Exhibit 10.45
TRUST AGREEMENT
Dated as of January 31, 1995
between
ASTORIA FINANCIAL CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
as Trustee,
for the benefit of
Participating Employees
to Provide for the Payment of
Certain Retirement Benefits Described Herein
TRUST AGREEMENT made and entered into as of January 31, 1995 by and
between Astoria Financial Corporation, a Delaware corporation (the "Company"),
and State Street Bank and Trust Company, a bank and trust company organized
under the laws of the Commonwealth of Massachusetts (the "Trustee").
WHEREAS, the Company is a party to an Agreement and Plan of Merger
among the Company, Astoria Federal Savings and Loan Association (the
"Association") and Fidelity New York F.S.B. (the "Bank"), dated as of July 12,
1994, as amended (the "Merger Agreement"), a copy of which has been provided to
the Trustee;
WHEREAS, Section 4.03(b)(i) of the Merger Agreement provides that the
Company shall, or shall cause the Association to, assume and perform the
obligations of the Bank under certain Employment Agreements between the Bank and
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx and Xxxxxxxxx X. Xxxxx (the "Employment
Agreements" and the "Executives," respectively) and that the Company shall
guarantee the performance by the Association under such Employment Agreements;
WHEREAS, Section 5(g) of the Employment Agreements provides for
certain supplemental pension benefits to be paid to the Executives (the "SERP
Benefits");
WHEREAS, Section 5(e) of the Employment Agreements provides for
certain continued health (including dental), life and long-term disability
insurance coverage to be provided to the Executives (the "Welfare Benefits");
WHEREAS, the Bank's Excess Benefit Plan (within the meaning of section
3(36) of ERISA) provide for certain other benefits to the Executives (the
"Excess Benefits");
WHEREAS, the Company desires to amend the SERP Benefits and the
Welfare Benefits in the manner set forth herein and the Executives each shall
agree, effective upon the establishment of the trust established hereby, to have
such benefits so amended;
WHEREAS, the Merger Agreement provides that the Company shall make
certain payments in full settlement of the Executives' entitlements to Excess
Benefits.
WHEREAS, the Company wishes to establish a trust (the "Trust") to aid
the Company in meeting its obligations to pay the Benefits (as defined in
Section 1.5 hereof);
WHEREAS, the Company intends to make contributions to the Trust at the
times and in the amounts set forth herein and further intends that such
contributions shall be held by the Trustee in trust and invested and reinvested
in accordance with the provisions of this Trust Agreement;
WHEREAS, the Trust is intended to be a "grantor trust" within the
meaning of Section 671 of the Internal Revenue Code of 1986; and
WHEREAS, the Company intends that the assets of the Trust at all times
shall be
subject to the claims of bankruptcy creditors of the Company as provided in
Section 16 of this Trust Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Trustee declare and agree as follows:
SECTION 1 Amendment of Benefits.
1.1 Amount of Benefit.
1.1.1 In General. In lieu of the amounts to which each Executive is
entitled under (i) Sections 5(e) and (g) of the Employment Agreement to which
such Executive is a party and (ii) the Bank's Excess Benefit Plan, the Executive
shall instead be entitled to any and all amounts credited to his Account under
the provisions hereof from time to time.
1.1.2 Insolvency. For purposes of determining the amount of each
Executive's Benefit under Section 1.1.1, any reduction in the amount credited to
the Account of the Executive pursuant to Section 16.1 shall be ignored. In
addition, in the event of any such reduction, the amount credited to the
Executive's Account thereafter shall be deemed to be increased by hypothetical
interest credited on the amount of any such reduction at a rate for each
calendar year equal to the corporate bond rate for seasoned issues, all
industries, as of January 1 of such year, compounded annually. In the event of
any reimbursement to an Executive's Account pursuant to Section 16.3 hereof, the
amount of such reimbursement shall not be deemed to increase the amount credited
to the Account of such Executive for purposes of determining the amount of such
Executive's Benefit under Section 1.1.1. In addition, effective upon the receipt
of any such reimbursement, hypothetical interest shall cease to be credited to
such Participant's Account with respect to the reimbursed amount.
1.2 Timing of Payment of Benefit. The amount described in Section 1.1
with respect to each Executive shall be paid by the Trust to such Executive in
five approximately equal annual installments to be paid on the first business
day of each calendar year from 2000 through 2004.
