1
TRUST AGREEMENT Exhibit 10.20
---------------
This Trust Agreement ("Trust Agreement") made this 3rd day of November, 1988
by and between AMERITRUST CORPORATION, a Delaware corporation ("Ameritrust")
and WACHOVIA BANK AND TRUST COMPANY, N.A, a national banking association (the
"Trustee");
WITNESSETH:
-----------
WHEREAS, in addition to benefits payable under the Ameritrust Retirement
Income Plan and the Ameritrust Indiana Retirement Income Plan, as the same have
been or may hereafter be supplemented, amended or restated or any successor
thereto (the "Retirement Plans"), and under the Ameritrust Corporation
Employees' Savings and Investment Plan, and the Ameritrust Indiana Corporation
Employees' Profit Sharing and Savings Plan, as the same has been or may
hereafter be supplemented, amended or restated or any successor thereto (the
"Savings Plans"), to certain employees and former employees listed on Exhibit
A-1 hereto or to the beneficiaries of such employees, as the case may be, the
employees and their beneficiaries are entitled to certain other benefits under
(1) the Ameritrust Corporation Deferred Compensation Plan, which plan became
effective on August 1, 1988, as the same has been or may hereafter be
supplemented, amended or restated or any successor thereto (the "Deferred
Compensation Plan"), (2) the Ameritrust Corporation
2
Excess Benefits Plan, which plan became effective on June 17, 1988, as the same
has been or may hereafter be supplemented, amended or restated or any successor
thereto (the "Excess Plan"), (3) any unpaid second installment of an Award
payment under the Ameritrust Corporation Long-Term Cash Incentive Plan, which
plan became effective on September 1, 1988, as the same may hereafter be
supplemented, amended or restated or any successor thereto (the "Long Term
Plan"), and (4) the post-retirement benefits payable under the Executive Life
Insurance Program (the "Life Program") which Deferred Compensation Plan, Excess
Plan, Long Term Plan and Life Program are sometimes referred to herein as the
"Plans;"
WHEREAS, each of certain employees listed on Exhibit A-2 hereto has entered
into an employment agreement with Ameritrust or one of its Participating
Subsidiaries (as hereinafter defined) (the agreements are referred to herein
singularly as an "Agreement" or collectively as the "Agreements");
WHEREAS, the Plans and the Agreements provide for certain employment,
severance, retirement income, deferred income, death, disability and survivor
and/or other benefits, and Ameritrust and its Participating Subsidiaries wish
specifically to assure the payment to the individuals listed on Exhibits A-1
and A-2 (the "Executives") and their beneficiaries (the Executives and their
respective beneficiaries are referred to collectively as the "Trust
Beneficiaries") of amounts due thereunder (the amounts so payable being
collectively referred to herein as the "Benefits");
-2-
3
WHEREAS, subject to Section 9 hereof, the amounts and timing of Benefits to
which each Trust Beneficiary is presently or may become entitled are as
provided in and determined under the Agreements and the Plans, and, where
appropriate, the retirement Plans or the Savings Plans;
WHEREAS, Ameritrust wishes to establish a trust (the "Trust") under which
Ameritrust and each of its subsidiaries that executes a Participating
Subsidiary Deposit Agreement ("Deposit Agreement") as provided in Section 13
hereof (a "Participating Subsidiary"; and "Participating Employer" shall mean
Ameritrust or any Participating Subsidiary) may transfer to the Trust assets
which shall be held therein subject to the claims of the creditors of each
Participating Employer to the extent set forth in Section 3 hereof until paid
in full to all Trust Beneficiaries as Benefits in such manner and at such times
as specified herein unless the Participating Employer with respect to a Trust
Beneficiary is Insolvent (as defined herein) at the time that such Benefits
become payable;
WHEREAS, each Participating Subsidiary that executes a Deposit Agreement has
irrevocably appointed Ameritrust its agent and attorney for purposes of acting
on its behalf with respect to this Trust; and
WHEREAS, a Participating Employer shall be considered "Insolvent" for purposes
of this Trust Agreement at such time as such Participating Employer (i) is
subject to a pending voluntary or involuntary proceeding as a debtor under the
United States Bankruptcy Code, as heretofore or hereafter amended, or
-3-
4
(ii) is unable to pay its debts as they mature or (iii) if a Participating
Employer is a bank, whenever a receiver is appointed by the appropriate
regulatory authority.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
1. TRUST FUND: (a) Subject to the claims of creditors of Participating
Employers to the extent set forth in Section 3 hereof, Ameritrust hereby
deposits with the Trustee in trust $100.00, which shall become the principal of
this Trust, to be held, administered and disposed of by the Trustee as herein
provided.
(b) The Trust hereby established shall be revocable by Ameritrust at any time
prior to the date on which occurs a "Change of Control," as that term is
defined in this Section l(b); on or after such date, this Trust shall be
irrevocable. In the event that a Change of Control has occurred, Ameritrust
shall, and an Executive may, so notify the Trustee promptly. The Trustee may
rely on such notice or on any other actual notice, satisfactory to the Trustee,
of such a Change of Control which the Trustee may receive. The Trustee shall
have no obligation to make an independent determination as to the occurrence of
a Change of Control.
(i) As used herein, the term "Change of Control" shall mean:
(A) the acquisition or ownership of 20% or more of the voting stock of
Ameritrust by any person (as the term
-4-
5
"person" is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), other than Ameritrust or its
subsidiaries of a tender offer or offer to purchase, market or privately
negotiated purchases or any other event or circumstance, as disclosed or
required to be disclosed in a report or an amendment to a report on Schedule
13D, Schedule 14D-1 or Form 8-X (or any successor schedule, form or report
under the Exchange Act);
(B) the merger or consolidation of Ameritrust with another corporation, the
sale of all or substantially all of Ameritrust's assets to another entity, or
any other fundamental change with respect to Ameritrust (which agreement, sale
or change is subject in any event to shareholder approval) to the extent that,
as a result of such merger or consolidation, sale, or change, either (A) less
than 80% of the outstanding voting securities of the surviving or resulting
corporation will be owned in the aggregate by the persons who were the
shareholders of Ameritrust immediately prior to such merger or consolidation,
sale, or change, or (B) Ameritrust will cease to be required, and any such
surviving or resulting corporation will not be required, to file information,
documents and reports under Section 13(e) of the Exchange Act; or
(C) individuals who, as of the date hereof, constitute the Board of
Directors of Ameritrust (the "Board" generally and as of the date hereof the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board,
-5-
6
provided that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by Ameritrust's shareholders, was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of Ameritrust, as
such terms are used in Rule 14a-11 of Regulation 15A promulgated under the
Exchange Act) shall be, for purposes of this Plan, considered as though such
person were a member of the Incumbent Board.
