Agreement"), made as of this 10th day of December 1997, by and between THE
WARWICK SAVINGS BANK, a savings bank organized under the laws of the State of
New York ("Bank") and having its principal offices at 00 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000, and MARINE MIDLAND BANK, a bank organized under the
laws of the State of New York and having an office at 000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Trustee"). Any references herein to the "Company" shall mean
WARWICK COMMUNITY BANCORP, INC., the holding company of the Bank.
W I T N E S S E T H:
WHEREAS, the Bank has established the Benefit Restoration Plan
of The Warwick Savings Bank ("Plan") for the benefit of certain management
employees of the Bank and designated affiliates;
WHEREAS, the Trustee is not a party to the Plan and makes no
representations with respect thereto, and all representations and recitals with
respect to the Plan shall be deemed to be those of the Bank;
WHEREAS, the Bank wishes to establish a trust ("Trust") and to
contribute to the Trust assets that shall be held therein, subject to the claims
of the Bank's creditors in the event of the Bank's Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that the Trust
shall constitute an unfunded arrangement and shall not affect the status of any
Plan as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"); and
WHEREAS, it is the intention of the Bank to make contributions
to the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plan, provided that the assets of the Trust
shall be subject to the claims of the Bank's creditors in the event of the
Bank's Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in the time and manner specified in the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
FIRST: ESTABLISHMENT OF THE TRUST.
(a) (i) The Bank hereby deposits with the Trustee in trust
$100.00, which shall become the principal of the Trust to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
(ii) The Trustee hereby accepts a trust consisting of
the initial deposit referred to in the preceding sentence and such cash or other
property acceptable to the Trustee as shall be paid or delivered to the Trustee
from time to time, together with the earnings, income, additions and
appreciation thereon and thereto (all of which is hereinafter called the
"Fund").
(b) The Trust hereby established shall be irrevocable. The
Bank may, but shall not be required to, apply for a Private Letter Ruling
regarding the status of the Trust as a "grantor trust" under sections 671
through 679 of the Code from the Internal Revenue Service ("IRS") in accordance
with Article FIFTEENTH hereof. In the event the Bank makes such a request, it
shall furnish to the Trustee a copy of such Private Letter Ruling promptly upon
the Bank's receipt thereof.
(c) The Trust is intended to be a grantor trust, of which the
Bank is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended ("Code"),
and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon,
shall be held separate and apart from other funds of the Bank and shall be used
exclusively for the uses and purposes of Plan participants and general creditors
as herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against the Bank. Any assets held by the Trust will be subject to the claims of
the Bank's general creditors under federal and state law in the event of
Insolvency, as defined in Article THIRD herein.
(e) The Bank, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in trust with
the Trustee to augment the principal to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. Neither the Trustee nor any
Plan participant or beneficiary shall have any right to compel such additional
deposits, or any other contribution to the Trust.
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(f) (i) Upon a Change of Control, the Bank shall, as soon as
possible, but in no event longer than 30 days following the Change of Control,
as defined herein, make an irrevocable contribution to the Trust in an amount
that is sufficient to pay each Plan participant or beneficiary the benefits to
which Plan participants or their beneficiaries would be entitled pursuant to the
terms of the Plan as of the date on which the Change of Control occurred.
(ii) Within 30 days following the end of the Plan
year(s) ending after the Trust has become irrevocable pursuant to subparagraph
(b) of Article FIRST hereof, the Bank shall be required to irrevocably deposit
additional cash or other property to the Trust in an amount sufficient to pay
each Plan participant or beneficiary the benefits payable pursuant to the terms
of the Plan as of the close of the Plan year(s).
(iii) For purposes of this paragraph (f), no
irrevocable contribution shall be required for any Plan year that ended before
the occurrence of a Change in Control, as herein defined. In addition, any
contribution required hereunder shall be deemed sufficient if the aggregate of
such contributions and the other assets of the Fund, determined as of the date
of the contributions, is at least equal to the actuarially determined value of
the aggregate benefits accrued under the Plan, determined as of the same date.
Any actuarial determination required under the preceding sentence shall be made
by the Bank, in its sole discretion.
(iv) The Trustee shall have the right and power, but
shall be under no duty, to determine whether the amount of any contribution is
in accordance with any Plan or to collect or enforce payment of any
contribution. The Trustee shall not be responsible for computing or collecting
any contribution or other amounts due under the Plan or the Trust.
SECOND: PAYMENTS TO PLAN PARTICIPANTS AND THEIR
BENEFICIARIES.
(a) (i) The Bank shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment Schedule.
(ii) The Payment Schedule shall be delivered to the
Trustee following the execution of this Trust Agreement and an updated Payment
Schedule shall be furnished at least annually thereafter. Each such Payment
Schedule shall include, without limitation, (A) the names, addresses, dates of
birth, social security numbers and the amount and form of accrued benefit of
each Plan participant and beneficiary in the Plan; (B) the amount and form of
projected benefits under the Plan of each participant and beneficiary, assuming
such participant would retire or die as of the last day of such calendar year;
(C) a schedule of the estimated yearly cash payments
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under the Plan; and (D) any other information regarding the Plan which the
Trustee may reasonably request.
