TRUST AGREEMENT BETWEEN BENEFICIAL MUTUAL SAVINGS BANK AND FOR THE BENEFICIAL MUTUAL SAVINGS BANK EMPLOYEE STOCK OWNERSHIP PLAN TRUST Effective as of _______________, 2007
Exhibit
10.1(b)
BETWEEN
BENEFICIAL
MUTUAL SAVINGS BANK
AND
[____________________________]
FOR
THE
BENEFICIAL
MUTUAL SAVINGS BANK
EMPLOYEE
STOCK OWNERSHIP PLAN TRUST
Effective
as of _______________, 2007
CONTENTS
Page
No.
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Section
1
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Creation
of Trust
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1
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Section
2
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Investment
of Trust Fund and Administrative Powers of the Trustee
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2
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Section
3
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Compensation
and Indemnification of Trustee and Payment of Expenses and
Taxes
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7
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Section
4
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Records
and Valuation
|
8
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Section
5
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Instructions
from Committee
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9
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Section
6
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Change
of Trustee
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10
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Section
7
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Miscellaneous
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10
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i
THIS
TRUST AGREEMENT
dated
_____________,
2007
BETWEEN,
Beneficial Mutual Savings Bank,
with its
administrative office at 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter called the “Company”), and
[_____________________] with
its
administrative office at [______________________]
(hereinafter called the “Trustee”).
W
I T N E S S E T H T H A T:
WHEREAS,
the
Company has approved and adopted an employee stock ownership plan for the
benefit of its employees, the Beneficial
Mutual Savings Bank Employee Stock Ownership Plan
(hereinafter called the “Plan”); and
WHEREAS,
the
Company has authorized the execution of this Trust Agreement and has appointed
[_____________________]
as
Trustee of the Trust Fund created pursuant to the Plan; and
WHEREAS,
[_____________________]
has
agreed to act as Trustee and to hold and administer the assets of the Plan
in
accordance with the terms of this Trust Agreement.
NOW,
THEREFORE,
the
Company and the Trustee agree as follows:
Section
1. Creation
of Trust
1.1 Trustee [_____________________]
shall
serve as Trustee of the Trust Fund created in accordance with and in furtherance
of the Plan, and shall serve as Trustee until their removal or resignation
in
accordance with Section 6.
1.2 Trust
Fund
The
Trustee hereby agrees to accept contributions from the Employer as defined
in
the Plan and amounts transferred from other qualified retirement plans from
time
to time in accordance with the terms of the Plan. All such property and
contributions, together with income thereon and increments thereto, shall
constitute the “Trust Fund” to be held in accordance with the terms of the Trust
Agreement.
1.3 Incorporation
of Plan.
An
instrument entitled “Beneficial Mutual Savings Bank Employee Stock Ownership
Plan” is incorporated herein by reference, and this Trust Agreement shall be
interpreted consistently with that Plan. All words and phrases defined in that
Plan shall have the same meaning when used in this Trust Agreement.
1.4 Name.
The
name of this trust shall be “Beneficial Mutual Savings Bank Employee Stock
Ownership Plan Trust.”
1.5 Nondiversion
of Assets.
In no
event shall any part of the corpus or income of the Trust Fund be used for,
or
diverted to, purposes other than for the exclusive benefit of the Participants
and their Beneficiaries prior to the satisfaction of all liabilities under
the
Plan, except to the extent that assets may be returned to the Employer in
accordance with the Plan where the Plan fails to qualify initially under Section
401(a) of the Internal Revenue Code (the “Code”), or where they are attributable
to contributions made by mistake of fact or in excess of the deductibility
allowed under the Code.
1
Section
2. Investment
of Trust Fund and Administrative Powers of the Trustee.
2.1 Stock
and Other Investments.
The
basic investment policy of the Plan shall be to invest primarily in Stock of
the
Employer for the exclusive benefit of the Participants and their Beneficiaries.
