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EXHIBIT 99.3
TRUST AGREEMENT
PURSUANT TO THE UNION BANK OF CALIFORNIA
MASTER DEFINED CONTRIBUTION PLAN
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TRUST AGREEMENT
PURSUANT TO THE UNION BANK
MASTER DEFINED CONTRIBUTION PLAN
TABLE OF CONTENTS
PAGE
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ARTICLE I
POWERS, DUTIES AND
RIGHTS OF TRUSTEE
Section 1.1 GENERAL 1
Section 1.2 INVESTMENT OPTIONS 2
Section 1.3 POWERS OF TRUSTEE REGARDING INVESTMENTS 3
Section 1.4 OTHER POWERS OF TRUSTEE 5
Section 1.5 DUTIES OF TRUSTEE 6
Section 1.6 DESIGNATION AS CUSTODIAN 7
Section 1.7 EMERGENCIES AND DELEGATION 7
Section 1.8 EXPENSES AND TAXES 7
Section 1.9 THIRD PARTIES 7
Section 1.10 GENERAL FUNDING POLICY AND 8
INVESTMENT OBJECTIVES
Section 1.11 EMPLOYER SECURITIES 8
Section 1.12 INSURANCE CONTRACTS 9
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 PERSONS TO RECEIVE PAYMENT 9
Section 2.2 ASSIGNMENT AND ALIENATION PROHIBITED 9
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ARTICLE III
RESIGNATION AND SUCCESSION
Section 3.1 RESIGNATION AND SUCCESSION WITH RESPECT 10
TO ALL EMPLOYEES
Section 3.2 RESIGNATION OR REMOVAL AND SUCCESSION 10
WITH RESPECT INDIVIDUAL EMPLOYERS
ARTICLE IV
AMENDMENT
Section 4.1 POWER TO AMEND 11
Section 4.2 LIMITATION ON AMENDMENT 11
Section 4.3 CONFORMITY WITH LAW 11
ARTICLE V
LIABILITIES
Section 5.1 DECLARATION OF INTENT 11
Section 5.2 GENERAL LIMITATIONS OF LIABILITY 12
Section 5.3 LIABILITY OF THE TRUSTEE 12
Section 5.4 INDEMNIFICATION 13
ARTICLE VI
DURATION AND TERMINATION
Section 6.1 IRREVOCABILITY 13
Section 6.2 DURATION 13
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ARTICLE VII
MISCELLANEOUS
Section 7.1 ADOPTION BY OTHER EMPLOYERS 13
Section 7.2 SUCCESSOR EMPLOYER 14
Section 7.3 RELATION TO PLAN 14
Section 7.4 USE OF TRUST FUNDS 14
Section 7.5 LOCATION OF TRUST FUND ASSETS 14
Section 7.6 PARTIAL INVALIDITY 14
Section 7.7 CONSTRUCTION 14
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TRUST AGREEMENT
PURSUANT TO THE UNION BANK OF CALIFORNIA
MASTER DEFINED CONTRIBUTION PLAN
This Trust Agreement Pursuant to the Union Bank of California Master Defined
Contribution Plan (the "Trust Agreement") is made by and between each employer
which adopts the Union Bank of California Master Defined Contribution Plan,
(the "Employer") and Union Bank of California, N.A., a national banking
association ("Union Bank of California"), as trustee (the "Trustee"), and Union
Bank of California as sponsor of the Union Bank of California Master Defined
Contribution Plan and Trust (the "Sponsor").
RECITALS
A. Union Bank of California has established The Union Bank of
California Master Defined Contribution Plan (the "Plan") for the benefit of
adopting Employers. The Plan is a master prototype plan intended as a qualified
retirement plan under Internal Revenue Code Sections 401 and 501, and similar
provisions of applicable state law. The Plan is intended to comply with the
provisions of the Employee Retirement Income Security Act of 1974 (ERISA) as
amended from time to time.
B. The Plan provides for contributions by adopting Employers and
Participants to be held in trust, invested, and paid out by the Trustee to
Participants and their Beneficiaries or representatives for the accomplishment
of the purposes of said Plan.
C. The Sponsor desires to provide a trust pursuant to the Plan which is
intended to be a tax exempt trust under Section 501 of the Internal Revenue
Code and regulations issued pursuant thereto, and under similar provisions of
the California Revenue and Taxation Code and any other applicable state law.
Union Bank adopted this Trust Agreement as an amendment in full and complete
restatement of the Trust Agreements pursuant to the Master Profit Sharing Plan
sponsored by Union Bank, Master Money Purchase Pension Plan sponsored by Union
Bank, Master Thrift Plan sponsored by Union Bank, California First Bank Money
Purchase Pension Plan and California First Bank Profit Sharing Plan.
AGREEMENT
NOW, THEREFORE, the Sponsor hereby adopts this Trust Agreement as
hereinafter set forth, and the Trustee agrees to receive and hold any and all
cash and property which has been or may be paid or delivered to it as Trustee
hereunder from time to time in trust for the uses and purposes and upon the
terms and conditions hereinafter stated.
