Exhibit 10.31
GRANTOR TRUST
OF
THE XXXXX NATIONAL BANK
THIS GRANTOR TRUST AGREEMENT, is made by and between The Xxxxx National
Bank, a national banking association, (the "Employer"), and NationsBank, N.A.
(the "Trustee"), and is effective March 4, 1998.
WITNESSETH:
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WHEREAS, the Employer has entered into severance agreements with six
key employees effective March 5, 1998 and a letter agreement with Xxxx Xxxx
effective March 5, 1998 (the "Agreements"), copies of which are attached hereto
as Exhibit A; and
WHEREAS, the Employer deems it advisable to adopt a grantor
trust in connection with the Agreements; and
WHEREAS, the Employer desires the Trustee to hold and administer the
Trust Fund under this Trust Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
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ESTABLISHMENT OF THE TRUST
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1.1 Definitions.
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(a) Agreement or Agreements. The term "Agreement" or
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"Agreements" means the (i) severance agreements entered into between the Bank
and Xxxxxxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxxxx (ii) the letter agreement entered into between the Bank and
Xxxx Xxxx which sets forth the terms and conditions of the receipt of a
Severance Payment and (iii) the original Employment Agreement dated as of
February 20, 1996 and amended as of March 29, 1996 and the Amendment To
Employment Agreement entered into as of March 5, 1998, between the Employer, the
Xxxxxxx Xxxxx National Bancorp, Inc., and Xxxxxxx Xxxxx Xxxx which sets forth
the terms and conditions of the receipt of a Severance Payment.
(b) Board of Directors. The term "Board of Directors" means
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the Board of Directors of the Employer.
(c) Executive. The term "Executive" means those individuals
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who are listed on the attached Exhibit B.
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(d) Executive Account. The term "Executive Account" means the
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separate sub-account established for each Executive pursuant to the terms of
this Trust Agreement which is credited with amounts contributed by the Employer
to the Trust Fund, and any earnings and losses attributable to such Employer
contributions. Each Executive Account will be segregated within the Trust to
prevent the commingling of the Trust Fund's assets.
(e) Holding Company. The term "Holding Company" means Abigail
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Xxxxx National Bancorp, Inc., a Delaware corporation, and any successor.
(f) Severance Payment. The term "Severance Payment" means (i)
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with regard to all Executives except Xxxxxxx Xxxxx Xxxx, a lump sum payment
payable to the Executive from his Executive Account pursuant to the terms of the
Agreement and (ii) with regard to Xxxxxxx Xxxxx Xxxx, a cash payment equal to
eighty percent (80%) of the total amount required under Sections 10(a)(i)(i) and
10(a)(i)(ii) of the Agreement. The amount of any Severance Payment is determined
by the terms of the Agreement and excludes any assets in the Executive Account
in excess of the amount of the Severance Payment.
(g) The Trustee. The term "Trustee" means NationsBank, N.A.
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which has accepted the responsibilities herein, unless the Employer designates
another person or entity to serve as trustee for the Trust Agreement. If more
than one person acts as a Trustee hereunder, the term "Trustee" shall be deemed
to include all trustees.
(h) Valuation Date. The term "Valuation Date" means the last
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day of each quarter of a calendar year, or a more frequent date as agreed upon
by the Trustee and the Employer.
1.2 Description of Trust.
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(a) The Employer hereby establishes with the Trustee the
Grantor Trust of The Xxxxx National Bank (the "Trust") which shall be a part of
the Agreements. The Trust shall consist of such sums of money or property
(acceptable to the Trustee) as shall be paid to the Trustee under the
Agreements, and any earnings, profits, increments, additions and appreciation
thereto. The Trustee shall be subject only to terms of this Trust. All such sums
of money, all investments made therewith or proceeds thereof, and all earnings,
profits, increments, appreciation and additions thereto, less the payments which
shall have been made by the Trustee, as authorized herein, are referred to
herein as the "Trust Fund" or the "Fund".
(b) The Trust is an irrevocable grantor trust within the
meaning of Section 671 of the Internal Revenue Code. Notwithstanding the
foregoing, on March 1st of 1999 and March 1st of each subsequent year: (i) the
Board of Directors shall have a thirty (30) day period in which to reevaluate
this Trust Fund; and (ii) unless the Board passes a resolution stating otherwise
during the thirty (30) day period, the Trust Fund shall continue in effect and
remain irrevocable until the following March 1st.