(b) (i) To the extent that amounts are paid under this Article
SECOND by the Trustee directly to any Plan participant or beneficiary, such
amounts shall be reduced by the Trustee in an amount equal to the income and
employment tax withholding required by law with respect to such participant or
beneficiary, as determined by the Bank and promptly communicated to the Trustee.
The Trustee shall inform each Plan participant and beneficiary to whom payment
is made of the amount withheld from payment and the purpose for withholding such
amount. Such withheld amounts shall be paid by the Trustee to the Bank, which
shall remit such withheld amounts to, and shall file the appropriate withholding
reports with, the appropriate governmental agencies. In making any determination
whether the Bank has properly determined, reported and/or withheld the
appropriate taxes, the Trustee may rely on a written certification, under
penalties of perjury, signed by the Chief Executive Officer of the Bank or by
another officer of the Bank authorized by the Chief Executive Officer to sign
such certification in his behalf.
(ii) To the extent that amounts are to be paid under
this Article SECOND by the Trustee directly to any Plan participant or
beneficiary and the Bank fails to direct the Trustee with respect to the
appropriate amount to be withheld by the Trustee with respect to the applicable
withholding requirements, the Trustee shall use its best efforts to determine,
in its sole discretion, the appropriate amount of income and employment tax
withholding required by law with respect to the payment to such participant or
beneficiary, and shall reduce any payments by the amount of tax withholding
required. The Trustee shall inform the Bank and each Plan participant or
beneficiary to whom payment is made of the amount withheld and the purpose for
withholding such amount. The amount withheld by the Trustee shall be paid by the
Trustee to the Bank, and the Bank shall remit such withheld amounts to, and
shall file the appropriate withholding reports with, the appropriate
governmental agencies. Provided that the Trustee has withheld the amounts
directed by the Bank or, in the absence of such direction from the Bank, used
its best efforts to determine applicable withholding under this Article, it
shall have no liability for failure to withhold amounts sufficient to meet
applicable requirements, and shall be held harmless by the Bank against such
liability.
(iii) Unless otherwise agreed to by the Trustee, the
Bank shall be responsible for all tax information reporting with respect to
payments made to Plan participants and beneficiaries hereunder.
(c) (i) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by the Bank or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures
set out in the Plan.
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(ii) The Trustee shall have no authority over or
responsibility for the disposition of claims for benefits under the Plan and, in
the absence of an order to the contrary of a court of competent jurisdiction,
may rely conclusively on the most recent Payment Schedule furnished to it by the
Bank in making or refraining from making payments from the Trust to individuals
who are or purport to be Plan participants or their beneficiaries. The Trustee
shall not make payments hereunder to any person until it receives instructions
from the Bank in a form reasonably satisfactory to the Trustee.
(d) (i) The Bank may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. The Bank shall notify the Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to Plan participants or
their beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan, the Bank shall make the balance of each such payment
as it falls due. The Trustee shall notify the Bank where principal and earnings
are not sufficient.
(ii) The Trustee shall have no liability or
responsibility for duplicate payments made prior to its receipt from the Bank of
notice of the Bank's intention to make direct payment.
(e) The Bank may direct that payments be made before they
would otherwise be due if, based on a change in the federal tax or revenue laws,
a published ruling or similar announcement issued by the IRS, a regulation
issued by the Secretary of the Treasury, a decision by a court of competent
jurisdiction involving a Participant or a beneficiary, or a closing agreement
made under section 7121 of the Code that is approved by the IRS and involves a
Participant or a beneficiary, it determines that a Participant or beneficiary
has or will recognize income for federal income tax purposes with respect to
amounts that are or will be payable under the Plan before they are to be paid.
THIRD: TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN BANK IS INSOLVENT.
(a) (i) The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Bank is or becomes Insolvent. The
Bank shall be considered "Insolvent" for purposes of this Trust Agreement if (A)
the Bank is unable to pay its debts as they become due, (B) the Bank is subject
to a pending proceeding as a debtor under the United States Bankruptcy Code or
the equivalent thereof or (C) the Bank is subject to an order or regulation
issued pursuant to section 18(k) of the Federal Deposit Insurance Act, as
amended, prohibiting payments from the Plan.
(ii) For purposes of this Trust Agreement, a condition which
results in the Bank's being Insolvent shall be referred to as the Bank's
"Insolvency."
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(iii) While the Bank is Insolvent, the Trustee shall make
payments from the Trust only to or for the benefit of the Bank's general
creditors and only upon the direction of a court of competent jurisdiction or,
in the event that a trustee, receiver, conservator or other similar official
shall be appointed to oversee the Bank's affairs during a period of Insolvency,
upon the direction of such trustee, receiver, conservator or other similar
official.
