Exhibit 10.39
TRUST AGREEMENT
Between
▇▇▇▇ COMPANY
[Sponsor]
and
FIDELITY MANAGEMENT TRUST COMPANY
[Trustee]
Dated as of November 21, 1995
IMPORTANT NOTE
This Trust Agreement may only be used in conjunction with the CORPORATEplan for
Retirement Select Plan Adoption Agreement and Basic Plan Document. An Employer
may not rely solely on said documents to ensure that the Plan is "unfunded and
maintained primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees" and exempt from
parts 2 through 4 of Title I of the Employee Retirement Income Security Act of
1974 with respect to the Employer's particular situation. Fidelity Management
Trust Company, its affiliates and employees may not provide you with legal
advice in connection with the execution of this document. This document should
be reviewed by your attorney and/or accountant prior to execution.
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TABLE OF CONTENTS
Section Page
1. Trust 1
(a) Establishment 1
(b) Grantor Trust 1
(c) Trust Assets 1
(d) Non-Assignment 1
2. Payments to Sponsor 2
3. Disbursements 2
(a) Directions from Administrator 2
(b) Limitations 2
4. Investment of Trust 2
(a) Selection of Investment Options 2
(b) Available Investment Options 2
(c) Investment Direction 3
(d) Mutual Funds 3
(e) Trustee Powers 4
5. Recordkeeping and Administrative Services to be Performed 5
(a) General 5
(b) Accounts 5
(c) Inspection and Audit 5
(d) Effect of Plan Amendment 5
(e) Returns, Reports and Information 6
6. Compensation and Expenses 6
7. Directions and Indemnification 6
(a) Identity of Administrator 6
(b) Directions from Administrator 6
(c) Directions from Sponsor 6
(d) Indemnification 7
(e) Survival 7
8. Resignation or Removal of Trustee 7
(a) Resignation 7
(b) Removal 7
9. Successor Trustee 7
(a) Appointment 7
(b) Acceptance 7
(c) Corporate Action 8
10. Termination 8
11. Resignation, Removal, and Termination Notices 8
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12. Duration 8
13. Insolvency of Sponsor 8
14. Amendment or Modification 9
15. General 10
(a) Performance by Trustee, its Agents or Affiliates 10
(b) Entire Agreement 10
(c) Waiver 10
(d) Successors and Assigns 10
(e) Partial ▇▇▇▇▇▇▇▇▇▇ ▇▇
(▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇. Governing Law 11
(a) Massachusetts Law Controls 11
(b) Trust Agreement Controls 11
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TRUST AGREEMENT, dated as of the 21 day of November, 1995 , between
▇▇▇▇ COMPANY, a Delaware corporation, having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Sponsor"), and FIDELITY MANAGEMENT TRUST COMPANY, a
Massachusetts trust company, having an office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the ▇▇▇▇ Company Supplementary
Savings Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish an irrevocable trust and to
contribute to the trust assets that shall be held therein, subject to the claims
of Sponsor's creditors in the event of Sponsor'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; and
WHEREAS, it is the intention of the Sponsor 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 purposes of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"); and
WHEREAS, it is the intention of the Sponsor 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; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeplng and administrative functions under the Plan; and
WHEREAS, the Employer or such other individual named in the Plan is
the Administrator of the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
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SECTION 1.
---------
1. TRUST.
(a) ESTABLISHMENT.
The Sponsor hereby establishes a trust (hereinafter the "Trust"), with
the Trustee. The Trust shall consist of an initial contribution of
money or other property acceptable to the Trustee in its sole
discretion, made by the Sponsor or transferred from a previous trustee
under the Plan, such additional sums of money as shall from time to
time be delivered to the Trustee under the Plan, all investments made
therewith and proceeds thereof, and all earnings and profits thereon,
less the payments that are made by the Trustee as provided herein,
without distinction between principal and income. The Trustee hereby
accepts the Trust on the terms and conditions set forth in this
Agreement. In accepting this Trust, the Trustee shall be accountable
for the assets received by it, subject to the terms and conditions of
this Agreement
(b) GRANTOR TRUST.
The Trust is intended to be a grantor trust, of which the Sponsor is
the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended,
and shall be construed accordingly.
(c) TRUST ASSETS.