(c) The principal of the Trust and any earnings thereon shall be held in
trust separate and apart from other funds of each Participating Employer
exclusively for the uses and purposes herein set forth. No Trust Beneficiary
shall have any preferred claim on, or any beneficial ownership interest in, any
assets of the Trust prior to the time that such assets are paid to a Trust
Beneficiary as Benefits as provided herein. Each Trust Beneficiary shall have
the status of a general unsecured creditor with respect to the assets of the
Trust. The obligation of the Trustee to pay Benefits pursuant to the Trust
Agreement constitutes merely an unfunded and unsecured promise to pay such
Benefits.
(d) Ameritrust and any Participating Subsidiary may at any time or from time
to time make additional deposits of cash or other property in the Trust to
augment the principal to be held, administered and disposed of by the Trustee
as herein
-6-
7
provided, but no payment of all or any portion of the principal of the Trust or
earnings thereon shall be made to any Participating Employer or any other
person or entity on behalf of any Participating Employer except as herein
expressly provided.
(e) Not later than the date on which the Trust has become irrevocable,
Ameritrust shall (i) specify the amounts and timing of the Benefits to which
each Trust Beneficiary may become entitled, as provided in and subject to
Section 9 hereof, in an exhibit ("Exhibit B"), and (ii) provide any
corresponding revisions to Exhibits A-1 and A-2 that may be required.
(f) The Trust is intended, with respect to each Participating Employer, to be
a grantor trust, within the meaning of section 671 of the Internal Revenue Code
of 1986, as amended (the "Code"), or any successor provision thereto, and shall
be construed accordingly. The Trust is not designed to qualify under section
401(a) of the Code or to be subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
2. PAYMENTS TO TRUST BENEFICIARIES: (a) Provided that a Trust Beneficiary's
Participating Employer is not Insolvent and commencing with the earlier to
occur of (i) appropriate notice by Ameritrust to the Trustee, or (ii) the date
on which the Trust becomes irrevocable, the Trustee shall make payments of
Benefits to the Trust Beneficiaries from the assets of the Trust in accordance
with the terms of the Agreements and Plans and subject to Section 9 hereof. The
Trustee shall be permitted to
-7-
8
withhold from any payment due to a Trust Beneficiary hereunder the amount
required by law to be so withheld under federal, state and local withholding
requirements or otherwise, and shall pay over to the appropriate government
authority the amount so withheld. The Trustee may rely on instructions from
Ameritrust as to any required withholding and shall be fully protected under
Section 8(f) hereof in relying on such instructions.
(b) If the balance of an Executive's separate account maintained pursuant to
Section 7(b) hereof is not sufficient to provide for full payment of Benefits
to which such Executive's Trust Beneficiaries are entitled as provided herein,
the Executive's Participating Employer shall make the balance of each such
payment as provided in the applicable provision of the Agreement or the Plans.
No payment from the Trust assets to a Trust Beneficiary shall exceed the
balance of such separate account.
3. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN
A PARTICIPATING EMPLOYER IS INSOLVENT: (a) At all times during the
continuance of this Trust, the principal and income of the Trust with respect
to accounts maintained hereunder on behalf of a Participating Employer shall be
subject to claims of creditors of such Participating Employer as set forth in
this Section 3(a). The Board of Directors ("Board") of Ameritrust and of each
Participating Subsidiary and the Chief Executive Officer of Ameritrust and of
each Participating Subsidiary ("CEO") shall have the duty to inform the Trustee
if either the Board or the CEO believes that his or
-8-
9
their respective Participating Employer is Insolvent. If the Trustee receives a
notice from the Board, the CEO, or a creditor of a Participating Employer
alleging that such Participating Employer is Insolvent, the Trustee will
independently determine within 30 days after receipt of such notice whether the
Participating Employer is Insolvent. Pending such determination or if the
Trustee has actual knowledge that a Participating Employer is Insolvent, the
Trustee shall (i) discontinue payments to any Trust Beneficiary from accounts
maintained hereunder on behalf of such Participating Employer (the "Identified
Participating Employer"), (ii) determine and allocate all Account Excesses in
accordance with Sections 4 and 7(b) hereof for the accounts of Executives then
employed by the Identified Participating Employer, or for whom such Identified
Participating Employer has obligations and liabilities or has assumed
obligations and liabilities pursuant to a Deposit Agreement, treating such
accounts solely for this purpose as if they comprised all of the accounts of
the Trust, and provided that for this purpose the Threshold Percentage shall be
equal to 100%, and (iii) hold the Trust assets attributable to accounts
maintained hereunder on behalf of Executives then employed by the Identified
Participating Employer, or for whom such Identified Participating Employer has
obligations and liabilities or has assumed obligations and liabilities pursuant
to a Deposit Agreement, for the benefit of the general creditors of such
Identified Participating Employer. The Trustee shall deliver any undistributed
principal and income in the Trust to
-9-
10
the extent of the balances of the accounts maintained hereunder on behalf of
the Identified Participating Employer to the extent necessary to satisfy the
claims of the creditors of such Identified Participating Employer as a court of
competent jurisdiction may direct. Such payments of principal and income shall
be borne by the separate accounts of the Trust Beneficiaries maintained
hereunder on behalf of the Identified Participating Employer in proportion to
the balances on the date of such court order of their respective accounts
maintained hereunder on behalf of such Identified Participating Employer and
maintained pursuant to Section 7(b) hereof. If payments to any Trust
Beneficiary have been discontinued pursuant to this Section 3(a), the Trustee
shall resume payments to such Trust Beneficiary in accordance with this Trust
Agreement if the Trustee has determined that the Executive's Participating
Employer is not Insolvent, or is no longer Insolvent (if the Trustee initially
determined such Participating Employer to be Insolvent), or pursuant to the
order of a court of competent jurisdiction. The Trustee shall have no duty to
inquire as to whether a Participating Employer is Insolvent and may rely on
information concerning the Insolvency of a Participating Employer which has
been furnished to the Trustee by any creditor of a Participating Employer or by
any person (other than an employee or director of Ameritrust or a Subsidiary)
acting with apparent or actual authority with respect to Ameritrust or a
Subsidiary. Nothing in this Trust Agreement shall in any way diminish any
rights of any Trust Beneficiary to pursue his
-10-
11
rights as a general creditor of the Executive's Participating Employer or any
other Participating Employer with respect to Benefits or otherwise, and the
rights of each Trust Beneficiary under the respective Agreement or Plans shall
in no way be affected or diminished by any provision of this Trust Agreement or
action taken pursuant to this Trust Agreement except that any payment actually
received by any Trust Beneficiary from the Trust shall reduce dollar-per-dollar
amounts otherwise due to such Trust Beneficiary pursuant to the respective
Agreement or Plans.