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(c) No portion of the Trust will revert to the Employer except
if: (i) necessary to discharge the claims of creditors; (ii) the Executive has
not satisfied the conditions for receipt of a Severance Payment in accordance
with the Agreement; (iii) the amount of the Severance Payment constitutes an
"Excess Parachute Payment," as such term is defined in the Internal Revenue Code
of 1986, as amended; (iv) the amount in the Executive Account exceeds the
Severance Payment; or (v) in the case of an "Interest Transfer" as described in
Section 2.5.
(d) If the Employer is unable to pay its debts as they mature
or is a party as a debtor in any bankruptcy proceeding, the Employer will be
considered insolvent. The insolvency of the Holding Company of the Employer will
not impact the distribution of any Severance Payment under the Agreements. The
Board must inform the Trustee of either or both of these conditions. Upon
receipt of this information regarding the Employer's insolvency, the Trustee
must suspend distribution of any Severance Payments and must hold assets for the
benefit of the Employer's general creditors. If the Trustee receives other
written notice of the Employer's insolvency, the Trustee must notify the Board
in writing and must suspend all Severance Payments. The Trustee must also hold
trust assets for the benefit of the Employer's general creditors and must
determine within 30 calendar days whether the Employer is insolvent. The Trustee
must consult with the Employer as part of the determination of the Employer's
insolvency. If the Trustee determines the Employer is solvent, it must resume
the distribution of any Severance Payment. If the Trustee has knowledge of the
Employer's insolvency or has determined that the Employer is insolvent, the
Trustee must deliver trust assets to satisfy the claims of the Employer's
general creditors as directed by a court of competent jurisdiction.
ARTICLE II
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CONTRIBUTIONS AND DISTRIBUTIONS
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2.1 Contributions. As soon as administratively feasible after the
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execution of the Agreements, the Employer shall pay to the Trustee an amount (in
cash) equal to the total Severance Payments under the Agreements as set forth in
Exhibit C. The aggregate contribution will be allocated among the Executive
Accounts. In determining the amount and frequency of any subsequent
contributions to be made in cash or other property acceptable to the Trustee,
the Board may, but is not required to, take into account an increase in an
Executive's base salary and the earnings and/or losses of the Trust Fund. The
Trustee is under no obligation to compel deposits to the Trust Fund.
2.2 Distributions. Generally, the Trustee must hold, invest, reinvest,
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manage, and administer the Trust Fund in accordance with the provisions of the
Trust Agreement, and from time to time, on the written direction of the Board,
make payments from the Trust Fund for the purposes specified in a written
direction. The Trustee shall be under no liability for any payment made by it
pursuant to such a direction.
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2.3 Information Supplied by Employer. All contributions made to the
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Trust Fund shall be accompanied by a written statement giving the Trustee the
identity of the Executives for the year to which the contribution is applicable
and the identity of any previous Executive in respect to whom a forfeiture has
arisen.
2.4 Payments to Executives.
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(a) Whenever the Trustee shall be advised by the Board or the
Employer that an Executive has become entitled to a Severance Payment, it shall
distribute to such Executive the Severance Payment due in the amount and manner
provided by the Agreement.
(b) If an Executive is physically or mentally incapable of
receiving and acknowledging a Severance Payment from the Agreement, the Trustee
may, upon direction from the Board or the Employer, make the Severance Payment,
without the interposition of a guardian, to such institution, trustee,
conservator, committee or person who shall be entitled to receive such Severance
Payment for the use, benefit or support of said incompetent. Such Severance
Payment shall constitute a full acquittance of the Trustee and of all claims
against the Trust Fund.
(c) In the event that any dispute shall arise as to the
persons to whom a Severance Payment and the delivery of any fund or property
shall be made by the Trustee, or the amount thereof, the Trustees shall retain
the Severance Payment and/or postpone such delivery until actual adjudication of
such dispute shall have been made in a court of competent jurisdiction.
(d) If the Employer determines that the amount in the
Executive Account, and any earnings thereon, are not sufficient to distribute a
Severance Payment in accordance with the terms of the Agreement, the Employer
may correct this deficiency by making an additional irrevocable deposit to the
Executive's Account out of its general assets.
