1
EXHIBIT (10)KK.(ii)
2
Exhibit (10)KK.(ii)
MASTER TRUST AGREEMENT
THIS TRUST AGREEMENT made as of this _______ day of __________, 1986,
by and among Commercial Bancshares, Inc., a corporation organized and existing
under the banking laws of New Jersey, and each of those current and hereafter
acquired or created subsidiaries of Commercial Bancshares, Inc. who have or will
have executed this Master Trust Agreement or a counterpart or supplement hereto,
hereinafter singularly referred to as the "Grantor" and collectively referred to
as the "Grantors", and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, as
TRUSTEES, hereinafter referred to as the "Trustees",
WITNESSETH:
WHEREAS, the Board of Directors of each of the Grantors, prior to or at
the time of executing this Master Trust Agreement or a counterpart or supplement
hereto, has adopted a resolution substantially in the following form:
RESOLVED, that there be and hereby is created and established a fund to
be known as the MASTER TRUST to which has been appropriated out of the
earnings of this Corporation, the sum of all Deferred Compensation, as
that term is defined under the Directors Deferred Compensation Plan of
this Corporation (the "Plan"), that would have been payable but for the
Plan participant's election to defer receipt, which amount of Deferred
Compensation has been paid to the Trustees; and be it further
RESOLVED, that there be and hereby is appointed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ to serve as Trustees and administer the
fund.
3
WHEREAS, pursuant to the said resolution said sum was paid to the
Trustees, and
WHEREAS, it is now the desire of the Grantors and the Trustees that the
intention of the parties and the creation and establishment of such fund and
terms and conditions under which such fund is to be administered by the Trustees
be definitively set out in writing,
NOW THEREFORE, the Grantors, in consideration of the premises and
covenants and agreements herein contained, and other good and valuable
consideration, subject to the terms and conditions hereof, do hereby give,
grant, convey and transfer irrevocably to the Trustees herein and before named,
and to their successors in office, the cash set forth in Schedule "A", hereto
attached and made a part hereof,
TO HAVE AND TO HOLD all and singular the above described property unto
the Trustees, and any additional property which may be transferred to the
Trustees, IN TRUST NEVERTHELESS, for the uses and purposes and subject to the
duties and powers hereinafter set forth:
SECTION I
RELATION TO THE PLAN
All of the provisions of the Directors Deferred Compensation Plans of
each of the respective Grantors (the "Plans") are hereby incorporated by
reference to the extent
-2-
4
that they do not conflict with this Trust. All capitalized words and phrases
appearing in this Trust shall have the same respective meaning as set forth in
the Commercial Bancshares, Inc. Directors Deferred Compensation Plan, as it may
from time to time be amended, unless the context clearly indicates otherwise.
SECTION II
INVESTMENT AND APPLICATION OF
TRUST FUND AND INCOME
The Trustees shall receive, hold and manage the property and the income
and proceeds earned and appreciation or losses accrued with respect thereto at
any time forming a part of the Trust (the "Trust Fund"). The Trustees shall
establish the Deferred Compensation Account required under each of the Plans as
a book reserve for each of the participants of the respective Plans, and shall
adjust each such Deferred Compensation Account to reflect all of the
compensation deferred by a participant of the respective Plans together with all
of the income and proceeds earned, gains or losses realized and payments made
with respect thereto (the "Account Balance"). The Trustees shall invest and
reinvest the Account Balance according to the written specifications of such
participant given in accordance with the provisions of the applicable Plan, or
if no such written specification has ever been provided, according to Trustees'
sole discretion, and shall debit and credit such participant's Deferred
Compensation Account as provided in each of the applicable Plans.
-3-
5
The Trustees are hereby expressly authorized to use the Account Balance
of each such participant for the purpose of making payments owed to such
participant in accordance with the provisions of the applicable Plan and with
documents executed pursuant thereto; provided, however, that the Trustees shall
have the right to deduct and withhold from all such payments any taxes required
by law to be withheld with respect to such payments.