1.3 Death of Executive. Notwithstanding Section 1.2 hereof, as soon as
practical following the death of an Executive, the entire amount credited to the
Account of the Executive shall be paid by the Trust to the beneficiary or
beneficiaries designated by the Executive to the Company. Upon the death of the
Executive, all rights of the Executive with respect to this Trust shall inure to
the beneficiaries so designated. In the event that more than one beneficiary is
so designated, such beneficiaries shall act with respect to such rights at the
discretion of a majority thereof.
1.4 Certain Transactions. Notwithstanding Section 1.2 hereof, if, in
connection with any consolidation of the Company with, or merger of the Company
with or into, any corporation or corporations, or any sale or conveyance of all
or substantially all of the assets of the Company,
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the corporation formed by such consolidation, or with or into which the Company
is merged, or the person that acquires the assets of the Company, does not
assume, by contract or by operation of law, in a form reasonably satisfactory to
the Trustee, the duties and obligations of the Company under this Trust
Agreement, the entire amount credited to the Account of the Executive shall be
paid to the Executive on the date of such event.
1.5 Definition. The term "Benefits" as used herein shall, in the case
of each Executive, refer to the amount determined under Section 6.2, as adjusted
from time to time under Section 6.3.
SECTION 2 Establishment of the Trust.
2.1 Trust Fund. The Company hereby establishes the Trust. The Trust
shall consist of such money and other property acceptable to the Trustee as is
from time to time paid or delivered to the Trustee. All such money and other
property, all investments and reinvestments made therewith or proceeds thereof
and all earnings and profits thereon, less all payments and charges as
authorized herein, shall constitute the "Trust Fund." The Trust Fund shall be
held by the Trustee in trust and shall be dealt with in accordance with the
provisions of this Trust Agreement.
2.2 Irrevocability. Except as provided in Section 16 hereof, the Trust
shall be for the exclusive purpose of aiding the Company in providing the
Benefits in accordance with the provisions of this Trust Agreement. No part of
the income or corpus of the Trust Fund shall be recoverable by the Company
except as otherwise may be provided in Section 16 hereof.
2.3 Claims of Bankruptcy Creditors. Notwithstanding anything in this
Trust Agreement to the contrary, the Trust Fund shall at all times be subject to
the claims of bankruptcy creditors of the Company, as provided in Section 16
hereof. The Executives shall have no greater claim against the Trust Fund than a
general unsecured creditor of the Company.
SECTION 3 Acceptance by the Trustee.
3.1 Acceptance by Trustee. The Trustee accepts the Trust established
under this Trust Agreement on the terms and subject to the provisions set forth
herein. The Trustee agrees to discharge and perform fully and faithfully all of
the duties and obligations imposed upon it under this Trust Agreement.
SECTION 4 Investment of the Trust.
4.1 General Duty of Trustee. The Trustee shall invest and reinvest the
Trust Fund in accordance with the Investment Guidelines set forth on Appendix A
attached hereto.
4.2 Additional Powers of Trustee. Subject to the provisions of Section
4.1, the Trustee shall have the following additional powers and authority with
respect to all property
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constituting a part of the Trust Fund:
4.2.1 To purchase securities (including shares of common stock in any
registered investment company) or any other kind of property and to retain such
securities or other property, regardless of diversification and without being
limited to investments authorized by law for the investment of trust funds.
4.2.2 To sell, exchange or transfer any such property at public or
private sale for cash or on credit and grant options for the purchase or
exchange thereof.
4.2.3 To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating to any such
property, and to consent to or oppose any such plan or any action thereunder, or
any contract, lease, mortgage, purchase, sale or other action by any corporation
or other entity any of the securities of which may at any time be held in the
Trust Fund, and to do any act with reference thereto.
4.2.4 To deposit any such property with any protective, reorganization
or similar committee; to delegate discretionary power to any such committee; and
to pay part of the expenses and compensation of any such committee and any
assessments levied with respect to any property so deposited.
4.2.5 To exercise any conversion privilege or subscription right
available in connection with any such property, and to do any act with reference
thereto, including the exercise of options, the making of agreements or
subscriptions and the payment of expenses, assessments or subscriptions, which
may be deemed necessary or advisable in connection therewith, and to hold and
retain any securities or other property which it may so acquire.
