Exhibit 4.4(c)
BANKERS TRUST COMPANY, N.A.
CUSTODIAL TRUST AGREEMENT
This agreement is made by and between the Bankers Trust Company, N.A. of Des
Moines, Iowa (the "Sub-trustee") and Delaware Charter Guarantee & Trust Company,
a Delaware corporation conducting business under the trade name of Trustar(sm)
Retirement Services (the "Trustee")
The Employer has adopted a qualified employee benefit plan called the Equity
One, Inc. Savings and Retirement Plan (the "Plan"). Any change in Plan Name
shall not affect this agreement. The Trustee has been appointed by the Employer
to hold the assets of the Plan. Pursuant to its authority under the terms of its
Directed Trust Agreement dated September 1, 2002, The Trustee is, by this
Agreement, employing Sub-Trustee with respect to Plan assets which are
Qualifying Employer Securities.
For purposes of this document, the terms have the same definition as they do
under the terms of the Plan. This agreement is effective as of the date that it
has been accepted by the Sub-trustee.
The Trustee and the Sub-trustee mutually agree as follows:
SECTION .01 - LIMITED SCOPE.
Other provisions of this Plan to the contrary notwithstanding, the duties,
responsibilities, and liability of the Sub-trustee shall be governed solely by
the terms of this agreement. The Trust shall hold only those assets which the
Sub-trustee accepts and which are actually received by the Sub-trustee (the
"Trust Fund"). The Sub-trustee shall have no responsibility for any funds
deposited or invested with Principal Life Insurance Company, (the "Insurer")
under any group Annuity Contract and such contracts shall not constitute a part
of the Trust Fund. In addition, any funds held under any other trust agreement
shall not constitute any portion of the Trust Fund.
The corpus or income of the Trust Fund shall not be used for, or diverted to,
purposes other than for the exclusive benefit of the Members or their
Beneficiaries.
SECTION.02 - THE SUB-TRUSTEE.
The Sub-trustee accepts appointment as Sub-trustee by executing this agreement
and the Trust is established as of the effective date of this agreement. The
Trustee has the power to appoint an additional or successor Sub-trustee at any
time. An additional or successor sub-trustee will accept such appointment in
writing.
The Trustee may remove the Sub-trustee upon thirty (30) days prior written
notice. The Sub-trustee may resign at any time upon thirty (30) days written
notice to the Trustee; or, with the consent of the Trustee, the Sub-trustee may
resign with less than thirty (30) days prior written notice. Upon such removal
or resignation of the Sub-trustee, the Trustee shall appoint a successor
sub-trustee, who shall have the same powers and duties as those conferred upon
the Sub-trustee hereunder.
If the appointed sub-trustee fails to accept the appointment, or if the Trustee
fails to appoint a successor sub-trustee within thirty (30) days of the
resignation or removal of the Sub-trustee, the Trustee shall be appointed
successor sub-trustee and shall be deemed to have filed its acceptance of
appointment as the Sub-trustee.
When appointment has been accepted, or deemed accepted, by a successor
sub-trustee, the removed or resigning Sub-trustee must assign, transfer, pay
over, and deliver to the successor sub-trustee all of the assets which then
constitute the Trust Fund. No successor shall be obliged to examine the
accounts, records, and acts of any previous Sub-trustee or Sub-trustees, and
such successor sub-
trustee in no way or manner shall be responsible for any action or omission to
act on the part of any previous Sub-trustee.
If there are two or more persons appointed as Sub-trustee, they may, in writing,
name one of their number to act in the execution of all documents relating to
the Plan and trust. When more than two persons have been appointed Sub-trustees,
all acts and decisions shall be made by majority vote.
The Trustee shall notify the Insurer of any change of Trust Agreement or
Sub-trustee.
SECTION .03 - DUTIES OF THE SUB-TRUSTEE.
The Sub-trustee shall accept and hold the Trust Fund and administer it according
to the provisions of this agreement and the provisions of the Plan. The
Sub-trustee has no duty to demand or require that Contributions be made to the
trust, nor shall the Sub-trustee be liable to determine the amount of any
Contributions to the trust or the adequacy of such Contributions to meet or
discharge any liabilities under the Plan.