SECTION III
TRUSTEES POWERS
The Trustees shall not be bound by any law of New Jersey with reference
to the investment or reinvestment of the Trust Fund, but may invest in such
securities as the Plan participants may direct or, in the absence of such
direction, as the Trustees shall deem for the best interest of such Trust Fund.
The Trustees are hereby expressly authorized to hold any stock or
securities which may at any time form a part of the Trust Fund in the name of a
nominee of such Trustees.
SECTION IV
RESTRICTIONS ON USE OF TRUST FUND
The Account Balances forming the Trust Fund shall be devoted
exclusively to the funding of the respective Plans, and shall in no part and in
no event be given or contributed to or inure to the benefit of any private
person or corporation other
-4-
6
than the participants under the respective Plans and the Grantors in accordance
with the provisions of the applicable Plan and documents executed pursuant to
such Plan; provided, however, that in the event that any of the Grantors so
request, the Trustees shall apply that portion of the Trust Fund credited to the
Deferred Compensation Accounts of such Grantor's participants under the Plan of
such Grantor pro rata according to relative values of the Account Balances then
forming that Grantor's share of the Trust Fund, as required to satisfy the
claims of such Grantor's general creditors.
SECTION V
ADDITIONS TO TRUST FUND
All amounts of compensation designated as Deferred Compensation under
the respective Plans shall from time to time, but not less frequently than
quarterly, be contributed to the Trust by the respective Grantors, to become
part of the Trust Fund and credited to the Deferred Compensation Account of the
participant under the applicable Plan who would have received such compensation
but for the deferral pursuant to such Plan.
SECTION VI
INTERESTS OF PLAN PARTICIPANTS
Each participant's Deferred Compensation Account under the applicable
Plan is not assignable by such participant nor such participant's
beneficiary(ies), either by voluntary or
-5-
7
involuntary assignment or by operation of law. No part of any Account Balance
may be paid over, loaned, sold, assigned, transferred, discounted, pledged as
collateral for a loan, or in any other way encumbered or alienated until the end
of the Deferral Period elected with respect thereto as provided in the
applicable Plan and documents executed pursuant to such Plan.
Nothing herein contained shall be construed as creating any absolute or
unconditional trust, express or implied, for the benefit of any participant of
any of the Plans.
SECTION VII
GOOD FAITH DUTY OF TRUSTEES
The Trustees shall be chargeable only with the exercise of good faith
in carrying out the provisions of the Trust. The Trustees shall not, in the
absence of bad faith, be responsible or accountable for errors of judgment in
determining the total investment or reinvestment income or loss generated by the
Trust Fund during the Deferral Period under the applicable Plan.
Nothing herein contained shall be construed as creating any
responsibility or accountability on the part of the Trustees with respect to
actions taken upon investment or reinvestment specifications given by a
participant of a Plan or upon instructions given by a committee under the
applicable Plan.
-6-
8
SECTION VIII
DECISION OF TRUSTEES
The act of the majority of the Trustees shall be conclusive on all
matters relating to this Trust, including the management and distribution of the
Account Balances. Evidence of such majority actions shall be in writing and
shall be filed with the Grantors.
SECTION IX
DELEGATION OF DUTIES
The Trustees are authorized in the discharge of their duties to employ
counsel (which may be counsel to one or more of the Grantors) and/or agents and
to pay them reasonable compensation which compensation shall be allocated to,
and, if applicable, reimbursed to the Trustees from among, the Grantors as may
be equitable in the sole determination of the Trustees.
SECTION X
ELIGIBILITY TO SERVE AS TRUSTEE
No individual shall be eligible to serve as Trustee unless such
individual, at all times while acting as such Trustee, is an officer of
Commercial Bancshares, Inc. or of one of its subsidiaries and is not a
participant in any of the Plans.