ARTICLE I
POWERS, DUTIES AND RIGHTS OF TRUSTEE
Section 1.1 General
It shall be the duty of the Trustee to hold the funds and property from time to
time received by it from the Employer and its Participants which, together with
the increase, earnings and profits thereon, shall constitute the Employer's
Trust Fund; to manage, invest and reinvest the Trust Fund, except as provided
in Section 1.2; to collect and hold the increase, earnings and profits thereon;
and to make payments from the Trust Fund; all as herein and in the Plan
provided. For both accounting and investment purposes, a separate Trust Fund
shall be established for each Employer. No Employer or the portion of any Trust
Fund attributable to it shall be liable for Plan benefits attributable to
another Employer or the portion of any Trust Fund attributable to such other
Employer.
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The Trustee shall be a fiduciary within the meaning of Section 3(21)(A) of ERISA
and shall perform its duties and exercise its powers as such subject to all
provisions of the Plan and this Trust Agreement, ERISA and other applicable laws
and regulations governing fiduciaries.
Section 1.2 Investment Options
In reference to the choice of investment options made by the Employer:
(a) The Employer's Trust Fund, subject to any administrative restrictions
imposed by the Trustee, shall be invested in any Permissible Investment as
set forth in Union Bank of California's Statement Of Policy For Directed
Employee Benefit Trust Investments as published from time to time. A copy
of such current guidelines is attached hereto as Exhibit "A". for purposes
of the Plan and this Trust Agreement "Permissible Investment" shall mean
any investment medium which the Trustee makes available for investment of
assets held in the Employer's Trust Fund including but not limited to:
(i) any collective investment fund regularly maintained by Union Bank
of California for common investment of qualified employee benefit plan
trust funds,
(ii) any mutual fund advised by Union Bank of California or any
affiliate, and any mutual fund for which Union Bank of California may
provide other services for a fee;
(iii) any type of interest-bearing deposit with Union Bank or any
financial institution made available for use hereunder.
(b) The Employer shall direct the Trustee in writing as to which of the
following subparagraphs shall from time to time be operative. The
Employer's written direction shall remain in force until the Trustee is
otherwise directed in writing:
(i) The Employer shall retain full investment authority, in which
event the Employer shall, within the limitations set forth below and
in accordance with the provisions of Section 1.2(a) above, direct the
Trustee in writing with respect to the investment, management and
control of Trust assets, and the Trustee shall, as promptly as
possible, comply with such written directions; however, the Trustee,
in its sole discretion, may refuse to comply with the directions of
the Employer to invest in assets other than Permissible Investments or
with directions which the Trustee deems to be improper or contrary to
the provisions of the Plan and Trust, ERISA or the Internal Revenue
Code. The Trustee shall not be liable, in any manner for any reason,
for the making, retention or disposition of any investment pursuant to
the Employer's directions or for its failure to invest any or all of
the Employer's Trust Fund in the absence of such written directions,
nor shall the Trustee be liable when it is directed by the Employer to
acquire a security for failure to exercise any conversion, redemption,
exchange, subscription or other right with respect to that security,
notice having been given with respect to such right prior to the
purchase of such security, unless the Trustee is informed of the
existence of the right and is instructed to exercise such right, in
writing, by the Employer, within a reasonable time prior to the
expiration of such right. The employer shall not direct the purchase,
sale or retention of any assets of the Trust other than Permissible
Investments and shall only make directions which are in compliance
with the applicable provisions of ERISA and any regulations or rulings
issued thereunder.
(ii) The Employer shall appoint an Investment Manager (as defined in
Section 3(38) of ERISA) and shall inform the Trustee in writing of
such appointment. The Investment Manager shall, within the limitations
set forth below and in accordance with the provisions of Section
1.2(a) above, direct the Trustee in writing with respect to the
investment, management and control of Trust assets, and the Trustee
shall, as promptly as possible, comply with such written directions.
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The Investment Manager shall not direct the purchase, sale or
retention of any assets of the Trust other than Permissible
Investments and shall only make directions which are in compliance
with the applicable provisions of ERISA and any regulations or ruling
issued thereunder. The Trustee shall have no liability for the acts or
omissions of such Investment Manager or be under an obligation to
invest or otherwise manage any asset of the Trust which is subject to
the management of such Investment Manager.
(iii) The Trustee shall have full investment authority, in which
event, the Trustee shall exercise all of the powers listed in Section
1.3 below without awaiting directions from the Employer.
(iv) If the Employer has so elected in its Adoption Agreement, the
Participant shall have full investment authority over the investment
of assets allocated to such Participant's accounts in that the
Participant shall select among the Investment Options authorized by
the Employer. The Employer or Investment Manager shall have full
responsibility for designating the Investment Options under the Plan
and for selecting the underlying investment vehicle(s) for each
designated Option. To the extent allowed under the Internal Revenue
Code, ERISA and applicable regulations thereunder, neither the
Employer, the Administrator nor the Trustee shall have any
responsibility for monitoring the directions of the Participant nor
shall they be liable in any manner for following the directions of a
Participant. The Administrator shall establish uniform and
nondiscriminatory rules for the operation of the Participant directed
accounts, including whether the Participant shall direct the Trustee
in writing or direct the Administrator who directs the Trustee in
writing. Participant directed accounts shall be subject to the
provisions of the Plan and may only be invested in Permissible
Investments. The Trustee may refuse to comply with the directions of
the Participant to invest in assets other than Permissible Investments
or with directions which the Trustee deems to be improper or contrary
to the provisions of the Plan and Trust, ERISA or the Internal Revenue
Code.