(b) If the Trustee discontinues payments of Benefits from the Trust pursuant
to Section 3(a) hereof, and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount of all
payments which would have been made to the Trust Beneficiaries in accordance
with this Trust Agreement during the period of such discontinuance, less the
aggregate amount of payments made to any Trust Beneficiary by the Participating
Employer pursuant to the Agreement or the Plans during any such period of
discontinuance, together with interest on the net amount delayed determined at
a rate equal to the rate actually earned during such period with respect to the
assets of the Trust corresponding to such net amount delayed; provided,
however, that no such payment shall exceed the balance of the respective Trust
Beneficiary's account as provided in Section 7(b) hereof.
4. PAYMENTS TO PARTICIPATING EMPLOYERS: Except to the extent expressly
contemplated by Section 1(b) and this Section 4,
-11-
12
no Participating Employer shall have any right or power to direct the Trustee
to return any of the Trust assets to such Participating Employer before all
payments of Benefits have been made to all Trust Beneficiaries of such
Participating Employer as herein provided. Upon the written request of a
Participating Employer made prior to the date on which the Trust becomes
irrevocable, the Trustee shall return to the Participating Employer any Trust
assets in accounts for Executives then employed by the Participating Employer,
or for whom such Participating Employer has obligations and liabilities or has
assumed obligations and liabilities pursuant to a Deposit Agreement, in excess
of One Hundred Dollars ($100) as may be specified in such request by such
Participating Employer. From time to time, but in no event before the third
anniversary of the date on which the Trust has become irrevocable, if and when
requested by Ameritrust to do so, the Trustee shall engage the services of The
▇▇▇▇▇ Company, or such other independent actuary as may be mutually
satisfactory to Ameritrust and to the Trustee, to determine the maximum
actuarial present values of the future Benefits that could become payable by
each Participating Employer under the Agreements and the Plans with respect to
the Trust Beneficiaries. The Trustee shall determine the fair market values of
the Trust assets allocated to the account of each Executive pursuant to Section
7(b) hereof. Ameritrust shall pay the fees of such independent actuary and of
any appraiser engaged by the Trustee to value any property held in the Trust.
The independent actuary shall make its
-12-
13
calculations based upon the assumptions set forth in Exhibit C hereto, or such
other assumptions as are recommended by such actuary and approved by Ameritrust
and, if the Trust is irrevocable, by two-thirds of the Executive Participants,
as hereafter defined (subject to the provisions of Sections 10(b)(i) and
(b)(ii) hereof). For purposes of this Trust Agreement, (a) "Executive
Participants" shall mean the individuals listed on Exhibit A-2 hereto; (b) the
"Fully Funded" amount with respect to the account of an Executive maintained
pursuant to Section 7(b) hereof shall be equal to the "Threshold Percentage,"
as defined below, multiplied by the maximum" actuarial present value of the
future Benefits that could become payable under the Agreement and the Plans
with respect to the Trust Beneficiaries of such Executive, (c) the "Account
Excess" with respect to such account shall be equal to the excess, if any, of
the fair market value of the assets held in the Trust allocated to an
Executive's account over the respective Fully Funded amount, and (d) the
"Aggregate Account Excess" with respect to a Participating Employer shall be
equal to the excess, if any, of the aggregate account balances of Executives
then employed by the Participating Employer, or for whom such Participating
Employer has obligations and liabilities or has assumed obligations and
liabilities pursuant to a Deposit Agreement, over their aggregate Fully Funded
amounts. Unless otherwise provided, the Threshold Percentage shall be equal to
125%. The Trustee shall allocate any Account Excess in accordance with Section
7(b) hereof. Thereafter, upon the
-13-
14
request of Ameritrust, the Trustee shall pay to the Participating Employer its
Aggregate Account Excess; provided, however, that if such payment would leave
the Trustee with insufficient liquid assets to pay all premiums due and to
become due on any life insurance policies held in the Trust, the Trustee shall
retain sufficient liquid assets to pay such premiums.
5. INVESTMENT OF TRUST FUND: Prior to the date on which the Trust becomes
irrevocable, the Trustee shall invest and reinvest the assets of the Trust as
Ameritrust or its designee shall prescribe from time to time. Thereafter, or in
the absence of such instructions from Ameritrust, the Trustee shall have sole
power to invest the assets of the Trust; provided, however, that except as
provided in Section 8(j) hereof, the Trustee shall retain any insurance
policies in the Trust. The investment objective of the Trustee shall be to
preserve the principal of the Trust while obtaining a reasonable total rate of
return, measurement of which shall include market appreciation or depreciation
plus receipt of interest and dividends. The Trustee shall be mindful, in the
course of its management of the Trust, of the liquidity demands on the Trust
and any actuarial assumptions that may be communicated to it from time to time
in accordance with the provisions of this Trust Agreement. The Trustee shall
not be liable for any failure to maximize income on such portion of the Trust
assets as may be from time to time invested or reinvested as set forth above,
nor for any loss of income due to the liquidation of any
-14-
15
investment which the Trustee, in its sole discretion, believes necessary to
make payments or to reimburse expenses under the terms of this Trust Agreement.
The Trustee shall have the right to invest assets of the Trust as the Trustee
may deem proper and suitable in non-interest bearing deposit accounts
(including any such accounts offered or maintained by the Trustee or any
successor or affiliated corporation).