The Committee shall have full and complete investment authority and
responsibility with respect to the purchase, retention, sale, exchange, and
pledge of Stock and the payment of Stock Obligations, and the Trustee shall
not
deal in any way with Stock except in accordance with their obligations pursuant
to this Trust Agreement and the written instructions of the Committee. The
Trustee shall invest, or keep invested, all or a portion of the Trust Fund
in
Stock, and shall pay Stock Obligations out of assets of the Trust Fund, as
instructed from time to time by the Committee. The Trustee shall invest any
balance of the Trust Fund (the “Investment Fund”) in such other property as the
Committee, in its sole discretion, shall deem advisable, subject to any
delegation of such investment responsibility pursuant to Section 2.2. Nothing
contained herein shall provide investment discretion authority or any like
kind
responsibility in regard to the assets of the Trust Fund.
In
connection with instructions to acquire Stock, the Trustee may purchase newly
issued or outstanding Stock from the Employer or any other holders of Stock,
including Participants, Beneficiaries, and Plan fiduciaries. All purchases
and
sales of Stock shall be made by the Trustee at fair market value as determined
by the Committee in good faith and in accordance with any applicable
requirements under the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”). Such purchases may be made with assets of the Trust Fund,
with funds borrowed for this purpose (with or without guarantees of repayment
to
the lender by the Employer), or by any combination of the
foregoing.
Notwithstanding
any other provision of this Trust Agreement or the Plan, neither the Committee
nor the Trustee shall make any purchase, sale, exchange, investment, pledge,
valuation, or loan, or take any other action involving those assets for which
they are responsible which (i) is inconsistent with the policy of the Plan
and
Trust, (ii) is inconsistent with the prudence and diversification requirements
set forth in Sections 404(a)(1)(B) and (C) of ERISA (to the extent such
requirements apply to an employee stock ownership plan and trust), (iii) is
prohibited by Section 406 or 407 of ERISA, or (iv) would impair the
qualification of the Plan or the exemption of the Trust under Sections 401
and
501, respectively, of the Code.
2.2 Delegation
of Investment Responsibility.
The
Committee may, by written notice and in accordance with the Plan, direct the
Trustee to segregate any portion or all of the Investment Fund into one or
more
separate accounts for each of which full investment responsibility will be
delegated to an investment manager appointed in such notice pursuant to Section
402(c)(3) of ERISA (hereinafter a “Manager”). For any separate account where the
Trustee is to maintain custody of the assets, the Trustee and the Manager shall
agree upon procedures for the transmittal of investment instructions from the
Manager to the Trustee, and the Trustee may provide the Manager with such
documents as may be necessary to authorize the Manager to effect transactions
directly on behalf of the segregated account.
2
Further,
the Committee may, by written notice and in accordance with the Plan, direct
the
Trustee to segregate any portion or all of the Investment Fund into one or
more
separate accounts for each of which full investment responsibility will be
delegated to an insurance company through one or more group annuity contracts,
deposit administration contracts, or similar contracts, which may provide for
investments in any commingled separate accounts established under such
contracts. An insurance company shall be a Manager with respect to any amounts
held under such a contract except to the extent the insurer’s assets are not
deemed assets of the Plan and Trust Fund pursuant to Section 401(b)(2) of ERISA.
The allocation of amounts held under such a contract among the insurer’s general
account and one or more individual or commingled separate accounts shall be
determined by the Committee except as otherwise agreed by the Committee and
the
insurer.
Any
Manager shall have all of the powers given to the Trustee pursuant to Section
2.3 with respect to the portion of the Trust Fund committed to its investment
discretion and control. The Trustee shall be responsible for the safekeeping
of
any assets which remain in their custody, but in no event shall the Trustee
be
under any duty to question or make any inquiry or suggestion regarding the
action or inaction of a Manager or an insurer or the advisability of acquiring,
retaining, or disposing of any asset of a segregated account. The Employer
shall
indemnify and hold the Trustee harmless from any and all costs, damages,
expenses, and liabilities which the Trustee may incur by reason of any action
taken or omitted to be taken by the Trustee upon directions from the Committee,
a Manager, or an insurer pursuant to this Section 2.2.
2.3 Trustee
Powers.