Section 1.3 Powers of Trustee Regarding Investments
After receiving the required directions from the Employer or Investment Manager,
if the Employer has either retained investment authority or delegated it to an
Investment Manager, the Participant, if Participant directed accounts have been
established or on the Trustee's own behalf if the Employer has granted it full
powers, the Trustee, subject to the limitations of Sections 1.1 and 1.2, the
provisions of ERISA and other applicable laws, is authorized and empowered:
(a) To invest and reinvest the Employer's Trust Fund or any part thereof
in any one or more kind, type, class, item or parcel of property, real,
personal or mixed, tangible or intangible; or in any one or more kind,
type, class, item or issue of investment or security; or in any one or
more kind, type, class or item of obligation, secured or unsecured; or in
any combination of them.
(b) To acquire and sell options to buy securities ("call" options) and to
acquire and sell options to sell securities ("put" options).
(c) To buy, sell, assign, transfer, acquire, lease (for any purpose,
including mineral leases, and for terms within or extending beyond the
life of this Trust), exchange and in any other manner to acquire, manage,
deal with and dispose of all or any part of the Trust property, for cash
or credit and upon any reasonable terms and conditions.
(d) To make "deposits', within the meaning of Section 408(b)(4) of ERISA,
with any bank or savings and loan institution, including any such facility
of Union Bank of California or an affiliate thereof provided that the
deposit bears a reasonable rate of interest.
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(e) To retain all or any portion of the Employer's Trust Fund in cash and
temporarily awaiting investment without liability for interest thereon and
to retain in cash, without liability for interest thereon, all or any
portion of the Employer's Trust Fund for the purpose of making
distributions or other payments notwithstanding Trustee's receipt of
"float" from such uninvested cash.
(f) To invest and reinvest the Employer's Trust Fund, or any part thereof,
in any mutual fund advised by Union Bank of California as well as one or
more collective investment trust funds regularly maintained by Union Bank
of California for common investment of trust funds. The Declaration of
Trust is hereby made a part of this Trust Agreement. Notwithstanding any
other provisions hereof, the Trustee may commingle said investments with
assets similarly invested by trusts similar hereto, by investing the same
as a part of one or more of such investment trust funds, all according to
said Declarations of Trust as now constituted and as amended from time to
time. Notwithstanding anything to the contrary in this Trust Agreement,
Union Bank of California shall have full investment responsibility over
assets of the Employer's Trust Fund invested in such commingled funds.
(g) To place uninvested cash and cash awaiting distribution in one or more
mutual funds or collective investment funds maintained by Union Bank of
California, or both, and as set forth in the Union Bank of California Cash
Management Form. Union Bank of California may receive compensation from the
sponsor of such fund(s) for services rendered.
(h) To borrow or raise money for the purposes of the Trust from any source
(other than in a prohibited transaction as defined in Sections 406 of ERISA
or 4975(c) of the Internal Revenue Code); to pay interest; to issue
promissory notes and to secure the repayment thereof by pledging all or any
part of the Employer's Trust Fund.
(i) To vote upon any stocks, bonds or other securities; to give general or
special proxies or powers of attorney with or without power of substitution
except as related to Employer Securities pursuant to Section 1.11; to
exercise any conversion privileges, subscription rights or other options,
and to make any payments incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes affecting
corporate securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to exercise
any of the powers of an owner with respect to stocks, bonds, securities or
other property held in the Employer's Trust Fund.
(j) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers herein granted.
(k) To raze or move existing buildings; to make ordinary or extraordinary
repairs, alterations or additions in and to buildings; to construct
buildings and other structures and to install fixtures and equipment
therein.
(l) To pay or cause to be paid any and all real or personal property taxes,
income taxes or other taxes or assessments of any or all kinds levied or
assessed upon or with respect to the Employer's Trust Fund or the Plan.
(m) To hold term or ordinary life insurance contracts on the lives of
Participants (but in the case of conflict between any such contract and the
Plan, the terms of the Plan shall prevail); to pay the premiums on such
contracts; to distribute, surrender or otherwise dispose of such contracts;
to pay the proceeds if any, of such contracts to the proper persons in the
event of the death of the insured Participant; to enter into, modify, renew
and terminate annuity contracts of deposit administration or immediate
participation or other group or individual type with one or more insurance
companies and to pay or deposit all or any part of the Employer's Trust
Fund thereunder; to provide in any such contract for the investment of all
or any part of funds so deposited with the insurance company in securities
under separate accounts; to exercise and claim all rights and benefits
granted to the contract holder by any such contracts.
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(n) To exercise all the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under applicable
federal or California laws, as amended from time to time, it being intended
that, except as herein otherwise provided, the powers conferred upon the
Trustee herein shall not be construed as being in limitation of any
authority conferred by laws, but shall be construed as in addition thereto.
Section 1.4 Other Powers of Trustee
In addition to the above-enumerated powers and whether or not the Employer has
retained investment authority, the Trustee in any and all events is authorized
and empowered:
(a) To invest funds pending required directions in any type of
interest-bearing account including without limitation, time certificates of
deposit or interest-bearing accounts issued by Union Bank of California.
