Exhibit 10.29
TRUST AGREEMENT
FOR THE WARWICK SAVINGS BANK
401(K) SAVINGS PLAN
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Entered Into as of August 23, 2000
TRUST AGREEMENT
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This Trust Agreement (herein called the "Agreement") is made
as of August 23, 2000 by and among The Warwick Savings Bank (herein called the
"Employer") or any successor corporation or business organization which agrees
in writing to assume the obligations of the plan and Xxxxxxx X. Xxxxxxx, Xxxxxx.
X. Xxxxxxx, Xxxxx X. Xxxxxxx-Xxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx
(herein called the Trustees and, collectively, the Trustee). The Employer has
adopted a tax-qualified plan called The Warwick Savings Bank 401(k) Savings Plan
(herein called the "Plan") for the benefit of its employees. Any change in Plan
name shall not affect this Agreement.
The Employer and the Trustee mutually agree as follows:
SECTION 1 -- THE TRUST AND TRUST FUND.
(a) By executing this Agreement, the Employer establishes the Trust.
The Trust is established for the purpose of holding and distributing the Trust
Fund under the provisions of the Plan. The Trust shall be construed, regulated,
and administered under applicable federal law and, to the extent not pre-empted
by federal law, the law of the State of New York. The Trust established pursuant
to this Agreement shall be separate from the trust established under the trust
agreement, dated as of November 21, 1997, between the Employer and HSBC Bank
USA, pursuant to which the Qualifying Employer Securities Fund is held.
(b) The Trust Fund consists of the total assets held under the Trust
for the purpose of providing benefits for participants. These assets result from
contributions made under the Plan, which are forwarded to the trustee to be
deposited in the Trust Fund as provided in the Plan and all earnings,
appreciation and additions as allocable thereto, less losses, depreciation and
expenses allocable thereto and payments made therefrom as authorized under the
Plan or this Agreement. The Trust Fund shall be valued at current fair market
value at least annually and, at the discretion of the Trustee, may be valued
more frequently. Notwithstanding anything to the contrary contained in this
Agreement or any amendment thereto, no part of the corpus or income of the Trust
Fund, other than such expenses, fees, indemnities and taxes properly charged to
the Trust Fund under this Plan or this Agreement, shall be used for, or diverted
to, purposes other than for the exclusive benefit of the employees of the
Employer, retired employees or their beneficiaries under the Plan.
SECTION 2-- THE TRUSTEE.
(a) The Employer has initially appointed the Trustee named above. The
Employer has the power to appoint an additional or successor trustee at any
time. Any one of the Trustees may be removed by the Employer at any time upon
thirty days notice in writing to such Trustee. A trustee may resign at any time
upon thirty days written notice to the Employer and a Trustee shall
automatically be removed on death, total disability as determined by the
Employer or termination of employment with the Employer. If a Trustee is
removed, resigns, dies or is otherwise unable to serve as a Trustee, the
successor trustee appointed by the Employer has the same powers and duties as
the Trustee replaced, subject to any pre-established arrangement of the Trustee.
Pending the
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appointment of an acceptance by a successor trustee, the removed or resigning
Trustee or his estate must assign, transfer, pay over and deliver to the
successor trustee all of the assets which then constitute the Trust Fund. The
Employer shall notify any person who is a named fiduciary (as such term is
defined in section 402(a)(2) of the Employee Retirement Income Security Act of
1974 ("ERISA")) of any change of Trustee.
(b) If more than one person is appointed as Trustee, any material acts
and decisions to be made by the Trustee shall be governed by a majority vote of
the trustees. If a majority vote cannot be obtained, the Trustee shall act or
decide according to a pre-established written procedure of the Trustees.
SECTION 3 -- DUTIES OF TRUSTEE.
(a) The Trustee shall accept and hold the Trust Fund and administer it
according to the provisions of this Agreement and the provisions of the Plan
document. The Trustee has no duty to demand or require the contributions be made
to the Trust, nor shall the Trustee be liable to determine the amount of any
contributions to the Trust. The Trustee shall be under no duty to enforce the
payment of any contribution to the Trust Fund and shall not be responsible for
the adequacy of the Trust Fund to satisfy any obligations for benefits, expenses
and liabilities under the Plan. In addition to making contributions, the
Employer shall furnish the Trustee with such information and data relative to
the Plan as is necessary for the proper administration of the Trust Fund.