(b) At all times during the continuance of this Trust
Agreement, as provided in subparagraph (d) of Article FIRST hereof, the
principal and income of the Trust shall be subject to claims of general
creditors of the Bank under federal and state law as set forth below:
(1) The Board of Directors of the Bank (the "Board")
and the Chief Executive Officer of the Bank shall have the duty to
inform the Trustee in writing of the Bank's Insolvency. If a person
claiming to be a creditor of the Bank alleges in writing to the Trustee
that the Bank has become Insolvent, the Trustee shall determine whether
the Bank is Insolvent and, pending such determination, the Trustee
shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) (i) Unless the Trustee has actual knowledge of
the Bank's Insolvency, or has received notice from the Bank or a person
claiming to be a creditor alleging that the Bank is Insolvent, the
Trustee shall have no duty to inquire whether the Bank is Insolvent.
The Trustee may in all events rely on such evidence concerning the
Bank's solvency as may be furnished to the Trustee and that provides
the Trustee with a reasonable basis for making a determination
concerning the Bank's solvency.
(ii) The Trustee shall be deemed to have a
reasonable basis for determining that the Bank is Insolvent if it has
received (A) a certified copy of a bankruptcy or insolvency petition
with respect to the Bank or a general assignment by the Bank for the
benefit of its creditors, (B) a Certificate of Commencement of Case (or
similar document) acknowledging either (I) that a petition for the
commencement of a voluntary or involuntary case pursuant to Titles 7 or
11 of the United States Bankruptcy Code, as amended, was duly filed by
or against the Bank with the United States Bankruptcy Court, or (II)
the taking of possession of the Bank or all or all substantially all of
its assets by a receiver, custodian, trustee or similar official, (C) a
certified copy of an order pursuant to section 18(k) of the Federal
Deposit Insurance Act, as amended, prohibiting payments pursuant to the
Plan ("Regulatory Order"), or (D) a written certification, under
penalties of perjury, signed by the Chief Executive Officer of the Bank
or a majority of the members of the Board that the Bank is Insolvent.
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(3) If at any time the Trustee has determined that
the Bank is Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets of the
Trust for the benefit of the Bank's general creditors. Nothing in this
Trust Agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as general
creditors of the Bank with respect to benefits due under the Plan or
otherwise.
(4) (i) The Trustee shall resume the payment of
benefits to Plan participants or their beneficiaries in accordance with
Article SECOND of this Trust Agreement only after the Trustee has
determined that the Bank is not Insolvent (or is no longer Insolvent).
(ii) The Trustee shall be deemed to have a
reasonable basis for determining that the Bank is no longer Insolvent
if it has received: (A) a judgment, decree or order of a court of
competent jurisdiction dismissing a case filed with respect to the Bank
under Title 7 or 11 of the United States Bankruptcy Code; or (B) a
judgment, decree or order of a court of competent jurisdiction
overturning a Regulatory Order; or (C) if the Trustee determined the
Bank to be Insolvent based on a certification of the Chief Executive
Officer or the Board, a subsequent written certification, under
penalties of perjury, signed by the Chief Executive Officer of the Bank
or a majority of the members of the Board that the Bank is no longer
Insolvent.
(5) The Board and Chief Executive Officer of the Bank
shall certify to the Trustee, at the Trustee's request, whether the
Bank is Insolvent. Any such certification may be requested by the
Trustee from time to time and at any time, and shall be made promptly
by the Board or Chief Executive Officer under the penalties of perjury.
Any certification received by the Trustee under this subparagraph shall
also be deemed a reasonable basis from the Trustee's determination of
Insolvency under this Article THIRD.
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to subparagraph (b)
of Article THIRD hereof and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount of all
payments due to Plan participants or their beneficiaries under the terms of the
Plan for the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants or their beneficiaries by the Bank in lieu of
the payments provided for hereunder during any such period of discontinuance.
The Trustee shall have an obligation to offset payments hereunder by direct
payments made to Plan participants and their beneficiaries by the Bank during
the period of discontinuance described in the preceding sentence only to the
extent the Bank directs the Trustee to make such offset.
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FOURTH: PAYMENTS TO THE BANK.
Except as provided in Article THIRD hereof, after the Trust
has become irrevocable, the Bank shall have no right or power to direct the
Trustee to return to the Bank or to divert to others any of the Trust assets
before all payments of benefits have been made to Plan participants and their
beneficiaries pursuant to the terms of the Plan.
FIFTH: INVESTMENT AUTHORITY.
