Non-Qualified Plan Trust Agreement For Recordkept Plans
For Recordkept
Plans
This
Non-Qualified Plan Trust Agreement for Recordkept Plans (“Trust Agreement”),
entered into as of_________________ by and between Xxxxxxxxxx Realty
(the "Employer") and Xxxxxxx Xxxxx Bank & Trust Co., FSB, (the “Trustee”),
with respect to a trust forming part of the Xxxxxxxxxx Realty Investors
Deferred Compensation Plan (the “Plan”);
WHEREAS, the Employer has
adopted the non-qualified deferred compensation plan identified
above;
WHEREAS, the Employer has
incurred or expects to incur liability under the terms of such Plan with respect
to the individuals participating in such Plan;
WHEREAS, the Employer wishes
to establish a trust (the “Trust”) and to contribute to the Trust assets that
shall be held therein, subject to the claims of the Employer's creditors in the
event of the Employer's Insolvency, as herein defined, until paid to Plan
participants and their beneficiaries in such manner and at such times as
specified in the Plan;
WHEREAS, it is the intention
of the parties that this Trust shall constitute an unfunded arrangement and
shall not affect the status of the Plan as an unfunded plan maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for purpose of Title I of the Employee Retirement
Income Security Act of 1974, as amended;
WHEREAS, it is the intention
of the Employer to make contributions to the Trust to provide itself with a
source of funds to assist it in the meeting of its liabilities under the
Plan;
NOW, THEREFORE, the parties do
hereby establish the Trust and agree that the Trust shall be comprised, held and
disposed of as follows:
Section
1. Establishment Of Trust
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(a)
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Deposit of Funds. The
Employer hereby deposits with the Trustee in trust such cash and/or
marketable securities, if any, which shall become the principal of the
Trust to be held, administered and disposed of by the Trustee as provided
in this Trust Agreement.
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(b)
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Irrevocability. The
Trust hereby established shall be
irrevocable.
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(c)
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Grantor Trust. The Trust
is intended to be a grantor trust, of which the Employer is the grantor,
within the meaning of subpart E, part 1, subchapter J, chapter 1, subtitle
A of the Internal Revenue Code of 1986, as amended, and shall be construed
accordingly.
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(d)
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Trust Assets. The
principal of the Trust, and any earnings thereon, shall be held separate
and apart from other funds of the Employer and shall be used exclusively
for the uses and purposes of Plan participants and general creditors
as herein
set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of
the Trust. Any rights created under the Plan and this Trust Agreement
shall be mere unsecured contractual rights of Plan participants and their
beneficiaries against the Employer. Any assets held by the Trust will be
subject to the claims of the Employer's general creditors under federal
and state law in the event of Insolvency, as defined in Section 3(a)
herein.
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(e)
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Additional Deposits. The
Employer, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of
by the Trustee as provided in this Trust Agreement. Neither the Trustee
nor any Plan participant or beneficiary shall have any right to compel
such additional deposits.
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(f)
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Acceptance of Additional
Deposits. The Trustee shall not be obligated to receive such cash
and/or property unless prior thereto the Trustee has agreed that such cash
and/or property is acceptable to the Trustee and the Trustee has
received
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such
reconciliation, allocation, investment or other information concerning, or
representation with respect to, the cash and/or property as the Trustee
may require. The Trustee shall have no duty or authority to (a) require
any deposits to be made under the Plan or to the Trustee; (b) compute any
amount to be deposited under the Plan to the Trustee; or (c) determine
whether amounts received by the Trustee comply with the Plan. Assets of
the Trust may, in the Trustee's discretion, be held in an account with an
affiliate of the Trustee.