6. INCOME OF THE TRUST: Except as provided in Section 3 hereof, during the
continuance of this Trust all net income (or loss) of the Trust shall be
allocated quarterly among the Trust Beneficiaries' separate accounts in
accordance with Section 7(b) hereof. Net income (or loss) of the Trust shall be
determined by taking into account (i) receipt of interest and dividends, (ii)
any increase or decrease in the value of the Trust assets attributable to
market appreciation or depreciation and (iii) any increase in the cash
surrender value of any life insurance policy held in the Trust other than the
portion of such increase attributable to the payment of the premiums due
thereon.
7. ACCOUNTING BY TRUSTEE: (a) The Trustee shall maintain such books,
records and accounts as may be necessary for the proper administration of the
Trust assets, including such specific records as shall be agreed upon in
writing by Ameritrust and the Trustee, and shall render to each Participating
Employer, within 60 days following the close of each calendar year following
the date of this Trust until the termination of this Trust or the removal or
resignation of the Trustee (and within 60 days after the date of such
termination, removal or resignation), an accounting with respect to the Trust
assets as of the end of the then most recent calendar year (and as of the date
of such termination,
-15-
16
removal or resignation as the case may be). The Trustee shall furnish to each
Participating Employer on a monthly basis and in a timely manner such
information regarding the Trust as each Participating Employer shall require
for purposes of preparing its statements of financial condition. The Trustee
shall at all times maintain a separate bookkeeping account for each
Participating Employer and for each Executive as prescribed by Section 7(b)
hereof. Upon the written request of an Executive or Ameritrust, the Trustee
shall deliver to such Executive or Ameritrust, as the case may be, a written
report setting forth the amount held in the Trust for such Executive (or each
Executive if such request is made by Ameritrust) and a record of the deposits
made with respect thereto by each Participating Employer. Unless Ameritrust or
any Executive shall have filed with the Trustee written exceptions or
objections to any such statement and account within one hundred eighty (180)
days after receipt thereof, Ameritrust or the Executive shall be deemed to have
approved such statement and account, and in such case the Trustee shall be
forever released and discharged with respect to all matters and things reported
in such statement and account as though it had been settled by a decree of a
court of competent jurisdiction in an action or proceeding to which each
Participating Employer and the Executive were parties.
-16-
17
(b) The Trustee shall maintain a separate account (i) for each Participating
Employer (a "Participating Employer Account") and (ii) within such
Participating Employer Account, a separate account for each Executive who
performs services for such Participating Employer and from whom such Executive
is entitled to Benefits (an "Executive's account"). Each asset of the Trust
shall be allocated to the account of a Participating Employer. Executive
accounts within a Participating Employer Account shall reflect undivided
portions of each asset in such Account. The Trustee shall credit or debit each
Executive's account as appropriate to reflect such Executive's allocable
portion of the Trust assets allocated to each Participating Employer Account,
as such Trust assets may be adjusted from time to time pursuant to the terms of
this Trust Agreement. Except as otherwise provided in this Section 7(b), the
Trustee shall allocate the income (or loss) of the Trust with respect to each
Participating Employer Account, and within such Account, to the separate
Executive accounts maintained thereunder in proportion to the balances of the
separate accounts of the Executives. All deposits of principal pursuant to
Sections 1(a) and 1(d) shall be allocated and reallocated as directed by the
Participating Employer making such deposit until such time as the Trust has
become irrevocable; thereafter, deposits of principal may be allocated, but not
reallocated, by a Participating Employer. The net proceeds of any life
insurance policies held in the Trust in excess of the cash surrender values
thereof shall be treated and allocated as income for purposes of this Section
-17-
18
7(b). Any increase in the cash surrender value of any such policies
attributable solely to the payment by a Participating Employer of premiums due
thereon pursuant to Section 8(j) hereof shall be treated as a deposit of
principal that may be allocated by such Participating Employer for purposes of
this Section 7(b).
For purposes of this Trust Agreement
(a) "Accumulated Benefit" for a Trust Beneficiary shall mean the
Benefits to which such Trust Beneficiary may become entitled as of
each March 31 with respect to service by an Executive to such
date;
(b) "Projected Benefit" for a Trust Beneficiary shall mean the
Benefits to which such Trust Beneficiary may become entitled
projected as of the date three years after the date for determination
of the Accumulated Benefit with respect to projected service by an
Executive to such date, which Projected Benefit shall
include the Accumulated Benefit;
(c) the "Projected Benefit Account Excess" with respect to an
Executive account maintained pursuant to this Section 7(b) shall be
equal to the excess, if any, of the fair market value of the assets
held in the Trust allocated to such Executive's account over the
respective Projected Benefit; and
-18-
19
(d) the "Aggregate Projected Benefit Account Excess" with respect to
a Participating Employer shall be equal to the excess, if any, of the
aggregate account balances of Executives then employed by the
Participating Employer, or for whom such Participating Employer has
obligations and liabilities or has assumed obligations and liabilities
pursuant to a Deposit Agreement, over their aggregate Projected
Benefits.
If any deposit of principal is not allocated by the Participating Employer such
amount shall be allocated by the Trustee as if it were a Projected Benefit
Account Excess with respect to Executives then employed by such Participating
Employer, or for whom such Participating Employer has obligations and
liabilities or has assumed obligations and liabilities pursuant to a Deposit
Agreement, in accordance with this Section 7(b). The Trustee shall determine
annually the amount of all Projected Benefit Account Excesses. The Trustee
shall allocate the Aggregate Projected Benefit Account Excess of a
Participating Employer to any accounts of Executives then employed by such
Participating Employer, or for whom such Participating Employer has obligations
and liabilities or has assumed obligations and liabilities pursuant to a
Deposit Agreement, that do not have a Projected Benefit Account Excess, in
proportion to the differences between the respective Projected Benefit amount
and account balance, insofar as
-19-
20
possible until all accounts are not less than the Projected Benefit for such
Executive. Any then remaining Aggregate Projected Benefit Account Excess of a
Participating Employer allocated to all the accounts of Executives then
employed by such Participating Employer, or for whom such Participating
Employer has obligations and liabilities or has assumed obligations and
liabilities pursuant to a Deposit Agreement, in proportion to the respective
Projected Benefit amounts.