(a) Subject to paragraphs (b) and (c) of this Article FIFTH,
the Trustee shall have exclusive authority and discretion to manage and control
the assets of the Fund as specified in this Article FIFTH, and pursuant to such
authority and discretion may exercise from time to
time and at any time the power:
(i) To invest and reinvest the Fund, without
distinction between principal and income, in the group, family, or
class of mutual funds specified in writing by the Bank which shall
constitute the exclusive permitted investments of the Fund;
(ii) To exercise, personally or by general or limited
proxy, the right to vote any shares of such mutual funds held in the
Fund; and to exercise, personally or by power of attorney, any other
right appurtenant to mutual funds held by the Fund;
(iii) To exercise or sell any conversion or
subscription or other rights appurtenant to any shares of mutual fund
held in the Fund;
(iv) To invest and reinvest any property, real or
personal, in the Fund in any other form or type of investment not
specifically mentioned in this paragraph (a), so long as such form or
type of investment is a form or type of investment approved by the
Chief Financial Officer or Chief Executive Officer of the Bank and a
direction is made by the Bank to invest in such property.
(b) (i) The Trustee may invest in securities (including stock
or rights to acquire stock) or obligations issued by Warwick Community Bancorp,
Inc. All rights associated with assets of the Trust shall be exercised by the
Trustee or the person designated by the
Trustee,
and shall in no event be exercisable by or rest with Plan participants except
that voting, tender, appraisal, dissenter and other similar rights with respect
to Trust assets shall be exercised by the Bank. In the absence of timely
directions from the Bank, the Trustee shall have no duty to exercise such
rights, and shall have no liability for refraining from exercising such rights.
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(ii) Any investment by the Trustee in securities or
obligations of the Company or the Bank shall be subject to prior written
approval of the Bank.
(iii) The Bank shall have the right at anytime, and
from time to time in its sole discretion, to substitute assets of equal fair
market value for any asset held by the Trust. This right is exercisable by the
Bank in a nonfiduciary capacity without the approval or consent of any person in
a fiduciary capacity.
(c) The Trustee shall exercise its powers under this Article
FIFTH in a manner consistent with such direction by the Bank and shall have no
liability whatsoever for any loss, cost or expense occasioned by any investment
in such group, class or family of mutual funds in
accordance with this paragraph.
(d) To the extent permitted by law, the Trustee shall not be
liable for any act or omission of the Bank hereunder and, except as set forth
hereunder, the Trustee shall not be under any obligations to invest or otherwise
manage the assets of the Plan. Without limiting the generality of the foregoing,
the Trustee shall not be liable by reason of its taking or refraining from
taking any action hereunder at the direction of the Bank; the Trustee shall be
under no duty to question or to make inquiries as to any direction or order or
failure to give direction or order by the Bank and the Trustee shall be under no
duty to make any review of investments acquired for the Fund at the direction or
order of the Bank and shall be under no duty at any time to make any
recommendation with respect to disposing of or continuing to retain any such
investment.
(e) Without limiting the generality of the provisions of
Article EIGHTH hereof, the Bank agrees, to the extent permitted by law, to
indemnify the Trustee and hold it harmless from and against any claim or
liability that may be asserted against it, otherwise than on account of the
Trustee's own gross negligence or willful misconduct or violation of any
provision of law, by reason of the Trustee's taking or refraining from taking
any action in accordance with this Article FIFTH.
(f) Subject to the other provisions of this Trust Agreement,
the Trustee shall have the power and authority to be exercised in its sole
discretion at any time and from time to time to issue and place orders for the
purchase or sale of securities directly with qualified brokers or dealers. Such
orders may be placed with such qualified brokers and/or dealers who also provide
investment information or other research or statistical services to the Trustee
in its capacity as a fiduciary or investment manager for other clients.
SIXTH: DISPOSITION OF INCOME.
During the term of this Trust Agreement, all income received
by the Trust, net of expenses and taxes, shall be accumulated and reinvested.
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SEVENTH: ACCOUNTS.
(a) (i) The Trustee shall keep accurate and detailed accounts
of all its receipts, investments and disbursements under this Agreement. Such
person or persons as the Bank shall designate shall be allowed to inspect the
books of account relating to the Fund upon request at any reasonable time during
the business hours of the Trustee.
(ii) Within 120 days after the close of each calendar
year, the Trustee shall transmit to the Bank, and certify the accuracy of, a
written statement of the assets and liabilities of the Fund at the close of that
calendar year, showing the current value of each asset at that date, and a
written account of all the Trustee's transactions relating to the Fund during
the period from the last previous accounting to the close of that calendar year.
(For the purposes of this paragraph, the date of the Trustee's resignation or
removal as provided in Article TENTH hereof or the date of termination of the
Plan as provided in Article ELEVENTH hereof shall be deemed to be the close of a
calendar year with respect to the Trustee's resignation or the terminated Plan,
as the case may be.)
(iii) Unless the Bank shall have filed with the
Trustee written exceptions or objections to any such statement and account
within 180 days after receipt thereof, the Bank shall be deemed to have approved
such statement and account; and in such case or upon the written approval by the
Bank of any such statement and account the Trustee shall be forever released and
discharged with respect to all matters and things expressly set forth in such
statement and account as though it had been settled by decree of a court of
competent jurisdiction in an action or proceeding to which the Bank and all
persons having any beneficial interest in the Fund were parties.
(b) Nothing contained in this Agreement or in the Plan shall
deprive the Trustee of the right to have a judicial settlement of its accounts.