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Section
2. Payments To Plan Participants And Their Beneficiaries
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(a)
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Payment of Benefits by Trustee. With
respect to each Plan participant, the Employer shall deliver to the
Trustee a schedule (the “-Payment Schedule”) that indicates the amounts
payable in respect of the participant (and his or her beneficiaries), that
provides a formula or other instructions acceptable to the Trustee for
determining the amounts so payable, the form in which such amounts are to
be paid (as provided for or available under the Plan), and the time of
commencement for payment of such amounts. The Payment Schedule shall be
delivered to the Trustee not more than thirty (30) business days nor fewer
than fifteen (15) business days prior to the first date on which a payment
is to be made to the Plan participant. Any change to a Payment Schedule
shall be delivered to the Trustee not more than thirty (30) business days
nor fewer than fifteen (15) business days prior to the date on which the
first payment is to be made in accordance with the changed Payment
Schedule. Except as otherwise provided herein, the Trustee shall arrange
for payments to be made to Plan participants and their beneficiaries in
accordance with such Payment Schedule by transmitting the distribution
amount (together with amounts necessary for federal, state or local taxes
that may be required to be withheld) to the Employer or Employer's
designee who shall be responsible for payment directly to participants and
their beneficiaries and proper tax reporting and withholding to the
appropriate tax authorities. In all events, the Employer is responsible
for calculating the amount of all federal, state or local taxes required
to be withheld with respect to any distribution and advising the Trustee
of such amounts prior to the Trustee's transmission to the Employer of any
amounts from the Trust.
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(b)
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Entitlement to Benefits. The entitlement
of a Plan participant or his or her beneficiaries to benefits under the
Plan shall be determined by the Employer or such party as it shall
designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the
Plan.
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(c)
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Payment of Benefits by Employer. The
Employer may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan. If the
Employer determines to make a payment of a deferred compensation benefit
directly to a participant or beneficiary as the benefit becomes payable to
the participant or such participant's beneficiary under the terms of the
Plan, the Employer shall notify the Trustee of the decision to make
payment of the benefit directly to the participant or the participant's
beneficiary prior to the time the benefit becomes payable to the
participant or the participant's beneficiary. The Employer shall provide
written certification to the Trustee evidencing such payment, and may at
that time or at a subsequent time request reimbursement from the Trustee
of the amount of such payment. The Trustee, upon receipt of such written
certification and such request, shall distribute such amount to the
Employer. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan, the Employer shall make the balance of each
payment as it falls due. The Trustee shall notify the Employer where
principal and earnings are not
sufficient.
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(d)
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No Duty to Determine Sufficiency. The
Trustee shall have no responsibility to determine whether the Trust is
sufficient to meet the liabilities under the Plan, and shall not be liable
for payments or Plan liabilities in excess of the value of the assets held
in the Trust.
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Section
3. Trustee Responsibility Regarding Payments In The Event Of
Insolvency
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(a)
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Insolvency. The Trustee shall cease
payment of benefits to Plan participants and their beneficiaries if the
Employer is Insolvent. The Employer shall be considered “Insolvent” for
purposes of this Trust Agreement if (i) the Employer is unable to pay its
debts as they become due, or (ii) the Employer is subject to a pending
proceeding as a debtor under the United States Bankruptcy
Code.
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(b)
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Notice of Insolvency. At all times during
the continuance of this Trust, as provided in Section 1(d) hereof, the
principal and income of the Trust, for which the Employer is treated as
grantor and owner shall be subject to the claims of general creditors of
the Employer under federal and state law as set forth
below.
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(i)
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The
Board of Directors and the Chief Executive Officer of the Employer (or, if
there is no Chief Executive Officer, the highest ranking officer) shall
have the duty to inform the Trustee in writing of the Insolvency of the
Employer.
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If
a person claiming to be a creditor of the Employer alleges in writing to
the Trustee that the Employer has become Insolvent, the Trustee shall
determine whether the Employer is Insolvent and, pending such
determination, the Trustee shall discontinue payment of benefits to Plan
participants or their
beneficiaries,
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(ii)
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Unless
the Trustee has actual knowledge of the Insolvency of the Employer, or has
received notice from the Employer or a person claiming to be a creditor
alleging that the Employer is Insolvent, the Trustee shall have no duty to
inquire whether the Employer is Insolvent. The Trustee may in all events
rely on such evidence concerning the solvency of the Employer as may be
furnished to the Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning the solvency of the
Employer.