The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Sponsor 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 he mere unsecured
contractual rights of Plan participants and their beneficiaries against
the Sponsor. Any assets held by the Trust will be subject to the claims
of the Sponsor's general creditors under federal and state law in the
event of Insolvency, as defined in Section 13(a).
(d) NON-ASSIGNMENT.
Benefit payments to Plan participants and their beneficiaries funded
under this Trust 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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SECTION 2.
---------
2. PAYMENTS TO SPONSOR.
Except as provided under Section 13, the Sponsor shall have no right
to retain or divert to others any of the Trust assets before all
payment of benefits have been made to the participants and their
beneficiaries pursuant to the terms of the Plan.
SECTION 3.
---------
3. DISBURSEMENTS.
(a) DIRECTIONS FROM ADMINISTRATOR.
The Trustee shall disburse monies to the Sponsor for benefit payments
in the amounts that the Administrator directs from time to time in
writing. The Trustee shall have no responsibility to ascertain any
direction's compliance with the terms of the Plan or of any applicable
law. The Trustee shall not be responsible for making benefit payments
to participants under the Plan, nor shall the Trustee be responsible
for any Social Security or Federal, State or local income tax
reporting or withholding with respect to such Plan benefits.
(b) LIMITATIONS.
The Trustee shall not be required to make any disbursement in excess
of the net realizable value of the assets of the Trust at the time of
the disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written
direction as to the assets to be converted to cash for the purpose of
making the disbursement.
SECTION 4.
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4. INVESTMENT OF TRUST.
(a) SELECTION OF INVESTMENT OPTIONS.
The Trustee shall have no responsibility for the selection of
investment options under the Trust and shall not render investment
advice to any person in connection with the selection of such options.
(b) AVAILABLE INVESTMENT OPTIONS.
In accordance with Section 1.14 of the Plan, the Sponsor shall direct
the Trustee as to the investment options available under the Trust
provided, however, that the Trustee shall not be considered a
fiduciary with investment discretion. The Sponsor may add additional
investment options with the consent of the Trustee and upon amendment
of the Plan.
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(c) INVESTMENT DIRECTION.
In order to provide for an accumulation of assets comparable to the
contractual liabilities accruing under the Plan, the Sponsor may direct
the Trustee in writing to invest the assets held in the Trust to
correspond to the hypothetical investments made for Participants under
the P1an. Such directions may be made by Plan participants by use of
the telephone exchange system maintained for such purposes by the
Trustee or its agent. In the event that the Trustee fails to receive a
proper direction from the Sponsor or from Participants, the assets in
question shall be invested in Fidelity Retirement Money Market Fund, or
such other fund designated by the Sponsor for this purpose, until the
Trustee receives a proper direction.
(d) MUTUAL FUNDS.
The Sponsor hereby acknowledges that it has received from the Trustee a
copy of the prospectus for each Mutual Fund selected by the Sponsor as
a Plan investment option. Trust investment in Mutual Funds shall be
subject to the following limitations:
(i) EXECUTION OF PURCHASES AND SALES.
Purchase and sales of Mutual Funds (other than for Exchanges) shall be
made on the date on which the Trustee receives from the Sponsor in good
order all information and documentation necessary to accurately effect
such purchases and sales (or in the case of a purchase, the subsequent
date on which the Trustee has received a wire transfer of funds
necessary to make such purchase). Exchanges of Mutual Funds shall be
made on the same business day that the Trustee receives a proper
direction if received before 4:00 p.m. eastern time; if the direction
is received after 4:00 p.m. eastern time, the exchange shall be made
the following day.
(ii) VOTING.
At the time of mailing of notice of each annual or special stockholders
meeting of any Mutual Fund, the Trustee shall send a copy of the notice
and all proxy solicitation materials to each Plan participant who has
shares of the Mutual Fund credited to the participant's account,
together with a voting direction form for return to the Trustee or its
designee. The participant shall have the right to direct the Trustee as
to the manner in which the Trustee is to vote the shares credited to
the participant's account (both vested and unvested). The Trustee shall
vote the shares as directed by the participant. The Trustee shall not
vote shares for which it has received no directions from the
participant. During the participant recordkeeping reconciliation
("transition") period; the Sponsor shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the shares of
the Mutual funds in the Trust. With respect to all rights other than
the right to vote, the Trustee shall follow the directions of the
participant and if no such directions are received, the directions of
the Sponsor. The Trustee shall have no duty to solicit directions from
participants or the Sponsor.