The Plan is administered by the Plan Administrator. The Sub-trustee is not
responsible for any aspect of its administration. The Sub-trustee is not
required to look into any action taken by the Trustee and will be fully
protected in taking, permitting, or omitting any action on the basis of their
instructions or direction. Any instructions or direction by the Trustee shall be
evidenced in writing. The Trustee will indemnify the Sub-trustee by satisfying
any liabilities the Sub-trustee may incur in acting according to the Trust
provisions upon written instruction from the Trustee.
It is the desire of the Trustee that the custodial Sub-trustee's role under this
Trust Agreement is to be ministerial only. To that end, this section and the
following section pertaining to the duties and powers of the custodial
Sub-trustee are restricted to those duties and powers specifically set forth in
this Trust Agreement.
SECTION .04 - POWERS OF THE SUB-TRUSTEE.
The Sub-trustee, if authorized in writing by the Trustee to do so, is authorized
and empowered to:
a) hold title to the assets of the Trust Fund, which may include entering
into depository arrangements for the safekeeping of records relevant to
the ownership of such assets with any bank or banks as the Sub-trustee
may choose, and invest the Trust Fund in one or more of the following
classes of assets as directed by the Trustee:
1) cash or other short-term investments including savings
accounts and money market funds to the extent deemed advisable
by the Trustee or the Plan Administrator and/or the
Sub-trustee in order to satisfy the liquidity needs of the
Plan;
2) common or preferred stock of the Employer or an affiliate of
the Employer provided the securities are regularly traded on a
national securities exchange; and
b) vote Qualifying Employer Securities in the manner described in the
Plan.
c) to refrain from managing and controlling the investments of the Trust
Fund, it being contemplated that all Plan assets will be under the
control of a properly appointed Investment Manager, the Employer, the
Plan Administrator, the named Fiduciary, subject to the Trustee's
direction. The Sub-trustee shall not be responsible for reviewing
reports provided by any Investment Manager.
SECTION .05 - COMPLEMENTARY POWERS OF THE SUB-TRUSTEE.
In exercising its powers under Section .04 of this agreement and discharging its
duties generally under
this agreement, the Sub-trustee shall have the following powers with respect to
the Trust Fund:
a) employ, and pay reasonable compensation to, agents, brokers,
broker/dealers, attorneys, accountants, or other persons, whose advice
or services the Sub-trustee may deem necessary in carrying out its
duties and powers;
b) make, execute, acknowledge, and deliver any instruments that may be
necessary to carry out the duties and powers granted hereunder; and
c) institute, maintain, or defend any litigation necessary in connection
with the administration of the trust, provided, the Sub-trustee shall
be under no duty or obligation to do so unless it shall be indemnified
to its satisfaction against all expenses and liabilities which it may
sustain or be paid reasonable compensation for its own extraordinary
services in connection therewith.
SECTION .06 - EXPENSES.
The Sub-trustee shall be reimbursed by the Trustee for all reasonable expenses
incurred by the Sub-trustee in exercising its powers and carrying out its duties
under this agreement and for such reasonable compensation for the Sub-trustee as
may be agreed upon from time to time by the Trustee and the Sub-trustee. If, and
to the extent, the Trustee does not pay such expenses, fees, charges and
compensation, they shall be paid from the Trust Fund.
SECTION .07 - ACCOUNTING.
The Sub-trustee shall maintain true and accurate records and accounts reflecting
all receipts and disbursements of the Trust Fund and containing a description of
all Trust Fund assets held hereunder. These records must be open to inspection
and audit by the Trustee at all reasonable times.
Writing (handwriting, typing, printing), photostating, photographing,
microfilming, magnetic impulse, mechanical or electrical recording, or other
forms of data compilation shall be acceptable means of keeping records.
The Sub-trustee shall file all reports, returns and information required to be
filed by Sub-trustees under the Code and regulations and rulings issued under
the Code.