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(iii)
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If
at any time the Trustee has determined that the Employer is Insolvent, the
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
the general creditors of the Employer. Nothing in this Trust Agreement
shall in any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of the Employer
with respect to benefits due under the Plan or
otherwise.
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(iv)
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The
Trustee shall resume the payment of benefits to Plan participants or their
beneficiaries in accordance with Section 2 of this Trust Agreement only
after the Trustee has determined that the Employer is not Insolvent (or is
no longer Insolvent).
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(c)
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Amount of Payments after
Insolvency. Provided that there are sufficient assets, if the
Trustee discontinues the payment of benefits from the Trust pursuant to
Section 3(b) hereof and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount
of all payments due to Plan participants or their beneficiaries under the
terms of the Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Plan participants provided for
hereunder during any such period of discontinuance; provided that the
Employer has given the Trustee the information with respect to such
payments made during the period of discontinuance prior to resumption of
payments by the Trustee.
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(d)
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Parent Assets after
Insolvency. Notwithstanding the foregoing provisions of this
Section 3, to the extent a parent corporation, if any ("Parent"),
contributes Parent stock or other assets to the Trust to satisfy any
subsidiary corporation's obligations to the Plan participants and
beneficiaries ("Parent Assets"), such Parent Assets are subject to claims
of both the general creditors of the subsidiary corporation as well as the
general creditors of the Parent.
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Section
4. Payments To The Employer
Except as
provided in Section 2(a), Section 2(c) and Section 3 hereof, since the Trust is
irrevocable, in accordance with Section 1(b) hereof, the Employer shall have no
right or power to direct the Trustee to return to the Employer or to divert to
others any of the Trust assets before the payment of all benefits have been made
to Plan participants and their beneficiaries
pursuant
to the terms of the Plan and this Trust Agreement.
Section
5. Investment Authority
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(a)
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Investment of Principal and
Interest. The Trustee shall invest and reinvest the principal and
income of the Trust as directed by the Employer (including directions that
the Trustee follow Plan participants' deemed investment elections made in
accordance with the terms of the Plan), which directions may be changed
from time to time, all in accordance with procedures established by the
Trustee. The Trustee may limit the categories of assets in which the Trust
may be invested.
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(b)
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Voting Rights. The
Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by the Employer. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person
designated by the Trustee, and shall in no event be exercised by or rest
with Plan participants, except that voting rights with respect to Trust
assets will be exercised by the Employer, unless an investment adviser has
been appointed pursuant to Section 5(d) and voting authority has been
delegated to such investment
adviser.
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(c)
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Substitution of
Assets. The Employer shall have the right at any time, and from
time to time in its sole discretion, to substitute assets of equal fair
market value for any asset held by the Trust. This right is
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exercised
by the Employer in a nonfiduciary capacity without the approval or consent
of any person in a fiduciary
capacity.
