1. Establishment and Acceptance of Trust. The trust will consist of all funds held by the trustee under the Master Plan, including contributions made pursuant to the provisions of the separate Plans of each participating employer, and the investments, reinvestments and proceeds thereof. The trust shall be held, managed and administered in trust pursuant to the terms hereof. The trustee hereby accepts the trust created hereunder and agrees to perform the duties assigned to it hereunder. Except as otherwise expressly provided for, the trustee has exclusive authority and discretion to manage and control the trust assets. The duties, powers and responsibilities reserved to the trustee may be allocated among the trustees (if there be more than one) so long as such allocation is pursuant to action taken by the plan sponsor, or by written agreement executed by the trustee and approved by the plan sponsor, in which case no trustee shall have any liability, with respect to any duties, powers or responsibilities not allocated to him, or for the acts or omissions of any other trustee.
2. Powers and Duties of Trustee. With respect to the trust, the trustee shall have the following powers, rights and duties, in addition to those vested in it elsewhere herein or by law:
A. To retain in cash so much of the trust as it deems advisable and to deposit any cash so retained in any bank or similar financial institution (including any such institution which may be a trustee hereunder), without liability for interest thereon.
B. To invest and reinvest the principal and income of the fund and keep said fund invested, without distinction between principal and income, in securities which are at the time legal investments for fiduciaries under the applicable laws of the Commonwealth.
C. To sell property held in the fund at either public or private sale for cash or on credit at such times as it may deem appropriate; to exchange such property; to grant options for the purchase or exchange thereof.
D. To consent to and participate in any plan of reorganization, consolidation, merger, extension or other similar plan affecting property held in the fund; to consent to any contract, lease mortgage, purchase, sale or other action by any corporation pursuant to any such plan.
E. To exercise all conversion and subscription rights pertaining to property held in the fund.
F. To exercise all voting rights with respect to property held in the fund and in connection therewith to grant proxies, discretionary or otherwise.
G. To cause any securities or other property held as part of the trust fund to be registered in its own name or in the name of one or more of its nominees, without designating the same as trust property, 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 fund.
H. Generally, to do all such acts, execute all such instruments, take all such proceedings and exercise all such rights and privileges with relation to property constituting the trust fund as if the trustee were the absolute owner thereof.
I. If bonds, preferred stocks or other securities shall be purchased at a premium, it shall not be necessary for the trustee to set aside a sinking fund from the earnings to retire or absorb the premium.
J. To place money at any time in a deposit bank deemed by the trustee to be appropriate for the purposes of this trust no matter where situated. Such deposits may be for such duration as the trustee, in its sole discretion, may determine.
K. In addition to the foregoing powers, the trustee shall also have all of the powers, rights and privileges conferred upon trustees by the applicable laws of the Commonwealth, and the power to do all acts, take all proceedings and execute all rights and privileges, although not specifically mentioned herein, as the trustee may deem necessary to administer the trust fund and to carry out the purposes of this trust.
L. To invest the assets or some portion of the assets of the trust in any collective commingled trust fund maintained by a bank or trust company, including any bank or trust company which may hereafter be appointed to act as a trustee hereunder. In this connection, the commingling of the assets of the trust with assets of other eligible, participating trusts through such a medium is hereby specifically authorized. Any assets of the trust which may be so added to such collective trusts shall be subject to all of the provisions of the applicable declaration of trust, as amended from time to time, which declaration, if required by its terms or by applicable law, is hereby adopted as part of the plan, to the extent of the participation in such collective or commingled trust fund by the trust.
M. To make any payment or distribution directed by the Administrator or otherwise required or advisable to carry out the provisions hereof.
N. To compromise, contest, arbitrate, enforce or abandon claims and demands.
O. To retain any funds or property subject to any dispute without liability for the payment of interest thereon, and to decline to make payment or delivery thereof until final adjudication is made by a court of competent jurisdiction.
P. After advance notice to the plan sponsor, to pay, and to deduct from and charge against the trust, any taxes which may be imposed upon the trust, the income, property or transfer thereof, or upon or with respect to the interest of any person therein, which the trustee is required to pay; to contest, in its discretion, the validity or amount of any tax, assessment, claim or demand which may be levied or made against or in respect of the trust, the income, property or transfer thereof, or in any matter or thing connected therewith, provided the trustee is indemnified to its satisfaction.
3. Management Authority. Except as otherwise provided in subsection (2), above, the powers granted the trustee thereunder shall be exercised in the discretion of the trustee; however, the plan sponsor may at any time affirmatively direct the trustee with regard to the investment of the trust, or direct the trustee to obtain the plan sponsor's approval before exercising any of the powers granted the trustee. Any such direction may be of a continuing nature or otherwise, may be revoked at any time, and shall be complied with as promptly as possible by the trustee. The trustee shall not be liable for any loss or depreciation in value of the trust, or any adverse effect upon the exempt status of the trust under the Internal Revenue Code, resulting from actions taken in accordance with the plan sponsor's affirmative direction or from the failure or refusal of the plan sponsor to give any required approval, nor shall the trustee be obliged to review the assets of the trust acquired at the direction of the plan sponsor or accepted on behalf of any participating employer hereunder.
4. Successor Trustee. Pending the appointment of any successor trustee and the
acceptance of such appointment, the existing trustee or trustees shall have full power to take any action hereunder. Each successor or additional trustee shall have all rights and powers, as well as duties and liabilities, vested in the original trustee without the signing or filing of any further instrument, but any resigning or removed trustee shall execute all documents and do all acts necessary to vest title of record to any assets of the trust in any successor trustee, or in the remaining trustee or trustees. With the approval of the plan sponsor, a successor trustee may accept the account rendered and the property delivered to it by a predecessor trustee as a full and complete discharge of the predecessor trustee, without incurring any liability or responsibility for so doing.