(c) Nothing in this Section 7 shall preclude the commingling of Trust assets
for investment.
8. RESPONSIBILITY OF TRUSTEE: (a) The duties and responsibilities of the
Trustee shall be limited to those expressly set forth in this Trust, and no
implied covenants or obligations shall be read into this Trust against Trustee.
(b) If all or any part of the Trust assets are at any time attached,
garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part
thereof, then and in any of such events the Trustee is authorized, in its sole
discretion, to rely upon and comply with any such order, judgment or decree,
-20-
21
and it shall not be liable to any Participating Employer or any Executive by
reason of such compliance even though such order, judgment or decree
subsequently may be reversed, modified, annulled, set aside or vacated.
(c) The Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims; provided, however, that the Trustee shall
incur no liability to anyone for any action taken pursuant to a direction,
request, or approval given by any Participating Employer, or any Executive,
contemplated by and complying with the terms of this Trust Agreement. The
Trustee shall discharge its responsibility for the investment, management and
control of the Trust assets solely in the interests of the Executives and for
the exclusive purpose of assuring that, to the extent of available Trust assets
and in accordance with the terms of this Trust Agreement, all payments of
Benefits are made when due to the Executives.
(d) The Trustee may consult with legal counsel (who may be counsel for any
Participating Employer) to be selected by it, and the Trustee shall not be
liable for any action taken or suffered by it in accordance with the advice of
such counsel.
(e) The Trustee shall be reimbursed jointly and severally by Ameritrust and
each Participant Subsidiary for its reasonable expenses incurred in connection
with the performance of its duties hereunder (including, but not limited to the
fees and expenses of counsel incurred pursuant to Section 8(d) or 8(f) hereof)
and shall be paid reasonable fees for the
-21-
22
performance of such duties in the manner provided by Section
8(f) hereof.
(f) Ameritrust and each Participating Subsidiary agrees jointly and
severally to indemnify and hold harmless the Trustee from and against any and
all damages, losses, claims or expenses as incurred (including expenses of
investigation and fees and disbursements of counsel to the Trustee and any
taxes imposed on the Trust assets or income of the Trust) arising out of or in
connection with the performance by the Trustee of its duties hereunder, other
than such damages, losses, claims or expenses arising out of the Trustee's
gross negligence or willful misconduct. The Trustee shall not be required to
undertake or to defend any litigation arising in connection with this Trust
Agreement unless it be first indemnified by Ameritrust or a Participating
Subsidiary against its prospective costs, expenses and liabilities (including
without limitation attorneys' fees and expenses) relating thereto, and
Ameritrust and each Participating Subsidiary hereby jointly and severally to
indemnify the Trustee and be primarily liable for such costs, expenses, and
liabilities. Any amount payable to the Trustee under Section 8(e) hereof or
this Section 8(f) shall be paid by Ameritrust or a Participating Subsidiary
promptly upon demand therefor by the Trustee or, in the event that Ameritrust
or a Participating Subsidiary fails to make such payment, from the Trust
assets, pro rata with respect to account balances. In the event that payment
is made hereunder to the Trustee from the Trust assets, the Trustee shall
promptly notify Ameritrust in
-22-
23
writing of the amount of such payment. Ameritrust agrees that, upon receipt of
such notice, it will, jointly and severally, deliver or cause to be delivered
to the Trustee to be held in the Trust an amount in cash equal to any payments
made from the Trust assets to the Trustee pursuant to Section 8(e) hereof or
this Section 8(f). The failure of Ameritrust to transfer any such amount shall
not in any way impair the Trustee's right to indemnification, reimbursement and
payment pursuant to Section 8(e) hereof or this Section 8(f).
(g) The Trustee may vote any stock or other securities and exercise any
right appurtenant to any stock, other securities or other property held
hereunder, either in person or by general or limited proxy, power of attorney
or other instrument.
(h) The Trustee may hold securities in bearer form and may register
securities and other property held in the trust fund in its own name or in the
name of a nominee, combine certificates representing securities with
certificates of the same issue held by the Trustee in other fiduciary
capacities, and deposit, or arrange for deposit of property with any
depository; provided that the books and records of the Trustee shall at all
times show that all such securities are part of the trust fund.
(i) The Trustee may hire agents, accountants, actuaries, and financial
consultants, who may be agent, accountant, actuary, or financial consultant, as
the case may be, for Ameritrust or with respect to any Plan.
-23-
24
(j) (i) The Trustee is empowered to take all actions necessary or advisable
in order to collect any life insurance, annuity, or other benefits or payments
of which the Trustee is the designated beneficiary. The Trustee shall maintain
in force all life insurance policies held in the Trust (A) by requesting that
the Participating Employers pay directly all premiums and other charges due
thereon in a timely manner, and (B) by paying all such premiums and charges
that are not so paid by the Participating Employers. To the extent the Trustee
has cash or its equivalent readily available for such purpose or policy loans
and/or dividends are available, the Trustee shall pay premiums due with such
cash or its equivalent or policy loans and/or dividends, as the Trustee may
deem best. If the Trustee does not have sufficient cash or its equivalent
readily available and policy loans and dividends are not available, then the
Trustee (C) shall first liquidate other assets held by it in the Trust to
generate the necessary cash for the payment of such premiums and charges and
for the payment of Benefits, and then (D) shall surrender and liquidate
policies in an Executive's account as necessary to pay Benefits to the Trust
Beneficiaries with respect to such account.
(ii) The Trustee shall be named sole owner and beneficiary of each life
insurance policy held in the Trust and shall have full authority and power to
exercise all rights of ownership relating to the policy, (x) except that the
Trustee shall have no power, other than in accordance with Sections 1(b), 4,
and 11 hereof, to name a beneficiary of the policy
-24-
25
other than the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan to
any person the proceeds of any borrowing against such policy or, except as
provided in the immediately preceding sentence, to surrender any policy or
allow any policy to lapse at any time when there are other assets in the Trust
that can be disposed of or otherwise used to generate any cash necessary to
maintain the policy or for the payment of Benefits, and (y) except to the
extent necessary to give effect to the provisions of any split-dollar life
insurance arrangement. The Trustee shall have the power, with the consent of
Ameritrust, to exchange that portion, if any, of the life insurance coverage on
any Executive that is in excess of the amount of such coverage necessary to
provide sufficient proceeds to pay the corresponding amount of Benefits, for
additional life insurance coverage on other Executives. The Trustee shall also
have the power to acquire additional life insurance coverage on Executives
through application for new life insurance.