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(d)
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Appointment of Investment
Manager. The Employer may appoint one or more investment managers,
including any entities affiliated with the Trustee, who shall have the
power to manage, acquire, or dispose of such portion of the assets of the
Trust as the Employer shall determine subject to the
following:
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(i)
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An
investment manager shall act in accordance with the provisions of an
investment management agreement entered into between it and the Employer,
an executed copy of which investment management agreement shall be filed
with the Trustee;
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(ii)
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Each
such investment manager must be: (i) registered as an investment adviser
under the Investment Advisers Act of 1940; (ii) if not registered as an
investment adviser under such Act because of paragraph (1) of Section
203A(a) of such Act, is registered as an investment adviser under the laws
of the state (referred to in such paragraph (1)) in which it maintains its
principal office and place of business and satisfied any applicable filing
requirements; (iii) a bank, as defined in said Act; (iv) an insurance
company qualified to manage, acquire and dispose of the assets of the Plan
under the laws of more than one state of the United States; or (v) an
independent third party that shall be designated or appointed by the
Employer, and that shall provide investment advice on a discretionary or
nondiscretionary basis with respect to that portion of the assets of the
Trust as the Employer shall specify from time to time by written
direction(s) to the Trustee;
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(iii)
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The
indicia of ownership of the assets of the Trust shall be held by the
Trustee at all times, unless another custodian is appointed by the
Employer;
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(iv)
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Any
entity affiliated with the Trustee may act as broker or dealer to execute
transactions, including the purchase of any securities directly
distributed, underwritten, or issued by an entity affiliated with the
Trustee, at standard commission rates, xxxx-ups or concessions, and to
provide other management or investment services with respect to such
trust, including the custody of
assets;
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(v)
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Any
direction provided to the Trustee by an investment manager shall be
provided in writing or given orally and confirmed in writing, or by
telephonic or electronic methods acceptable to the Trustee as soon as
practicable. Alternatively, an investment manager may provide investment
instructions directly to the broker or dealer and receipt by the Trustee
of a confirmation of the transaction from the broker or dealer shall be
conclusive evidence of such transactions. In either case, the Trustee
shall have the authority within twenty-four (24) hours of receipt of such
direction from the investment manager or confirmation of a transaction to
instruct the investment manager to rescind the transaction if the Trustee
determines that the investment is inconsistent with its operational or
administrative requirements; and
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(vi)
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The
Trustee may pay any such investment manager for any such services from the
assets of the Trust without reduction for any fees or compensation paid to
the Trustee for its services as
trustee.
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Notwithstanding
any other provision of the Trust Agreement to the contrary, with respect to the
investment of the assets of the Trust managed by an investment manager, the
Trustee shall have only the duty to follow the directions of the investment
manager and the Trustee shall not be liable to anyone and shall be completely
indemnified and held harmless by the Employer:
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(I)
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for
an act or omission of the investment manager (including an act or omission
by the Trustee pursuant to the direction of the investment manager) with
respect to the investment of such
assets;
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(II)
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for
failing to act with respect to the investment or reinvestment of such
assets absent direction from the investment manager;
or
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(III)
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for
failing to invest, periodically review, diversify or otherwise deal with
the investment of such assets.
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In the
event the Employer is Insolvent for purposes of Section 3 and the Employer fails
to provide effective investment instructions to the Trustee as provided in
Section 5(a), the Trustee may appoint one or more investment advisers who are
registered
as investment advisers under the Investment Advisers Act of 1940, who may be
affiliates of the Trustee, to provide investment advice on a discretionary or
non-discretionary basis with respect to all or a specified portion of the assets
of the Trust.
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(e)
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Powers of Trustee.
Subject to Section 5(a), the Trustee, or the Trustee's designee, is
authorized and empowered:
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(i)
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To
invest and reinvest Trust assets, together with the income therefrom, in
common stock, preferred stock, convertible preferred stock, bonds,
debentures, convertible debentures and bonds, mortgages, notes, commercial
paper and other evidences of indebtedness (including those issued by the
Trustee), shares of mutual funds (which funds may be sponsored, managed or
offered by an affiliate of the Trustee), guaranteed investment contracts,
bank investment contracts, other securities, policies of life insurance,
annuity contracts, options, options to buy or sell securities or other
assets, and all other property of any type (personal, real or mixed, and
tangible or intangible);
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(ii)
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To
deposit or invest all or any part of the assets of the Trust in savings
accounts or certificates of deposit or other deposits in a bank or savings
and loan association or other depository institution, including the
Trustee or any of its affiliates, provided with respect to such deposits
with the Trustee or an affiliate the deposits bear a reasonable interest
rate;
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(iii)
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To
hold, manage, improve, repair and control all property, real or personal,
forming part of the Trust; to sell, convey, transfer, exchange, partition,
lease for any term, even extending beyond the duration of this Trust, and
otherwise dispose of the same from time to
time;
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(iv)
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To
hold in cash, without liability for interest, such portion of the Trust as
is pending investments, or payment of expenses, or the distribution of
benefits;
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(v)
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To
take such actions as may be necessary or desirable to protect the Trust
from loss due to the default on mortgages held in the Trust including the
appointment of agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to grant to
such agents such powers as are necessary or desirable to protect the
Trust, to direct such agent or trustee, or to delegate such power to
direct, and to remove such agent or
trustee;
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(vi)
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To
settle, compromise or abandon all claims and demands in favor of or
against the Trust;
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(vii)
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To
exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws of
the state in which the Trustee has its principal place of business so that
the powers conferred upon the Trustee herein shall not be in limitation of
any authority conferred by law, but shall be in addition
thereto;
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(viii)
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To
borrow money from any source and to execute promissory notes, mortgages or
other obligations and to pledge or mortgage any trust assets as security;
and
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(ix)
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To
maintain accounts at, execute transactions through, and lend on an
adequately secured basis stocks, bonds or other securities to, any
brokerage or other firm, including any firm which is an affiliate of the
Trustee.