5. Common Investments. The trustee shall not be required to make separate investments for individual employers participating in the trust, nor shall it be required to maintain separate investments for each participant's account, but may invest contributions and any profits or gains therefrom in common investments.
6. Compensation and Expenses of Trustee. The trustee shall be entitled to such reasonable compensation as shall from time to time be agreed upon by the plan sponsor and the trustee, unless such compensation is prohibited by law. Such compensation, and all expenses reasonably incurred by the trustee in carrying out its functions, shall constitute a charge upon the trust fund or upon the employers participating thereunder, which charge may be executed at any time after thirty (30) days written notice to the plan sponsor. The plan sponsor shall be under no obligation to pay such costs and expenses, and, in the event of the failure of participating employers to do so, the trustee shall be entitled to pay the same, or to reimburse themselves for the payment thereof, from the trust and such charges shall be appropriately prorated to the interests of participating employers thereunder.
7. Immunity and Liability of Trustee.
A. The trustee shall not be liable for the making, retention or sale of any investment or reinvestment made by it, as herein provided, nor for any loss to, or diminution of, the trust fund, unless due to its own intentional or willful misconduct, lack of good faith or gross negligence.
B. The trustee shall be fully protected in acting upon any instrument, certificate or paper believed by it to be genuine and to be signed or presented by the proper person or persons, and the trustee shall be under no duty to make any investigation or any inquiry as to any statement contained in any writing, but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained.
C. The trustee shall not be liable for the proper application of any part of the trust if payments are made in accordance with the directions of the Administrator as herein provided, and the trustee shall not be obliged to inquire as to whether any payee is entitled to any payment or distribution, pursuant to such directions, or as to whether any payment or distribution, pursuant to such directions, is proper or within the terms of the plan. The trustee shall not be required to make any investigation to determine the identity or mailing address of any person entitled to benefits under the plan and shall be entitled to withhold making any payments or deliveries upon instructions from the Administrator.
D. The trustee shall not be responsible for the adequacy of the trust to meet and discharge any and all payments and liabilities under the plan. The trustee shall be responsible only for such sums as shall actually be received by it as trustee, hereunder, and it shall not be the duty of the trustee to collect, or to ascertain the correctness of the amount of, any sum receivable or received from any participating employer.
E. The trustee shall discharge its duties with respect to the assets of the trust solely in the interest of the participants and beneficiaries, administering the assets of the plan with the care and diligence, under the then prevailing circumstances, that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims.
8. Financial Records. The trustee shall maintain records and accounts reflecting all receipts and disbursements made by it under the terms of the Master Plan and showing such other items and information as the plan sponsor from time to time may specify. The trustee's records and accounts shall be open to the inspection of the participating employers at all reasonable times, and may be audited from time to time by such person or persons as the plan sponsor may specify.
9. Periodic Accounting. The trust will be evaluated monthly, or at more frequent intervals, by the trustee and a written accounting rendered as of each fiscal year end of the trust, and as of the effective date of any removal of resignation of the trustee, and such additional dates as requested by the plan sponsor, showing the condition of the trust and all receipts, disbursements and other transactions effected by the trustee during the period covered by the accounting, based on fair market values prevailing as of such date. Any such accounting shall be due within 90 days after the date thereof, to the extent permitted by law, upon the expiration of 180 days from the filing of such accounting, the trustee shall be forever released, remised and discharged from all liability and accountability to anyone with respect to the propriety of its accounts and transactions shown in such accounts except with respect to any such accounts or transactions as to which the plan sponsor shall within such 180 day period file written exceptions. All determinations as to the value of the assets of the trust, and as to the amount of the liabilities thereof, shall be made by the trustee, whose decisions shall be final and conclusive and binding on all parties hereto, including the employers participating hereunder, and the participants, beneficiaries and their estates. In making any such determination, the trustee shall be entitled to seek and rely upon the opinion of or any information furnished by brokers, appraisers and other experts, and the trustee shall also be entitled to rely upon reports as to sales and quotations, both on security exchanges and otherwise as contained in newspapers and in financial publications.
10. Rights of Trustee. The rights and interest of any participant on whose life or in whose name a contract is issued shall not be expanded by such an investment and any and all rights provided under the contract or permitted by the insurer shall be reserved to the trustee. Such rights shall include the right to surrender, reduce or split the contract, the right to name and change the payee to receive thereunder on the happening of any contingency specified in the contract, the right to exercise any loan provisions to pay premiums or for any other reason, and such other rights as may be reserved to the owner of the policy. Notwithstanding the preceding, if any participating employer under the trust uses plan assets to purchase contracts or policies and fails to inform the trustee of the existence of such contracts or policies, the trustee shall have no liability whatsoever with respect to such policies and shall not be held responsible for valuing same as a part of Plan assets, nor shall the trustee be held responsible for payment of any benefits attributable to said contracts or policies.
11. Actions of Insurer. No Insurer, which may issue a policy for the purpose of this plan, shall be required to take or permit any action contrary to the provisions of said policy nor shall the Insurer be required to look into the terms of this plan, or question any action as authorized by the trustee in the application for a policy or changes in an existing policy.
12. Insurer Not a Party to Plan. The Insurer shall not be deemed to be a party to this plan and trust for any purpose nor shall it be responsible for the validity of this plan and trust.
13. Authorized Investments. The trustee shall not, in any case, be required to accept as assets hereunder any contracts or policies which are not permissible investments for retirement plans subject to the Act; moreover, the trustee shall have no duty or obligation to inquire into the nature of any such contracts or policies, nor to assess the appropriateness of such contracts or policies as investments of plan assets under the Act.
(Ord. 253, 2/3/1997, Administrative Provisions, Chapter 1, Art. III)