(k) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise herein.
(l) Notwithstanding any other provision of this Trust Agreement, in the
event of the termination of the Trust, or the resignation or discharge of the
Trustee, the Trustee shall have the right to a settlement of its accounts,
which accounting may be made, at the option of the Trustee, either (i) by a
judicial settlement in a court of competent jurisdiction, or (ii) by
-25-
26
agreement of settlement, release and indemnity from the Participating Employers
to the Trustee.
9. AMENDMENTS, ETC. TO EXHIBITS, AGREEMENT AND PLANS; COOPERATION OF
PARTICIPATING EMPLOYERS: (a) Prior to the date on which the Trust becomes
irrevocable, the provisions of this Section 9(a) shall apply.
(i) Ameritrust shall furnish the Trustee with any amendments, restatements
or other changes in the Agreements and the Plans, and Ameritrust shall
prescribe or amend, as the case may be, Exhibit B hereto to reflect any such
amendment, restatement, or other change, or any changes in the compensation of
the Executives, or otherwise. Exhibit B shall prescribe, among other things,
the amounts and timing (i) of Benefits to which each Trust Beneficiary may
become entitled as of each March 31 for service to such date (the "Accumulated
Benefit") and (ii) Benefits to which each Trust Beneficiary may become entitled
projected as of the date three years after the date in (i) (the "Projected
Benefit"). The Projected Benefit shall be inclusive of the Accumulated Benefit.
(ii) At such time as may in the judgment of Ameritrust be appropriate,
Ameritrust shall furnish to the Trustee any amendment to Exhibits A-1 or A-2
and any corresponding amendment to Exhibit B required as a result of such
amendment to Exhibits A-1 or A-2.
(b) On or after the date on which the Trust becomes irrevocable, the
provisions of this Section 9(b) shall apply.
-26-
27
(i) Not later than forty-five (45) calendar days after the end of each
calendar year and at such other time as may in the judgment of Ameritrust be
appropriate in view of a change in circumstances, Ameritrust and each Executive
(or his personal representative (including his guardian, executor or
administrator) (hereafter, his "Successor") shall agree upon and furnish any
amendment to Exhibit B hereto as shall be required to reflect:
(A) any required change in the amounts of Benefits (including Accumulated
Benefits and Projected Benefits) as a result of any change in such Executive's
compensation during the prior calendar year, or
(B) any amendment, restatement or other change in or to the Plans which
agreements to amendments to such Exhibit B shall be furnished to the Trustee
by Ameritrust or the Executives (or their Successors) and thereafter be deemed
to be a part of, and to amend to the extent thereof, this Trust Agreement;
provided, however, that in the event of the failure of Ameritrust and the
Executive (or Successor) to reach such agreement, the provisions of Section
9(b)(ii) hereof shall control.
(ii) Ameritrust has previously furnished the Trustee complete and correct
copies of the Agreements and the Plans, and Ameritrust shall, and any Trust
Beneficiary may, promptly furnish the Trustee true and correct copies of any
amendment, restatement or successor to any of the Agreements or the Plans.
Ameritrust shall, and any Trust Beneficiary
-27-
28
may, also furnish the Trustee, upon the Trustee's request, such evidence of
changes in compensation of the Executives as the Trustee shall deem necessary
for its determination under this Section 9(b)(ii). Upon written notification
to the Trustee by Ameritrust or any Executive (or Successor) of the failure of
Ameritrust or any Executive (or Successor) to agree as provided in Section
9(b)(i), the Trustee shall, to the extent necessary in the sole judgment of
the Trustee,
(A) recompute the amount payable hereunder as set forth in Exhibit B hereto
to any Trust Beneficiary; and
(B) notify Ameritrust and the Executive (or Successor) in writing of its
computations. Thereafter, this Trust Agreement and all Exhibits thereto shall
be amended to the extent of such Trustee determinations without further
action; provided, however, that the failure of Ameritrust to furnish any such
amendment, restatement, successor or compensation information shall in no way
diminish the rights of any Trust Beneficiary hereunder or thereunder.
(iii) Any amendment to Exhibit A-1 must be
(A) agreed to by two-thirds of the Executive Participants, subject to the
provisions of Sections 10(b)(i) and (b)(ii) hereof, and
(B) in the case of an amendment that adds a new Executive as a Trust
Beneficiary, accompanied by the deposit into the Trust by a Participating
Employer on or before the effective date on which the new Executive would
become a Trust Beneficiary, an amount certified by The ▇▇▇▇▇ Company,
-28-
29
or such other actuary acceptable to Ameritrust and two-thirds of the
Executive Participants (as determined prior to the effective date of the
amendment and subject to Sections 10(b)(i) and (b)(ii) hereof) as
sufficient to pay such new Executive's Benefits hereunder (with such
sufficiency determined on the same actuarial basis as that used to
determine sufficiency with respect to the Benefits as in effect hereunder
immediately prior to the addition of such new Executive).
(C) Notwithstanding the foregoing provisions of this Section 9, any
amendment, restatement, successor or other change in an Agreement or a Plan
that would materially increase the responsibilities or liabilities of the
Trustee or materially change its duties shall also require the consent of the
Trustee, which consent shall not be unreasonably withheld.