4.2.6 To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to settle, compromise or
submit to arbitration any claims, debts or damages, due or owing to or from the
Trust.
4.2.7 To exercise, personally or by general or limited power of
attorney, any right, including the right to vote, appurtenant to any securities
or other such property.
4.2.8 To hold cash awaiting investment uninvested, and to maintain
such additional cash balances as it shall deem reasonable or necessary to meet
anticipated cash distributions from the Trust Fund.
4.2.9 To invest at the Trustee, or any affiliated bank, in any type of
interest-bearing investment, including, without limitation, deposit accounts,
certificates of deposit and repurchase agreements.
4.2.10 To invest and reinvest all or any specified portion of the
Trust Fund through
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the medium of any common trust fund which has been or may hereafter be
established and maintained by the Trustee.
4.2.11 To form corporations or partnerships and to create trusts to
hold title to any property constituting the Trust Fund, upon such terms and
conditions as may be deemed advisable.
4.2.12 To acquire, renew or extend or participate in the renewal or
extension of any mortgage, and to agree to a reduction in the rate of interest
on any indebtedness or mortgage or to any other modification or change in the
terms of any indebtedness or mortgage or of any guarantee pertaining thereto, in
any manner and to any extent that may be deemed advisable for the protection of
the Trust or the preservation of any covenant or condition of any indebtedness
or mortgage or in the performance of any guarantee, or to enforce any default in
such manner and to such extent as may be deemed advisable; and to exercise and
enforce any and all rights of foreclosure, to bid on any property on
foreclosure, to take a deed in lieu of foreclosures with or without paying a
consideration therefor and in connection therewith to release the obligation on
the bond secured by such mortgage, and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
such indebtedness or mortgage or guarantee.
4.2.13 To engage legal counsel, including counsel to the Company, or
any other suitable agents, to consult with such counsel or agents with respect
to the construction of this Trust Agreement, the duties of the Trustee
hereunder, the transactions contemplated by this Trust Agreement or any act
which the Trustee proposes to take or omit, to rely upon the advice of such
counsel or agents and be protected in relying upon such advice, and to pay any
such counsel's or agent's reasonable fees, expenses and compensation.
4.2.14 To register or hold any securities or other property held by it
in its own name or in the name of any custodian of such property or of its
nominee, including the nominee of any system for the central handling of
securities, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, to deposit or arrange for the
deposit of any such securities with such a system and to hold any securities in
bearer form.
4.2.15 To make, execute and deliver, as Trustee, any and all deeds,
leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers,
releases or other instruments in writing that are necessary or proper for the
accomplishment of any of the foregoing powers.
4.2.16 Generally, to exercise any of the powers of an owner with
respect to property held in the Trust Fund.
SECTION 5 Establishment and Maintenance of Benefit Schedule.
5.1 Copies of Certain Documents. The Company has provided the Trustee
with a copy of each Employment Agreement, the Merger Agreement and the Bank's
Excess Benefit Plan, each as in effect on the date of delivery thereof and shall
provide the Trustee with a certified copy
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of any amendment to any such document within 90 days after its adoption.
5.2 Form of Benefit Schedule. The Company has provided to the Trustee
a schedule that sets forth (a) the name of each Executive and the address to
which any notice to such Executive that may be required hereunder may be sent
and (b) the names of the beneficiary or beneficiaries of each Executive to whom
payments required to be made to hereunder after the Executive's death shall be
made. Such Schedule (or any amendment or substitution thereof) is hereinafter
referred to as the "Benefit Schedule."
5.3 Maintaining the Benefit Schedule. Each Executive shall be entitled
to update the portions of the Benefit Schedule applicable to him from time to
time by delivering a notice to the Trustee setting forth the updated
information. The Trustee shall be entitled to rely upon the Benefit Schedule,
updated as provided herein, without a duty of further inquiry.
5.4 Executive Requests. At the request of any Executive (or, in the
event of the death of an Executive, one or more of his designated
beneficiaries), the Trustee shall deliver to such Executive (or beneficiaries) a
copy of the information contained in the Benefit Schedule that pertains to such
Executive (or to such beneficiaries).
SECTION 6 Maintenance of Trust and Accounts.
