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EXHIBIT 10.3 (20)
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
by and between
A.H. BELO CORPORATION
and
MELLON BANK, N.A.
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MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
THIS MASTER TRUST AGREEMENT made and entered into on this 22nd day of
December, 1992, effective as of January 1st, 1993, by and between A.H. BELO
CORPORATION (hereinafter referred to as the "Corporation") and MELLON BANK,
N.A. (hereinafter referred to as the "Master Trustee"),
WITNESSETH:
WHEREAS, the Corporation desires to establish a master trust which
will serve as a funding medium to eligible employee benefit plans at the
Corporation and its subsidiaries and affiliates; and
WHEREAS, the Master Trustee is willing to act as trustee of such trust
upon all of the terms and conditions hereinafter set forth; and
WHEREAS, the Corporation and the Master Trustee wish to amend those
trust agreements referred to in Exhibit A hereto (the "Prior Agreements") so
that this Agreement shall be deemed to supersede all such Prior Agreements and
so that all the separate trusts established by the Prior Agreements shall be
deemed consolidated into the master trust established hereby;
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NOW, THEREFORE, the Corporation and the Master Trustee declare and
agree that the Master Trust will receive, hold and administer all sums of money
and such other property acceptable to Master Trustee as shall from time to time
be contributed, paid or delivered to it hereunder, IN TRUST, upon all of the
following terms and conditions.
SECTION 1
General
1.1 Definitions. Where used in this Agreement, unless the context otherwise
requires or unless otherwise expressly provided:
(a) "Account Party" shall mean an officer of the Corporation designated to
represent the Company for this purpose, the Named Fiduciary and any Person to
whom the Master Trustee shall be instructed by the Named Fiduciary to deliver
its annual account under Section 12.2.
(b) "Accounting Period" shall mean either the twelve consecutive month period
coincident with the calendar year or, if different, the fiscal year of the
Participating Plans or the shorter period in any year in which the Master
Trustee accepts appointment as Master Trustee hereunder or ceases to act as
Master Trustee for any reason.
(c) "Administrative Committee" shall mean the committee or committees,
individually or collectively, responsible for benefit administration under the
Plans.
(d) "Agreement" shall mean all of the provisions of this instrument and of all
other instruments amendatory hereof.
(e) "Asset Manager" shall mean the Master Trustee, Named Fiduciary or
Investment Manager, individually or collectively as the context shall require,
with respect to those assets held in an Investment Account over which it
exercises, or to the extent it is authorized to exercise, discretionary
investment authority or control.
(f) "Bank business day" shall mean a day on which the Master Trustee is open for
business.
(g) "Board of Directors" shall mean the Board of Directors of the Corporation.
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(h) "Code" shall mean the internal Revenue Code of 1986, as amended from time
to time, and Regulations issued thereunder.
(i) "Directed Fund" shall mean any Investment Account, or part thereof, subject
to the discretionary management and control of the Named Fiduciary or any
Investment Manager.
(j) "Discretionary Fund" shall mean any Investment Account, or part thereof,
subject to the discretionary management and control of the Master Trustee.
(k) "ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and Regulations issued thereunder.
(l) "Fund" shall mean all cash and property contributed, paid or delivered to
the Master Trustee hereunder, all investments made therewith and proceeds
thereof and all earnings and profits thereon, less payments, transfers or other
distributions which, at the time of reference, shall have been made by the
Master Trustee, as authorized herein. The Fund shall include all evidences of
ownership, interest or participation in an Investment Vehicle, but shall not,
solely by reason of the Fund's investment therein, be deemed to include any
assets of such Investment Vehicle.
(m) "Insurance Contract" shall mean any contract or policy of any kind issued
by an insurance company, whether or not providing for the allocation of amounts
received by the insurance company thereunder solely to the general account or
solely to one or more separate accounts (including separate accounts maintained
for the collective investment of qualified retirement plans), or a combination
thereof, and whether or not any such allocation may be made in the discretion
of the insurance company or the Named Fiduciary.
(n) "Investment Account" shall mean each pool of assets in the Master Trust in
which one or more Plans has an interest during an Accounting period.
(o) "Investment Manager" shall mean a bank, insurance company or investment
adviser satisfying the requirements of Section 3(38) of ERISA which has
provided the Master Trustee with written acknowledgment of compliance with
ERISA.
(p) "Investment Vehicle" shall mean any common, collective or commingled trust,
investment company, corporation functioning as an investment intermediary,
insurance contract, partnership, joint venture or other entity or arrangement
to which, or pursuant to which, assets of the Master Trust may be transferred
or in which the Master Trust has an interest, beneficial or otherwise (whether
or not the underlying assets thereof are deemed to constitute "plan assets" for
any purpose under ERISA).
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(q) "Master Trust" shall mean the trust created hereby.
(r) "Named Fiduciary" shall mean the fiduciary with respect to the Plans within
the meaning of Section 402(a)(2), 402(c)(3) or 403(a)(1) of ERISA who has the
authority to perform the separate functions allocated to the "Named Fiduciary"
under this Agreement.
(s) "Plan" shall mean any employee benefit plan which meets the requirements
for eligibility specified in Section 1.3 and as of the date of this Agreement
includes those plans listed on Exhibit B.
(t) "Person" shall mean a natural person, trust, estate, corporation of any
kind or purpose, mutual company, joint-stock company, unincorporated
organization, association, partnership, joint venture, employee organization,
committee, board, participant, beneficiary, trustee, partner, or venturer
acting in an individual, fiduciary or representative capacity, as the context
may require.
(u) "Qualifying Employer Security" shall mean the employer securities as
defined in Section 407(d) of ERISA.
(v) "Valuation Date" shall mean the last day of the Accounting Period,
calendar quarter or any more frequent reporting date agreed to by the Master
Trustee.
The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine, as the context shall require.
1.2 Compliance With Law. The Trust hereinafter established is intended to
comply with ERISA and to be tax exempt under Section 501(a) of the Code.
1.3 Eligibility. Any employee benefit plan established by the Corporation, or a
subsidiary or an affiliate of the Corporation, may be funded, in whole or
in part, through the Master Trust if (i) the plan is qualified under Section
401(a) of the Code, (ii) the Master Trust is exempt from taxation under Section
501(a) of the Code, and (iii) this Agreement has been duly adopted by the Board
of Directors or by the board of directors of a subsidiary or affiliate of the
Corporation and, in the case of such subsidiary or affiliate, the Board of
Directors has consented thereto.
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SECTION 2
Establishment of Trust
2.1 Establishment of Trust. The Corporation hereby establishes with the Master
Trustee the Master Trust consisting of such sums of money and such property
acceptable to the Master Trustee as shall from time to time be paid or
delivered to the Master Trustee.
2.2 Contributions to the Trust. The Master Trustee shall have no duty to
determine or collect contributions under any Plan and shall be solely
accountable for monies or properties actually received by it. The Corporation
shall have the sole duty and responsibility for the determination of the
accuracy or sufficiency of the contributions to be made under any of their
Plans, the transmittal of the contributions to the Master Trustee and
compliance with any statute, regulation or rule applicable to contributions.
2.3 Prior Administration. The Master Trustee shall not have any duty to inquire
into the administration of the Plans or actions taken under any of the Plans by
any prior trustee.
2.4 Fund to be Held in Trust. The Fund shall be held by the Master Trustee in
trust and dealt with in accordance with the provisions of this Agreement and
the Act.