In
addition to and not by way of limitation upon the fiduciary powers granted
to it
by law, the Trustee shall have the following specific powers, subject to the
limitations set forth in Section 2.1:
2.3-1
to receive, hold, manage, invest and reinvest the money or other property which
constitutes the Trust Fund, without distinction between principal and
income;
2.3-2
to hold funds uninvested temporarily, provided it is a period of time that
is
not unreasonable, without liability for interest thereon, and to deposit funds
in one or more savings or similar accounts with any banks and savings and loan
associations which are insured by an instrumentality of the federal government,
including the Trustee if it is such an institution;
2.3-3
at the direction of the Committee, to invest or reinvest the whole or any
portion of the money or other property which constitutes the Trust Fund in
such
common or preferred stocks, investment trust shares, mutual funds, commingled
trust funds, partnership interests, bonds, notes, or other evidences of
indebtedness, and real and personal property as the Trustee in their absolute
judgment and discretion may deem to be for the best interests of the Trust
Fund,
regardless of nondiversification to the extent that such nondiversification
is
clearly prudent, and regardless of whether any such investment or property
is
authorized by law regarding the investment of trust funds, of a wasting asset
nature, temporarily nonincome producing, or within or without the United
States;
2.3-4
to invest in common and preferred stocks, bonds, notes, or other obligations
of
any corporation or business enterprise in which an Employer or its owners may
own an interest;
3
2.3-5
at the direction of the Committee, to exchange any investment or property,
real
or personal, for other investments or properties at such time and upon such
terms as the Trustee shall deem proper;
2.3-6
at the direction of the Committee, to sell, transfer, convey or otherwise
dispose of any investment or property, real or personal, for cash or on credit,
in such manner and upon such terms and conditions as the Trustee shall deem
advisable, and no person dealing with the Trustee shall be under any duty to
inquire as to the validity, expediency, or propriety of any such sale or as
to
the application of the purchase money paid to the Trustee;
2.3-7
to hold any investment or property in the name of the Trustee, with or without
the designation of any fiduciary capacity, or in the name of a nominee, or
unregistered, or in such other form that title may pass by delivery; provided,
however, that the Trustee’s records always show that such investment or property
belongs to the Trust Fund and the Trustee shall not be relieved hereby of its
responsibility to maintain safe custody of such investment or
property;
2.3-8
to organize one or more corporations to hold, manage, or liquidate any property,
including real estate, owned or acquired by the Trust Fund if in the sole
discretion of the Trustee the organization of such corporation or corporations
is for the best interests of the Trust and the Plan Participants and
Beneficiaries;
2.3-9
to extend the time for payment of, to modify, to renew, or to release security
from any mortgage, note or other evidence of indebtedness, or to take advantage
of or waive any default; to foreclose mortgages and bid on property under
foreclosure or to take title to property by conveyance in lieu of foreclosure,
either with or without the payment of additional consideration;
2.3-10 to
vote in person or by proxy all stocks and other securities having voting
privileges; to exercise or refrain from exercising any option or privilege
with
respect to stocks and other securities, including any right or privilege to
subscribe for or otherwise to acquire stocks and other securities; or to sell
any such right or privilege; to assent to and join in any plan of refinance,
merger, consolidation, reorganization or liquidation of any corporation or
other
enterprise in which this Trust may have an interest, to deposit stocks and
other
securities with any committee formed to effectuate the same, to pay any expense
incidental thereto, to exchange stocks and other securities for those which
may
be issued pursuant to any such plan, and to retain as an investment the stocks
and other securities received by the Trustee; and to deposit any investment
in a
voting trust; notwithstanding the preceding, Participants and Beneficiaries
shall be entitled to direct the manner in which stock allocated to their
respective accounts are to be voted on all matters. All stock which has been
allocated to Participants’ Accounts for which the Trustee has received no
written direction and all unallocated Employer securities will be voted by
the
Trustee in direct proportion to any Participant’s directions received and solely
in the interest of the Participants and Beneficiaries. Whenever such voting
rights are to be exercised, the Employer, the Committee and the Trustee shall
see that all Participants and Beneficiaries are provided with adequate
opportunity to deliver their instructions to the Trustee regarding voting of
stock allocated to their accounts. The instructions of the Participants with
respect to the voting of allocated shares hereunder shall be
confidential;
4
2.3-11
to abandon any property, real or personal, which the Trustee shall consider
to
be worthless or not of sufficient value to warrant its keeping or protecting;
to
abstain from the payment of taxes, water rents, assessments, repairs,
maintenance, and upkeep of any such property; to permit any such property to
be
lost by tax sale or other proceedings, and to convey any such property for
a
nominal consideration or without consideration;
2.3-12
to borrow money from the Employer or from others (including the Trustee), and
to
enter into installment contracts, for the purchase of Stock upon such terms
and
conditions and at such reasonable rates of interest as the Committee may deem
to
be advisable, to issue its promissory notes as Trustee to evidence such debt,
to
secure the payment of such notes by pledging any property of the Trust Fund,
and