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(e)TRUSTEE POWERS.
The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b),(c) and (d) of this
Section 4, to sell, exchange, convey, transfer, or otherwise dispose of
any property held in the Trust, by private contract or at public
auction. No person dealing with the Trustee shall be bound to see to
the application of the purchase money or other property delivered to
the Trustee or to inquire into the validity, expediency, or propriety
of any such sale or other disposition.
(ii) To cause any securities or other property held as
part of the Trust to be registered in the Trustee's own name, in the
name of one or more of its nominees, or in the Trustee's account with
the Depository Trust Company of New York and to hold any investments in
bearer form, but the books and records of the Trustee shall at all times
show that all such investments are part of the Trust.
(iii) To keep that portion of the Trust in cash or
cash balances as the Sponsor or Administrator may, from time to time,
deem to be in the best interest of the Trust.
(iv) To make, execute, acknowledge, and deliver any
and all documents of transfer or conveyance and to carry out the powers
herein granted.
(v) To settle, compromise, or submit to arbitration
any claims, debts, or damages due to or arising from the Trust; to
commence or defend suits or legal or administrative proceedings; to
represent the Trust in all suits and legal and administrative hearings;
and to pay all reasonable expenses arising from any such action, from
the Trust if not paid by the Sponsor.
(vi) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from
the Trust if not paid by the Sponsor.
(vii) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of
the foregoing powers and the purposes of the Trust.
Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, 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 5.
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5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED.
(a) GENERAL.
The Trustee shall perform those recordkeeping and administrative
functions described in the CORPORATEplan for Retirement Select Plan
Service Agreement between the Trustee and the Sponsor ("Service
Agreement").
(b) ACCOUNTS.
The Trustee shall keep accurate accounts of all investments, receipts,
disbursements, and other transactions hereunder and shall report the
value of the assets held in the Trust as of the last day of each fiscal
quarter of the Plan and, if not on the last day of a fiscal quarter,
the date on which the Trustee resigns or is removed as provided in
Section 8 of this Agreement or is terminated as provided in Section 10
(the "Reporting Date"). Within thirty(30) days following each Reporting
Date or within sixty (60) days in the case of a Reporting date caused
by the resignation or removal of the Trustee, or the termination of
this Agreement, the Trustee shall file with the Administrator a written
account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date
and the prior Reporting Date, and setting forth the value of the trust
as of the Reporting Date. Except as otherwise required under applicable
law, upon the expiration of six(6) months from the date of filing such
account with the Administrator, the Trustee shall have no liability or
further accountability to anyone with respect to the propriety of its
acts or transactions shown in such account, except with respect to such
acts or transactions as to which the Sponsor shall within such six(6)
month period file with the Trustee written objections.
(c) INSPECTION AND AUDIT.
All records generated by the Trustee in accordance with paragraphs (a)
and (b) shall be open to inspection and audit, during the Trustee's
regular business hours prior to the termination of this Agreement, by
the Administrator or any person designated by the Administrator. Upon
the resignation or removal of the Trustee or the termination of this
Agreement, the Trustee shall provide to the Administrator, at no
expense to the Sponsor, in the format regularly provided to the
Administrator, a statement of each participant's accounts as of the
resignation, removal, or termination, and the Trustee shall provide to
the Administrator or the Plan's new recordkeeper such further records
as are reasonable, at the Sponsor's expense.
(d) EFFECT OF PLAN AMENDMENT.
The Trustee's provision of the recordkeeping and administrative
services set forth in this Section 5 shall be conditioned on the
Sponsor delivering to the Trustee a copy of any amendment to the Plan
as soon as administratively feasible following the amendment's
adoption, and on the Administrator providing the Trustee on a timely
basis with all the information the Administrator deems necessary for
the Trustee to perform the recordkeeping and administrative services
and such other information as the Trustee may reasonably request.
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(e) RETURNS, REPORTS AND INFORMATION.
The Administrator shall be responsible for the preparation and filing
of all returns, reports, and information required of the Trust or Plan
by law including but not limited to any annual fiduciary tax return.
The Trustee shall provide the Administrator with such information as
the Administrator may reasonably request to make these filings. The
Administrator shall also be responsible for making any disclosures to
participants required by law.