2.5 Fund to be Held for Benefit of Plan Participants. Except as may be provided
by law for the purpose of returning any of the Corporation's contributions or
in case any Plan of which this Trust forms a part provides for the return of
the Corporation's contributions in the event such Plan fails to initially
qualify under the applicable provisions of the Code, at no time prior to the
satisfaction of all liabilities for benefits under any Plan shall any part of
the Fund be used for or diverted to purposes other than for the exclusive
benefit of participants, retired participants, or their beneficiaries under the
Plans and for the payment of the reasonable expenses of the Plans.
2.6 Commingling. The Master Trustee may commingle the assets attributable to
the Plans for which contributions are made under this Agreement if this
Agreement is applicable to more than one Plan and may commingle the Fund with
funds of other trusts of similar nature created by the Corporation for the
exclusive benefit of their employees. Where commingling is effected with other
trusts maintained by the Corporation, the combined trust, to the extent that
assets are attributable to contributions made under this Agreement, shall be
the Fund referred to herein. The Master Trustee shall maintain such records as
are necessary in order to maintain a separation of the Fund from the funds of
the other trusts maintained by the
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Corporation and to separate the assets attributable to each of the Plans for
which contributions are made under this Agreement. The Corporation shall be
responsible for causing sufficient records to be maintained to insure that
benefits and liabilities payable with respect to each Plan shall be paid from
the assets allocable to each such Plan. Should separation be required, either
of the Fund from other trusts maintained by the Corporation or of any Plan for
which contributions are made under this Agreement from the Fund, the Master
Trustee shall make such separation in accordance with generally accepted
accounting principles and, where applicable, upon the certification of an
actuary.
SECTION 3
Administration of the Plan
3.1 Administrator. The Plans shall be administered by the Administrative
Committee which shall have the sole fiduciary duty as to plan administration
and the Master Trustee shall not be responsible in any respect for such
administration.
3.2 Indemnity. The Corporation shall fully indemnify and save harmless the
Master Trustee from liability and expense incident to any act or failure to act
by reason of the Master Trustee's reliance upon or compliance with instructions
issued by the Administrative Committee or the Corporation.
SECTION 4
Disbursement from the Fund
4.1 Disbursements by Master Trustee. The Master Trustee shall make such
payments out of the Fund as the Administrative Committee may from time to time
in writing direct. In the discretion of the Administrative Committee, such
payments may be made directly to the person specified by the Administrative
Committee or deposited in a checking account maintained by the Administrative
Committee for the purpose of making payments to the person, or persons entitled
to such payments under the Plans, or to an account maintained by some other
entity which the Administrative Committee may designate to make payments.
4.2 Direction to the Master Trustee. Any direction given to the Master Trustee
in accordance with this Section need not specify the specific application of
the payment to be made, but shall specify that the payment is for the purposes
of the Plans or the payment of Plans' expenses.
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SECTION 5
Allocation of Investment Responsibilities
5.1 Asset Managers. (a) The Named Fiduciary will from time to time, in its sole
discretion, appoint one or more Asset Managers to manage specified portions of
the Fund. Upon the appointment of each Asset Manager, the Named Fiduciary
shall so notify the Master Trustee and instruct the Master Trustee in writing
to separate into a separate account those assets as to which each Asset Manager
has discretion and control. The Asset Manager shall designate in writing the
person or persons who are to represent any such Asset Manager in dealings with
the Master Trustee. Upon the separation of the assets in accordance with the
instructions of the Named Fiduciary, the Master Trustee shall thereupon be
relieved and released of all investment duties, responsibilities and
liabilities normally and statutorily incident to a trustee as to such directed
funds, and, as to such directed funds, the Master Trustee shall act as
custodian. Except as otherwise provided by the Named Fiduciary in writing from
time to time, the Master Trustee shall take no action with respect to the
duties or powers allocated to an Asset Manager in Section 6 or Section 7
without receipt of written directions of the Asset Manager. Unless specifically
prohibited in writing, the Master Trustee, as custodian, may hold the assets of
such directed funds in the name of a nominee or nominees.
(b) Should an Asset Manager at any time elect to place security transactions
directly with a broker or dealer, the Master Trustee shall not recognize such
transaction unless and until it has received instructions or confirmation of
such fact from the Asset Manager. Should the Asset Manager direct the Master
Trustee to utilize the services of any person with regard to the assets under
its management or control, such instructions shall be in writing and shall
specifically set forth the actions to be taken by the Master Trustee as to such
services.
(c) In the event that an Asset Manager places security transactions directly
or directs the utilization of a service, the Asset Manager shall be solely
responsible for the acts of such persons. The sole duty of the Master Trustee
as to such transactions shall be incident to its duties as custodian.
5.2 Transfer of Assets to Asset Managers. (a) Upon receipt of written
directions by the Named Fiduciary, the Master Trustee shall (i) transfer and
deliver such part of the assets of the Fund as may be specified in such writing
to any Asset Manager so appointed, and (ii) accept the transfer back to it of
any such assets at any time held by an Asset Manager, provided that the Named
Fiduciary may only direct such transfers as are in conformity with the
provisions of the
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Plans, this Agreement, and ERISA, and Sections 401(a) and 501(a) of the Code.
Any such written direction shall constitute a certification to the Master
Trustee by the Named Fiduciary that the transfer so directed is one which the
Named Fiduciary is authorized to direct and is in conformity with the aforesaid
provisions.
(b) If any assets are so transferred to the custody of an Asset Manager, such
Asset Manager shall undertake and be responsible for all the custodial duties
therefor, and such assets shall remain for all purposes a part of the Fund and
the Trust, and as such, subject to all the terms and provisions of this
Agreement. Any Asset Manager receiving such assets may invest any part or all
of such assets in units of any collective, common or pooled trust fund operated
or maintained by a bank or trust company, including the Investment Manager or
any affiliate of the Investment Manager, exclusively for the commingling and
collective investment of monies or other assets held under or as part of a plan
which is established in conformity with and qualifies under Section 401(a) of
the Code. Notwithstanding the provisions of this Agreement which place
restrictions upon the actions of the Master Trustee, or the Asset Manager, to
the extent monies or other assets are utilized to acquire units of any
collective trust, the terms of the collective trust indenture shall solely
govern the investment duties, responsibilities and powers of the trustee of
such collective trust, and to the extent required by law, such terms,
responsibilities and powers shall be incorporated herein by reference and shall
be part of this Agreement. For the purposes of valuation of any interest under
the Plans of which this trust forms a part, the value of the interest
maintained by the Fund in such collective trust shall be the fair market value
of the collective fund units held determined in accordance with generally
recognized valuation procedures.
(c) The Master Trustee shall have no duty or responsibility as to the
safekeeping of such assets or as to the investment and reinvestment of the
same, except that the Master Trustee shall require such statements and reports
from such Asset Manager as may be necessary to enable the Master Trustee and
the Administrative Committees to carry out their recordkeeping and reporting
duties under this Agreement. The Master Trustee shall enter into and execute
such agreements, receipts and releases as shall be required to carry out the
directions of the Named Fiduciary with respect to the transfer of any assets of
the Fund to or from an Asset Manager in accordance with this Section 5.2.
5.3 The Master Trustee. Subject to investment policies, objectives and
guidelines communicated to the Master Trustee by the Named Fiduciary as
contemplated by this Section 5, the Master Trustee sha11 from time to time
invest and reinvest the Discretionary Fund and keep it invested in accordance
with such policies, objectives and guidelines.