(e) If the Employer determines that the amount in the
Executive Account exceeds the amount of the Severance Payment, the excess amount
will be forfeited and returned to the Employer at the time of distribution.
(f) The entitlement of an Executive to a Severance Payment
under the Agreement shall be determined by the Employer or such party as it
shall designate under the Agreement, and any dispute shall be adjudicated in a
court of competent jurisdiction.
2.5 Interest Transfers.
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To the extent that the amount in the Trust Fund exceeds the
amount of the Severance Payment, the excess amount will be forfeited and
returned to the Employer as soon as administratively feasible after the
determination has been made and to the extent allowable by the terms of the
underlying investments in the Trust Fund. This determination shall be made by
the Employer as soon as possible after the end of each calendar quarter by
determining the amount in the
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Trust Fund on the last day of each calendar year quarter and subtracting from
that amount the Severance Payment set forth in Exhibit B.
ARTICLE III
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INVESTMENT OF THE FUND
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3.1 General Rules. The Trustee shall invest and reinvest the principal
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and income of the Trust Fund and keep the same invested without distinction
between principal and income. The selection and retention or disposition of any
investment shall be made by the Trustee at the direction of the Employer or any
investment manager appointed by the Board, or its delegate. The Employer and/or
its designated investment manager shall have the authority to acquire, manage,
retain and dispose of assets of the Trust Fund.
3.2 Trustee Powers. The Trustee shall have the following powers in
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addition to the powers customarily vested in trustees by law and in no way in
derogation thereof:
(a) With any cash at any time held by it, to purchase or
subscribe for any Authorized Investment (as defined in Section 3.3 herein), and
to retain such Authorized Investment in the Trust Fund.
(b) To sell for cash or on credit, convert, redeem, exchange
for another Authorized Investment, or otherwise dispose of, any Authorized
Investment at any time held by it.
(c) To retain uninvested any part of the Trust Fund necessary
for the current operational need of the Agreements or Trust, and to deposit any
cash in any banking or savings institution, including a savings account or
similar interest-bearing account in the Trustee's own savings department.
(d) To exercise any option appurtenant to any Authorized
Investment in which the Trust Fund is invested for conversion thereof into
another Authorized Investment, or to exercise any rights to subscribe for
additional Authorized Investments, and to make all necessary payments therefor.
(e) At the direction of the Employer, to vote, in person or by
general or limited proxy, at any election of any corporation in which the Trust
Fund is invested, and similarly to exercise, personally or by a general or
limited power of attorney, any right appurtenant to any Authorized Investment
held in the Trust Fund.
(f) To purchase Authorized Investments at a premium or
discount.
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(g) With the approval of the Employer, to employ suitable
agents, actuaries, accountants and counsel and to pay their reasonable expenses
and compensation from the Trust Fund if not paid by the Employer within ninety
(90) days.
(h) To cause any investment in the Trust Fund to be registered
in, or transferred into, its name as Trustee or the name of its nominee or
nominees or to retain them unregistered or in a form permitting transfer by
delivery, or to utilize the Federal Reserve Book Entry System for securities of
the United States Government or its agencies, or to utilize the services of a
depository clearing corporation to the extent permitted by State law. The books
and records of the Trustee shall at all times show that all such investments are
part of the Trust Fund, and the Trustee shall be fully responsible for any
misappropriation or defalcation in respect of any investment held by its nominee
or held in unregistered form. The indicia of ownership of all Trust Fund assets
shall be maintained within the jurisdiction of the district courts of the United
States.
(i) To do all acts which it may deem necessary or proper and
to exercise any and all powers of the Trust under this Trust upon such terms and
conditions which it may deem are for the best interests of the Trust Fund.
(j) To apply for, purchase, hold, transfer, pay premiums on,
surrender, and exercise all incidents of ownership of any annuity contract.
(k) To invest in proprietary mutual funds of the Trustee or
its affiliate.
(l) To provide appropriate disclosure regarding trade
confirmations. The Employer is aware that Federal Regulations require that the
Trustee, without charge and within five business days of its receipt of a
broker/dealer confirmation for each security transaction in the Employer's name,
forward a copy to the Employer of such broker/dealer confirmation or a written
notification which discloses: the Trustee's name; the Employer's name; the
capacity in which the Trustee is acting; the date of execution and a statement
that the time of execution will be furnished on the request; the identity,
price, number of shares or units or principal amount of debt securities
purchased or sold by the Employer; the name of the broker/dealer and the amount
of any remuneration received by such broker/dealer from the Employer; the amount
of any remuneration received by the Trustee from the Employer, and the source
and amount of any other remuneration received by the Trustee for the
transaction.