6.1 Accounts. The Trustee shall maintain within the Trust an account
with respect to each Executive (each an "Account" or an "Executive Account").
6.2 Contribution to the Trust and Allocation to Accounts.
6.2.1 The Company shall make a cash contribution to the Trust on
January 31, 1995 in an amount equal to Two Million Two Hundred Forty-nine
Thousand Two Hundred Forty-three Dollars ($2,249,243). The Trustee shall
allocate on its books and records a portion of the contribution to the Trust to
each Executive's Account equal to:
Xx. Xxxxxxxx: $1,072,204
Xx. Xxxx: 471,782
Xx. Xxxxx: 705,257
Total: $2,249,243
6.2.2 The Trustee shall hold and invest all contributions to the
Trust, and all earnings on and reinvestments thereof, as a single commingled
fund.
6.3 Allocation of Investment Earnings. All investment earnings, gains
and losses with respect to the portion of the assets of the Trust Fund allocated
to the Account of each Executive on the books and records of the Trustee shall
be allocated to the Account of such Executive.
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6.4 Valuation of Accounts. The Trustee shall revalue the Trust Fund
and each Executive's Account as of the last business day of each calendar
quarter and report such valuation to the Company and, with respect to the
Account of each Executive, such Executive as soon as practical thereafter.
SECTION 7 Distributions from the Trust.
7.1 Distributions from the Trust. The Trustee shall distribute from
the Trust to each Executive the amounts to which the Executive is entitled at
the times provided by Section 1 hereof. The Trustee shall reduce the amount
allocated to an Executive's Account to reflect any distributions of Benefits to
the Executive and shall not distribute to any Executive an amount that exceeds
the amount credited to that Executive's Account. Subject to the provisions of
Section 16.1, the Trustee shall make the distributions described in this Section
7.1 notwithstanding any contrary instruction, claim or threat of litigation by
the Company or any other person, unless the Trustee shall have been ordered by a
court of competent jurisdiction not to make such distributions.
7.2 Protection of Trustee. The Trustee shall, to the maximum extent
permitted by applicable law, be fully indemnified by the Company in acting upon
the Benefit Schedule and any written statement, affidavit or certification
referred to in this Trust Agreement, including any notification or failure to
notify the Trustee under Section 7.6. The Trustee shall at all times, to the
maximum extent permitted by applicable law, be fully indemnified by the Company
in making distributions pursuant to Sections 7 and 16 hereof.
7.3 The Company's Obligations. Except as provided in Section 16.3, by
payment to the Trust of the amount specified in Section 6.2 the Company shall
satisfy all of its obligations to each Executive hereunder. The Company shall
have no obligation to make payments hereunder other than as provided in the
preceding sentence and in Section 8.
7.4 Trustee as Holder of Legal Title to Trust Assets. Subject to
Section 16 hereof, the Trustee shall hold legal title to all assets in the Trust
for benefit of the Executives.
7.5 Federal Income Tax Consequences of the Trust. The Trust Fund may
be applied in the discharge of legal obligations of the Company as provided
herein. Accordingly, the Company shall take into account in computing its tax
liability those items of income, deductions and credits against tax attributable
to assets held in the Trust to which the Company would have been entitled had
the Trust not been in existence. The Trustee shall notify the Company promptly
after it becomes aware of any tax liability assessed against, or imposed upon,
the Trust or the Trustee in its capacity as Trustee of the Trust. The Company
shall be responsible for all matters in respect of such assessment or
imposition, and shall have sole responsibility for any defense in connection
therewith. Payments in respect of any such tax liability, including, without
limitation, interest and penalties, shall be made by the Company and not from
the Trust Fund.
7.6 Withholding Tax. Upon receipt of written withholding instructions
from the
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Company, the Trustee shall reduce the amount of any distribution to an Executive
by an amount which the Company notifies the Trustee is sufficient to satisfy the
minimum federal, state, local and other withholding tax requirements applicable
to such distribution. The Trustee shall be under no obligation to withhold any
amounts in the absence of such instructions.
SECTION 8 Expenses, Compensation and Indemnification.