(b) To cause all or any part of the Trust Fund to be held in the name of
the Trustee (which in such instance need not disclose its fiduciary
capacity) or, as permitted by law, in the name of any nominee, and to
acquire for the Trust Fund any investment in bearer form; but the books and
records of the Trust shall at all times show that all such investments are
a part of the Trust Fund and the Trustee shall hold evidences of title to
all such investments.
(c) To serve as sole custodian with respect to the Trust assets, provided
Union Bank of California is the sole Trustee. If not, the terms of the
Custodial Agreement between Union Bank of California and the Trustee shall
govern.
(d) To employ such agents and counsel as may be reasonably necessary in
managing and protecting the Trust assets and to pay them reasonable
compensation; to employ any broker-dealer, including any broker-dealer
affiliated with Union Bank of California, and pay to such broker-dealer at
the expense of the Trust its standard commissions; to settle, compromise or
abandon all claims and demands in favor of or against the Employer's Trust
Fund; and to charge any premium on bonds purchased at par value to the
principal of the Employer's Trust Fund without amortization from the
Employer's Trust Fund, regardless of any law relating thereto.
(e) In addition to the powers listed herein, to do all other acts necessary
or desirable for the proper administration of the Trust Fund, as though the
absolute owner thereof.
(f) To abandon, compromise, contest, arbitrate or settle claims or demands;
to prosecute, compromise and defend lawsuits, but without obligation to do
so; all at the risk and expense of the Trust Fund.
(g) To exercise and perform any and all of the other powers and duties
specified in this Trust Agreement or the Plan.
(h) To permit such inspections of documents at the principal office of the
Trustee as are required by law.
(i) To comply with all requirements imposed by ERISA or other applicable
provisions of law.
(j) As directed by the Administrator:
(i) To cause the benefits provided under the Plan to be paid directly
to the persons entitled thereto under the Plan, and in the amounts and
in the manner specified, and to charge such payments against the
Employer's Trust Fund with respect to which such benefits are payable.
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(ii) To compensate such executive, consultant, actuarial, accounting,
investment, appraisal, administrative, clerical, secretarial,
medical, custodial, depository and legal firms, personnel and other
employees or assistants as are engaged by the Administrator in
connection with the administration of the Plan of such Employer and
to pay from the Employer's Trust Fund the necessary expenses of such
firms, personnel and assistants, to the extent not paid by the
Employer.
(iii) To impose a reasonable charge to cover the cost of furnishing
to Participants or Beneficiaries upon their written request documents
as required under Section 104(b)(4) of ERISA (but not for furnishing
information statements or documents as required by Section
104(b)(1), (2) or (3) or Section 104(c) or Section 105(a) or (c) of
ERISA).
(iv) To act upon proper written directions of the Employer, the
Administrator or any other named fiduciary including directions given
by photostatic tele-transmission using facsimile signature.
(v) To pay from the Employer's Trust Fund the expenses reasonably
incurred in the administration of the Employer's Trust Fund as
provided in the Plan.
(vi) To maintain insurance for such purposes, in such amounts and
with such companies as the Administrator shall elect, including
insurance to cover liability or losses occurring by reason of the
acts or omissions of fiduciaries (but only if such insurance permits
recourse by the insurer against the fiduciary in the case of a breach
of a fiduciary obligation by such fiduciary).
Section 1.5 Duties of Trustee
In reference to the duties of the Trustee:
(a) The Trustee shall exercise any of the foregoing powers from time to
time as required by law.
(b) The trustee shall maintain or cause to be maintained suitable records,
data and information relating to its functions hereunder.
(c) The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other actions hereunder. Its
books and records relating thereto shall be open to inspection and audit
at all reasonable times by the Employer, the Administrator or their duly
authorized representatives.
(d) Within sixty days after the close of each Plan Year and within sixty
days after the resignation of the Trustee as provided in Article III
hereof, the Trustee shall render to the Employer a written account showing
in reasonable summary the investments, receipts, disbursements and other
transactions engaged in by the Trustee during the preceding Plan Year or
period with respect to the Employer's Trust Fund. Such account shall set
forth the assets and liabilities of the Employer's and all kinds that may
be levied or assessed under existing or future laws upon or in respect to
the Employer's Trust Fund or the income thereof, and Union Bank's charges
for issuing distribution checks to Participants or their representatives
shall be paid from, and shall constitute a charge upon, the Employer's
Trust Fund. The Employer shall have sixty days after the Trustee's mailing
of each such account within which to file with the Trustee written
objections to such account. Upon the expiration of each such period, the
Trustee shall be forever released and discharged from all liability and
accountability to the Employer with respect to the propriety of its acts
and transactions shown in such account except with respect to any such
acts or transactions as to which the Employer files written objections
within such sixty day period with the Trustee.
(e) The Trustee shall file such descriptions and reports and shall furnish
such information and make such other publications, disclosures,
registrations and other filings as are required of the Trustee by ERISA.
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(f) The Trustee shall have the power and duty to comply promptly with all
proper directions of the Administrator and the Employer. Unless a Directed
Investment Account or Participant Directed Account has been established,
the Trustee shall not act on any directions or requests received from
Participants.