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SECTION 6
Participant Accounts
6.1 Establishment of Accounts. The Administrative Committee shall direct the
Master Trustee to establish on its books and records accounts sufficient to
accommodate investment options, other than investments in Qualifying Employer
Securities, available to the employees as specified by the Plan. The
Administrative Committee shall establish an investment purpose for each
account, either by separate written designation or through an agreement between
the Administrative Committee and the Master Trustee that shall incorporate
therein the investment purposes and, if applicable, the investment restrictions
which the Plan provides as to investment options. The accounts so established
shall, until changed by the Administrative Committee operate in the manner and
form established.
6.2 Qualifying Employer Securities. As provided in the Plan, all amounts
received by the Master Trustee which are directed by the Administrative
Committee to be placed in an account which has as its investment purpose
investment in Qualifying Employer Securities or any amount received by the
Master Trustee as a result of holding such Qualifying Employer Securities shall
be invested and reinvested in Qualifying Employer Securities. The investment
purpose of the account so established shall be to invest one hundred (100%) in
such Qualifying Employer Securities. However, the Master Trustee may, but shall
not be required to, place amounts received by it for the purpose of investment
in temporary investments, if in the opinion of the Master Trustee market
conditions are such that investment in Qualifying Employer Securities would be
disruptive or could not be accomplished. In the operation of this account, the
Master Trustee shall have no investment discretion, except as hereinafter
provided, and no duty or responsibility to determine the investment quality or
prudence of such investment. The Corporation shall have the duty and
responsibility to determine whether or not the investment in the Qualifying
Employer Securities is prudent. The Master Trustee shall acquire or dispose of
all Qualifying Employer Securities in the open market or through the method of
purchase and sales which is used by the Master Trustee in the normal course of
its security transactions. The Master Trustee shall be permitted to net all
purchases and sales for an account limited in investment purposes to Qualifying
Employer Securities, provided, however, both sales and purchases will be at
market value and the books and records of the Master Trustee shall clearly
reflect such fact. Should the Master Trustee for any reason be unable to
acquire or dispose of the Qualifying Employer Securities in the manner provided
by this Section, it
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shall notify the Named Fiduciary of such fact and shall thereafter make no
purchases or sales of securities until instructions are received from the Named
Fiduciary.
6.3 Allocation of Contributions. The Administrative Committee shall, upon the
making of any contribution to this Trust by the Corporation, or, if applicable,
a Participant, or both, instruct the Master Trustee in writing of the manner
that such contribution is to be allocated between the account previously
established.
6.4 Responsibility of Master Trustee. The Master Trustee shall not be
responsible nor liable to establish or maintain a record or account in the name
of any individual Participant. The Master Trustee shall not be required to
establish the value of any Participant's individual interest in the Fund or any
account established hereunder. Should the Master Trustee and the Administrative
Committee or the Corporation agree that the Master Trustee shall maintain
individual account records, such agreement shall be separate and apart from the
terms of this Trust. Such an agreement shall not be construed as implying any
duty upon the Master Trustee hereunder even though the Master Trustee, in its
corporate capacity as record keeper for the accounts of individual instructions
or directions as to the disposition or distribution of any assets held
hereunder.
6.5 Accounts as Separate Trusts. For the purposes of application of this
Agreement of Trust, each account created hereunder shall be considered a
separate trust insofar as the application of powers granted the Master Trustee.
Notwithstanding the provisions of this Agreement of Trust which established
powers and duties with regard to the Trust as a whole, the Master Trustee shall
exercise such of those powers as are consistent with the investment purposes of
each account. Where applicable or required, the Master Trustee with the
Corporation's consent may subdivide any account as may be required to fulfill
either its duties hereunder or the instructions of the Administrative
Committee.
SECTION 7
Investment of the Fund
7.1 Standard of Care. The Master Trustee, each Asset Manager and the Named
Fiduciary shall discharge their respective investment duties as provided under
Sections 5 and 6 hereof with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character with like aims and by diversifying the investments held hereunder
consistent with investment policies, objectives and guidelines so as to
minimize the risk of large losses, unless it would be clearly not prudent to
diversify.
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7.2 Waiver of Investment Restrictions. Such investment and reinvestment shall
not be restricted to securities or property of the character authorized for
investments by trustees or asset managers under any statute or other laws of
any state, district or territory.
7.3 Grant of Investment Powers. In addition to any power granted to trustees or
asset managers under any statute or other laws, such laws and statutes if
necessary being incorporated herein by reference, the Master Trustee's, and
each Asset Manager's investment powers may, unless restricted in writing by the
Named Fiduciary, includes, but shall not be limited to, investment in the
following:
(a) domestic or foreign common and preferred stocks and options thereon, as
well as warrants, rights and preferred stocks convertible into common stock,
regardless of where or how traded;
(b) the purchase or sale, writing or issuing, of puts, calls or other options,
covered or uncovered, entering into financial futures contracts, forward
placement contracts and standby contracts, and in connection therewith,
depositing, holding (or directing the Master Trustee, in its individual
capacity, to deposit or bold) or pledging assets of the Fund;
(c) corporate bonds and debentures and any such securities which are
convertible into common stock, domestic or foreign;
(d) bonds or other obligations of the United States of America or any foreign
nation, and any agencies thereof, or any bonds or other obligations which are
directly or indirectly guaranteed by the United States or any foreign nation,
or any agency thereof;
(e) obligations of the states and of municipalities or of any agencies thereof;
(f) notes of any nature, of foreign or domestic issuers;
(g) mortgages and real estate, wherever situate and whether developed or
undeveloped, including sales and leasebacks, interests or participations in
real estate investment trusts or corporations organized under Section 501(c)(2)
or 501(c)(25) of the Code and non income producing properties. Notwithstanding
any other provision of this Agreement, including, without limitation, any
specific or general power granted to the Master Trustee, the Master Trustee
shall have no responsibility or discretion with respect to the ownership,
management, administration, operation or control of any real estate properties,
mortgages, leases or other interests now or hereafter held in the Fund,
including without limitation responsibility for or in connection with any of
the following
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conditions which now exist or may hereafter be found to exist in, under, about
or in connection with any real estate held in the Fund or any interest in any
trust, partnership or corporation: (i) any violation of any applicable
environmental or health or safety law, ordinance, regulation or ruling; or (ii)
the presence, use, generation, storage, release, threatened release, or
containment, treatment or disposal of any petroleum, including crude oil or any
fraction thereof, hazardous substances, pollutants or contaminants as defined
in the Comprehensive Environmental Response Compensation and Liability Act, as
amended (CERCLA) or hazardous, toxic or dangerous substances or materials as
any of these terms may be defined under any federal or state law in the
broadest sense from time to time. Notwithstanding anything to the contrary
herein or elsewhere set forth, to the extent permitted by law, the Master
Trustee shall be indemnified by the Corporation, to the extent not paid by the
Fund, from and against any and all claims, demands, suits, liabilities, losses,
damages, costs and expenses (including reasonable attorneys' fees and expenses)
arising from or in connection with any matter relating to conditions in
subsections (i) or (ii). This paragraph shall survive the sale or other
disposition of any real estate investment of the Fund and/or the merger or
termination of this Master Trust or appointment of a successor master trustee.