to authorize the holders of any such notes to pledge them to secure obligations
of the holders and in connection therewith to repledge any assets of the Trust
as security therefor; provided that, with respect to any extension of credit
to
the Trust involving, as a lender or guarantor, the Employer or other
“disqualified person” within the meaning of Section 4975(e)(2) of the Code
--
(a)
|
each
loan or installment contract is primarily for the benefit of Participants
and Beneficiaries of the Plan;
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(b)
|
any
interest on a loan or installment contract does not exceed a reasonable
rate;
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(c)
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the
proceeds of any loan shall be used only to acquire Stock, to repay
the
loan, or to repay a previous loan meeting these conditions, and the
subject of any installment contract shall be only the Trust’s purchase of
Stock;
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(d)
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any
collateral pledged to a creditor by the Trustee shall consist only
of
qualifying employer securities as that term is defined under Section
4975(e)(8) of the Code and the creditor shall have no recourse against
the
Trust Fund except with respect to the collateral (although the creditor
may have recourse against an Employer as
guarantor);
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(e)
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payments
with respect to a loan or installment contract shall be made only
from
those amounts contributed by the Employer to the Trust Fund, from
amounts
earned on such contributions, and from cash dividends received on
unallocated Stock held by the Trust as collateral for such an obligation;
and
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(f)
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upon
the payment of any portion of balance due on a loan or upon any
installment payment, a proportionate part of any qualified employer
securities originally pledged as collateral for such indebtedness
shall be
released from encumbrance in accordance with Section 4.2 of the Plan
and
the Committee shall at least annually advise the Trustee of the number
of
shares of Stock so released and the proper allocation of such shares
under
the terms of the Plan;
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2.3-13 to
manage and operate any real property which shall at any time constitute an
asset
of the Trust Fund; to make repairs, alterations, and improvements thereto;
to
insure such property against loss by fire or other casualty; to lease or grant
options for the sale of such property, which lease or option may be for a period
of time which may extend beyond the life of this Trust; and to take any other
action or enter into any other contract respecting such property which is
consistent with the best interests of the Trust;
5
2.3-14
to pay any and all reasonable and normal expenses incurred in connection with
the exercise of any power, right, authority or discretion granted herein, and,
upon prior notice to the Company, to employ and compensate agents, investment
counsel, custodians, actuaries, attorneys, and accountants in such
connection;
2.3-15
to employ and consult with any legal counsel, who also may be counsel to an
Employer or the Administrator, with respect to the meaning or construction
of
this Trust Agreement, the extent of the Trustee’s obligations and duties
hereunder, and whether the Trustee should take or decline to take a particular
action hereunder, and the Trustee shall be fully protected with respect to
any
action taken or omitted by such Trustee in good faith pursuant to such
advice;
2.3-16
to defend any action or proceeding instituted against the Trust Fund, to
institute any action on behalf of the Trust Fund, and to compromise or submit
to
arbitration any dispute concerning the Trust Fund;
2.3-17
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;
2.3-18
to commingle the Trust Fund created pursuant hereto, in whole or in part, in
a
single trust with all or any portion of any other trust fund, assigning an
undivided interest to each such commingled trust fund, provided that such
commingled trust is itself exempt from taxation pursuant to Section 501(a)
of
the Code, or its successor Section; and provided further that the trust
agreement governing such commingled trust shall be deemed incorporated by
reference in the Plan;
2.3-19
where two or more trusts governed by this Trust Agreement have an undivided
interest in any property, to credit the income from such property to such trusts
in proportion to their undivided interests, and when non pro rata distributions
of property or money are made from such trusts, to make appropriate adjustments
to the undivided fractional interests of such trusts;
2.3-20
to invest all or any portion of the Trust Fund in one or more group annuity
contracts, deposit administration contracts, and other such contracts with
insurance companies, including any commingled separate accounts established
under such contracts;
2.3-21
generally, with respect to all cash, stocks and other securities, and property,
both real and personal, received or held in the Trust Fund by the Trustee,
to
exercise all the same rights and powers as are or may be lawfully exercised
by
persons owning cash, or stocks and other securities, or such property in their
own right; and to do all other acts, whether or not expressly authorized, which
it may deem necessary or proper for the protection of the Trust Fund;
and
6
2.3-22
whenever more than two persons shall qualify to act as co-Trustee, to exercise
and perform every power (including discretionary powers), authority or duty
by
the concurrence of a majority of them the same effect as if all had joined
therein, except that the unanimous vote of such persons shall be necessary
to
determine the number (one or more) and identity of persons who may sign checks,
make withdrawals from financial institutions, have access to safe deposit boxes,
or direct the sale of trust assets and the disposition of the
proceeds.