Section 1.6 Designation as Custodian
If Union Bank of California has not been named as a Trustee under the
Employer's Adoption Agreement, Union Bank shall serve as sole Custodian
pursuant to the terms of a separate Custodial Agency Agreement to be executed
by Union Bank and the Trustee.
Section 1.7 Emergencies and Delegation
In reference to situations involving emergencies or delegation of duties:
(a) In case of an emergency, the Trustee may act in the absence of
directions from any other fiduciary having the power and duty to direct
the trustee with respect to the matter involved and shall incur no
liability in so acting.
(b) By written notice to the Trustee, the Administrator or the Employer
may authorize the Trustee to act on matters in the ordinary course of the
business of the Trust or on specific matters upon the signature of its
delegate.
Section 1.8 Expenses and Taxes
In reference to expenses incurred and the taxes paid by the Trustee:
(a) Union Bank of California as Trustee or Custodian shall be paid by
the Employer, in accordance with Union Bank of California's fee
schedule applicable as of the date such fees are payable, but if not
so paid, such fees shall constitute a charge upon the Employer's
Trust Fund.
(b) Reasonable counsel fees, reasonable costs, expenses, and charges
of Union Bank of California and the Trustee incurred or made in the
performance of its duties, including but not limited to expenses
relating to investment of the Employer's Trust Fund such as brokers'
commissions, stamp taxes, and similar items and all taxes of any and
all kinds that may be levied or assessed under existing or future
laws upon or in respect to the Employer's Trust Fund or the income
thereof.
Section 1.9 Third Parties
In reference to dealings with third parties by the Trustee:
(a) No person dealing with the Trustee shall be required to follow
the application of purchase money paid or money loaned to the Trustee
nor inquire as to whether the Trustee has complied with the
requirements hereof.
(b) In any judicial or administrative proceedings, only the affected
Employer and the Trustee shall be necessary parties and no
Participant or other person having or claiming any interest in the
Employer's Trust Fund shall be entitled to any notice or service of
process (except as required by law). Any judgment, decision or award
entered in any such proceeding or action shall be conclusive upon all
interested persons.
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Section 1.10 General Funding Policy and Investment Objectives
In reference to the general funding policy and investment objectives of the
Trust:
(a) Subject to the requirements of law and the provisions of this Trust
Agreement, the assets of the Trust Fund shall be prudently invested and
managed with the purpose of achieving long-term growth of the Trust Fund
through interest, dividends, gains and appreciation in value at a rate
consistent with the objectives of plans of like character and aims.
(b) Sufficient liquidity shall be maintained to meet the reasonably
anticipated requirements of the Trust Fund for payment of expenses of
administration, investment and management and for distribution of benefits
to Participants and Beneficiaries.
(c) The policy established in this Section may be modified at any time by
the written agreement of the Trustee and Sponsor.
Section 1.11 Employer Securities
In reference to the issue of Employer Securities within the Trust Fund:
(a) The Administrator shall direct the investment of assets in the
Employer's Trust Fund in Employer Securities unless the Administrator is
satisfied that the Employer Securities are exempt from registration under
the federal Securities Act of 1933, as amended, and are exempt from
qualification under the California Corporate Securities Law of 1968, as
amended, and of any other applicable blue sky law, or in the alternative,
that the Employer Securities have been so registered and/or qualified. The
Administrator shall also specify what restrictive legend on transfer, if
any, is required to be set forth on the certificates for the Employer
Securities and the procedure to be followed by the Trustee to effectuate a
resale of such Employer Securities. The Administrator shall not direct the
investment in "Employer Securities" or "Employer Real Property", as those
terms are used in ERISA, if such investment would be prohibited by ERISA.
The Administrator shall only direct the investment of funds into Employer
Securities (i) if those securities are traded on an exchange permitting a
readily ascertainable fair market value, or (ii) if the Administrator
shall have obtained a current valuation by an independent appraiser, and
periodically supplies updated valuations while the Employer Securities
remain in the Trust. In determining the value of Employer Securities on a
periodic basis, the Trustee may conclusively rely on the certified
appraisal or other form of valuation submitted to it by the Administrator,
the Employer or the Investment Manager, if any.
(b) The Trustee shall vote Employer Securities or sell pursuant to a
tender offer as directed by written instructions of the Administrator, the
Investment Manager with authority over those assets, if any, or by the
Participants if the Employer has elected pass through voting in its
Non-Standardized Adoption Agreement, it being understood that the person
with investment discretion over the Trust assets has exclusive authority
and responsibility to vote proxies unless pass through voting to
Participants is set forth within the Employer's Non-Standardized Adoption
Agreement or is mandated by law. If the vote is to be passed through to
the Participants, the Administrator shall provide any information
requested by the Trustee that is necessary or convenient to obtain and
preserve the confidentiality of the Participants' directions. Any
conflicting instructions shall be resolved by the Administrator, who shall
advise the Trustee on the voting of Employer Securities or tendering the
securities in response to a tender offer. Proxies of Employer Securities
which are unallocated to a Participant's account, or for which any votes
are not cast, shall be voted or tendered by the Trustee proportionally in
the same manner as those voted or tendered by Administrator, Investment
Manager, or the Participants, unless the Trustee is required by law to
vote the proxies or tender the Employer Securities exercising the
Trustee's discretion.