8.1 Expenses. The Trustee shall be reimbursed by the Company for its
reasonable expenses of management and administration of the Trust in accordance
with the provisions (including Section 6) hereof, including the reasonable
compensation of attorneys or other agents engaged by the Trustee to assist it in
such management and administration, but not including commission or other
transaction or investment costs, which shall be paid out of the Trust Fund.
8.2 Compensation. The Company shall pay the Trustee compensation in
accordance with the compensation schedule attached hereto as Appendix B, unless
the Company and the Trustee otherwise agree in writing after the Closing Date.
8.3 Indemnification. The Company hereby agrees to indemnify and hold
harmless the Trustee from and against any losses, costs, damages, claims or
expenses, including without limitation reasonable attorneys' fees, which the
Trustee may incur or pay out in connection with, or otherwise arising out of:
8.3.1 the performance by the Trustee of its duties hereunder, unless
any such loss, cost, damage, claim or expense is a result of negligence or
willful misconduct by the Trustee or the breach by the Trustee of its fiduciary
duties hereunder; or
8.3.2 any action taken by the Trustee in good faith pursuant to the
written direction of the Company.
In the event that any action or regulatory proceeding shall be
commenced or claim asserted which may entitle the Trustee to be indemnified
hereunder, the Trustee shall give the Company written notice of such action or
claim promptly after becoming aware of such commencement or assertion. The
Company shall be entitled to participate in and, upon notice to the Trustee,
assume the defense of any such action or claim using counsel reasonably
acceptable to the Trustee. The Trustee shall cooperate with the Company in
connection with the defense of any such action or claim unless, in the opinion
of counsel to the Trustee, there exists a material conflict of interest between
the Trustee and the Company or unless the Company has not appointed counsel
reasonably acceptable to the Trustee.
8.4 Exclusive Rights. The Trustee shall have no claim on the assets of
the Trust Fund in respect of amounts payable to the Trustee under this Section
8.
SECTION 9 Administration and Records.
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9.1 Records. The Trustee shall keep or cause to be kept accurate and
detailed accounts of any investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records relating thereto
shall be open to inspection and audit at all reasonable times by any person
designated by the Company or an Executive. The Trustee shall preserve all such
accounts, books and records, in original form or on microfilm, magnetic tape or
any other similar process, for such period as the Trustee may determine, but the
Trustee may destroy such accounts, books and records only after first notifying
the Company and each Executive in writing of its intention to do so and
transferring to the Company and each Executive any of such accounts, books and
records that the Company or such Executive shall request.
9.2 Settlement of Accounts. Within 60 days after the close of each
calendar half-year, and within 60 days after the removal or resignation of the
Trustee or the termination of the Trust, the Trustee shall file with each
Executive a written account setting forth all investments, receipts,
disbursements and other transactions effected by it during the preceding
six-month period or during the period from the close of the preceding six-month
period to the date of such removal, resignation or termination and pertaining to
the Account of such Executive, including a description of all investments and
securities 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 six-month period or other period. The Trustee shall also file with the
Company a copy of each such account.
It shall be the duty of the Company to review such written accounts,
and of each Executive to review such written account applicable to him, promptly
within 60 days from the date of filing any such account and if, within such
60-day period, neither the Executive nor the Company files with the Trustee a
written notice of objection to any of the Trustee's acts or transactions, the
initial account shall become an account stated between the Trustee, the Company
and such Executive. If the Company or an Executive files a written notice of
objection with the Trustee, the Trustee may file with the Company and each
applicable Executive an adjusted account, in which case it shall be the duty of
the Company and such Executive to review such adjusted account promptly within
30 days from the date of its filing. If, within such 30-day period, the Company
and such Executive fails to file a written notice of objection to any of the
Trustee's acts or transactions as so adjusted with the Trustee, the adjusted
account shall become an account stated between the Trustee, such Executive and
the Company.
Unless an account is fraudulent, when it becomes an account stated it
shall be finally settled, and the Trustee shall, to the maximum extent permitted
by applicable law, be forever released and discharged from all liability and
accountability with respect to the propriety of its acts and transactions shown
in such account.
9.3 Audit. The Trustee shall from time to time permit an independent
public accountant selected by the Company or by the Executives to have access
during ordinary business hours to such records as may be necessary to audit the
Trustee's accounts.