The Employer is also aware that under the preceding paragraph, the
Trustee shall provide periodic statements (not more frequently than monthly) to
the Employer including a listing of all securities transactions, receipts and
disbursements during that period, together with a current listing of the assets
held in the account. Accordingly, because the Employer believes that the
periodic statements provided by the Trustee will constitute sufficient notice of
such transactions, the Employer hereby agrees to accept such periodic statements
in satisfaction of the Trustee's obligation to provide the written notification
as described in the preceding paragraph.
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3.3 Authorized Investments. "Authorized Investment" means bonds,
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debentures, notes, commercial paper, bankers' acceptances, money market
certificates, or other evidences of indebtedness, including by way of
illustration and not by way of limitation, corporate bonds, savings accounts,
certificates of deposit, variable note arrangements and obligations of the
United States Government; stocks (regardless of class), or other evidences of
ownership, in any corporation, mutual investment fund, investment company,
association, or business trust; combined, common or commingled trust funds;
retirement income or annuity contracts; real and personal property of all kinds,
including leaseholds on improved and unimproved real estate. Authorized
Investment includes any investment vehicle of the Trustee including without
limitation any interest-bearing account, certificate of deposit or variable note
arrangement.
3.4 Segregated Accounts. The Trustee will establish on behalf of each
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Executive a segregated Executive Account.
3.5 Custodian. If the Trustee is not a bank or trust company, the
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Trustee may delegate, with the approval of the Board, by an instrument in
writing, to a person (individual, corporation or other entity) who is appointed
as agent or custodian by it, any power or function of the Trustee hereunder
(other than the investment of the Trust assets), including without limitation
the following:
(a) custodianship of all or any part of the assets of the Trust;
(b) maintaining and accounting for the Trust Fund and for
Executives' Accounts as part thereof;
(c) distribution of benefits as directed by the Board; and
(d) preparation of the annual report on the status of the Trust
Fund.
The agent or custodian so appointed may act as agent for the Trustee,
without investment responsibility, for fees to be mutually agreed upon by the
Board and the agent or custodian and paid in the same manner as Trustee's fees.
The Trustee shall review and monitor the functions of the custodian, but it
shall not be responsible for any act or omission of the agent or custodian
arising from any such delegation, except to the extent provided in Section 5.8
herein.
ARTICLE IV
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ACCOUNTS TO BE KEPT AND RENDERED BY THE TRUSTEE
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4.1 Records and Accounts. The Trustee shall keep accurate and detailed
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accounts of all investments, receipts and disbursements and other transactions
hereunder, including such specific records as shall be required by law and such
additional records as may be agreed upon in writing between the Board and the
Trustee. The Trustee shall file with the appropriate taxing authority such forms
as may be required in connection with the payments of benefits and shall file
with the
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appropriate taxing authority such additional forms as may be agreed upon in
writing between the Employer and the Trustee. All accounts, books and records
relating thereto shall be open to inspection and audit by any person or persons
designated by the Employer, at all reasonable times.
4.2 Annual Accounting. Within ninety (90) days following the close of
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each calendar year, and within ninety (90) days after the effective date of the
removal or resignation of the Trustee, the Trustee shall file with the Board a
written account, setting forth all investments, receipts and disbursements, and
other transactions effected by them during such year or during the period from
the close of the last preceding year to the date of such removal or resignation,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales, and showing all cash,
securities and other property held at the end of such year or as of the date of
removal or resignation, as the case may be. The Trustee shall include in such
report a valuation of the Trust Fund in accordance with Section 4.5 herein.
Neither the Employer nor any other person shall have the right to demand or to
be entitled to any further or different accounting by the Trustee, except as may
be required by statute or by regulations published by federal government
agencies with respect to reporting and disclosure. The Board has 60 days
following the receipt of the annual accounting to provide written notice to the
Trustee of any disputed items. Absent such timely notice by the Board, the Board
is deemed to accept the Trustee's annual accounting.