In any proceeding for a judicial settlement of the Trustee's accounts or for
instructions in connection with the Fund, the only other necessary party thereto
in addition to the Trustee shall be the Bank. If the Trustee so elects, it may
bring in as a party or parties defendant any other person or persons. No person
interested in the Fund, other than the Bank, shall have a right to compel an
accounting, judicial or otherwise, by the Trustee, and each such person shall be
bound by all accountings by the Trustee to the Bank, as herein provided, as if
the account had been settled by decree of a court of competent jurisdiction in
an action or proceeding to which such person was a party.
EIGHTH: RESPONSIBILITY OF THE TRUSTEE.
(a) The Trustee shall discharge its duties under this
Agreement with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man 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; provided, however, that the Trustee shall incur no liability to
any
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person for any action taken pursuant to a direction, request or approval given
by any duly authorized person which is contemplated by, and in conformity with,
the terms of the Plan or the Trust and is given in writing by the Bank. The
duties and obligations of the Trustee shall be limited to those expressly
imposed upon it by this Agreement notwithstanding any reference herein to the
Plan.
(b) The Trustee shall have no duty to commence or defend any
legal action arising in connection with the Trust unless it shall first have
been indemnified, in manner and substance satisfactory to it, against its costs,
expenses and liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto.
(c) The Trustee may consult with counsel, who may be counsel
for the Bank or for the Trustee in its individual capacity, and shall not be
liable for any action taken or omitted in accordance with the opinion of
counsel. The Bank agrees, to the extent permitted by law, to indemnify and hold
the Trustee harmless from and against any liability that it may incur in
connection with the Fund, unless arising from the Trustee's own grossly
negligent or willful breach of the provisions of paragraph (a) above. The
Trustee shall not be required to give any bond or any other security for the
faithful performance of its duties under this Agreement, except as required by
law. The Trustee in its corporate capacity shall not be liable for claims of any
persons in any manner regarding the Plan; such claims shall be limited to the
Trust Fund.
(d) (i) The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided otherwise
herein; provided, however, that if an insurance policy is held as an asset of
the Trust, the Trustee shall have no power to name a beneficiary of the policy
other than the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of any borrowing against such policy.
(ii) The Trustee shall have, and in its sole and
absolute discretion may exercise from time to time and at any time, the
following administrative powers and authority with respect to the Fund
consistent with the provisions of Article FIFTH:
(A) To continue to hold any property of the Fund
whether or not productive of income; to reserve from investment and
keep unproductive of income, without liability for interest, cash
temporarily awaiting investment and such cash as it deems advisable or
as the Bank from time to time may specify in order to meet the
administrative expenses of the Fund or anticipated distributions
therefrom;
(B) To hold property of the Fund in its own name or
in the name of a nominee or nominees, without disclosure of the Trust,
or in bearer form so that it will pass by delivery, but no such holding
shall relieve the Trustee of its
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responsibility for the safe custody and disposition of the Fund in
accordance with the provisions of this Agreement; the Trustee's books
and records shall at all times show that such property is part of the
Fund; and, subject to subsection (c) above, the Trustee shall be
absolutely liable for any loss occasioned by the acts of its nominee or
nominees with respect to securities registered in the name of the
nominee or nominees;
(C) To employ in the management of the Fund suitable
agents, without liability for any loss occasioned by any such agents
selected by the Trustee with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man 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;
(D) To do all other acts that the Trustee may deem
necessary or proper to carry out any of the powers set forth in Article
FIFTH hereof or otherwise in the best interests of the Fund.
(e) Notwithstanding any powers granted to the Trustee pursuant
to this Trust Agreement or to applicable law, the Trustee shall not have any
power that could give the Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of section 301.7701-2 of the
Procedure and Administrative Regulations promulgated pursuant to the
Code.
(f) Unless the Trustee participates knowingly in, or knowingly
undertakes to conceal, an act or omission of the Bank or any other fiduciary,
knowing such act or omission to be a breach of fiduciary responsibility, the
Trustee shall be under no liability for any loss of any kind which may result by
reason of such act or omission.
(g) If a dispute arises as to the payment of any funds or
delivery of any assets by the Trustee, the Trustee may withhold such payment or
delivery until the dispute is determined by a court of competent jurisdiction or
finally settled in writing by the parties concerned.
NINTH: TAXES, COMPENSATION AND EXPENSES OF TRUSTEE.
(a) (i) The Bank shall pay any Federal, state, local or other
taxes imposed or levied with respect to the corpus and/or income of the Fund or
any part thereof under existing
or future laws.