(b) The Trust Fund shall be held by the Trustee and shall be invested
and reinvested as hereinafter provided, without distinction between principal
and income and without regard to the restrictions of the laws of the State of
New York, or of any other jurisdiction, relating to the investment of trust
funds.
(c) The Plan is administered by the Plan Administrator. The Trustee is
not responsible for any aspect of the administration of the Plan. The Trustee is
not required to look into any action taken by a named fiduciary, Plan
Administrator or the Employer and will be fully protected in taking, permitting
or omitting any action on the basis of their actions. Any action by a named
fiduciary, Plan Administrator or the Employer according to the Plan provisions
shall be evidenced in writing. The Employer will indemnify the Trustee by
satisfying any liabilities the Trustee may incur in acting according to the
Trust provisions upon written instruction from a named fiduciary, Plan
Administrator or Employer.
SECTION 4 -- SPECIFIC POWERS OF THE TRUSTEE.
Except where the Plan expressly provides that the Trustee is
subject to the direction of a named fiduciary, the Plan Administrator, an
investment manager ("Investment Manager"), or the Employer, the Trustee is
authorized and empowered:
(a) to apply for and invest all or any portion of the assets of
the Trust Fund in an annuity contract (either group or
individual), an insurance policy (either group or individual),
or both, issued by an insurance company designated by the
Employer, and to hold such contract and/or policy as owner;
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(b) to invest and reinvest all or any portion of the assets of the
Trust in any bonds, debentures, notes, mortgages or mortgages
participations, preferred stocks, common stocks, mutual funds
or other securities or other real or personal properties
permitted by law; and, if allowed under the Plan, to invest in
loans to participants according to the loan provisions of the
Plan;
(c) to sell, exchange, convey, transfer, or otherwise to dispose
of and also grant options with respect to any property held by
it, by private contract or at public auction;
(d) to exercise the voting rights in person or by proxy of any
stocks, bonds, or other securities and to exercise any of the
powers of an owner with respect to stocks, bonds, securities,
or other property held in the Trust Fund;
(e) to retain in cash such amount as the Trustee considers
advisable, and to deposit cash in any depository selected by
the Trustee, without liability for interest;
(f) to make, execute, acknowledge and deliver any instruments that
may be necessary to carry out the powers granted it;
(g) to exercise any options, conversion rights, or rights to
subscribe for stocks, bonds or other securities appurtenant to
any stocks, bonds or other securities held by it, and to make
any necessary payments in connection with such exercise; to
join in, dissent from, and oppose the reorganization,
consolidation, recapitalization, liquidation, merger, or sale,
mortgage, pledge or lease, of corporate property with respect
to any corporations or property in which it may be interested
as Trustee; to deposit any property with any protective,
reorganization or similar committee, and to pay or agree to
pay part of the expenses and compensation of any committee and
any assessments levied with respect to property so deposited;
(h) to compromise, compound, submit to arbitration or settle any
debt or obligation owing to or from it as Trustee; to reduce
or increase the rate of interest on extension, or otherwise
modify, foreclose upon default, or otherwise enforce any such
obligation;
(i) to make, enter into, amend, perform, enforce or terminate, in
whole or in part, suitable contracts with insurance companies,
whereby such companies will underwrite the payment of all or
part of the benefits herein provided to be paid; and to
deliver to such companies all or such part of the
contributions collected from the Participants and the Employer
as are deemed proper by the Trustee. Any such contract may be
held, for the purpose of providing solely for the funding of
benefits under the Plan;
(j) to employ such agents, actuaries, clerical help, custodians
and others (including, but not limited to, an investment
manager or an insurance company) as needed to carry out the
Trustee's duties;
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(k) to consult with legal counsel, including the Employer's
counsel, with respect to the meaning or construction of, or
the Trustee's obligations or duties under, the Plan and Trust,
or with respect to any action or proceeding or any question of
law. The Trustee shall be fully protected with respect to any
action it takes in good faith pursuant to the advice of such
counsel; and
(l) to enforce any right, obligation or claim and, in its absolute
discretion, to protect in any way the interest of the Trust
Fund, and, if the Trustee considers such action for the best
interest of the Trust Fund, to abstain from the enforcement of
any right, obligation and claim or and abandon any property
which it has held.