(h) savings accounts, certificates of deposit and other types of time deposits,
bearing a reasonable rate of interest based upon the duration, amount, type and
geographical area, with any financial institution or quasi-financial
institution or any department of the same, either domestic or foreign, under
the supervision of the United States or any State, including any such
financial institution owned, operated or maintained by the Master Trustee in
its corporate or Association capacity (including any department or division of
the same) or a corporation or association affiliated with the same;
(i) leaseholds of any duration;
(j) mineral and other natural resources, including, but not limited to, oil,
gas, timber and coal, and any participation therein in any form, including but
limited to, royalties, ownership, drilling and exploration;
(k) any collective or common trust fund or composite security owned, operated
and maintained by the Master Trustee, including, but not limited to, demand
notes, short-term notes and cash equivalent funds;
(l) any collective, common or pooled trust fund operated or maintained
exclusively for commingling and collective investment of monies or other assets
including any such fund operated or maintained by the Master Trustee.
Notwithstanding
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the provisions of this Agreement which place restrictions upon the actions of
the Master Trustee or an Investment Manager, to the extent monies or other
assets are utilized to acquire units of any collective trust, the terms of the
collective trust indenture shall solely govern the investment duties,
responsibilities and powers of the trustee of such collective trust and, to the
extent required by law, such terms, responsibilities and powers shall be
incorporated herein by reference and shall be part of this Agreement. For
purposes of valuation, the value of the interest maintained by the Fund in such
collective trust shall be the fair market value of the collective fund units
held, determined in accordance with generally recognized valuation procedures.
The Corporation expressly understands and agrees that any such collective fund
may provide for the lending of its securities by the collective fund trustee
and that such collective fund's trustee will receive compensation from such
collective fund for the lending of securities that is separate from any
compensation of the Master Trustee hereunder, or any compensation of the
collective fund trustee for the management of such collective fund;
(m) open-end and closed-end investment companies, regardless of the purposes
for which such fund or funds were created, and any partnership, limited or
unlimited, joint venture and other forms of joint enterprise created for any
lawful purpose;
(n) individual or group insurance policies and contracts including, but not
limited to, life insurance, annuity (fixed or variable) and investment policies
and contracts, but only if directed by the Administrative Committee or the
Named Fiduciary, as appropriate, to purchase or retain such policies and
contracts.
7.4 Maintenance of Cash Balances. The Master Trustee shall keep such portion of
the Fund in cash or cash balances as may be specified from time to time in a
written request from the Administrative Committee or as required by the Named
Fiduciary to meet contemplated payments from the Fund. The Master Trustee shall
invest such cash balances and any other portions of the Fund which may be in
cash or cash balances in accordance with such investment policies, objectives
and guidelines as may be communicated to the Master Trustee from time to time
by the Named Fiduciary pursuant to Section 5. The Master Trustee shall not be
liable for interest on any reasonable cash balances so maintained.
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SECTION 8
Powers of the Master Trustee,
Asset Managers and the Named Fiduciary
8.1 Qualifying Employer Securities Accounts. The Plans provide generally with
respect to accounts established to invest in Qualifying Employer Securities
that the right to vote, the right to tender in the event of a tender offer, or
the exercise of certain other rights concerning such Securities are vested in
the Named Fiduciary. The Master Trustee shall act only in accordance with the
procedures set forth in the Plans by which the Named Fiduciary exercise such
rights. Prior to the time any such action is to be taken under any Plan, the
Administrative Committee will advise the Master Trustee of the impending action
and agree with the Master Trustee on the manner of implementing that specific
action.
8.2 General Powers. As to all assets other than Qualifying Employer Securities,
the Master Trustee shall have and exercise the following powers and authority
in the administration of the Fund only on the direction of an Asset Manager and
the Named Fiduciary where such powers and authority relate to a Directed Fund
and in its sole discretion where such powers and authority relate to
investments made by the Master Trustee in accordance with Section 5.3:
(a) to purchase, receive or subscribe for any securities or other property and
to retain in trust such securities or other property;
(b) to sell, exchange, convey, transfer, lend, or otherwise dispose of any
property held in the Fund and to make any sale by private contract or public
auction; and no person dealing with the Master Trustee shall be bound to see to
the application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
(c) to vote in person or by proxy any stocks, bonds or other securities held in
the Fund;
(d) to exercise any rights appurtenant to any such stocks, bonds or other
securities for the conversion thereof into other stocks, bonds or securities,
or to exercise rights or options to subscribe for or purchase additional
stocks, bonds or other securities, and to make any and all necessary payments
with respect to any such conversion or exercise, as well as to write options
with respect to such stocks and to enter into any transactions in other forms
of options with respect to any options which the Fund has outstanding at any
time;
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(e) to join in, dissent from or oppose the reorganization, recapitalization,
consolidation, sale or merger of corporations or properties of which the Fund
may bold stocks, bonds or other securities or in which it may be interested,
upon such terms and conditions as deemed wise, to pay any expenses, assessments
or subscriptions in connection therewith, and to accept any securities or
property, whether or not trustees would be authorized to invest in such
securities or property, which may be issued upon any such reorganization,
recapitalization, consolidation, sale or merger and thereafter to hold the
same, without any duty to sell;
(f) to manage, administer, operate or lease for any number of years, regardless
of any restrictions on leases made by fiduciaries, develop, improve, repair,
alter, demolish, mortgage, pledge, grant options with respect to, or otherwise
deal with any real property or interest therein at any time held by it, all
upon such terms and conditions as may be deemed advisable, to renew or extend
or participate in the renewal or extension of any mortgage upon such terms as
may be deemed advisable, and to agree to a reduction in the rate of interest on
any mortgage or any other modification or change in the terms of any mortgage
or of any guarantee pertaining thereto in any manner and to any extent that may
be deemed advisable for the protection of the Fund or the preservation of the
value of the investment; to waive any default, whether in the performance of
any guarantee, or to enforce any default in such manner and to such extent as
may be deemed advisable; to exercise and enforce any and all rights of
foreclosure, to bid on the property in foreclosure, to take a deed in lieu of
foreclosure, with or without paying a consideration therefor, and in connection
therewith to release the obligation on the bonds or notes secured by such
mortgage and to exercise and enforce in any action, suit or proceeding at law
or in equity any right or remedy in respect to any such mortgage or guarantee;
(g) to explore for and to develop mineral interests and other natural resources
and to acquire land, either by lease or purchase, for such purpose, and to
enter into any type of contract or agreement incident thereto, and to sell any
product produced by reason of or resulting from such development or exploration
to any person or persons on such terms and conditions as the Master Trustee or
Asset Manager deems advisable, and to enter into agreements and contracts for
transportation of the same;
(h) to insure, according to customary standards, any property held in the Fund
for any amount and to pay any premiums required for such coverage;
(i) to purchase or otherwise acquire and make payment therefor from the Fund
any bond or other form of guarantee or surety required by any authority having
jurisdiction over this Trust
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and its operation, or believed the Master Trustee or Asset Manager to be in the
best interests of the Fund, except the Master Trustee or Asset Manager may not
obtain any insurance whose premium obligation extended to the Fund which would
protect the Master Trustee or Asset Manager against its liability for breach of
fiduciary duty;
(j) to enter into any type of with any insurance company or companies, either
for the purposes of investment or otherwise; provided that no insurance company
dealing with the Master Trustee shall be considered to be a party to this
Agreement and shall only be bound by and held accountable to the extent of its
contract with the Master Trustee. Except as otherwise provided by any contract,
the insurance company need only look to the Master Trustee with regard to any