9.4 Judicial Settlement. Nothing contained in this Trust Agreement
shall be
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construed as depriving the Trustee, the Company or any Executive of the right to
have a judicial settlement of the Trustee's accounts. Upon any proceeding for a
judicial settlement of the Trustee's accounts or for instructions the only
necessary parties thereto shall be the Trustee, the Company and, to the extent
of any dispute involving the Account of an Executive, such Executive.
9.5 Delivery of Records to Successor. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor Trustee
all records which shall be required by the successor Trustee to enable it to
carry out the provisions of this Trust Agreement.
9.6 Tax Filings. In addition to any returns required of the Trustee by
law (e.g., any information return required to be filed on IRS Form 1041), the
Trustee shall prepare and file such tax reports and other returns as the Company
and the Trustee may from time to time agree.
SECTION 10 Removal or Resignation of the Trustee and Designation of Successor
Trustee.
10.1 Removal. The Trustee may be removed with or without cause upon at
least 90 days' notice in writing to the Trustee from the Company and Xx.
Xxxxxxxx. No removal of the Trustee shall be effective until the Company has
appointed in writing a successor Trustee, which must be a nationally recognized
bank or trust company, such successor has accepted the appointment in writing
and such successor has been approved by Xx. Xxxxxxxx.
10.2 Resignation. The Trustee may resign at any time upon at least 90
days' notice in writing to the Company, except that any such resignation shall
not be effective until the Company has appointed in writing a successor Trustee,
which must be a nationally recognized bank or trust company, and such successor
has accepted the appointment in writing and has been approved by Xx. Xxxxxxxx.
At any time after 30 days following the sending of such notice, if the Company
is unable to appoint a successor Trustee or if a successor Trustee has not
accepted an appointment or has not been approved by Xx. Xxxxxxxx, the Trustee
shall be entitled, at the expense of the Company, to petition a United States
District Court or any other court having jurisdiction to appoint its successor.
10.3 Successor Trustee. Each successor Trustee, during such period as
it shall act as such, shall have the powers and duties herein conferred upon the
Trustee, and the word "Trustee" wherever used herein, except where the context
otherwise requires, shall be deemed to include any successor Trustee. Upon
designation of a successor Trustee and delivery to the resigned or removed
Trustee of written acceptance by the successor Trustee of such designation, such
resigned or removed Trustee shall promptly assign, transfer, deliver and pay
over to such Trustee, in conformity with the requirements of applicable law, the
funds and properties in its control or possession then constituting the Trust
Fund.
SECTION 11 Enforcement of Trust Agreement.
11.1 Rights of Parties to Enforce the Trust Agreement. The Company and
the Trustee shall have the right to enforce any provision of this Trust
Agreement. Each Executive shall
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have the right as a beneficiary of the Trust to enforce any provision of this
Trust Agreement that affects the right, title and interest of such Executive in
the Trust. In any action or proceeding affecting the Trust, the only necessary
parties shall be the Company, the Trustee and the affected Executives and,
except as otherwise required by applicable law, no other person shall be
entitled to any notice or service of process. Any judgment entered in such an
action or proceeding shall, to the maximum extent permitted by applicable law,
be binding and conclusive on all persons having or claiming to have any interest
in the Trust.
11.2 Limitation on Rights of Executives and Beneficiaries. Except for
the right to enforce the Trust Agreement as provided in this Section 11,
Executives shall have no rights with respect to the Trust Fund.
SECTION 12 Termination.
12.1 Continuation of Trust. Except as provided in this Section and
Section 16, the Trust shall be irrevocable and shall continue until (a) all
payments required by Section 7 have been made or (b) until the Trust contains no
assets and retains no claims to recover assets from the Company pursuant to any
provision hereof, whichever shall first occur.
SECTION 13 Amendment.
13.1 Amendments in General. This Trust Agreement may not be amended
except by a written instrument signed by the Company, each Executive and the
Trustee.
SECTION 14 Non-alienation.
14.1 Prohibition Against Certain Transfer, Pledges, Etc. Except as
otherwise provided by this Agreement and except as otherwise may be required by
applicable law, (a) no amount payable to or in respect of any Executive at any
time under the Trust shall be subject in any manner to alienation by
anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment,
charge, or encumbrance of any kind, and any attempt to so alienate, sell,
transfer, assign, pledge, attach, charge, or otherwise encumber any such amount,
whether presently or thereafter payable, shall be void and (b) the Trust Fund
shall in no manner be liable for or subject to the debts or liabilities of any
Executive.