10. REPLACEMENT OF THE TRUSTEE: (a) The Trustee shall continue to serve
until its successor accepts the Trust and receives delivery of the Trust
assets. The Trustee may resign and be discharged from its duties hereunder
after providing not less than ninety (90) days' notice in writing to Ameritrust
and the Executive Participants. Prior to the date on which the Trust becomes
irrevocable, the Trustee may be removed at any time upon notice in writing by
Ameritrust. On or after such date, such removal shall also require the
agreement of two thirds of the Executive Participants. Prior to the date on
which the Trust becomes irrevocable, a replacement or successor trustee shall
be appointed by Ameritrust. On or after such
-29-
30
date, such appointment shall also require the agreement of two thirds of the
Executive Participants. No such removal or resignation shall be effective
until the acceptance of the Trust by a successor trustee designated in
accordance with this Section 10. If the Trustee should resign, and within
forty-five (45) days of the notice of such resignation Ameritrust and, if
required, two thirds of the Executive Participants, shall not have notified the
Trustee of an agreement as to a replacement trustee, the Trustee shall apply to
a court of competent jurisdiction for the appointment of a successor trustee,
which shall be such bank or trust company (A) that the court in its discretion
considers an appropriate trustee for the Trust, having due regard for the
objectives, magnitude and expected duration of the Trust; (B) (x) whose trust
assets under investment would place it among the 100 largest trust companies in
the United States, or (y) which is a national banking association or
established under the laws of one of the states of the United States, and which
has equity in excess of $100 million; and (C) that is independent and not
subject to the control of either Ameritrust or the Executives. The court in
its discretion may transfer jurisdiction of the Trust to the jurisdiction in
which the successor trustee has its principal place of business. The preceding
determinations shall be made as of the time of appointment of the successor
trustee. Upon the acceptance of the trust by a successor trustee, the Trustee
shall release all of the moneys and other property in the Trust to its
successor, who shall thereafter for all purposes of this
-30-
31
Agreement be considered to be the "Trustee." In the event of its removal or
resignation, the Trustee shall duly file with Ameritrust and, after the Trust
becomes irrevocable, the Executives, a written statement or statements of
accounts and proceedings as provided in Section 7(a) hereof for the period
since the last previous annual accounting of the Trust, and if written
objection to such account is not filed as provided in Section 7(a) hereof, the
Trustee shall to the maximum extent permitted by applicable law be forever
released and discharged from all liability and accountability with respect to
the propriety of its acts and transactions shown in such account.
(b) For purposes of the removal or appointment of a Trustee under this
Section 10, (i) if any Executive Participant shall be deceased or adjudged
incompetent, such Executive Participant's Successor (or if no Successor, his
Trust Beneficiaries) shall participate in such Executive Participant's stead,
and (ii) no Successor or Trust Beneficiary shall participate if all payments
of Benefits have been made with respect to such Executive Participant
(including his Trust Beneficiaries).
11. AMENDMENT OR TERMINATION: (a) This Trust Agreement may be amended at
any time and to any extent by a written instrument executed by the Trustee,
Ameritrust and, after the Trust has become irrevocable, two thirds of the
Executive Participants; provided, however, that no amendment shall have the
effect of (i) making the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof; or (ii)
-31-
32
altering Section 8(j) (ii) or 11(b) hereof. Notwithstanding the previous
sentence, (x) amendments contemplated by Section 9 hereof shall be made as
therein provided, and (y) the approval by Ameritrust or by two thirds of the
Executive Participants shall not be required for any amendment necessary in
order to obtain a favorable private letter ruling from the Internal Revenue
Service regarding the effect of the Trust on the taxation of the Participating
Employers or the Trust Beneficiaries.
(b) After the Trust has become irrevocable, the Trust shall not terminate
until the date on which the Trust no longer contains any assets, or, if
earlier, the date on which each Trust Beneficiary is entitled to no further
payments hereunder.
(i) Notwithstanding any other provision of this Trust Agreement, if the
payments under an Agreement or Plan with respect to an Executive subject of
litigation, or arbitration, and if the balance of such Executive's separate
account maintained pursuant to Section 7(b) is greater than zero, the
Trust shall not terminate and the funds held in the Trust with respect to
such Executive shall continue to be held by the Trustee until the final
resolution of such litigation or arbitration. The Trustee may assume that
no Agreement or Plan is the subject of such litigation or arbitration
unless the Trustee receives written notice from any Executive or Ameritrust
with respect to such litigation or arbitration. The Trustee may rely upon
written notice from an Executive as to the final resolution of such
-32-
33
litigation or arbitration. Following such final resolution, the Trust
shall terminate with respect to each Executive described in this Section
11(b)(i) upon the earlier of either of the following events: (x) the
exhaustion of the Trust assets held by the Trustee with respect to such
Executive; or (y) the final payment of all amounts payable to the Executive
pursuant to the Plans, as certified to the Trustee by such Executive.
(c) Upon termination of the Trust as provided in Section 11(b) hereof, any
assets remaining in the Trust, less all payments, expenses, taxes and other
charges under this Trust Agreement as of such date of termination, shall be
returned to Ameritrust or as it directs.
12. SPECIAL DISTRIBUTION: (a) It is intended that (i) the creation of,
transfer of assets to, and irrevocability of, the Trust will not cause any of
the Agreements or the Plans to be other than "unfunded" for purposes of Title I
of ERISA; (ii) transfers of assets to the Trust or the Trust becoming
irrevocable will not be transfers of property for purposes of section 83 of the
Code, or any successor provision thereto, nor will such transfers or
irrevocability cause a currently taxabable benefit to be realized by a Trust
Beneficiary pursuant to the "economic benefit" doctrine; and (iii) pursuant to
section 451 of the Code, or any successor provision thereto, amounts will be
includable as compensation in the gross income of a Trust Beneficiary in the
taxable year or years in which such amounts
-33-
34
are actually distributable or made available to such Trust Beneficiary by the
Trustee.
(b) Notwithstanding anything to the contrary contained in this Agreement, if,
based upon a change in the federal tax or revenue laws, a published ruling or
similar announcement issued by the Internal Revenue Service, a regulation
issued by the Secretary of the Treasury, a decision by a court of competent
jurisdiction involving a Trust Beneficiary, or a closing agreement made under
section 7121 of the Code that is approved by the Internal Revenue Service and
involves a Trust Beneficiary, the Trustee determines that amounts are
includible as compensation in the gross income of a Trust Beneficiary in a
taxable year that is prior to the taxable year or years in which such amounts
would, but for this Section 12, otherwise actually be distributed or made
available to such Trust Beneficiary by the Trustee, then (i) the assets held in
trust shall be allocated in accordance with Section 7(b) hereof, and (ii)
subject to the last sentence of Section 2(b) hereof, the Trustee shall promptly
make a distribution to each affected Trust Beneficiary which, after taking into
account the federal, state and local income tax consequences of the special
distribution itself, is equal to the sum of any federal, state and local income
taxes, interest due thereon, and penalties assessed with respect thereto which
are attributable to amounts that are so includible in the income of such Trust
Beneficiary.