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Section
6. Additional Powers Of The Trustee
To the
extent necessary or which it deems appropriate to implement its powers under
Section 5 or otherwise to fulfill any of its duties and responsibilities as the
Trustee of the Trust, the Trustee shall have the following additional powers and
authority:
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(a)
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To
register securities, or any other property, in its name or in the name of
any nominee, including the name of any affiliate or the nominee name
designated by any affiliate, with or without indication of the capacity in
which property shall be held, or to hold securities in bearer form and to
deposit any securities or other property in a depository or clearing
corporation;
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(b)
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To
designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as the Trustee considers necessary or appropriate, any of whom
may be an affiliate of the Trustee or a person who renders services to
such an affiliate, and, as part of its expenses under this Trust
Agreement, to pay their reasonable expenses and
compensation;
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(c)
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To
make, execute and deliver, as the Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or appropriate for the accomplishment of any of the powers
listed in this Trust Agreement; and
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(d)
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Generally
to do all other acts which the Trustee deems necessary or appropriate for
the protection of the Trust.
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Section
7. Disposition of Income
During
the term of this Trust Agreement, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section
8. Accounting By The Trustee
The
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between the Employer and the
Trustee. Within ninety (90) calendar days following the close of each calendar
year and within ninety (90) calendar days after removal or resignation of the
Trustee, the Trustee shall deliver to the Employer a written account of its
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements and other transactions effected
by it, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be. The Trustee may satisfy its
obligation under this Section 8 by rendering to the Employer monthly statements
setting forth the information required by this Section separately for the month
covered by the statement.
Section
9. Responsibility And Indemnity Of The Trustee
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(a)
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Standard of Conduct.
The Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
the Trustee shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by the Employer which
is contemplated by, and in conformity with, the terms of the Plan and this
Trust and is given in writing by the Employer or in such other manner
prescribed by the Trustee. The Trustee shall also incur no liability to
any person for any failure to act in the absence of direction, request or
approval from the Employer which is contemplated by, and in conformity
with, the terms of this Trust. In the event of a dispute between the
Employer and a party, the Trustee may apply to a court of competent
jurisdiction to resolve the
dispute.