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The Employer shall indemnify and hold harmless the Trustee with respect to
any action taken or refrained from with regard to voting or tendering
Employer Securities, it being expressly understood that the Trustee shall
have no discretion with respect to such action unless required by law.
Trustee shall have no duty to provide Participants with information
necessary to make an informed decision with respect to the voting or
tendering of employer securities, which shall be the exclusive duty of the
Employer.
(c) The Trustee shall not be liable under the Plan or the Trust for any
investment in or retention of Employer Securities held as Trust assets,
whether retention is due to instructions to retain, or inability to sell
due to any Federal; or State securities law restrictions, or the
unmarketable or illiquid nature of the investment.
Section 1.12 Insurance Contracts
The Administrator may direct the Trustee in writing to invest assets of the
Trust in group or individual insurance contracts of all kinds authorized under
the Plan, provided such contracts are issued by an insurance company or
companies qualified to do business in more than one state, and the Administrator
shall have the sole responsibility and shall direct the Trustee with respect to
such insurance. The administration of these insurance contracts shall be the
sole responsibility of the Administrator, and the Trustee shall follow the
directions of the Administrator with respect to the administration of any such
contracts.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Persons to Receive Payment
In reference to payments made by the Trustee:
(a) The Trustee shall, except as otherwise provided in subsection (b), pay
all amounts payable hereunder only to the person or persons designated
under the Plan as directed by the Administrator and not to any other person
or corporation, and only to the extent of assets held in the Employer's
Trust Fund.
(b) In the event any controversy shall arise as to the person or persons to
whom any distribution or payment is to be made by the Trustee, or as to any
other matter arising in the administration of the Plan, the Trustee may
retain the amount in controversy pending resolution of the controversy or
the Trustee may file an action seeking declaratory relief and/or may
interplead the Employer and/or any or all the persons making conflicting
demands.
(c) The Trustee shall not be liable for the payment of any interest or
income on any amount withheld or interpleaded under subsection (b).
(d) The expenses of the Trustee for taking any action under subsection (b)
shall be charged by the Trustee to the Employer's Trust Fund.
Section 2.2 Assignment and Alienation Prohibited
No benefit or interest available hereunder will be subject to assignment or
alienation, either voluntary or involuntarily. The preceding sentence shall
also apply to the creation, assignment, or recognition of a right to any
benefit payable with respect to a Participant pursuant to a domestic relations
order, unless such an order is determined by the Administrator to be a
Qualified Domestic Relations Order, as defined in Section 414(p) of the Code.
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Any domestic relations order entered before January 1, 1985 will be treated as a
Qualified Domestic Relations Order if payment of benefits has commenced as of
such date, and may be treated as a Qualified Domestic Relations Order if payment
of benefits has not commenced as of such date, even though the order does not
satisfy the requirements of Section 414(p).
ARTICLE III
RESIGNATION AND SUCCESSION
Section 3.1 Resignation and Succession with Respect to All Employers
In reference to the resignation of the Trustee or the appointment of a
successor Trustee:
(a) The Trustee may resign at any time upon thirty days prior written
notice to the Employer(s) adopting the Plan (which notice may be waived by
the Employer(s)). Upon resignation of the Trustee the Trustee shall
simultaneously designate a Successor Trustee.
(b) A Successor Trustee shall have the same powers and duties as those
conferred herein. A resigning Trustee shall transfer the Trust Fund to its
successor and shall deliver the books, accounts and records thereof
thereto. The resigning Trustee is authorized, however, to reserve such
amount as may be necessary for the payment of its fees and expenses
incurred prior to its resignation.
(c) If the Trustee shall fail or refuse to so appoint a successor Trustee
prior to the effective date of its resignation, the Trust shall terminate
in accordance with the Plan as to all Employers except those who have
caused transfers of assets of the Trust Fund to other qualified plans in
accordance with Section 8.3 of the Plan.
(d) A Successor Trustee shall have no duty to audit or otherwise inquire
into the acts and transactions of its predecessor.
Section 3.2 Resignation or Removal and Succession with Respect to Individual
Employers
(a) The Trustee may resign as Trustee with respect to the Plan and Trust
Agreement as adopted by an individual Employer at any time upon thirty
days' prior written notice to the Employer (which notice may be waived by
the Employer). Notwithstanding the preceding sentence, if any, employer
securities are held as an asset of the Trustee. Trustee may resign at any
time, with such resignation to be effective immediately upon written
notice.
(b) An individual Employer may remove the Trustee with respect to the Plan
and Trust Agreement as adopted by the individual Employer at any time upon
thirty days prior written notice to the Trustee (which notice may be waived
by the Trustee).
(c) Upon resignation or removal of the Trustee pursuant to Section 3.2(a)
or (b), the Employer shall promptly designate a Successor Trustee who must
be acceptable to the Sponsor. If the named Successor Trustee is not
acceptable to the Sponsor, the Employer shall promptly designate a
Successor Plan and Trust (as defined below) and a qualified trustee
thereunder who will accept transfer of the assets of the Employer's Trust
Fund. The term "Successor Plan and Trust" means a plan and trust intended
to meet the requirements of Section 401(a) of the Code.