13. PARTICIPATING SUBSIDIARY DEPOSIT AGREEMENT: (a) Upon execution of a
Deposit Agreement in the form of Exhibit D
-34-
35
hereto, a Subsidiary may at any time or from time to time make deposits of cash
or other property in the Trust pursuant to Section 1(d) hereof. Such Deposit
Agreement shall provide, among other things, for the designation of Ameritrust
as agent and attorney for the Participating Subsidiary for all purposes under
this Trust Agreement, including consenting to any amendments hereto, consenting
to any Trustee accounts and consenting to anything requiring the approval or
consent of a Participating Employer hereunder.
(b) Ameritrust is the sponsoring grantor for the Trust Agreement. It
reserves to itself, and each Subsidiary by execution of a Deposit Agreement
delegates to Ameritrust, the power to amend or terminate the Trust Agreement in
accordance with its terms.
14. GENERAL PROVISIONS: (a) Ameritrust and each Participating Subsidiary
shall, at any time and from time to time, upon the reasonable request of the
Trustee, execute and deliver such further instruments and do such further acts
as may be necessary or proper to effectuate the purposes of this Trust.
(b) Each Exhibit referred to in this Trust Agreement shall become a part
hereof and is expressly incorporated herein by reference.
(c) This Trust Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof and supersedes any and all prior
agreements, arrangements and understandings relating thereto. This Trust
Agreement shall
-35-
36
be binding upon and inure to the benefit of the parties and their respective
successors and legal representatives.
(d) This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio, other than and without reference to any
provisions of such laws regarding choice of laws or conflict of laws.
(e) In the event that any provision of this Trust Agreement or the
application thereof to any person or circumstances shall be determined by a
court of competent jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Trust Agreement, or the application of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this Trust
Agreement shall be valid and enforced to the maximum extent permitted by law.
(f) The headings contained in this Trust Agreement are solely for the
purpose of reference, are not part of the agreement of the parties and shall
not in any way affect the meaning or interpretation of this Trust Agreement.
(g) No right or interest under this Trust Agreement of a Trust Beneficiary
(or any person claiming through or under any of them) other than the surviving
spouse of any Executive shall be assignable or transferable in any manner or be
subject to alienation, anticipation, sale, pledge, encumbrance or other legal
process or in any manner be liable for or subject to the debts or liabilities
of any such Trust Beneficiary. If any Trust Beneficiary (other than the
surviving spouse of any
-36-
37
deceased Executive) shall attempt to or shall transfer, assign, alienate,
anticipate, sell, pledge or otherwise encumber his Benefits hereunder or any
part thereof, or if by reason of his bankruptcy or other event happening at any
time such Benefits would devolve upon anyone else or would not be enjoyed by
him, then the Trustee, in its discretion, may terminate his interest in any
such Benefit to the extent the Trustee considers necessary or advisable to
prevent or limit the effects of such occurrence. Termination shall be effected
by filing a written "termination declaration" with the Trust's records and
making reasonable efforts to deliver a copy to the Trust Beneficiary (the
"Terminated Beneficiary") whose interest is adversely affected.
As long as the Terminated Beneficiary is alive, any benefits affected by the
termination shall be retained by the Trustee and, in the Trustee's sole and
absolute judgment, may be paid to or expended for the benefit of the Terminated
Beneficiary, his spouse, his children or any other person or persons in fact
dependent upon him in such a manner as the Trustee shall deem proper. Upon the
death of the Terminated Beneficiary, all benefits withheld from him and not
paid to others in accordance with the preceding sentence shall be disposed of
according to the provisions of the Plans that would apply if he died prior to
the time that all Benefits to which he was entitled were paid to him; provided,
however, that if such provisions provide for distribution to the Terminated
Beneficiary's estate or to his creditors and if the Terminated Beneficiary
shall have
-37-
38
descendants, including adopted children, then living, distribution shall be
made to the Terminated Beneficiary's then living descendants, including adopted
children, PER STIRPES.
(h) Any dispute between the Executives and Ameritrust or the Trustee as to
the interpretation or application of the provisions of this Trust and amounts
payable hereunder may, at the election of any party to such dispute (or, if
more than one Executive is such a party, at the election of two-thirds of such
Executives), be determined by binding arbitration within the greater Cleveland
metropolitan area in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction. All fees and expenses of such
arbitration shall be paid by the Trustee and considered an expense of the Trust
under Section 8(f) hereof.
(i) Each Executive (and, where applicable, each Successor) is an intended
beneficiary under this Trust, and as an intended beneficiary shall be entitled
to enforce all terms and provisions hereof with the same force and effect as if
such person had been a party hereto.
(j) Each action taken by Ameritrust hereunder shall, unless otherwise
designated in such action by Ameritrust or unless the context or this Trust
Agreement requires otherwise, be deemed to be an action of Ameritrust on behalf
of each Participating Subsidiary pursuant to the authority granted to
Ameritrust by such Participating Subsidiary in the Deposit Agreement.
-38-
39
15. NOTICES; IDENTIFICATION OF CERTAIN TRUST BENEFICIARIES: (a) All
notices, reguests, consents and other communications hereunder shall be in
writing and shall be deemed to have been duly given when received:
If to the Trustee, to:
Wachovia Bank and Trust Company, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Trust Department
If to Ameritrust, to:
Ameritrust Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
If to the Trust Beneficiaries, to the addresses
listed on Exhibits A-1 and A-2 hereto
provided, however, that if any party or any Trust Beneficiary or his, her or
its successors shall have designated a different address by written notice to
the other parties, then to the last address so designated.
(b) Ameritrust shall provide the Trustee with the names of the beneficiary
or beneficiaries designated by deceased
-39-
40
Executives under the Plans (and who are, therefore, Trust Beneficiaries
hereunder).
IN WITNESS WHEREOF, each of Ameritrust and the Trustee
has caused counterparts of this Trust Agreement to be executed on its behalf on
November 3, 1988.
AMERITRUST CORPORATION
By: /s/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------
Its: Executive Vice President
-------------------------
WACHOVIA BANK AND TRUST COMPANY, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Its: Senior Vice President
-------------------------
ASSISTANT SECRETARY
-40-