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(b)
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Indemnification of
Trustee. The Employer hereby indemnifies the Trustee and each of
its affiliates (collectively, the “Indemnified Parties”) against, and
shall hold them harmless from, any and all loss, claims, liability, and
expense, including reasonable attorneys' fees, imposed upon or incurred by
any Indemnified Party as a result of any acts taken, or any failure to
act, in accordance with the directions from the Employer or any designee
of the Employer, or by reason of the Indemnified Party's good faith
execution of its duties with respect to the Trust, including, but not
limited to, its holding of assets of the Trust. The Trustee is authorized
to prosecute or defend actions, suits, claims or proceedings for the
protection of Trust assets and of the Trustee in the performance of the
duties of the Trustee and to represent the Trust in all actions, suits,
claims or proceedings. The Trustee shall have the authority to pay,
contest or settle any claim by or against the Trust by compromise,
arbitration or otherwise; to release, in whole or in part, any claim
belonging to the Trust to the extent that the claim is deemed
uncollectible by the Trustee. Notwithstanding the foregoing, the Trustee
may only pay or settle a claim assessed against the Trust by the Employer
if it is compelled to do so by a final order of a court of competent
jurisdiction which is not subject to appeal. The Employer agrees to
indemnify the Trustee against the Trustee's costs, expenses and
liabilities (including, without limitation, attorneys' fees and expenses)
relating thereto. The Employer's obligations in the foregoing regard shall
be satisfied promptly by the Employer, provided that in the event the
loss, claim, liability or expense involved is determined by a no longer
appealable final judgment entered in a lawsuit or proceeding to have
resulted from the gross negligence or willful misconduct of the Trustee,
the Trustee shall promptly on request thereafter return to the Employer
any amount previously received by the Trustee under this Section with
respect to such loss, claim, liability or expense. If the Employer does
not pay such costs, expenses and liabilities in a reasonably timely
manner, the Trustee may obtain payment from the Trust without direction
from the Employer.
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(c)
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Legal Counsel. The
Trustee may consult with legal counsel (who may also be counsel for the
Employer generally) with respect to any of its duties or obligations
hereunder,
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(d)
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Other Advisers. The
Trustee may hire agents, accountants, actuaries, investment advisers,
financial consultants or other professionals to assist it in performing
any of its duties or obligations
hereunder.
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(e)
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Authority of
Trustee. The Trustee shall have, without exclusion, all powers
conferred on the Trustee by applicable law unless expressly provided
otherwise herein, provided, however, that if an insurance policy is held
as an asset of the
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Trust,
the Trustee shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan
to any person the proceeds of any borrowing against such
policy.
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(f)
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Limitation on
Trustee. Notwithstanding any powers granted to the Trustee pursuant
to this Trust Agreement or to applicable law, the Trustee shall not have
any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue
Code.
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Section
10. Compensation And Expenses Of The Trustee
The
Trustee is authorized, unless otherwise agreed by the Trustee, to withdraw from
the Trust without direction from the Employer the amount of its fees in
accordance with the fee schedule agreed to in writing by the Employer and the
Trustee. The Employer shall pay all administrative expenses, but if not so paid,
the expenses shall be paid from the Trust.
Section
11. Resignation And Removal Of The Trustee
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(a)
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Resignation of
Trustee. The Trustee may resign at any time by written notice to
the Employer, which shall be effective sixty (60) calendar days after
receipt of such notice unless the Employer and the Trustee agree
otherwise.
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(b)
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Removal of Trustee.
The Trustee may be removed by the Employer on sixty (60) calendar days'
written notice or upon shorter written notice accepted by the
Trustee.
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(c)
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Transfer of Assets to
Successor.
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(i)
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Upon
resignation or removal of the Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 60 days after receipt of
notice of resignation, removal or transfer, unless the Employer extends
the time limit, provided that the Trustee is provided assurance by the
Employer satisfactory to the Trustee that all fees and expenses reasonably
anticipated will be paid.
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(ii)
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Upon
settlement of the account and transfer of the Trust assets to the
successor Trustee, all rights and privileges under this Trust Agreement
shall vest in the successor Trustee and all responsibility and liability
of the Trustee with respect to the Trust and assets thereof shall
terminate subject only to the requirement that the Trustee execute all
necessary documents to transfer the Trust assets to the successor
Trustee.
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Section
12. Appointment Of Successor
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(a)
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Employer Appointment of
Successor. If the Trustee resigns or is removed in accordance with
Section 11(a) or Section 11(b), the Employer may appoint any third party,
such as a bank trust department or other party that may be granted
corporate trustee powers under state law, as a successor to replace the
Trustee upon resignation or removal. The appointment shall be effective
when accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by the Employer or the successor Trustee to evidence
the transfer.