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(d) If the Employer does not designate a Successor Plan and Trust and a
qualified trustee thereunder within thirty days after the Trustee gives
notice of resignation pursuant to Section 3.2(a) or receives notice of
removal pursuant to Section 3.2(b), the Board of Directors shall be deemed
to be Successor Trustee. Alternatively, Trustee may, at the expense of the
Employer's Trust Fund apply to a court of competent jurisdiction for the
designation of a Successor Plan and Trust and a qualified trustee
thereafter. Until such time as a Successor Plan and Trust and a qualified
trustee are designated, the Trustee shall be entitled to its regular fees
for acting as Trustee as provided under the Plan.
(e) Upon the designation of a Successor Plan and Trust and a qualified
trustee thereunder, the Trustee shall promptly transfer the assets of the
Employer's Trust Fund, suitable records, and other information to the
trustee of the Successor Plan and Trust and the Trustee shall have no
further responsibility with respect to such assets, records, and
information. The Trustee is authorized, however, to reserve such amount as
may be necessary for the payment of its fees and expenses incurred prior to
the transfer of such assets, records, and information.
ARTICLE IV
AMENDMENT
Section 4.1 Power to Amend
Union Bank of California, as Sponsor, shall have the right at any time and from
time to time to modify or amend this Trust Agreement in whole or in part.
Section 4.1 Limitation on Amendment
No amendment shall be made at any time under which any part of the Employer's
Trust Fund may be diverted to purposes other than for the exclusive benefit of
Participants and their Beneficiaries or which shall decrease the percentage or
amount of the interest of any Participant which shall theretofore have become
Vested.
Section 4.3 Conformity with Law
Notwithstanding anything herein to the contrary, this Trust Agreement may be
amended prospectively or retroactively at any time by the Sponsor if deemed
necessary to conform to the provisions and requirements of ERISA or the
Internal Revenue Code or regulations promulgated pursuant thereto in order to
maintain the tax-exempt status hereof thereunder, or to conform to the
provisions and requirements of any law, regulation, order or ruling affecting
the character or purpose of the Plan or Trust.
ARTICLE V
LIABILITIES
Section 5.1 Declaration of Intent
In keeping with the public policy expressed in Section 419(a) of ERISA,
nothing in this Article purports to relieve a fiduciary from liability for any
responsibility, obligation or duty under Part 4 of Title I of ERISA. However,
to the full extent permitted in Section 405 of ERISA and otherwise as not
prohibited by law, it is the intent of this Article to relieve each fiduciary
from all liability for any acts or omissions of any other fiduciary or any
other person and to declare the absence of liabilities of all persons referred
to in this Article to the extent not imposed by law or by Section 1.2 or other
provisions of this Trust Agreement.
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Each of the following Sections, in declaring such limitations of liability, is
set forth without limiting the generality of this Section but in each case
shall be subject to the provisions, limitations and policies set forth in this
Section.
Section 5.2 General Limitations of Liability
In reference to the limitation of liability of the fiduciary:
(a) No fiduciary shall be liable with respect to a breach of fiduciary
duty under Title I of ERISA if such breach was committed before he or she
became fiduciary or after he or she ceased to be a fiduciary.
(b) No named fiduciary shall be liable for any act or omission of any
person to whom fiduciary responsibilities (other than Trustee
responsibilities) are allocated by the Trust Agreement or by a named
fiduciary, except as provided in Section 405(c) of ERISA.
Section 5.3. Liability of the Trustee
In reference to the liabilities and responsibilities of the Trustee:
(a) The Trustee shall have no powers, duties or responsibilities with
regard to the administration of the Plan or to determine the rights or
benefits of any person having or claiming an interest under the Plan or in
the Trust Fund or under this Trust Agreement or to examine or control any
disposition of the Trust Fund or part thereof which is properly directed
by the Administrator.
(b) The Trustee shall have no liability for the adequacy or contributions
for the purposes of the Plan or for enforcement of the payment thereof.
(c) The Trustee shall have no liability for the acts or omissions of the
Employer or the Administrator.
(d) The Trustee shall have no liability for following proper directions of
a named fiduciary when such directions are made in accordance with this
Trust Agreement and the Plan and are not contrary to Title I of ERISA.
(e) During such period or periods, of time, if any, as any named fiduciary
is directing the investment and management of Trust assets, the Trustee
shall have no obligation to determine the existence of any conversion,
redemption, exchange, subscription or other right relating to any
securities purchased on the directions of such named fiduciary if notice
of any such right was given prior to the purchase of such securities. If
such notice is given after the purchase of such securities, the Trustee
shall notify such named fiduciary thereof. The Trustee shall have no
obligation to exercise any such right unless it is informed of the
existence of the right and is instructed to exercise such right, in
writing, by the named fiduciary in question within a reasonable time prior
to the expiration of such right.