4.3 Acceptance of Trustee's Accounting. The acceptance by the Board of
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the written account of the Trustee shall not relieve the Trustee of any
liability or accountability for breaches of fiduciary responsibility for
negligence or willful misconduct or lack of good faith on the part of the
Trustee. In the event that the Board files a statement claiming any exception or
objection to the written account of the Trustee, and any such exception or
objection are not compromised by agreement between the Board and the Trustee,
the Trustee shall file its account covering the period from the date of the last
account to which no objection was made in any court of competent jurisdiction
for audit or adjudication.
4.4 Establishment of Accounts. The Trustee shall establish and maintain
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as part of the Fund segregated Executive Accounts for each Executive. The
establishment of each Executive Account will require a segregation of the assets
of the Fund. No Executive shall acquire any right to or interest in any specific
asset of the Fund as a result of the allocations to his Executive Account.
4.5 Valuation of the Trust Fund.
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(a) As of each Valuation Date, the Trustee shall determine the
net worth of the assets of the Fund, and report such value to the Board in
writing. In determining such net worth, the Trustee shall evaluate the assets of
the Fund at their fair market value as of such Valuation Date and shall deduct
all expenses chargeable to the Fund. Any increase or decrease in the net worth
of the assets of the Fund shall be allocated as of each Valuation Date among the
Executive Accounts established as a part of the Fund in the manner specified by
the Board.
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(b) In determining and valuing the assets and liabilities of
the Fund for any purpose, securities held in the Fund shall be valued at their
last published sale price on the Valuation Date. If no sale price shall have
been reported on the Valuation Date, or if a security is listed on two or more
exchanges, or if any irregularity occurs, the Trustee shall make a determination
of value within the custom and practice at such time and will so advise the
Board as to its method of valuation.
ARTICLE V
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THE TRUSTEE
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5.1 Trustee's Conditions. The Trustee accepts the Trust hereby created
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and agrees to perform the duties hereby required by it, subject, however, to the
following conditions:
(a) The Trustee shall incur no liability to anyone for any
action taken pursuant to a direction, request or approval given by the Board,
the Employer or by any other party to whom authority to give such directions,
requests or approvals is delegated. Any such direction, request, or approval
shall be evidenced by delivery to the Trustee of a statement in writing signed
by the authorized initiator thereof.
(b) The Trustee shall receive as compensation for its services
such amounts as may be agreed upon at the time of execution of this Trust
Agreement, subject to change at any time and from time to time by agreement
between the Employer and the Trustee. No compensation shall be paid to the
Trustee if he is a full-time employee of the Employer. The Trustee's
compensation (if any) and the expenses incurred by the Trustee in administering
the Trust shall be paid by the Employer. If the Trustee's compensation and
expenses are not paid by the Employer within 90 days of receipt, the Trustee
reserves the right to withdraw the amounts due from the assets of the Trust.
(c) The Trustee shall be indemnified by the Employer against
its prospective costs, expenses, and liability in connection with all litigation
relating to the Agreements, the Trust or the Trust Fund, except where the
litigation is occasioned by the fault of the Trustee.
5.2 Board. The Employer shall advise the Trustee in writing of the
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names of each of the individuals who serve on the Board and the Trustee shall be
fully protected in assuming that there has been no change until so advised by
the Employer.
5.3 Resignation or Removal of Trustee. The Trustee may be removed by
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the Employer at any time upon sixty (60) days notice in writing to the Trustee.
The Trustee may resign at any time upon sixty (60) days notice in writing to the
Employer. In the case of any such removal or resignation, the Employer shall
appoint a successor Trustee who may be either one or more individuals or a
corporation empowered to act as trustee. Upon the resignation or removal of a
Trustee, it, he/she or they shall assign, transfer and pay over to the successor
Trustee its, his/her or their right, title and interest in and to the cash,
securities and other properties then constituting the Trust Fund and shall, at
the time of such transfer, render an account of its, his/her or their
transactions
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to the Board but the Trustee shall be under no duty to account to anyone other
than the Board or to make such a formal accounting as is required of a trustee
of an express trust. Any successor Trustee shall have the same rights, powers
and duties as those conferred upon the Trustee named in this Trust Agreement.