The Sub-trustee shall file with the Trustee an accounting of its transactions as
soon as practical after the first day of each Plan Year or any other date
specified. Any report or accounting which the Sub-trustee files with the Trustee
is open to inspection for a period of sixty (60) days following the date it is
filed. At the end of the sixty-day period, the Sub-trustee is released and
discharged as to any matters set forth in the report or account, except with
respect to any act or omission as to which the Trustee has filed a written
objection within the sixty-day period.
In preparing its reports, the Sub-trustee shall be permitted to rely upon, and
deem accurate without the need for independent verification, reports furnished
to the Trustee, the Employer, Plan Administrator, and/or Sub-trustee by any
Investment Manager, and any other outside investment fund or custodian.
SECTION .08 - AMENDMENT.
The Trustee and the Sub-trustee jointly reserve the right to amend this Trust
Agreement by written instrument executed by both parties at any time upon terms
mutually acceptable, subject to the following paragraph. No such amendment shall
permit any part of the corpus or income of the Trust to be used or diverted to
purposes other than for the exclusive benefit of the Plan participants or
beneficiaries under the Plan
SECTION .09 - TERMINATION.
The Trustee reserves the right to terminate this Trust Agreement by a written
instrument delivered to the Sub-trustee. This Trust Agreement shall terminate
upon the dissolution or liquidation of the Trustee or the Employer unless a
successor corporation or business organization agrees in writing to assume the
obligations of the Plan and this trust. In the event of the termination of the
trust while the Plan is being continued, the remainder of the assets of the
Trust Fund shall be transferred to the person or institution authorized in
writing by the Trustee to receive such assets.
In the event of the termination of the trust on account of termination of the
Plan, the assets of the Trust Fund shall be applied to provide the benefits
specified in the Plan upon termination of the Plan.
SECTION .10 - LIMITATION ON RIGHTS AND REMEDIES.
In any action or proceeding involving the Trust Fund, or the administration of
the Trust Fund, only the Sub-trustee and the Trustee shall be the necessary
parties. Unless otherwise ordered by the court entertaining jurisdiction there
over, no other person having or claiming to have an interest in the Trust Fund
shall be entitled to any notice or service of process. Any final judgment
entered in such an action or proceeding shall be conclusive upon all persons
claiming under this Trust Agreement.
SECTION .11 - LIMITATION OF SUB-TRUSTEE'S LIABILITY.
a) Any direction to the Sub-trustee by the Trustee shall be in writing,
and shall be effective only upon receipt by the Sub-trustee. The
Sub-trustee may rely upon any and all written or oral directions or
instructions reasonably believed by it to be genuine and shall be fully
protected in acting in accordance therewith. The Trustee agrees to
indemnify and hold the Sub-trustee harmless against any loss, cost,
claim damage, expense, and liability (including attorney's fees) and
other costs it may incur in acting upon such written or oral
instructions or directions. Except for gross negligence, willful
misconduct, or willful breach of trust, the Sub-trustee shall incur no
liability for any act or failure to act pursuant to this Trust
Agreement, unless a higher standard of care is imposed by ERISA.
b) The Sub-trustee is not liable for the acts or omissions of any
Investment Manager appointed by the Trustee, Employer, the Plan
Administrator, or the Insurer, nor is the Sub-trustee under any
obligation to invest or otherwise manage any asset of the Plan which is
subject to the management of a properly appointed Investment Manager.
The Trustee, the Employer, the Plan Administrator, the Sub-trustee, and
any properly appointed Investment Manager may execute a letter of
agreement as a part of this Plan delineating the duties,
responsibilities, fee structure, and liabilities of the Investment
Manager with respect to any part of the Trust Fund under the control of
the Investment Manager.
c) The Sub-trustee may assume that the Trustee, the Employer, the Plan
Administrator, the Investment Manager, and the Insurer are discharging
their duties under this Plan and Trust Agreement unless and until it is
notified to the contrary in writing by any person known to it to be a
Member in the Plan, the Trustee, the Employer, or a governmental agency
with jurisdiction. In the event the Sub-trustee receives said written
notice, then the Sub-trustee shall provide such written notice to the
Trustee, the Employer, the Plan Administrator, or Insurer, as the case
may be and may, if it so desires, apply to a court of competent
jurisdiction and/or Federal regulatory authorities for guidance with
respect to disposition of the Trust Fund.