(f) During such period or periods of time, if any, as a named fiduciary is
directing the investment and management of Trust assets, if such named
fiduciary directs the Trustee to purchase securities issued by any foreign
government or agency thereof, or by any corporation domiciled outside of
the United States, it shall be the responsibility of the named fiduciary
to advise the Trustee in writing with respect to any laws or regulations
of any foreign countries or any United States territories or possessions
which shall apply, in any manner whatsoever, to such securities,
including, but not limited to, receipt of dividends or interest by the
Trustee for such securities.
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(g) If by reason of any action or failure to act by any Employer and
without the knowledge of the Trustee, the Trust or a portion thereof,
ceases to be a tax-exempt trust pursuant to a qualified plan under
Sections 401 and 501 of the Internal Revenue Code, the Employer involved
shall indemnify the Trustee for any federal estate taxes which the
Trustee is required to pay as a result of a distribution thereafter made
at the direction of the Administrator under subsection 1.4(j)(i) to a
Beneficiary in which event the Employer shall be subrogated to the right
of the Trustee to proceed against such Beneficiary, the executor of the
estate of the deceased Participant or any other person for reimbursement
of the amount paid.
Section 5.4 Indemnification
In reference to indemnification of the parties to this Trust Agreement:
(a) The Employer, by adoption of this Trust Agreement, agrees to
indemnify the Trustee, the Sponsor, the Custodian (if any), the
Administrator and any fiduciary such parties appoint for reasonable
expenses and to exonerate and indemnify them to their reasonable
satisfaction, from time to time, for or against any and all loss,
expense and liability incurred or to be incurred by them for acts or
omissions of such Employer, any Affiliated Employer or any of their
Employees.
(b) The Employer agrees to indemnify the Trustee and Custodian against
any liability imposed as a result of a claim asserted by any person or
persons with respect to whom the Trustee has acted in good faith in
reliance on a written direction of the Employer or the Administrator.
ARTICLE VI
DURATION AND TERMINATION
Section 6.1 Irrevocability
This Trust is hereby declared to be irrevocable.
Section 6.2 Duration
This Trust shall continue in full force and effect for the maximum period of
time permitted by law and in any event until the expiration of twenty-one years
after the death of the last surviving person who was living at the time of
execution hereof who at any time becomes a Participant in the Plan, unless this
Trust is sooner terminated in accordance with the Plan.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Adoption by Other Employers
An Employer which (or an Affiliated Employer which, by means of an amended
Adoption Agreement as permitted in Section 2.1 of the Plan) adopts the Plan
with the approval of both the Administrator and the Sponsor shall concurrently
become a party to this Trust Agreement by giving written notice of its adoption
of the Plan and this Trust Agreement to the Sponsor. Upon such written notice,
the Employer (or such Affiliated Employer) shall become a signatory to this
Trust Agreement.
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Section 7.2 Successor Employer
If any successor to an Employer continues the Plan adopted by the Employer, such
successor shall concurrently become a successor first party to this Trust
Agreement by giving written notice of its adoption of the Plan and this Trust
Agreement to the Trustee by duly authorized persons, which said written notice
shall constitute such successor a signatory hereto.
Section 7.3 Relation to Plan
All words and phrases used herein shall have the same meaning as in the Plan and
this Trust Agreement and the Plan shall be read and construed together. Whenever
in the Plan it is provided that the Sponsor shall act as therein prescribed, the
Sponsor shall be and is hereby authorized and empowered to do so for all
purposes as fully as though specifically so provided herein. The Sponsor shall
furnish the Employers with copies of the Plan, the Trust Agreement and all
amendments thereto.
Section 7.4 Use of Trust Funds
Under no circumstances shall any part of the Employer's Trust Fund be
recoverable by the Employer or any Affiliated Employer from the Trustee or from
any Participant or Former Participant, his or her Beneficiaries, or any other
person, or be used for or diverted to purposes other than for the exclusive
purposes of providing benefits to Participants and their Beneficiaries;
provided, however, that:
(a) an Employer's excess contribution may be returned to such Employer in
accordance with the provisions of Section 9.7(b) of the Plan, and
(b) the portion, if any, of the Trust Fund attributable to an Employer not
required for the satisfaction of all liabilities to Participants and their
Beneficiaries shall, upon such Employer's termination of the Plan, revert
to such Employer.
Section 7.5 Location of Trust Fund Assets
Except as authorized by the Secretary of Labor by regulation, the indicia of
ownership of any assets of the Trust Fund and Plan shall not be maintained
outside the jurisdiction of the District Courts of the United States.
Section 7.6 Partial Invalidity
If any provision of this Trust Agreement is held to be illegal or invalid for
any reason, such illegality or invalidity shall not affect the remaining
portions of this Trust Agreement, unless such illegality or invalidity prevents
accomplishment of the objectives and purposes of this Trust Agreement and the
Plan. In the event of any such holding, the parties will immediately amend this
Trust Agreement as necessary to remedy any such defect.
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Section 7.7 Construction
This Trust Agreement shall be construed, administered and enforced according to
ERISA and the Internal Revenue Code and where state law is applicable, under
California laws, fairly and equitably, and in accordance with the purposes of
the Plan.
Executed at Los Angeles, California on this the 7th day of June, 1991.
UNION BANK, SPONSOR
By: ____________________________________
Xxxxxx Xxxxxxx
Executive Vice President
By: ____________________________________
Xxxxxx Xxxxxxxxxx
Senior Vice President
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