SECTION 6.
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6. COMPENSATION AND EXPENSES.
As consideration for its services, the Trustee shall be entitled to
the fees computed and billed in accordance with the Service Agreement.
All expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all
taxes of any kind whatsoever that may be levied or assessed under
existing or future laws upon or in respect of the Trust or the income
thereof, shall be a charge against and paid from the appropriate Plan
participants' accounts.
SECTION 7.
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7. DIRECTIONS AND INDEMNIFICATION.
(a) IDENTITY OF ADMINISTRATOR.
The Trustee shall be fully protected in relying on the fact that the
Administrator under the Plan is the individual or persons named as such
above or such other individuals or persons as the Sponsor may notify
the Trustee in writing.
(b) DIRECTIONS FROM ADMINISTRATOR.
Whenever the Administrator provides a direction to the Trustee, the
Trustee shall not be liable for any loss, or by reason of any breach,
arising from the direction if the direction is contained in a writing
(or is oral and immediately confirmed in written) signed by any
individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee in the Service Agreement provided
the Trustee reasonably believes the signature of the individual to be
genuine. Such direction may be made via EDT in accordance with
procedures agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying on such
direction as if it were a direction made in writing by the
Administrator. The Trustee shall have no responsibility to ascertain
any direction's (i) accuracy, (ii) compliance with the terms of the
Plan or any applicable law, or (iii) effect for tax purposes or
otherwise.
(c) DIRECTIONS FROM SPONSOR.
The Trustee shall not be liable for any loss which arises from the
Sponsor's exercise or non-exercise of rights under Section 4 over the
assets in a participant's account.
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(d) INDEMNIFICATION.
The Sponsor shall indemnify the Trustee against, and hold the Trustee
harmless from, any and all loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted
against the Trustee by reason of any claim, regulatory proceeding or
litigation arising from any act done or omitted to be done by any
individual or person with respect to the Plan or Trust, excepting only
any and all loss, etc., arising solely from the Trustee's negligence
or bad faith.
(e) SURVIVAL.
The provisions of this Section 7 shall survive the termination of this
Agreement.
SECTION 8.
---------
8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) RESIGNATION.
The Trustee may resign at any time upon sixty(60) days' notice in
writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) REMOVAL.
The Sponsor may remove the Trustee at any time upon sixty(60) days'
notice in writing to the Trustee, unless a shorter period of notice is
agreed upon by the Trustee.
SECTION 9.
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9. SUCCESSOR TRUSTEE.
(a) APPOINTMENT.
If the office of Trustee becomes vacant for any reason, the Sponsor
may in writing appoint a successor trustee under this Agreement. The
successor trustee shall have all of the rights, powers, privileges,
obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor
trustee shall not be liable for the acts or omissions of the other
with respect to the Trust.
(b) ACCEPTANCE.
When the successor trustee accepts its appointment under this
Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action
on the part of the predecessor trustee. The predecessor trustee shall
execute all instruments and do all acts that reasonably may be
necessary or reasonably may be requested in writing by the Sponsor or
the successor trustee to vest title to all Trust assets in the
successor trustee or to deliver all Trust assets to the successor
trustee.
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(c) CORPORATE ACTION.
Any successor of the Trustee or successor trustee, through sale or
transfer of the business or trust department of the Trustee or
successor trustee, or through reorganization, consolidation, or merger,
or any similar transaction, shall, upon consummation of the
transaction, become the successor trustee under the Agreement.
SECTION 10.
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10. TERMINATION.
This Agreement may be terminated at any time by the Sponsor upon sixty
(60) days' notice in writing to the Trustee. On the date of the
termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate,
all cash and assets then constituting the Trust. If, by the termination
date, the Sponsor has not notified the Trustee in writing as to whom
the assets and cash are to be transferred and delivered, the Trustee
may bring an appropriate action or proceeding for leave to deposit the
assets and cash in a court of competent jurisdiction. The Trustee shall
be reimbursed by the Sponsor for all costs and expenses of the action
or proceeding including, without limitation, reasonable attorneys' fees
and disbursements.
SECTION 11.
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11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES.