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(b)
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Court Appointment of
Successor. If the Trustee resigns or is removed, a successor shall
be appointed, in accordance with Section 12(a) hereof, by the effective
date of resignation or removal under Section 11(a) or Section 11(b). If no
such appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for instructions.
All expenses of the Trustee in connection with the proceeding shall be
allowed as administrative expenses of the
Trust.
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(c)
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Duty of Successor
Trustee. The successor Trustee need not examine the records and
acts of any prior Trustee and may retain or dispose of existing Trust
assets, subject to Sections 8 and 9. The successor Trustee shall not be
responsible for and the Employer shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or inaction
of any prior Trustee or from any other past event, or any condition
existing at the time it becomes successor
Trustee.
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Section
13. Amendment Or Termination
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(a)
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Amendment. This Trust Agreement may be
amended by a written instrument executed by the Trustee and the Employer.
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Notwithstanding
the foregoing, no such amendment shall conflict with the terms of the Plan
or shall make the Trust revocable, since the Trust is irrevocable in
accordance with Section 1(b)
hereof.
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(b)
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Termination by
Employer. The Trust shall not terminate until the date on which
Plan participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of the Trust
any assets remaining in the Trust shall be returned to the Employer.
Notwithstanding the preceding sentence, if Parent Assets remain in the
Trust at termination, such Parent Assets shall be returned to
Parent.
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(c)
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Termination with
Participant Approval. Upon written approval of participants or
beneficiaries entitled to payment of benefits pursuant to the terms of the
Plan, the Employer may terminate this Trust prior to the time all benefit
payments under the Plan have been made. All assets in the Trust at
termination shall be returned to the Employer. Notwithstanding the
preceding sentence, if Parent Assets remain in the Trust at termination,
such Parent Assets shall be returned to
Parent.
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Section
14. Miscellaneous
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(a)
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Severability. Any
provision of this Trust Agreement prohibited by law shall be ineffective
to the extent of any such prohibition, without invalidating the remaining
provisions hereof.
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(b)
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No Assignment of
Benefits. Benefits payable to Plan participants and their
beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected
to attachment, garnishment, levy, execution or other legal or equitable
process.
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(c)
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Governing Law. This
Trust Agreement and its enforcement shall be governed by and construed in
accordance with the laws of the State of New
Jersey.
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(d)
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Survival. The
provisions of Sections 2(d), 3(b)(iii), and 9(b) of this Trust Agreement
shall survive termination of this Trust
Agreement.
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(e)
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Conflict with Plan
Document. The rights, duties, responsibilities, obligations and
liabilities of the Trustee are as set forth in this Trust Agreement, and
no provision of the Plan or any other documents shall affect such rights,
responsibilities, obligations and liabilities. If there is a conflict
between provisions of the Plan and this Trust Agreement with respect to
any subject involving the Trustee, including but not limited to the
responsibility, authority or powers of the Trustee, the provisions of this
Trust Agreement shall be
controlling.
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(f)
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Shareholder Communications
Act. The Employer agrees that the Trustee will not supply the
Employer's name to issuers of any securities held in the Trust and,
therefore, the Employer will not receive information regarding those
securities directly from the issuer. Instead, the Employer will receive
information from the Trustee, unless the Employer notifies the Trustee in
writing otherwise.
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Section
15. Arbitration
By
signing this Trust Agreement, including this arbitration clause, the Employer
and the Trustee agree as follows:
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·
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The
Employer and the Trustee are giving up the right to xxx each other in
court, including the right to a trial by jury, except as provided by the
rules of the arbitration forum in which a claim is
filed.
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·
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Arbitration
awards are generally final and binding; a party's ability to have a court
reverse or modify an arbitration award is very
limited.
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·
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The
ability of the Employer and the Trustee to obtain documents, witness
statements and other discovery generally more limited in arbitration than
in court proceedings.
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·
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The
arbitrators do not have to explain the reason(s) for their
award.
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·
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The
panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities industry.