instructions issued and shall make disbursements or payments to any person,
including the Master Trustee, as shall be directed by the Master Trustee. Where
applicable, the Master Trustee shall be the sole owner of any and all insurance
policies or contracts issued. Such contracts or policies, unless otherwise
determined, shall be held as an asset of the Fund for safekeeping or custodian
purposes only;
(k) to lend the assets of the Fund upon such terms and conditions as are deemed
appropriate in the sole discretion of the Master Trustee and, specifically, to
loan any securities to brokers, dealers or banks upon such terms, and secured
in such manner, as may be determined by the Master Trustee, to permit the
loaned securities to be transferred into the name of the borrower or others and
to permit the borrower to exercise such rights of ownership over the loaned
securities as may be required under the terms of any such loan; provided, that,
with respect to the lending of securities pursuant to this paragraph, the
Master Trustee's powers shall subsume the role of custodian (the expressed
intent hereunder being that the Corporation, in such case, be deemed a
financial institution, within the meaning of section 101(22) of the Bankruptcy
Code); and provided, further, that any loans made from the Fund shall be made
in conformity with such laws or regulations governing such lending activities
which may have been promulgated by any appropriate regulatory body at the time
of such loan;
(l) to purchase, enter, sell, hold, and generally deal in any manner in and
with contracts for the immediate or future delivery of financial instruments of
any issuer or of any other property; to grant, purchase, sell, exercise, permit
to expire, permit to be held in escrow, and otherwise to acquire, dispose of,
hold and generally deal in any manner with and in all forms of options in any
combination;
(m) to lend the assets of the Fund to participants of the Plan. The
Corporation shall have full and exclusive
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responsibility for loans made to participants, including, without limitation,
full and exclusive responsibility for the following: development of procedures
and documentation for such loans; acceptance of loan applications; approval of
loan applications; disclosure of interest rate information required by
Regulation Z of the Federal Reserve Board promulgated pursuant to the Truth in
Lending Act, 15 U.S.C. Section 1601 et seq.; acting as agent for the physical
custody and safekeeping of the promissory notes and other loan documents;
performing necessary and appropriate recordkeeping and accounting functions
with respect to loan transactions; enforcement of promissory note terms,
including, but not limited to, directing the Master Trustee to take specified
actions; and maintenance of accounts and records regarding interest and
principal payments on notes. The Master Trustee shall not in any way be
responsible for holding or reviewing such documents, records and procedures and
shall be entitled to rely upon such information as is provided by the
Corporation or its own sub-agent or recordkeeper without any requirement or
responsibility to inquire as to the completeness or accuracy thereof, but may
from time to time examine such documents, records and procedures, as it deems
appropriate. The Corporation shall indemnify and hold the Master Trustee
harmless from all damages, costs or expenses, including reasonable attorneys
fees, arising out of any action or inaction of the Corporation with respect to
its agency responsibilities described herein with respect to participant loans.
8.3 Specific Powers of Master Trustee. The Master Trustee shall have the
following powers and authority, to be exercised in its sole discretion with
respect to the Fund:
(a) to appoint agents, custodians, depositories or counsel, domestic or
foreign, as to part or all of the Fund and functions incident thereto where, in
the sole discretion of the Master Trustee, such delegation is necessary in
order to facilitate the operations of the Fund and such delegation is not
inconsistent with the purposes of the Fund or in contravention of any
applicable law. To the extent that the appointment of any such person or entity
may be deemed to be the appointment of a fiduciary, the Master Trustee may
exercise the powers granted hereby to appoint as such a fiduciary any person or
entity, including, but not limited to, the Named Fiduciary or the Corporation,
notwithstanding the fact that such person or entity is then considered a
fiduciary, a party in interest or a disqualified person. Upon such delegation,
the Master Trustee may require such reports, bonds or written agreements as it
deems necessary to properly monitor the actions of its delegate;
(b) to cause any investment, either in whole or in part, in the Fund to be
registered in, or transferred into, the Master Trustee's name or the names of a
nominee or nominees, including
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but not limited to that of the Master Trustee, a clearing corporation, or a
depository, or in book entry form, or to retain any such investment
unregistered or in a form permitting transfer by delivery, provided that the
books and records of the Master Trustee shall at all times show that such
investments are a part of the Fund; and to cause any such investment, or the
evidence thereof, to be held by the Master Trustee, in a depository, in a
clearing corporation, in book entry form, or by any other entity or in any
other manner permitted by law;
(c) to make, execute and deliver, as trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or desirable for the accomplishment of any of the foregoing powers;
(d) to defend against or participate in any legal actions involving the Fund or
the Master Trustee in its capacity stated herein, in the manner and to the
extent it deems advisable, the costs of any such defense or participation to be
borne by the Fund, unless paid by the Corporation in accordance with Section
11; provided however, the Master Trustee shall notify the Named Fiduciary and
the Corporation of all such actions and the Corporation may, in its sole
discretion, determine against the incurrence of any such legal fees and
expenses which may be incurred beyond those necessary to protect the Fund
against default or immediate loss and may participate in the selection of and
instructions to legal counsel;
(e) to form corporations and to create trusts, to hold title to any security or
other property, to enter into agreements creating partnerships or joint
ventures for any purpose or purposes determined by the Master Trustee to be in
the best interests of the Fund;
(f) to establish and maintain such separate accounts in accordance with the
instructions of the Administrative Committee for the proper administration of
the Plans, or as determined to be necessary by the Master Trustee. Such
accounts shall be subject to the general terms of this Agreement, unless the
Master Trustee is notified of a contrary intent by the Administrative Committee
or the Named Fiduciary in writing; and
(g) to generally take all action, whether or not expressly authorized, which
the Master Trustee may deem necessary or desirable for the protection of the
Fund.
8.4 Maintenance of Indicia of Ownership. The Master Trustee shall not maintain
indicia of ownership of any asset of the Fund held by it outside the
jurisdiction of the District Courts of the United States unless such holding is
approved through
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ruling or regulations promugulated under the Act by the Secretary of Labor.
8.5 Third Party Transactions. In addition, and not by way of limitation, the
Master Trustee shall have any and all powers and duties concerning the
investment, retention or sale of property held in trust as if it were absolute
owner of the property, and no restrictions with regard to the property so held
shall be implied, warranted or sustained by reason of this Agreement; provided,
however, at no time shall the exercise of such powers and duties establish any
evidence which would permit a third party to assert a right, title or interest
superior to that of the Plans in the property held in the Fund.
SECTION 9
Discretionary Powers
9.1 Master Trustee Granted Discretion. The Master Trustee is hereby granted any
and all discretionary powers not explicitly or implicitly conferred by this
Agreement which it may deem necessary or proper for the protection of the
property held hereunder.
SECTION 10
Prohibited Transactions
10.1 Transactions which are Prohibited. Notwithstanding any provision of this
Agreement, either appearing before or after this Section, the Master Trustee
shall not engage in or cause the Trust to engage in any transaction if it knows
or should know, that such transaction constitutes a direct or indirect
prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of
the Code.
10.2 Provision of Ancillary Services by Master Trustee. Notwithstanding the
foregoing, the Master Trustee may, in addition to the services rendered in
conjunction with its duties and responsibilities as Master Trustee under the
terms of this Agreement, provide such ancillary services as meet the following
standards:
(a) there have been adopted by the Master Trustee internal safeguards which
assure that such ancillary services are consistent with sound banking and
financial practices as determined by the appropriate banking authority;
(b) the ancillary services are provided in accordance with guidelines which
are intended to meet the standards established by the appropriate banking
authority; and
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(c) the compensation received by the Master Trustee for such services is
reasonable and established in an arm's length manner.