2.4 Brokerage.
If
permitted in writing by the Committee the Trustee shall have the power and
authority, to be exercised in their sole discretion at any time and from time
to
time, to issue and place orders for the purchase or sale of securities with
qualified brokers and 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.
Section
3. Compensation
and Indemnification of Trustee and Payment of Expenses and Taxes.
3.1 Fees
and Expenses from Fund.
In
consideration for rendering services pursuant to this Trust Agreement the
Trustee shall be paid fees in accordance with the Trustee’s fee schedule as in
effect from time to time. Fee changes resulting in fee increases shall be
effective upon not less than 30 days’ notice to the Company. In addition, the
Trustee shall be reimbursed for any reasonable expenses, including reasonable
attorneys’ fees, incurred in the administration of the Trust created hereby.
Fees and expenses shall be allocated to Participants’ Accounts, if any, unless
paid directly by the Employer. All compensation and expenses of the Trustee
shall be paid out of the Trust Fund or by the Employer as specified in the
Plan.
If and to the extent the Trust Fund shall not be sufficient, such compensation
and expenses shall be paid by the Employer upon demand. If payment is due but
not paid by the Employer, such amount shall be paid from the assets of the
Trust
Fund. The Trustee is hereby empowered to withdraw all such compensation and
expenses which are 60 days past due from the Trust Fund, and, in furtherance
thereof, liquidate any assets of the Trust Fund, without further authorization
or direction from or by any person. Notwithstanding the foregoing, in the event
any officer or director of Beneficial Mutual Savings Bank serves as trustee
of
the Plan, no compensation shall be paid to the officer or director in exchange
for his or her services as trustee.
3.2 Indemnification.
Notwithstanding any other provision of this Trust Agreement, any individual
designated as a trustee hereunder shall be indemnified and held harmless by
the
Employer to the fullest extent permitted by law against any and all costs,
damages, expenses and liabilities including, but not limited to attorneys’ fees
and disbursements reasonably incurred by or imposed upon such individual in
connection with any claim made against him or in which he may be involved by
reason of his being, or having been, a trustee hereunder, to the extent such
amounts are not satisfied by insurance maintained by the Employer, except
liability which is adjudicated to have resulted from the gross negligence or
willful misconduct of the Trustee by reason of any action so taken. Further,
any
corporate trustee and its officers, directors and agents may be indemnified
and
held harmless by the Employer to the fullest extent permitted by law against
any
and all costs, damages, expenses and liabilities including, but not limited
to,
attorneys’ fees and disbursements reasonably incurred by or imposed upon such
persons and/or corporation in connection with any claim made against it or
them
or in which such persons and/or corporation may be involved by reason of its
being, or having been, a trustee hereunder as may be agreed between the Employer
and such trustee, except liability which is adjudicated to have resulted from
the gross negligence or willful misconduct of the Trustee by reason of any
action so taken.
7
3.3 Expenses.
All
expenses of administering the Trust and the Plan, whether incurred by the
Trustee or the Committee, shall be paid by the Trustee from the Trust Fund
to
the extent such expenses shall not have been assumed by the
Employer.
3.4 Taxes.
All
taxes that may be levied or assessed upon or in respect of the Trust Fund shall
be paid from the Trust Fund. The Trustee shall notify the Committee of any
proposed or final assessments of taxes and may assume that any such taxes are
lawfully levied or assessed unless the Committee advises it in writing to the
contrary within fifteen days after receiving the above notice from the Trustee.