All notices of resignation, removal or termination under this Agreement
must be in writing and mailed to the party to which the notice is being
given by certified or registered mail, return receipt requested, to the
Sponsor at the address designated in the Service Agreement, and to the
Trustee at the afore-mentioned address or to such other addresses as
the parties have notified each other of in the foregoing manner.
SECTION 12.
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12. DURATION.
This Trust shall continue in effect without limit as to time, subject,
however, to the provisions of this Agreement relating to amendment,
modification, and termination thereof.
SECTION 13.
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13. INSOLVENCY OF SPONSOR.
(a) Trustee shall cease disbursement of funds for payment of
benefits to Plan participants and their beneficiaries if the Sponsor is
Insolvent. Sponsor shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) Sponsor is unable to pay its debts as they
become due or (ii) Sponsor is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
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(b) All times during the continuance of this Trust, the principal
and income of the Trust shall be subject to claims of general
creditors of the Sponsor under federal and state Law as set forth
below:
(i) The Board of Directors and the Chief Executive
Officer of the Sponsor shall have the duty to inform Trustee in
writing of Sponsor's Insolvency. If a person claiming to be a creditor
of the Sponsor alleges in writing to trustee that Sponsor has become
Insolvent, Trustee shall determine whether Sponsor is Insolvent and
pending such determination, Trustee shall discontinue disbursements
for payment of benefits to Plan participants or their beneficiaries.
(ii) Unless Trustee has actual knowledge of
Sponsor's Insolvency, or has received notice from Sponsor or a person
claiming to be a creditor alleging that Company is Insolvent, Trustee
shall have no duty to inquire whether Sponsor is Insolvent. Trustee
may in all events rely on such evidence concerning Sponsor's solvency
as may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Sponsor's
solvency.
(iii) If any time Trustee has determined that
Sponsor is Insolvent, Trustee shall discontinue disbursements for
payments to Plan participants or their beneficiaries and shall hold the
assets of the Trust for the benefit of Sponsor's general creditors.
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 Sponsor with respect to benefits due under the
Plan or otherwise.
(iv) Trustee shall resume disbursement for the
payment of benefits to Plan participants or their beneficiaries in
accordance with Section 2 of this Trust Agreement only after Trustee
has determined that Sponsor is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to (a)
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 or their
beneficiaries by Sponsor in lieu of the payments provided for
hereunder during any such period of discontinuance.
SECTION 14.
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14. AMENDMENT OR MODIFICATION.
This agreement may be amended or modified at any time and from time to
time only by an instrument executed by both the Sponsor and the
Trustee.
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SECTION 15.
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15. GENERAL.
(a) PERFORMANCE BY TRUSTEE, ITS AGENTS OR AFFILIATES.
The sponsor acknowledges and authorizes that the services to be
provided under this Agreement shall be provided by the Trustee, its
agents or affiliates, including Fidelity Investments Institutional
Operations Company or its successor, and that certain of such services
may be provided pursuant to one or more other contractual agreements or
relationships.
(b) ENTIRE AGREEMENT.
This Agreement contains all of the terms agreed upon between the
parties with respect to the subject matter hereof.
(c) WAIVER.
No waiver by either party of any failure or refusal to comply with an
obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) SUCCESSORS AND ASSIGNS.
The stipulations in this Agreement shall inure to the benefit of, and
shall bind, the successors and assigns of the respective parties.
(e) PARTIAL INVALIDITY.
If any term or provision of this Agreement or the application thereof
to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
(f) SECTION HEADINGS.
The heading of the various sections and subsections of this Agreement
have been inserted only for the purposes of convenience and are not
part of this Agreement and shall not be deemed in any manner to modify,
explain, expand or restrict any of the provision of this Agreement.
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SECTION 16.
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16. GOVERNING LAW.
(a) MASSACHUSETTS LAW CONTROLS.
This Agreement is being made in the Commonwealth of Massachusetts, and
the Trust shall be administered as a Massachusetts trust. The validity,
construction, effect and administration of this Agreement shall be
governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts, except to the extent those laws are
superseded under Section 514 of ERISA.
(b) TRUST AGREEMENT CONTROLS.
The Trustee is not a party to the Plan, and in the event of any
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
[SPONSOR]
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Controller, Assistant Secretary
Attest: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Assistant Controller
FIDELITY MANAGEMENT TRUST COMPANY
[TRUSTEE]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Legal Counsel
Authorized Signatory
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