SECTION 11
Expenses, Compensation and Taxes
11.1 Compensation and Expenses of the Master Trustee. The Master Trustee shall
be entitled to such reasonable compensation for services rendered by it in
accordance with the schedule of compensation as agreed upon by the Corporation
and the Master Trustee from time to time together with all reasonable expenses
incurred by the Master Trustee as a result of the execution of its duties
hereunder, including, but not limited to, legal and accounting expenses,
expenses incurred as a result of disbursements and payments made by the Master
Trustee, and reasonable compensation for agents, counsel or other services
rendered to the Master Trustee by third parties and expenses incident thereto.
11.2 Payment from the Fund. All compensation, expenses, taxes and assessments
in respect of the Fund, to the extent that they are not paid by the
Corporation, shall constitute a charge upon the Fund and be paid by the Master
Trustee from the Fund upon written notice to the Corporation.
11.3 Payment of Taxes. The Master Trustee shall notify the Corporation upon
receipt of notice with regard to any proposed tax deficiencies or any tax
assessments which it receives on any income or property in the Fund and, unless
notified to the contrary by the Corporation within thirty (30) days, shall pay
any such assessments. If the Corporation notifies the Master Trustee within
said period that, in its opinion or the opinion of counsel, such assessments
are invalid or that they should be contested, then the Master Trustee shall
take whatever action is indicated in the notice received from the Corporation
or counsel, including contesting the assessment or litigating any claims.
SECTION 12
Accounts, Books and Records of the Fund
12.1 Recordkeeping Duty of Master Trustee. The Master Trustee shall keep
accurate and detailed accounts of all investments, receipts and disbursements
and other transactions hereunder, and all accounts, books and records
relating thereto shall be open at all reasonable times to inspection and audit
by any person designated by the Corporation.
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12.2 Periodic Reports. In addition, within sixty (60) days following the close
of each fiscal year of the Fund, or following the close of such other period as
may be agreed upon between the Master Trustee and the Corporation, and within
one hundred twenty (120) days, or such other agreed upon period, unless such
period be waived, after the removal or resignation of the Master Trustee as
provided for in this Agreement, the Master Trustee shall file with the
Administrative Committee, Named Fiduciary and/or the Corporation a certified
written report setting forth all investments, receipts and disbursements, and
other transactions effected during the fiscal year or other annual period or
during the period from the close of the preceding fiscal year or other
preceding period to the date of such removal or resignation, including a
description of all securities and investment purchases and sales with the cost
or net proceeds of such purchases or sales and showing all cash, securities and
other property held at the close of such fiscal year or other period, valued
currently, and such other information as may be required of the Master Trustee
under any applicable law.
12.3 Additional Accounting. Except as provided below, neither the
Administrative Committee, Named Fiduciary nor the Corporation shall have the
right to demand or be entitled to any further accounting different from the
normal accounting rendered by the Master Trustee. Further, no participant,
beneficiary or any other person shall have the right to demand or be entitled
to any accounting by the Master Trustee, other than those to which they may be
entitled under the law. The Administrative Committee, Named Fiduciary or the
Corporation shall have the right to inspect the Master Trustee's books and
records relating to the Fund during normal business hours or to designate an
accountant to make such inspection, study, and/or audit with all expenses
related thereto to be paid by the Corporation.
12.4 Judicial Determination Accounts. Nothing contained herein will be
construed or interpreted to deny the Master Trustee or the Corporation the
right to have the Master Trustee's account judicially determined.
12.5 Limitation of Actions. Notwithstanding any other provision of the Plans or
this Agreement, the Master Trustee shall not be subject to any liability for
any act or omission, regardless of its nature, unless an action has been
commenced against the Master Trustee with respect to such act or omission
within the period set forth in Section 413 of the Act.
12.6 Filings be Administrative Committee. For the purposes of this Section, the
Master Trustee shall conclusively presume that the Administrative Committee has
made or caused to be made, or, will make or cause to be made, all Federal
filings as of the date required. Should the Master Trustee incur any
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liability by reason of failure of the Administrative Committee to timely file,
the Corporation shall fully reimburse the Master Trustee for any and all
obligations, including penalties, interest or expenses, so incurred by the
Master Trustee.
12.7 Determination of Fair Market Value. The Master Trustee shall determine the
fair market value of the Fund monthly and annually based upon generally
accepted accounting principles applicable to trusts of a same or similar nature
to the one created herein.
12.8 Retention of Records. All records and accounts maintained by the Master
Trustee with respect to the Fund shall be preserved for such period as may be
required under any applicable law. Upon the expiration of any such required
retention period, the Master Trustee shall have the right to destroy such
records and accounts after first notifying the Corporation in writing of its
intention and transferring to the Corporation any records and accounts
requested. The Master Trustee shall have the right to preserve all records and
accounts in original form, or on microfilm, magnetic tape, or any other similar
process.
SECTION 13
Fiduciary Duties of Master Trustee
13.1 Acknowledgement of Fiduciary Duty. The Master Trustee acknowledges that it
assumes the fiduciary duties established by this Agreement.
13.2 Judicial Determination. The Master Trustee shall not, however, be liable
for any loss to or diminution of the Fund except to the extent that any such
loss or diminution results from act or inaction on the part of the Master
Trustee which is judicially determined to be a breach of its fiduciary duties.
SECTION 14
Resignation and Removal
14.1 Power to Resign or Remove. The Master Trustee may be removed with
respect to all, or a part of, the Fund by the Corporation, upon written notice
to the Master Trustee to that effect. The Master Trustee may resign as Master
Trustee hereunder, upon written notice to that effect delivered to the
Corporation.
14.2 Notice. Such removal or resignation shall become effective as of the last
day of the month which coincides with or next follows the expiration of sixty
(60) days from the date
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of the delivery of such written notice, unless an earlier or later date is
agreed upon in writing by the Corporation and the Master Trustee.
14.3 Successor Appointment. In the event of such removal or resignation, a
successor Master Trustee, or a separate trustee or trustees, shall be appointed
by the Corporation to become Master Trustee, or a separate trustee or trustees,
as of the time such removal or resignation becomes effective. Such successor
Master Trustee, or separate trustee or trustees, shall accept such appointment
by an instrument in writing delivered to the
Corporation and the Master Trustee and upon becoming successor Master Trustee,
or separate trustee or trustees, shall be vested with all the rights, powers,
duties, privileges and immunities as successor Master Trustee, or separate
trustee or trustees, hereunder as if originally designated as Master Trustee,
or separate trustee or trustees, in this Agreement.
14.4 Transfer of Fund to Successor. Upon such appointment and acceptance, the
retiring Master Trustee shall endorse, transfer, assign, convey and deliver to
the successor Master Trustee, or separate trustee or trustees, all of the
funds, securities and other property then held by it in the Fund, except such
amount as may be reasonable and necessary to cover its compensation and
expenses as may be agreed to by the Corporation in connection with the
settlement of its accounts and the delivery of the Fund to the successor Master
Trustee, or separate trustee or trustees, and the balance remaining of any
amount so reserved shall be transferred and paid over to the successor Master
Trustee, or separate trustee or trustees, promptly upon settlement of its
accounts, subject to the right of the retiring Master Trustee to retain any
property deemed unsuitable by it for transfer until such time as transfer can
be made.
14.5 Retention of Nontransferable Assets. If the retiring Master Trustee holds
any property unsuitable for transfer, it shall retain such property, and as to
such property alone it shall be a co-trustee with the successor Master Trustee,
or separate trustee or trustees, its duties and obligations being solely
limited to any such property, and it shall not have fiduciary duties of any
nature as to assets transferred. Should the successor Master Trustee, or
separate trustee or trustees, accept fiduciary responsibility as to such
property, the Master Trustee shall retain only custodian duties as to such
property.