In such case, the Trustee, if requested by the Committee in writing, shall
contest the validity of such taxes in any manner deemed appropriate by the
Committee; the Employer may itself contest the validity of any such taxes,
in
which case the Committee 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.
Section
4. Records
and Valuation.
4.1 Records.
The
Trustee, and any investment manager appointed pursuant to Section 2.2, shall
maintain accurate and detailed records and accounts of all investments,
receipts, disbursements and other transactions made by it with respect to the
Trust Fund, and all accounts, books and records relating thereto shall be open
at all reasonable time to inspection and audit by the Committee and the
Employer.
4.2 Valuation.
From
time to time upon the request of the Committee, but at least annually as of
the
last day of each Plan Year, the Trustee shall prepare a balance sheet of the
Investment Fund in accordance with the Plan and shall deliver copies of the
balance sheet to the Committee and the Employer.
4.3 Discharge
of Trustee.
Ninety
days after the filing of any balance sheet under Section 4.2 or any accounting
under Section 6, the Trustee shall be forever released and discharged from
any
liability or accountability other than for gross negligence or wilful misconduct
on the part of the Trustee to anyone with respect to the transactions shown or
reflected in such balance sheet or accounting, except with respect to any acts
or transactions as to which the Committee, within such ninety-day period, files
written objections with the Trustee. The written approval of the Committee
of
any balance sheet or accounting so filed by the Trustee, or the Committee’s
failure to file written objections within ninety days, shall be a settlement
of
such balance sheet or accounting as against all persons, and shall forever
release and discharge the Trustee from any liability of accountability to anyone
with respect to the transactions shown or reflected in such balance sheet or
accounting other than liability arising out of the Trustee’s gross negligence or
wilful misconduct. If a statement of objections is filed by the Committee and
the Committee is satisfied that its objections should be withdrawn or if the
8
balance
sheet or accounting is adjusted to its satisfaction, the Committee shall
indicate its approval of the balance sheet or accounting in a written statement
filed with the Trustee and the Trustee shall be forever released and discharged
from any liability of accountability to anyone in accordance with the
immediately preceding sentence. If an objection is not settled by the Committee
and the Trustee, the Trustee may start a proceeding for a judicial settlement
of
the balance sheet or accounting in any court of competent jurisdictions; the
only parties that need be joined in such a proceeding are the Trustee, the
Committee, the Employer and any other parties whose participation is required
by
law.
4.4 Right
to Judicial Settlement.
Nothing
in this Agreement shall prevent the Trustee from having its account settled
by a
court of competent jurisdiction at any time. The only parties that need be
joined in any such proceeding are the Employer, the Committee, the Trustee
and
any other parties whose participation is required by law.
Section
5. Instructions
from Committee.
5.1 Certification
of Members of the Committee.
From
time to time the Company shall certify to the Trustee in writing the names
of
the individuals comprising the Committee and shall furnish to the Trustee
specimens of their signatures and the signatures of their agents, if any. The
Trustee shall be entitled to presume that the identities of such individuals
and
their agents are unchanged until it receives a certification from the Company
notifying it of any changes.
5.2 Instructions
to Trustee.
(a)
The Trustee shall pay benefits and administrative expenses under the Plan only
when it receives (and in accordance with) written instructions of the Committee
indicating the amount of the payment and the name and address of the recipient
in accordance with the terms of the Plan. The Trustee need not inquire into
whether any payment the Committee instructs the Trustee to make is consistent
with the terms of the Plan or applicable law or otherwise proper. Any payment
made by the Trustee in accordance with such instructions shall be a complete
discharge and acquaintance to the Trustee. If the Committee advises the Trustee
that benefits have become payable with respect to a Participant’s interest in
the Trust Fund but does not instruct the Trustee as to the manner of payment,
the Trustee shall hold the Participant’s interest in the Trust until the Trustee
receives written instructions from the Committee as to the manner of payment.
The Trustee shall not pay benefits from the Trust Fund without such
instructions, even though it may be informed from other sources, including,
without limitation, a Participant or Beneficiary, that benefits are payable
under the Plan. The Trustee shall have no responsibility to determine when,
to
whom or in what amount benefits and expenses are payable under the Plan.