SECTION 15 Communications.
15.1 To the Company and Committee. Communications to the Company shall
be addressed to:
Astoria Financial Corporation
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
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Attention: Corporate Secretary
provided, however, that upon the Company's written request, such communications
shall be sent to such other address as the Company may specify.
15.2 To the Trustee. Communications to the Trustee shall be addressed
to:
State Street Bank and Trust Company
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
provided, however, that upon the Trustee's written request, such communications
shall be sent to such other address as the Trustee may specify.
15.3 To an Executive. Communications to an Executive or to his
beneficiaries shall be addressed to the Executive or his beneficiaries,
respectively, at the address indicated on the Benefit Schedule as in effect at
the time of the communication.
15.4 Binding upon Receipt. No communication shall be binding on the
party to whom it is intended until it is received by such party.
15.5 Authority to Act. The Corporate Secretary of the Company shall
from time to time certify to the Trustee the person or persons authorized to act
for the Company and shall provide the Trustee with such information regarding
the Company as the Trustee may reasonably request. The Trustee may continue to
rely on any such certification until notified to the contrary.
15.6 Authenticity of Instruments. The Trustee shall be fully protected
in acting upon any instrument, certificate, or paper reasonably believed by it
to be genuine and to be signed or presented 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, unless it has actual knowledge that it is untrue or inaccurate.
SECTION 16 Claims of Bankruptcy Creditors.
16.1 Bankruptcy Creditors. In the event of the Company's "insolvency,"
the assets of the Trust shall be available to pay the claims of any creditor of
the Company to whom a distribution may be made in accordance with state and
federal bankruptcy laws. The Company shall be deemed to be "insolvent" if such
Company is subject to a pending proceeding as a debtor under the federal
Bankruptcy Code (or any successor federal statute) or any state bankruptcy code.
In the event the Company becomes insolvent, the Chief Executive Officer of the
Company shall notify the Trustee of the event as soon as practicable. Upon
receipt of such notice, or if the Trustee receives
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other written allegations of such Company's insolvency from a third party
considered by the Trustee to be reliable and responsible, the Trustee shall
cease making payments of Benefits from the assets of the Trust, shall hold the
assets in the Trust for the benefit of such Company's creditors and shall take
such steps as are necessary to determine within a reasonable period of time
whether such Company is insolvent. In making such determination, the Trustee may
rely upon a certificate of the Board of Directors and the Chief Executive
Officer of the Company or a determination by a court of competent jurisdiction
that the Company is or is not insolvent. In the case of the Trustee's
determination of the Company's insolvency, the Trustee will deliver assets of
the Trust to satisfy claims of the Company's creditors as directed pursuant to a
final order of a court of competent jurisdiction. The Trustee shall reduce the
amounts allocated to each Executive's Account by a pro rata portion of any
amount so delivered, based on the value of Executives' Accounts on the last
business day of the calendar quarter immediately prior to the calendar quarter
in which such amount is delivered.
16.2 Resumption of Benefits. In the event the Trustee ceases making
payments of Benefits pursuant to Section 16.1, the Trustee shall resume making
payments of Benefits under this Trust Agreement only after the Trustee has
determined that the Company is not then insolvent or upon receipt of an order of
a court of competent jurisdiction requiring the payment of Benefits.
16.3 Reimbursement by the Company. In the event that any amount is
paid from the Trust Fund to bankruptcy creditors of any Company pursuant to
Section 16, the Trustee shall demand and the Company shall contribute to the
Trust a sum equal to the amount paid by the Trust to such creditors. The Trustee
shall pursue such demand vigorously through all reasonably available means. Any
such amount recovered by the Trustee shall be allocated among the Executive's
Accounts in accordance with the ratio in which such Accounts were reduced
pursuant to Section 16.1 hereof.
SECTION 17 Miscellaneous Provisions.
17.1 Binding Effect. This Trust Agreement shall be binding on the
Company and the Trustee and their respective successors and assigns.
17.2 Inquiry as to Authority. A third party dealing with the Trustee
shall not be required to make inquiry as to the authority of the Trustee to take
any action nor be under any obligation to follow the proper application by the
Trustee of the proceeds of sale of any property sold by the Trustee or to
inquire into the validity or propriety of any act of the Trustee.