14.6 Accounting. In the event of the removal or resignation of the Master
Trustee hereunder, the Master Trustee shall file with the Corporation a
statement and report of its accounts and proceedings covering the period from
its last annual statement
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and report, and its liability and accountability to anyone with respect to
the propriety of it acts and transactions shown in such written statement and
report shall be governed by the terms of this Agreement.
SECTION 15
Actions by the Corporation,
the Administrative Committee or Named Fiduciary
15.1 Action by Corporation. Any action by the Corporation pursuant to this
Agreement shall be evidenced or empowered in writing to the Master Trustee, and
the Master Trustee shall be entitled to rely on such writing.
15.2 Act by the Administrative Committee or Named Fiduciary. Any action by any
person or entity duly empowered to act on behalf of the Administrative
Committee or the Named Fiduciary with respect to any rights, powers or duties
specified in this Agreement shall be in writing, signed by such person or by
the person designated by the Administrative Committee or the Named Fiduciary
and the Master Trustee shall act and shall be fully protected in acting in
accordance with such writing.
SECTION 16
Amendment or Termination
16.1 Amendment or Termination. The Corporation shall have the right at any time
and from time to time by appropriate action:
(a) to modify or amend in whole or in part any or all of the provisions of this
Agreement upon sixty (60) days' prior notice in writing to the Master Trustee,
unless the Master Trustee agrees to waive such notice; provided, however, that
no modification or amendment which affects the rights, duties or
responsibilities of the Master Trustee may be made without the Master Trustee's
consent, or
(b) to terminate this Agreement sixty (60) days' prior notice in writing
delivered to the Master Trustee;
provided, further, that no termination, modification or amendment shall permit
any part of the corpus or income of the Fund to be used for or diverted to
purposes other than for the exclusive benefit of such participants, retired
participants and their beneficiaries, except for the return of Corporation
contributions which are allowed by law and permitted under a Plan.
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16.2 PBGC Approval. Should this Trust form a part of a Plan subject to the
jurisdiction of the Pension Benefit Guaranty Corporation ("PBGC") as provided
in ERISA, and should the Corporation notify the Master Trustee of the
termination of a Plan, the Master Trustee shall take no action as to the
termination of this Trust with respect to such Plan, until it has received
notice from the Named Fiduciary or the Corporation that such termination has
been approved by the PBGC. Thereafter and in the event that this Trust does
not form a part of a Plan subject to the jurisdiction of the PBGC, the Master
Trustee shall distribute all cash, securities and other property then
constituting the Fund, less any amounts constituting charges and expenses
payable from the Fund, on the date or dates specified by the Administrative
Committee to such persons and in such manner as the Administrative Committee
shall direct. In making such distributions, the Master Trustee shall be
entitled to assume that such distributions are in full compliance with and are
not in violation of any applicable law regulating the termination of any kind
whatsoever arising from any distribution made by the Master Trustee at the
direction of the Administrative Committee as a result of the termination of
this Agreement and shall indemnify and save the Master Trustee harmless from
any attempt to impose any liability on the Master Trustee with respect to any
such distribution.
16.3 Retention of Nontransferable Property. The Master Trustee reserves the
right to retain such property as is not, in the sole discretion of the Master
Trustee, suitable for distribution at the time of termination of this Agreement
and shall hold such property as custodian for those persons or other entities
entitled to such property until such time as the Master Trustee is able to make
distribution. The Master Trustee's duties and obligations with respect to any
property held in accordance with the above shall be purely custodial in nature
and the Master Trustee shall only be obligated to see to the safekeeping of
such property and make a reasonable effort to prevent deterioration or waste of
such property prior to its distribution. Upon complete distribution of all
property constituting the Fund, this Agreement shall be deemed terminated.
16.4 Termination in the Absence of Directions From the Administrative
Committee. In the event no direction is provided by the Administrative
Committee with respect to the distribution of a Plan's portion of the Fund upon
termination of this Agreement, the Master Trustee shall make such distributions
as are specified by the Plan after notice to the Corporation. In the event the
Plan is silent as to the distributions to be made upon termination of the Plan
or the terms of the Plan are inconsistent with the then applicable law or the
Master Trustee is unable to obtain a copy of the most recent Plan, the Master
Trustee shall distribute the Fund to participants and their beneficiaries under
the Plan in an
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equitable manner that will not adversely affect the qualified status of the
Plan under Section 401(a) of the Code or any other statute of similar import and
that will comply with any applicable provisions of ERISA regulating the
allocation of assets upon termination of plans such as the Plan. The Master
Trustee, in such cases, reserves the right to seek a judicial and
administrative determination as to the proper method of distribution of the
Fund upon termination of this Agreement.
16.5 Termination on Corporate Dissolution. If the Corporation ceases to exist
as a result of liquidation, dissolution or acquisition in some manner, the Fund
shall be distributed as provided above upon termination of a Plan unless a
successor company elects to continue the Plan and this Agreement as provided in
this Agreement.
SECTION 17
Merger or Consolidation
17.1 Merger or Consolidation of Master Trustee. Any corporation, or national
association, into which the Master Trustee may be merged or with which it may
be consolidated, or any corporation, or national association, resulting from
any merger or consolidation to which the Master Trustee is a party, or any
corporation, or national association, succeeding to the trust business of the
Master Trustee, shall become the successor of the Master Trustee hereunder,
without the execution or filing of any instrument or the performance of any
further act on the part of the parties hereto.
17.2 Merger or Consolidation of Corporation. Any corporation into which the
Corporation may be merged or with which it may be consolidated, or any
corporation succeeding to all or a substantial part of the business interests
of the Corporation may become the Corporation hereunder by expressly adopting
and agreeing to be bound by the terms and conditions of the Plan and this
Agreement and so notifying the Master Trustee to such effect by submission to
the Master Trustee of an appropriate written document.
17.3 Merger or Consolidation of Plan. In the event that the Named Fiduciary or
the Corporation authorizes and directs that the assets of another plan be
merged or consolidated with or transferred to a Plan participating in this
Trust, the Master Trustee shall take no action with regard to such merger,
consolidation or transfer until it has been notified in writing that each
participant covered under the plan the assets of which are to be merged
consolidated or transferred will immediately after such merger, consolidation
or transfer be entitled to a benefit either equal to or then greater than the
benefit he would have been entitled to had the Plan been terminated.
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SECTION 18
Acceptance of Trust
18.1 Acceptance by Master Trustee. The Master Trustee accepts the Trust
created hereunder and agrees to be bound by all the terms of this Agreement.
SECTION 19
Nonalienation of Trust
19.1 Trust not Subject to Assignment or Alienation. Except as heretofore
provided, no company, participant or beneficiary of the Plans to which the
Trust applies shall have any interest in or right to the assets of this Trust,
and to the full extent of all applicable laws, the assets of this Trust shall
not be subject to any form of attachment, garnishment, sequestration or other
actions of collection afforded creditors of the Corporation, participants or
beneficiaries. The Master Trustee shall not recognize any assignment or
alienation of benefits unless, and then only to the extent, written notices are
received from the Administrative Committee.
19.2 Plans' Interest in Trust not Assignable. The equity or interest of any
participating Plan in the Fund shall not be assignable.