In exercising such powers with respect to any portion of the Trust Fund that is
invested in the discretion of the Trustee, the Trustee shall act in its
discretion. In exercising such powers with respect to directions of the Employer
or of an Investment Manager (including directions based upon the directions of
participants in the Plan), the Trustee shall act in accordance with directions
provided by the Employer or Investment Manager. The Trustee shall be under no
duty or obligation to review any action to be taken, nor to recommend any
action, pursuant to this Section 4 with respect to any portion of the Trust Fund
that is under the direction of the Employer or an Investment Manager. The
Trustee shall have no liability of responsibility for, and the Employer agrees
to indemnify the Trustee and hold it harmless from and defend it against any
claim or liability which may be asserted against the Trustee by reason of, its
actions or inaction pursuant to the direction of, or its failure to act in the
absence of directions from the Employer or an Investment Manager, except to the
extent provided in Section 14.
SECTION 5 -- DISCRETIONARY POWERS OF THE TRUSTEE.
In addition to and not by way of limitation of any other
powers conferred upon the Trustee by law or other provisions of this Agreement,
but subject to Sections 1, 3 and 4, the Trustee is authorized and empowered, in
its discretion:
(a) to xxx or defend suits or legal proceedings to protect or
enforce any interest in the Trust and to represent the Trust
in all suits or legal proceedings in any court or before any
other administrative agency, body or tribunal, where it is
advised by counsel that such action is required by applicable
law;
(b) to organize corporations and/or partnerships or established
ancillary or subsidiary trusts under the laws of any
jurisdiction for the purpose of holding title to any property
held in the Trust Fund;
(c) to borrow, subject to the provisions of Article VI and ERISA,
for the purpose of the Trust from any person or persons, and
for any sums so borrowed to issue its promissory note as
Trustee and to secure the repayment thereof by pledging all or
any part of the assets of the Trust fund; no person lending
money to the Trustee shall be required to see to the
application of the money lent or to inquire into the validity,
expediency, or propriety of any such borrowing;
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(d) to hold part of the Trust Fund uninvested in cash or
cash balances for liquidity purposes and not be
required to pay interest thereon;
(e) to hold any property at any place, except that it
shall not maintain the indicia of ownership of any
assets of the Trust Fund outside the jurisdiction of
the district courts of the United States except as
permitted by regulations issued by the Secretary of
Labor of the United States under Section 404(b) of
ERISA.
(f) to make, sign, acknowledge, and deliver deeds,
leases, assignments, and other instruments;
(g) to cause any property to be registered in the name of
its nominee, or to hold any such property in such
form that it will pass by delivery and, in accordance
with Sections 11-1.8 and 11-1.9 of the Estates,
Powers and Trusts Law of the State of New York, to
deposit or arrange for the deposit of any securities
held by it with the Federal Reserve Bank of New York
or in a clearing corporation (as defined in the New
York State Uniform Commercial Code); provided,
however, that the records of the Trustee shall at all
times show that any such property held or registered
in the name of another is part of the Trust Fund;
(h) to employ legal counsel, brokers, and other advisors,
agents, or employees to perform services for the
Trust Fund or to advise it with respect to its duties
and obligations under this Agreement and in
connection with the Trust, and to pay to them from
the Trust Fund such compensation as it deems
appropriate; and
(i) generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or
desirable for the protection of the Trust Fund.
SECTION 6 -- INVESTMENT OF THE TRUST FUND.
(a) The Employer may, in its discretion, appoint an investment manager
("Investment Manager") to direct the investment and reinvestment of all or any
portion of the Trust Fund. Any such Investment Manager shall either: (i) be
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended ("Investment Advisers Act"); (ii) be a bank, as defined in the
Investment Advisers Act; or (iii) be an insurance company qualified to perform
investment services under the laws of more than one state.