Further, the Trustee shall have no power, authority or duty to interpret the
Plan or inquire into the decisions or determinations of the Committee, or to
question the instructions given to it by the Committee. If the Committee so
directs, the Trustee shall segregate amounts payable with respect to the
interest in the Plan of any Participant and administer them separately from
the
rest of the Trust Fund in accordance with the Committee’s instructions.
9
(b)
The Trustee may require the Committee to certify in writing that any payment
of
benefits or expenses it instructs the Trustee to make pursuant to Section 5.2(a)
above is: (i) in accordance with the terms of the Plan and/or (ii) one which
the
Committee is authorized by the Plan and any other applicable instruments to
direct and/or (iii) made for the exclusive purpose of providing benefits to
Participants and Beneficiaries, or defraying reasonable expenses of Plan
administration and/or (iv) not made to a party in interest (within the meaning
of ERISA Section 3(14)), and/or (v) not a prohibited transaction (within the
meaning of Code Section 4975 and ERISA Section 406). If the Trustee requests,
instructions to pay benefits shall be made by the Committee on forms prepared
by
the Trustee to include any or all of the above representations. The Trustee
shall be fully protected in relying on the truth of any such representation
by
the Committee and shall have no duty to investigate whether such representations
are correct or to see to the application of any amounts paid to and received
by
the recipient.
5.3 Plan
Change.
In the
event of an amendment, merger, division, or termination of the Plan, the Trustee
shall continue to disburse funds and to take other proper actions in accordance
with the instructions of the Committee.
Section
6. Change
of Trustee.
The
Company may at any time remove any person or entity serving as a Trustee
hereunder by giving to such person or entity written notice of removal and,
if
applicable, the name and address of the successor trustee. Any person or entity
serving as a Trustee hereunder may resign at any time by giving written notice
to the Company. Any such removal or resignation shall take effect within 30
days
after notice has been given by the Trustee or by the Company, as the case may
be. Within those 30 days, the removed or resigned Trustee shall transfer, pay
over and deliver any portion of the Trust Fund in its possession or control
(less an appropriate reserve for any unpaid fees, expenses, and liabilities)
and
all pertinent records to the successor or remaining trustee; provided, however,
that any assets which are invested in a collective fund or in some other manner
which prevents their immediate transfer shall be transferred and delivered
to
the successor trustee as soon as may be practicable. Thereafter, the removed
or
resigned Trustee shall have no liability for the Trust Fund or for its
administration by the successor or remaining trustee, but shall render an
accounting to the Committee of its administration of the Trust Fund through
the
date on which its Trusteeship shall have been terminated. The Company may also,
upon 30 days’ notice to each person currently serving as a trustee, appoint one
or more persons to serve as co-Trustee hereunder.
Section
7. Miscellaneous.
7.1 Right
to Amend.
This
Trust Agreement may be amended from time to time by an instrument executed
by
the Company; provided, however, that any amendment affecting the powers, duties
or liabilities of the Trustee must be approved by the Trustee, and provided,
further, that no amendment may divert any portion of the Trust Fund to purposes
other than the exclusive benefit of the Participants and their Beneficiaries
prior to the satisfaction of all liabilities for benefits. Any amendment shall
apply to the Trust Fund as constituted at the time of the amendment as well
as
to that portion of the Trust Fund which is subsequently acquired.
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7.2 Compliance
with ERISA.
In the
exercise of its powers and the performance of its duties, the Trustee shall
act
in good faith and in accordance with the applicable requirements under ERISA.
Except as may be otherwise required by ERISA, the Trustee shall not be required
to furnish any bond in any jurisdiction for the performance of their duties
and,
if a bond is required despite this provision, no surety shall be required on
it.
7.3 Nonresponsibility
for Funding.
The
Trustee shall be under no duty to enforce the payment of any contributions
and
shall not be responsible for the adequacy of the Trust Fund to satisfy any
obligations for benefits, expenses, and liabilities under the Plan.
7.4 Reports.
The
Trustees shall file any report which they are required by law to file with
any
governmental authority with respect to this Trust, and the Committee shall
furnish to the Trustee whatever information is necessary to prepare the
report.