The removal of the Trustee or the appointment of a successor Trustee shall be by
instrument in writing, signed by an appropriate officer of the Employer and
shall become effective on the date specified in such instrument. A certificate
of the Board as to who is or was the duly appointed and acting Trustee at any
time may be accepted as conclusive by all parties dealing with the Trustee. The
Trustee shall be entitled to request a court of competent jurisdiction to name a
Trustee if the Employer should fail to name a successor Trustee within the
notice period. The costs to name a court-appointed successor Trustee can be
charged to the Trust if not paid by the Employer within ninety (90) days.
5.4 Provision for Co-Trustee. The Employer may select one or more
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individuals (who may be employees of the Employer) or a corporation to act as a
trustee hereunder. In such event, the powers granted to the Trustee under the
provisions of this Trust Agreement shall be vested in all such trustees jointly
and shall be exercised by a majority of the Trustees.
5.5 Trustee Vote By Majority. Acts and decisions of the Trustee, if
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there be more than one, involving trust interpretations or matters of policy
shall be by majority vote evidenced by an executed writing either in a meeting
or without a meeting. Any Trustee may sign on behalf of the Trustees any
documents or papers which may be required in the routine operation of the Trust.
5.6 Non-Participation of Trustee. No Executive may be a Trustee under
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this Trust Agreement.
5.7 Bonding of Trustee. The Trustee is not required to be bonded.
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5.8 Liability of Trustee.
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(a) The Trustee shall discharge its duties 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. If it
exercises investment powers, the Trustee shall diversify the investments of the
Fund so as to minimize the risk of large losses, unless under the circumstances
it is clearly prudent not to do so. The Trustee shall not be responsible in any
way for any action or omission of the Employer or the Board or the investment
manager with respect to their duties and obligations as set forth in the Trust.
The Trustee shall also not be responsible for any action or omission of any of
its agents or with respect to reliance upon the advice of counsel (whether or
not such counsel is also counsel to the Employer), provided that such agents or
counsel were prudently chosen by the Trustee and that the Trustee relied in good
faith upon the action of such agent or the advice of such counsel. The Trustee
shall not be relieved from responsibility or liability for any responsibility,
obligation or duty imposed upon it under the Agreements, the Trust or law.
Nothing herein shall preclude the indemnification of the Trustee by the
Employer.
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(b) To the extent the Trustee is found liable to any person
for any action taken or omitted in connection with the interpretation and
administration of this Trust Agreement, the Employer shall indemnify the Trustee
for all amounts attributable to such imposition of liability, unless liability
is determined to have been attributable to willful or gross misconduct.
(c) The Trustee is a party to this Trust Agreement solely for
the purposes set forth in this Trust Agreement and the Agreements, and to
perform the acts set forth therein, and no obligation or duty shall be expected
or required of it except as stated in the Agreements or the Trust Agreement.
ARTICLE VI
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DUTIES OF THE EMPLOYER AND THE BOARD
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6.1 Information and Data to be Furnished the Trustee. The Employer
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agrees to furnish the Trustee with such information and data relative to the
Agreements as is necessary for the proper administration of the Fund established
hereunder.
6.2 Limitation of Duties. Neither the Employer nor the Board shall have
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any duties or obligations with respect to this Trust Agreement, except those
expressly set forth herein and in the Agreements.
6.3 Limitation of Liability. Except as otherwise provided by law, the
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Employer and the Board shall not in any way be liable or responsible to any
Executive, Trustee or any other person, firm or corporation whatsoever for any
acts of omission or commission in connection with their duties herein, unless
such act of omission or commission is due to his or its own individual, willful
and intentional nonfeasance, malfeasance or misfeasance.
ARTICLE VII
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DELEGATION OF DUTIES AND RESPONSIBILITIES
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7.1 Investment Manager. The Board reserves the right to appoint an
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investment manager to manage, acquire or dispose of assets of the Trust Fund. To
the extent an investment manager is appointed and the Trustee receives written
notification of such appointment, the Trustee shall not be liable for its act
and conduct in the administration of the Agreements and Trust pursuant to the
investment manager's direction, except for acts of willful misconduct; provided,
however, that the foregoing shall not relieve the Trustee from any
responsibility or liability for any obligation or duty that they may have
pursuant to ERISA. The selection and retention or disposition of any investment
shall be made by the Trustee at the direction of the Employer or any investment
manager appointed by the Board, or its delegate.