SECTION 20
Governing Law
20.1 Governing Law. This Agreement shall be construed and enforced, to the
extent possible, according to the laws of the Commonwealth of Pennsylvania, and
all provisions hereof shall be administered according to the laws of said
Commonwealth and any federal laws, regulations or rules which may from time to
time be applicable. In case of any conflict between the provisions of the Plans
and this Agreement, the provisions of this Agreement shall govern.
SECTION 21
Parties to Court Proceedings
21.1 Only Corporation and Master Trustee Necessary. To the extent permitted by
law, only the Master Trustee and the Corporation shall be necessary parties in
any application to the courts for an interpretation of this Agreement or for an
accounting by the Master Trustee, and no participant under any Plan or other
person having an interest in the Fund shall be
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entitled to any notice or service of process. Any final judgment entered in
such an action or proceeding shall, to the extent permitted by law, be
conclusive upon all persons claiming under this Agreement or any Plan.
Section 22
Subsidiaries and Affiliates
22.1 Adoption of Master Trust by Subsidiaries and Affiliates. Any Company which
is a subsidiary of the Corporation or which may be affiliated with the
Corporation in any way and which is now or may hereafter be organized under the
laws of the United States of America, or of any State or Territory thereof,
with the approval of the Corporation, by resolution of its own Board of
Directors, may adopt this Agreement, if such subsidiary or affiliate shall have
adopted one or more Plans qualified under Section 401(a) of the Code, as
amended. If any such subsidiary or affiliate so adopts this Agreement, this
Agreement shall establish the trust for such Plans as are specified by such
subsidiary or affiliate and shall constitute a continuation, amendment and
restatement of any prior trust for any such Plans. Furthermore, the assets of
any such Plans may be commingled with the assets of other Plans held in the
Fund pursuant to Section 2.7 hereof. However, the assets of any Plan so held
in the Fund shall not be subject to any claim arising under any other Plan, the
assets of which are commingled therewith by the Master Trustee for investment
purposes, and under no circumstances shall any of the assets of one Plan be
available to provide the benefits under another Plan. A separate trust shall be
deemed to have been created with respect to each Plan of such subsidiary or
affiliate.
22.2 Segregation from Further Participation. Any subsidiary or affiliate of the
Corporation may, at any time, with the consent of the Corporation, segregate a
Plan's trust from further participation in this Agreement. In such event, such
subsidiary or affiliate shall file with the Master Trustee a document
evidencing the segregation of the Plan from the Fund and its continuance of a
separate trust in accordance with the provisions of this Agreement as though
such subsidiary or affiliate were the sole creator thereof. In such event, the
Master Trustee shall deliver to itself as Master Trustee of such separate trust
such share of the Fund as may be determined by the Master Trustee to constitute
the appropriate share of the Fund, as confirmed by the Corporation, then held
in respect of the participating employees of such subsidiary or affiliate. Such
subsidiary or affiliate may thereafter exercise, in respect of such separate
trust, all of the rights and powers reserved to the Corporation under the
provisions of this Agreement. The equitable share of any Plan participating in
the Fund shall be immediately segregated and withdrawn from the Fund if the
Plan ceases to be qualified under Section
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401(a) of the Code and the Corporation shall promptly notify the Master Trustee
of any determination by the Internal Revenue Service that any such Plan has
ceased to be so qualified.
22.3 Segregation of Assets Allocable to specific employees. The Administrative
Committee may at any time direct the Master Trustee to segregate and withdraw
the equitable share of any such Plan, or that portion of such equitable share
as may be certified to the Master Trustee by the Administrative Committee as
allocable to any specified group or groups of employees or beneficiaries.
Whenever segregation is required, the Master Trustee shall withdraw from the
Fund such assets as it shall in its absolute discretion deem to be equal in
value to the equitable share to be segregated. Such withdrawal from the Fund
shall be in cash or in any property held in such Fund, or in a combination of
both, in the absolute discretion of the Master Trustee. The Master Trustee
shall thereafter hold the assets so withdrawn as a separate trust fund in
accordance with the provisions of this Agreement, which shall be construed in
respect of such assets as if the employer maintaining such Plan (determined
without regard to whether any subsidiaries or affiliates of such employer have
joined in such Plan) has been named as the Corporation hereunder. Such
segregation shall not preclude later readmission to the Fund.
SECTION 23
Authorities
23.1 Corporation. Whenever the provisions of this Agreement specifically
require or permit any action to be taken by "the Corporation", such action must
be authorized by the Board of Directors. Any resolution adopted by the Board of
Directors or other evidence of such authorization shall be certified to the
Master Trustee by the Secretary or an Assistant Secretary of the Corporation
under its corporate seal, and the Trustee may rely upon any authorization so
certified until revoked or modified by a further action of the Board of
Directors similarly certified to the Master Trustee.
23.2 Subsidiary or Affiliate. Any action required or permitted to be taken under
this Agreement by a subsidiary or affiliate of the Corporation shall be given
by the board of directors thereof in the manner described in Section 23.1.
23.3 Named Fiduciary and Administrative Committee. The Corporation shall
furnish the Master Trustee from time to time with a list of the names and
signatures of all Persons (other than the Corporation) authorized to act as the
Corporation designee under Section 1.1, is a Named Fiduciary, as members of the
Administrative Committee, or in any other manner authorized to issue orders,
notices, requests, instructions and objections
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to the Master Trustee pursuant to the provisions of this Agreement. Any such
list shall be certified by the Secretary or an Assistant Secretary of the
Corporation (or by the Secretary or an Assistant Secretary of any subsidary or
affiliate of the Corporation with respect to members of the Administrative
Committee of the Participating Plans), and may be relied upon for accuracy and
completeness by the Master Trustee. Each such Person shall thereupon furnish
the Master Trustee with a list of the names and signatures of those individuals
who are authorized, jointly or severally, to act for such Person hereunder, and
the Master Trustee shall be fully protected in acting upon any notices or
directions received from any of them.
23.4 Investment Manager. The Named Fiduciary shall cause each Investment Manager
to furnish the Master Trustee from time to time with the names and signatures
of those persons authorized to direct the Master Trustee on its behalf
hereunder.
23.5 Form of Communications. Any agreement between the Corporation and any
Person (including an Investment Manager) or any other provision of this
Agreement to the contrary notwithstanding, all notices, directions and
other communications to the Master Trustee shall be in writing or in such other
form, including transmission by electronic means through the facilities of
third parties or otherwise, specifically agreed to in writing by the Master
Trustee, and the Master Trustee shall be fully protected in acting in
accordance therewith.
23.6 Continuation of Authority. The Master Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change in the Named Fiduciary or membership of the
Administrative Committee or terminating the authority of any Person, including
any Investment Manager, has occurred.
23.7 No Obligation to Act on Unsatisfactory Notice. The Master Trustee shall
incur no liability under this Agreement for any failure to act pursuant to any
notice, direction or any other communication from any Asset Manager, the
Corporation, the Administrative Committee, or any other Person or the designee
of any of them unless and until it shall have received instructions in form
satisfactory to it.
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SECTION 24
Counterparts
24.1 Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument and may be sufficiently
evidenced by any one counterpart.
IN WITNESS WHEREOF, the parties hereto, each intending to be legally
bound hereby, have hereunto set their hands and seals as of the day and year
first above written.
A.H. BELO CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Sr. VP, General Counsel
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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EXHIBIT "A"
A.H. Belo Employee Savings and Investment Plan Trust Agreement
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EXHIBIT "B"
A.H. Belo Employee Savings and Investment Plan
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