(ii) All taxes that may be levied or assessed upon or
in respect of the Fund shall be paid from the Fund. The Trustee shall notify the
Bank of any proposed or final assessments of taxes and may assume that any such
taxes are lawfully levied or assessed unless the Bank advises it in writing to
the contrary within fifteen days after receiving the above notice
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from the Trustee. In such case, the Trustee, if requested by the Bank in
writing, shall contest the validity of such taxes in any manner deemed
appropriate by the Bank; the Bank may itself contest the validity of any such
taxes, in which case the Bank shall so notify the Trustee and the Trustee shall
have no responsibility or liability respecting such contest. If either party to
this Agreement contests any such proposed levy or assessments, the other party
shall provide such information and cooperation as the party conducting the
contest shall reasonably request.
(b) The Trustee, without direction from the Bank, shall pay
from the Fund from time to time such reasonable compensation for its services as
Trustee as shall be agreed upon with the Bank, the reasonable and necessary
expenses and compensation of counsel and other agents employed or engaged by the
Trustee pursuant to subparagraph (d)(ii)(C) of Article EIGHT, and all other
reasonable and necessary expenses of managing and administering the Fund (which
the Trustee, in its discretion, determines to be necessary or appropriate) that
are not paid by the Bank.
TENTH: RESIGNATION AND REMOVAL OF THE TRUSTEE.
(a) The Trustee may resign at any time by written notice to
the Bank, which shall be effective 60 days after receipt of such notice unless
the Bank and the Trustee agree otherwise.
(b) The Bank, by action of its Board, may remove the Trustee
at any time upon 60 days' written notice to the Trustee, or upon shorter notice
if acceptable to the Trustee. In the event it resigns or is removed, the Trustee
shall have a right to have its accounts settled as
provided in Article SEVENTH hereof.
(c) (i) Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within 60 days after
receipt of notice of resignation, removal or transfer, unless the Bank extends
the time limit.
(ii) The Trustee may reserve such sums as the Trustee
shall deem necessary to defray its expenses in settling its accounts, to pay any
of its compensation due and unpaid and to discharge any obligation of the Fund
for which the Trustee may be liable. If the sums so reserved are not sufficient
for these purposes, the Trustee shall be entitled to recover the amount of any
deficiency from either the Bank or the successor Trustee, or both. When the Fund
shall have been transferred and delivered to the successor Trustee and the
accounts of the Trustee have been settled as provided in Article SEVENTH hereof,
the Trustee shall be released and discharged from all further accountability or
liability for the Fund and shall not be responsible in any way for the further
disposition of the Fund or any part thereof.
(d) (i) If the Trustee resigns or is removed, a successor
shall be appointed, in accordance with Article ELEVENTH, by the effective date
of resignation or removal under
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paragraph (a) or (b) of this Article TENTH. If no such appointment has been
made, the Trustee may apply to a court of competent jurisdiction for appointment
of a successor or for instructions. All expenses of the Trustee in connection
with the proceeding shall be allowed as administrative expenses of the Trust.
Any successor Trustee shall be an independent commercial bank or trust bank
which is not affiliated with, controlled by, in control of, or under common
control with the Bank.
(ii) Each successor Trustee shall have the powers and
duties conferred upon the Trustee in this Trust Agreement, and the "Trustee" as
used in this Agreement shall be deemed to include any successor Trustee.
ELEVENTH: APPOINTMENT OF SUCCESSOR.
In the event of the resignation or removal of the Trustee, a
successor Trustee shall be appointed by the Bank. Except as otherwise provided
herein, such appointment shall take effect upon delivery to the Trustee of an
instrument so appointing the successor and an instrument of acceptance executed
by such successor, both of which instruments shall be duly acknowledged before a
notary public. The delivery of such instruments shall take place within sixty
(60) days after notice of resignation or removal, as applicable, of the Trustee
shall have been given.
TWELFTH: AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written
instrument duly executed and acknowledged by the Trustee and the Bank.
Notwithstanding the foregoing, no such amendment shall conflict with the terms
of the Plan or shall make the Trust revocable after it has become irrevocable in
accordance with subparagraph (b) of Article FIRST hereof.
(b) (i) The Trust shall not terminate until the date on which
Plan participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan. Upon termination of the Trust any assets
remaining in the Trust shall be returned to the
Bank.
(ii) Notwithstanding the foregoing, if not sooner
terminated, the Trust shall terminate automatically on the twenty-first (21st)
anniversary of the death of the last to die of all of the lineal descendants of
Xxxx Xxxxxxxxxx Xxxxxxx, daughter of Xxxx Xxxxxxx Xxxxxxxxxx and Xxxxxxxxx Xxxx
Xxxxxx Xxxxxxxxxx, who are living and in being on the effective date of this
Trust Agreement.
(iii) Notwithstanding the foregoing, until the Trust
has become irrevocable as provided in subparagraph (b) of Article FIRST hereof,
the Trust may be terminated at any time by the Bank.
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(iv) In case the Plan is terminated in whole or in
part, the Trustee (subject to the provisions of Articles TENTH and ELEVENTH
hereof and reserving such sums as the Trustee shall deem necessary in settling
its accounts and to discharge any obligation of the Fund for which the Trustee
may be liable) shall apply or distribute any subfund attributable to such
terminating Plan in accordance with the written directions of the Bank. Upon
such termination of Plan in whole or in part, the Trustee shall have a right to
have its accounts settled as provided in Article SEVENTH hereof. When a subfund
shall have been so applied or distributed and the accounts of the Trustee shall
have been so settled, the Trustee shall be released and discharged from all
further accountability or liability respecting such subfund, and shall not be
responsible in any way for the further disposition of such subfund.