7.5 Dealings
with the Trustee.
Persons
dealing with the Trustee, including, but not limited to, banks, brokers,
dealers, and insurers, shall be under no obligation to inquire concerning the
validity of anything which the Trustee purports to do, nor need any person
see
to the proper application of any money paid or any property transferred upon
the
order of the Trustee or to inquire into the Trustee’s authority as to any
transaction.
7.6 Limitation
Upon Responsibilities.
The
Trustee shall have no responsibilities with respect to the Plan or Trust other
than those specifically enumerated or explicitly allocated to it under this
Trust Agreement or the provisions of ERISA. All other responsibilities are
retained and shall be performed by one or more of the Employer, the Committee,
and such advisors or agents as they choose to engage.
The
Trustee may execute any of the trusts or powers hereof and perform any of its
duties by or through attorneys, agents, receivers or employees and shall not
be
answerable for the conduct of the same if chosen with reasonable care and shall
be entitled to advice of counsel concerning all matters of trust hereof and
the
duties hereunder, and may in all cases pay such reasonable compensation to
all
such attorneys, agents, receivers and employees as may reasonably be employed
in
connection with the trusts hereof. The Trustee may act upon the opinion or
advice of any attorney (who may be the attorney for the Trustee or attorney
for
the Committee), approved by the Trustee in the exercise of reasonable care.
The
Trustee shall not be responsible for any loss or damage resulting from any
action or non-action in good faith in reliance upon such opinion or
advice.
The
Trustee shall be protected in acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram or other paper or document
believed to be genuine and correct and to have been signed or sent by the proper
person or persons, and the Trustee shall be under no duty to make any
investigation or inquiry as to any statement contained in any such writing
but
may accept the same as conclusive evidence of the truth and accuracy of the
statements therein contained.
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The
Trustee shall not be liable for other than their gross negligence or willful
misconduct. Except in the case of gross negligence or wilful misconduct on
the
part of the Trustee, 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. Unless the Trustee participates knowingly in, or
knowingly undertakes to conceal, an act or omission of the Committee 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.
Before
taking any action hereunder at the request or direction of the Committee, the
Trustee may require that indemnity in form and amount satisfactory to the
Trustee be furnished for the reimbursement of any and all costs and expenses
to
which they may be put including, without limitation, reasonable attorneys’ fees
and to protect them against all liability, except liability which is adjudicated
to have resulted from the gross negligence or willful misconduct of the Trustee
by reason of any action so taken.
No
provision of this Trust Agreement shall require the Trustee to expend or risk
their own funds or otherwise incur any financial liability in the performance
of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment
of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to them.
7.7 Qualification
of the Plan and Trust.
The
Trustee shall be fully protected in assuming that the Plan and Trust meet the
requirements of Code Sections 401 and 501, respectively, and all the applicable
provisions of ERISA, unless they are advised to the contrary in writing by
the
Committee or a governmental agency.
7.8 Party
in Interest Information.
The
Employer shall provide the Trustee with such information concerning the
relationship between any person or organization and the Plan as the Trustee
reasonably requests in order to determine whether such person or organization
is
a party in interest with respect to the Plan within the meaning of ERISA Section
3(14).
7.9 Disputes.
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.
7.10
Successor
Trustee.
This
Trust Agreement shall apply to any person who shall be appointed to succeed
the
person currently appointed as the Trustee; and any reference herein to the
Trustee shall be deemed to include any one or more individuals or corporations
or any combination thereof who or which have at any time acted as a co-trustee
or as the sole trustee.
7.11
Governing
State Law.
This
Trust Agreement shall be interpreted in accordance with the laws of the
Commonwealth of Pennsylvania to the extent those laws may be applicable under
the provisions of ERISA.
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IN
WITNESS WHEREOF, the parties hereto have executed this Trust Agreement as of
the
day and year first above written.
ATTEST:
|
BENEFICIAL
MUTUAL SAVINGS BANK
|
___________________________
|
By:
_______________________________
|
For the Entire Board of Directors
|
|
ATTEST:
|
[_____________________]
|
as
TRUSTEE
|
|
___________________________
|
__________________________________
|
Duly
authorized Trust Officer
|
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