-7-
9
SECTION XI
APPOINTMENT OF SUCCESSOR TRUSTEE
Any Trustee may at any time resign the office of Trustee (and in the
event that a Trustee shall cease to be eligible to serve as Trustee, such
Trustee's resignation shall be automatic) upon giving thirty (30) days notice to
the other Trustees. In the event of a vacancy in the Trustees by resignation,
death, disqualification, or otherwise, the remaining Trustees shall elect a
Trustee or Trustees to fill such vacancy or vacancies from among persons
eligible pursuant to Section X of this Master Trust Agreement or, if no Trustees
remain to fill such vacancies, the Grantors shall fill such vacancies. Until
such time as such successor Trustee is appointed, the remaining Trustees shall
have full power to act under this Trust.
SECTION XII
DURATION OF TRUST
This Trust shall be irrevocable and shall be continued and maintained
as long as may be necessary, desirable or convenient for the full and complete
administration of the Trust Fund as provided for herein or as may be hereafter
changed or modified; provided, however, that in the event that any of the
Grantors shall so request, the Trustees shall then, in such event, make
distributions to that Grantor in an amount not in excess of the Trust Fund
credited to the Deferred Compensation
-8-
10
Accounts of such Grantor's participants under the applicable Plan in
satisfaction of the claims of such Grantor's general creditors; and provided,
further, that in the event of a merger, sale of assets, consolidation, other
business combination or liquidation of any of the Grantors, subject to any
instructions received from the committee administering such Grantor's Plan, the
Trustees may in their sole discretion continue the Trust for the benefit of the
participants under such Grantor's Plan or may make such provision for
distribution of the Trust Fund in such participants' Deferred Compensation
Accounts as they deem appropriate including, among other things, the payment of
all Deferred Compensation payable to such participant notwithstanding an
election by a participant with respect thereto.
SECTION XIII
AMENDMENT OF TRUST AGREEMENT
This Trust or any of the terms hereof may be changed or amended by the
Trustees and the Grantors by an instrument in writing duly executed by the
Trustees and the Grantors; provided, however, that no change or amendment shall
effect any revocation, in whole or in part, of the Trust hereby created, or
alter the provisions for distribution upon the termination of the Trust.
-9-
11
SECTION XIV
RECEIPT OF TRUST FUNDS
The Trustees, by joining in the execution of this instrument,
acknowledge receipt of the cash set forth in Schedule "A", hereto annexed, and
signify their acceptance of the Trust and agree to hold such cash under the
Trust as herein provided.
IN WITNESS WHEREOF, each of the Grantors has caused this Master Trust
Agreement to be duly signed by its President, and its corporate seal to be
hereunto affixed and attested by the Secretary or Cashier, and the Trustees have
hereunto set their respective hands and seals the day and year first above
written.
ATTEST: COMMERCIAL BANCSHARES, INC.
_______________________________ By: ________________________________
▇▇▇▇▇▇ ▇. Des Marais, Secretary ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President
ATTEST: COMMERCIAL TRUST COMPANY OF
NEW JERSEY
_______________________________ By: ________________________________
▇▇▇▇▇▇ ▇. Des Marais, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST: THE EDGEWATER NATIONAL BANK
_______________________________ By: ________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Cashier ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
ATTEST: FIDELITY BANK & TRUST COMPANY OF
NEW JERSEY
-10-
12
_______________________________ By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
ATTEST: N.A. HOME INVESTORS MORTGAGE
CORPORATION
_______________________________ By: ________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
ATTEST: LENAPE STATE BANK
_______________________________ By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ATTEST: TRICO MORTGAGE COMPANY, INC.
_______________________________ By: ________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
ATTEST: THE WOOD RIDGE NATIONAL BANK
_______________________________ By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Cashier ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President
_______________________________ ________________________________
Witness ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
_______________________________ ________________________________
Witness ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
_______________________________ ________________________________
Witness Trustee
-11-