THIRTEENTH: MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition, without invalidating
the remaining provisions hereof.
(b) Benefits payable to Plan participants and their
beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
(c) (i) This Trust Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts to be performed wholly
within the State of New York.
(ii) Nothing in this Agreement shall be construed to
subject either the Trust created hereunder or the Plan to ERISA.
(iii) Any reference herein to ERISA or the Code shall
include such law as in effect on the effective date hereof, subsequent amendment
thereto and any succeeding law.
(d) The titles to Articles of this Agreement are placed herein
for convenience of reference only, and the Agreement is not to be construed by
reference thereto.
(e) This Agreement shall bind and inure to the benefit of the
successors and assigns of the Bank and the Trustee, respectively.
(f) This Agreement may be executed in any number of
counterparts, each of which shall be shall to be an original but all of which
together shall constitute but one instrument, which may be sufficiently
evidenced by any counterpart executed by all parties hereto.
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(g) Any corporation into which the Trustee is merged with or
with which it is consolidated, or any corporation resulting from a merger,
reorganization or consolidation, to which the Trustee is a party, or any
corporation to which all or substantially all the trust business of the Trustee
is transferred shall become the successor trustee under the Agreement without
the execution or filing of any further instrument or the performance of any
further act.
(h) The Bank or anyone acting on its behalf may at any time
employ the Trustee in its corporate (and not in its fiduciary) capacity as agent
to perform any act, keep any records or accounts, or make any computations
required by the Bank. Any such agency relationship shall be established by a
separate agreement between the Bank and the Trustee, and the existence of such
agreement and any actions performed by the Trustee under such agreement shall
not affect its responsibilities as Trustee under this Agreement.
FOURTEENTH: ADMINISTRATION OF THE PLAN; COMMUNICATIONS.
(a) The Bank shall administer the Plan as provided therein,
and the Trustee shall not be responsible in any respect for administering such
Plan nor shall the Trustee be responsible for the adequacy of the Fund to meet
and discharge all payments and liabilities under such
Plan.
The Trustee shall be fully protected in relying upon any written notice,
instruction, direction or other communication signed by an officer of the Bank
duly authorized to give communications to the Trustee. The Bank from time to
time shall furnish the Trustee with the names and specimen signatures of such
duly authorized officers of the Bank and shall promptly notify the Trustee of
the termination of office of any officer of the Bank and the appointment of a
successor thereto. Until notified to the contrary, the Trustee shall be fully
protected in relying upon the most recent list of such duly authorized officers
of the Bank furnished to it by the Bank.
(b) Any action required by any provision of this Agreement to
be taken by the Board shall be evidenced by a resolution of the Board, certified
to the Trustee by the Secretary or an Assistant Secretary of the Bank under its
corporate seal. The Trustee shall be fully protected in relying upon any
resolution so certified to it. Unless other evidence with respect thereto has
been specifically prescribed in this Agreement, any other action of the Bank
under any provision of this Agreement, including any approval of or exceptions
to the Trustee's accounts, shall be evidenced by a certificate signed by an
officer of the Bank duly authorized to give communications to the Trustee, and
the Trustee shall be fully protected in relying upon such certificate. The
Trustee may accept a certificate signed by an officer of the Bank duly
authorized to give communications to the Trustee as proof of any fact or matter
than it deems necessary or desirable to have established in the administration
of the Trust (unless other evidence of such fact or matter is expressly
prescribed herein), and the Trustee shall be fully protected in relying upon the
statements in the certificate.
(c) Notwithstanding anything contained herein to the contrary,
the Trustee shall be entitled conclusively to rely upon any written notice,
instruction, direction, certificate or other
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communication reasonably believed by it to be genuine and to be signed by the
proper person or persons, and the Trustee shall be under no duty to make
investigation or inquiry as to the truth or
accuracy of any statement contained therein.
(d) Until notice be given to the contrary, communications to
the Trustee shall be sent to it at its office at 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: XXXXXXX X. XXXXXX, Vice President; communications to the
Bank shall be sent to it at its office at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx
00000, Attention: PRESIDENT AND CHIEF EXECUTIVE OFFICER.
FIFTEENTH: IRS RULING.
The Bank may apply for a Private Letter Ruling from the IRS
with respect to the federal income tax consequences of the Trust. If the IRS,
following a request by the Bank, declines to issue a favorable ruling to the
effect that the Bank will be treated for Federal income tax purposes as the
owner of the Fund pursuant to Sections 671 through 679 of the Code, that the
income of the Fund will be treated as income of the Bank, and that the funding
of, and realization of income by, the Fund will not result in income to the
participants or beneficiaries prior to the date that such funds are actually
distributed or made available to participants or beneficiaries hereunder, all of
the assets then held in the Fund shall forthwith be returned to the Bank in kind
and this Agreement shall be null and void and have no force and effect.