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7.2 Duty to Monitor. If an investment manager is appointed to manage
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the assets of the Trust Fund, the Board shall have the responsibility and
authority to monitor the performance of the investment manager and to terminate
such appointment if necessary.
7.3 Investment Manager Powers. To the extent the investment manager
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manages, acquires, or disposes of assets of the Trust Fund, the investment
manager shall assume the responsibilities and liabilities of the Trustee with
regard to the management of the assets of the Trust Fund, and the Trustee shall
be relieved of such liabilities.
ARTICLE VIII
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AMENDMENT AND TERMINATION
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8.1 Amendment of Trust. The provisions of the Trust may be amended at
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any time and from time to time by the Employer, provided that, no such amendment
may be made which is prohibited under the Agreements or which increases the
duties or the obligations of the Trustee without its consent.
8.2 Procedure for Amendment of the Trust. Notwithstanding the
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provisions of Section 8.1 or of any other provision of the Trust or of the
Agreements, if any amendment of the Trust or the Agreements is required to meet
the requirements of any law, government regulation or ruling, or if an amendment
is otherwise permissible under state or federal law, either express or implied,
such amendment may be made retroactively and shall be accomplished by the
Employer and effected by written notice to the Trustee. If the Trustee does not
approve an amendment of the Trust, the Trustee shall immediately notify the
Employer.
8.3 Termination of the Severance Agreements or Trust. Each Agreement
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shall terminate automatically upon distribution or forfeiture of the Severance
Payment thereunder. Upon the final distribution or forfeiture of a Severance
Payment under the Agreement, the Trust shall also terminate.
ARTICLE IX
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MISCELLANEOUS PROVISIONS
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9.1 Reliance on Trust Agreement. Any person dealing with the Trustee
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may rely upon a copy of this Trust Agreement and any amendments thereto,
certified to be a true and correct copy by the Trustee or any officer of the
Trustee.
9.2 Invalidity. In the event any provision of this Trust Agreement
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shall be held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining provisions hereof, and this Trust Agreement shall
thereafter be construed and enforced as if said illegal or invalid provisions
had never been included herein.
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9.3 Agreements' Provisions. The Agreements and each provision thereof
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is hereby incorporated by reference and shall, for all purposes, be deemed a
part of the Trust, provided, however, that in the event of any conflict between
the provisions of the Agreements and the Trust, the former shall control.
9.4 Agreements' Terms. Any term used herein which is defined in the
-------------------
Agreements shall be considered to have the same meaning as in the Agreements
unless the contrary is clearly indicated.
9.5 Applicable Law. This Agreement shall be construed, enforced and
----------------
regulated under federal law, and to the extent (if any) not preempted thereby,
under the laws of the District of Columbia.
9.6 Counterparts. This Trust may be executed in multiple counterparts,
------------
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, as evidence of the adoption of this Trust
Agreement, the Employer and the Trustee have caused this Trust Agreement to be
executed as of this day of March, 1998.
ATTEST: THE XXXXX NATIONAL BANK
___________________________________ By:_______________________________
ATTEST: NATIONSBANK, N.A.
____________________________________ _________________________________
NOTARIZATION FOR AGREEMENTS SPONSOR
-----------------------------------
DISTRICT OF COLUMBIA, __________________________, to wit:
I HEREBY CERTIFY that on this day of , before me, the
subscriber, a Notary Public of the , in and for
,personally appeared and known to me (or satisfactorily proven
to be) , and duly acknowledged the foregoing Trust Agreement to
be the act and deed of said Employer.
WITNESS my hand and Notarial Seal.
------------------------------------------
Notary Public
My Commission Expires:____________________
13
NOTARIZATION FOR NATIONSBANK, N.A.
----------------------------------
DISTRICT OF COLUMBIA, ________________________, to wit:
I HEREBY CERTIFY that on this day of , before me, the
subscriber, a Notary Public of the ,
in and for , personally appeared and known to me
or satisfactorily proven to be) , Trustee and duly acknowledged
the foregoing Trust Agreement to be the act and deed of said Trustee.
WITNESS my hand and Notarial Seal.
_________________________________________
Notary Public
My Commission Expires:____________________
14
EXHIBIT B
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxx Xxxx
Xxxxx Xxxx
Xxxx Xxxx
Xxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
15