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·
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The
rules of some arbitration forums may impose time limits for bringing a
claim in arbitration. In some cases, a claim that is ineligible for
arbitration may be brought in
court.
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·
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The
rules of the arbitration forum in which the claim is filed, and any
amendments thereto, shall be incorporated into this
agreement.
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The
undersigned Employer and Trustee agree that all controversies which may arise between the
Employer and the Trustee in connection with this Trust Agreement, including but
not limited to those involving any transaction related to the Plan or the Plan
accounts, or the construction, performance, or breach of this or any other
agreement between the Employer and the Trustee, whether entered into prior to,
on, or subsequent to the date hereof, shall be determined by
arbitration.
Any
arbitration pursuant to this provision shall be conducted only before the
Financial Industry Regulatory Authority, Inc. (FINRA) or an arbitration facility
provided by any other exchange on which Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated ("MLPF & S") is a member, and in accordance with the
respective arbitration rules then in effect of FINRA or such other
exchange.
The
Employer may elect in the first instance whether arbitration shall be conducted
before FINRA or another exchange of which MLPF & S is a member. If the
Employer fails to make such election by registered letter addressed
to:
Director
- Non-Qualified Deferred Compensation Product
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Retirement Group
1400
Xxxxxxx Xxxxx Drive, MSC 0602
Xxxxxxxxxx,
XX 000000
before
the expiration of five (5) days after receipt of a written request from the
Trustee to make such election, then the Trustee may make such election. Judgment
upon the award of arbitrators may be entered in any court, state or federal,
having jurisdiction. No person shall bring a putative or certified class action
to arbitration, nor seek to enforce any pre-dispute arbitration agreement
against any person: who has initiated in court a putative class action, or who
is a member of a putative class who has not opted out of the class with respect
to any claims encompassed by the putative class action until:
(i)
the class certification is denied;
(ii)
the class is decertified; or
(iii) the
person is excluded from the class by the court.
Such
forbearance to enforce an agreement to arbitrate shall not constitute a waiver
of any rights under this Trust Agreement except to the extent stated
herein.
EMPLOYER
COPY
BY
SIGNING THIS TRUST AGREEMENT, THE UNDERSIGNED EMPLOYER ACKNOWLEDGES (I) THAT, IN
ACCORDANCE WITH SECTION 15 ABOVE, THE UNDERSIGNED IS AGREEING ON BEHALF OF THE
PLAN IN ADVANCE TO ARBITRATE ANY CONTROVERSIES WHICH MAY ARISE WITH THE TRUSTEE
AND (2) RECEIPT OF A COPY OF THIS TRUST AGREEMENT.
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Xxxxxxx
Xxxxx Bank & Trust Co., FSB
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Employer:
Xxxxxxxxxx Realty Investors
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|
By:
/s/ A. Xxxxx Xxxxxxx
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By:
/s/ Xxxxxx Xxxxxxxx
|
|
Name/Title:
Trust Officer
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Name/Title:
VP HR
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|
Date:
9/1/09
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Date:
6/22/09
|
TRUSTEE
COPY
BY
SIGNING THIS TRUST AGREEMENT, THE UNDERSIGNED EMPLOYER ACKNOWLEDGES (I) THAT, IN
ACCORDANCE WITH SECTION 15 ABOVE, THE UNDERSIGNED IS AGREEING ON BEHALF OF THE
PLAN IN ADVANCE TO ARBITRATE ANY CONTROVERSIES WHICH MAY ARISE WITH THE TRUSTEE
AND (2) RECEIPT OF A COPY OF THIS TRUST AGREEMENT.
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Xxxxxxx
Xxxxx Bank & Trust Co., FSB
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Employer:
Xxxxxxxxxx Realty Investors
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|
By:
/s/ A. Xxxxx Xxxxxxx
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By:
/s/ Xxxxxx Xxxxxxxx
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|
Name/Title:
Trust Officer
|
Name/Title:
VP HR
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|
Date:
9/1/09
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Date:
6/22/09
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