SIXTEENTH: DEFINITION OF CHANGE OF CONTROL.
(a) Change of Control means any of the following events:
(i) approval by the shareholders of the Bank of a
transaction that would result and does result in the reorganization, merger or
consolidation of the Bank, respectively, with one or more other persons, other
than a transaction following which:
(A) at least 51% of the equity ownership
interests of the entity resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended ("Exchange Act")) in substantially the same relative
proportions by persons who, immediately prior to such transaction, beneficially
owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) at
least 51% of the outstanding equity ownership interests in the Company; and
(B) at least 51% of the securities entitled
to vote generally in the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) in substantially the same relative proportions by
persons who, immediately prior to such transaction, beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51% of
the securities entitled to vote generally in the election of directors of the
Company;
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(ii) the acquisition of all or substantially all of
the assets of the Bank or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding securities
of the Bank entitled to vote generally in the election of directors by any
person or by any persons acting in concert, or approval by the shareholders of
the Bank of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the
Bank, or approval by the shareholders of the Bank of a plan for such liquidation
or dissolution;
(iv) the occurrence of any event if, immediately
following such event, at least 50% of the members of the Board do not belong to
any of the following groups:
(A) individuals who were members of the
Board on the date of this Agreement; or
(B) individuals who first became members of
the Board after the date of this Agreement either:
(I) upon election to serve as a
member of the Board by affirmative vote of three-quarters of the members of such
board, or of a nominating committee thereof, in office at the time of such first
election; or
(II) upon election by the
shareholders of the Board to serve as a member of the Board, but only if
nominated for election by affirmative vote of three-quarters of the members of
the Board, or of a nominating committee thereof, in office at the time of such
first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did not result
from an actual or threatened election contest (within the meaning of Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents (within the meaning of Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) other than by or on
behalf of the Board of the Company; or
(v) any event which would be described in (i), (ii),
(iii) or (iv) above
if
the term "Warwick Community Bancorp, Inc." was substituted for the term "Bank"
therein and the term "Board of Directors of Warwick Community Bancorp, Inc."
were substituted for the term
"Board" therein.
In no event, however, shall a Change of Control be
deemed to have occurred as a result of any acquisition of securities or assets
of Warwick Community Bancorp, Inc., the Bank, or a subsidiary of either of them,
by Warwick Community Bancorp, Inc., the Bank, or any subsidiary of either of
them, or by any employee benefit plan maintained by any of them. For
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purposes of this Article SIXTEENTH, the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act. The
Trustee may rely on an opinion of a reputable law firm selected by the Trustee,
in its discretion, to determine whether a Change of Control has occurred. The
Trustee may also request that the Bank furnish evidence to determine, or enable
the Trustee to determine, whether a Change of Control has occurred.
(b) The Trustee shall not be responsible for determining
whether a Change of Control occurs. Such determination shall be made solely by
the Bank, and the Bank shall promptly notify the Trustee in writing in such an
event. The Bank shall, under the penalties of perjury, promptly certify to the
Trustee at any time and from time to time, at the Trustee's request, whether a
Change of Control has been deemed to have occurred.
SEVENTEENTH: EFFECTIVE DATE.
The effective date of this Trust Agreement shall be December
23, 1997.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly authorized
officers under their corporate seals as
of the day and year first above written.
THE WARWICK SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
Date: December 10, 1997
-----------------------------------
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx-Xxxxxxx
----------------------------
Secretary
[seal]
MARINE MIDLAND BANK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
Title: Vice President
Date: December 9, 1997
-------------------------------
ATTEST:
By: /s/ Xxxxx X. Xxxxx
----------------------------
Secretary
[seal]
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF ORANGE )
On this 10th day of December, 1997, before me personally came
XXXXXXX X. XXXXXXX, to me known, who, being by me duly sworn, did depose and say
that he resides at 00 Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000; that he is the
President and Chief Executive Officer of THE WARWICK SAVINGS BANK, the savings
bank described in and which executed the foregoing instrument; that he knows the
seal of said savings bank; that the seal affixed to said instrument is such
savings bank's seal; that it was so affixed by order of the Board of Directors
of said savings bank; and that he signed his name thereto by like order.
/s/ Xxxxxxxx Xxxxxxx
-------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 9th day of December, 1997, before me personally came
XXXXXXX X. XXXXXX, to me known, who, being by me duly sworn, did depose and say
that he resides at 0 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx, that he is Vice
President and Trust Officer of MARINE MIDLAND BANK, the banking corporation
described in and which executed the foregoing instru ment; that he knows the
seal of said banking corporation; that the seal affixed to said instrument is
such seal; that it was so affixed by order of the Board of Directors of said
banking corporation; and that he signed his name thereto by like order.
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public
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