SECTION .12 - SECTION 404(C) COMPLIANCE.
In the event the Plan provides for Member directed investments, the Plan
Administrator agrees to
administer the Plan and trust so as to meet the provisions of ERISA Section
404(c) and the regulations promulgated thereunder. Toward this end, the Plan
shall permit the Members to choose from a broad range of investments and to
exercise the requisite control over the assets in their Accounts. In addition,
the Plan Administrator shall make certain that necessary information shall be
automatically provided to the Members in accordance with the regulations under
ERISA Section 404(c).
The Sub-trustee shall have no duty or responsibility to review any aspect
relating to compliance with ERISA Section 404(c).
SECTION .13 - MISCELLANEOUS.
a) Third Parties Dealing with Sub-trustee. To the extent permitted by law,
no person shall be obliged to see to the application of any money paid
or property delivered to the Sub-trustee, nor shall any such person be
required to take cognizance of the provisions of this Trust Agreement.
The certificate of Sub-trustee may be received by any person dealing
with the Sub-trustee as conclusive evidence of any matter relating to
this Trust Agreement or the administration thereof. In general, each
person dealing with the Sub-trustee may act upon any advice, request,
or representation in writing by the Sub-trustee, or the Sub-trustee's
duly authorized agent, and shall not be liable to any person in so
doing. In case of doubt as to whether the Sub-trustee has or has not
been granted a specific power not enumerated hereunder, the certificate
of Sub-trustee that the exercise of such power is necessary or
desirable for the proper administration or distribution of the Trust
Fund shall be conclusive upon all persons dealing with the Sub-trustee
to the same extent as if such power had been specifically granted to
the Sub-trustee.
b) Certificate of Authority from Third Parties. The Sub-trustee may
require any certificate, notice, or other instrument or information
believed by it to be necessary to perform its duties hereunder and may
rely and act upon the basis of any such certificate, notice,
instrument, or other information furnished to the Sub-trustee which it
believes to be reliable and to have been signed, made, or presented by
the proper party or parties.
c) No liability for Actions of the Trustee, the Employer and Plan
Administrator. To the extent permitted by law, the Sub-trustee shall
not be responsible for any act or omissions of the Trustee, the
Employer, the Plan Administrator, or the Named Fiduciary. The
Sub-trustee shall be under no duty to inquire into any rule,
regulation, instruction, direction, or order purporting to have been
issued by the Trustee, the Employer, the Plan Administrator, or Named
Fiduciary.
d) Applicable Law. Except to the extent that ERISA applies, the laws of
the state in which the Sub-trustee has its principal office shall
govern, control, and determine all questions arising with respect to a
Sub-trustee acting pursuant to the provisions of this Trust Agreement,
including the validity of its provisions.
e) Other. Notwithstanding anything else in this Trust Agreement, the
Sub-trustee has the right, but not the obligation, to seek guidance
from a court of competent jurisdiction and/or Federal regulatory
authorities with respect to the handling and disposition of the Trust
Fund.
SECTION .14 - EXECUTION.
This Trust Agreement shall be executed in counterparts, each of which shall be
deemed an original.
IN WITNESS WHEREOF, the undersigned has executed this Trust Agreement for the
Trustee as of the date set out below.
DELAWARE CHARTER GUARANTEE & TRUST COMPANY, a Delaware corporation conducting
business under the trade name of Trustar(sm) Retirement Services
By /s/ Xxxxxx X. Xxxxx
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(Signature)
Business Title Vice President
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Print Name Xxxxxx X. Xxxxx
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Date September 27 , 2002
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The undersigned hereby accepts appointment as Sub-trustee hereunder and agrees
to be bound by the terms of this Trust Agreement.
BANKERS TRUST COMPANY, N.A.
Des Moines, Iowa
By /s/ Xxxx X. Xxxxxx
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(Signature)
Business Title Trust Officer
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Print Name Xxxx X. Xxxxxx
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Date October 4 , 2002
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