17.3 Responsibility for the Company Action. The Trustee assumes no
obligation or responsibility with respect to any action required by this Trust
Agreement on the part of the Company, the Board of Directors of the Company, the
Executives or any beneficiaries. The Trustee shall be under no duties except
such duties as are specifically set forth as such in this Trust Agreement or
under applicable law, and no implied covenant or obligation shall be read into
this Trust Agreement against the Trustee.
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17.4 Successor to Trustee. Any corporation into which the Trustee may
be merged or with which it may be consolidated, or any corporation resulting
from any merger, reorganization or consolidation to which the Trustee may be a
party, or any corporation to which all or substantially all the trust business
of the Trustee may be transferred shall be the successor of the Trustee
hereunder without the execution or filing of any instrument or the performance
of any act.
17.5 Titles Not to Control. Titles to the Sections of this Trust
Agreement are included for convenience only and shall not control the meaning or
interpretation of any provision of this Trust Agreement.
17.6 Laws of Commonwealth of Massachuseus to Govern. This Trust
Agreement and the Trust established hereunder shall be governed by and
construed, enforced, and administered in accordance with the laws of the
Commonwealth of Massachusetts, without reference to the principles of conflicts
of law.
17.7 Severability. The provisions hereof shall be severable and the
unenforceability of any such provision shall not effect the enforceability of
any other provision hereof.
17.8 ERISA. Nothing herein shall be construed to subject the Trust to
the Employee Retirement Income Security Act of 1974, as amended.
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IN WITNESS WHEREOF, this Trust Agreement has been duly executed by the
parties hereto as of the day and year first above written.
ASTORIA FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Attest: /s/ Xxxxxxx X. Xxxxxxx
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STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE
By: /s/ [Signature], Vice President
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Attest:
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Appendix A
INVESTMENT POLICY GUIDELINES
ASTORIA FINANCIAL CORPORATION TRUST FUND
The investment objective for the Astoria Financial Corporation Trust Fund ("the
fund" or "the portfolio") is to provide for benefit payments as described in
greater detail in the trust agreement. After the initial funding, the fund will
be allowed to compound interest payments with no withdrawals until 2000. At that
time, the fund will begin to pay out its balance in five equal installments to
each participant over five years. The portfolio will be invested in tax exempt
notes, tax-exempt bonds and tax-exempt money market funds. The funds will be
invested within the following guidelines:
Asset Quality:
All of the holdings will be of investment grade with not more than 25% of all
bond holdings rated "BBB" / "Baa" or comparable short term ratings by either
Standard & Poor's or Xxxxx'x Investors Services. The fund may invest in tax
exempt bonds and tax exempt notes, tax exempt commercial paper, and tax exempt
money market funds. New York issues are preferred for their double tax exempt
status. The fund may invest temporarily in U.S. Government obligations or
taxable money market funds if there is a lack of available tax exempt issues or
funds.
Asset Allocation
Given the relatively short time horizon for the account, we expect to be fully
invested in tax exempt bonds and notes up until 2000 when we will gradually
build cash, either through sales or maturities, to meet withdrawal requirements.
Enough cash will be kept in reserve to fund transactions costs and fees, but,
generally, the cash balance will not exceed 10% of the value of the fund.
Exposure to any one issue or entity, other than general obligation bonds, should
not exceed 25% of the market value of the portfolio.
Maturity Parameters:
This fund will be managed as a short to intermediate term tax exempt bond fund.
Depending on market conditions and the shrinking time horizon of the trust, the
fund will have an average weighted maturity of between zero and five years. The
fund will not purchase any securities with maturities of greater than ten years.
The portfolio may be "immunized" to meet known cash flow requirements,
particularly the withdrawals of the participants.
Reporting:
Performance reports will be sent to the beneficiaries of the Astoria Financial
Corporation Trust Fund on a quarterly basis starting with March 31, 1995. The
appropriate benchmark for comparison will be the Xxxxxx Brothers Municipal
Index.
I understand and agree to the aforementioned guidelines:
Date:
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Title:
/s/ Xxxxxxxx X Xxxxx Date: January 12. 1994
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Title: Senior Investment Officer,
State Street