(b) The Employer shall give written notice to the Trustee of the
appointment of an Investment Manager pursuant to the previous paragraph. Such
notice shall include: (i) a specification of the portion of the Trust Fund to
which the appointment applies; (ii) a certification by the Employer that the
Investment Manager satisfies the requirements of the previous paragraph; (iii) a
copy of the instruments appointing the Investment Manager and evidencing the
Investment Manager's acceptance of the appointment; (iv) directions as to the
manner in which the Investment Manager is authorized to give
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instructions to the Trustee, including the persons authorized to give
instructions and the number of signatures required for any written instruction;
(v) an acknowledgment by the Investment Manager that it is a fiduciary of the
Plan; and (vi) if applicable, a certificate evidencing the Investment Manager's
current registration under the Investment Advisers Act. For purposes of this
Agreement, the appointment of an Investment Manager pursuant to this Section 6
shall become effective as of the effective date specified in such notice, or, if
later, as of the date on which the Trustee receives proper notice of such
appointment.
(c) The Employer shall give written notice to the Trustee of the
resignation or removal of an Investment Manager previously appointed pursuant to
this Section 6. From and after the date on which the Trustee receives such
notice, or, if later, the effective date of the resignation or removal specified
in such notice, the Employer shall be responsible, in accordance with this
Section 6, for the investment and reinvestment of the portion of the Trust Fund
theretofore managed by such Investment Manager, until such time as a successor
Investment Manager has been duly appointed pursuant to this Section 6.
(d) The Trustee shall have the power and authority to be exercised in
its sole discretion at any time and from time to time to issue and place orders
for the purchase or sale of securities directly with qualified brokers or
dealers. Such orders may be placed with such qualified brokers and/or dealers
who also provide investment information or other research or statistical
services to the Trustee in its capacity as a fiduciary or investment manager for
other clients.
(e) The Trustee may from time to time temporarily transfer any assets
of the Trust Fund to, or withdraw the same from, any pooled investment fund or
group or collective trusts maintained by a bank or trust company (which may be
the Trustee or an affiliate of the Trustee) supervised by a state or federal
agency, which has been determined by the Internal Revenue Service to be a
qualified trust or fund exempt from federal income tax under Section 501(a) of
the Internal Revenue Code, and which has been established to permit separate
pension and profit sharing trusts qualified under Section 401(a) of the Internal
Revenue Code to pool some or all of their funds for investment purposes. To the
extent the Trust Fund is invested in such a pooled fund or group or collective
trust, the terms of the instrument establishing such pooled fund or group or
collective trust are made a part of this Agreement as fully as if set forth at
length herein. The commingling of assets of this Trust with assets of other
qualified participating trusts in such pooled funds or group or collective
trusts is specifically authorized.
(f) Notwithstanding any provision of this Section 6 to the contrary,
the Trustee, in its sole discretion or as the Employer may request, may retain
uninvested cash or cash balances, and sell, to provide cash or cash balances,
such investments in whatever portion of the Trust Fund that it may deem
advisable without being required to pay interest thereon. Pending investment,
the Trustee, in its sole discretion, may temporarily invest any funds held or
received by it for investment in an investment fund established hereunder in
commercial paper or in obligations or, or guaranteed by, the United States
government or any of its agencies.
SECTION 7 -- AUTHORIZATION BY EMPLOYER.
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The Trustee shall pay benefits and administrative expenses
under the Plan, transfer funds to any other trust fund established under the
Plan or make direct transfers to other tax-qualified plans, only when it
receives (and in accordance with) written instructions of the Employer
indicating the amount of the payment and the name and address of the recipient.
The Trustee need not inquire into whether any payment the Employer instructs it
to make is consistent with the terms of the Plan or applicable law or otherwise
proper. Any payment made by the Trustee in accordance with such instructions
shall be a complete discharge and acquittance to the Trustee. If the Employer
advises the Trustee that benefits have become payable with respect to a
Participant's interest in the Trust Fund but does not instruct the Trustee as to
the manner of payment, the Trustee shall hold the Participant's interest in the
Trust until it receives written instructions from the Employer as to the manner
of payment. The Trustee shall not pay benefits from the Trust Fund without such
instructions, even though it may be informed from other sources, including,
without limitation, a Participant or beneficiary, that benefits are payable
under the Plan. The Trustee shall have no responsibility to determine when, to
whom, or in what amount benefits and expenses are payable under the Plan. If the
Employer so directs, the Trustee shall segregate amounts payable with respect to
the interest in the Plan of any Participant and administer them separately from
the rest of the Trust Fund in accordance with the Employer's instructions. The
Employer shall certify to the Trustee that any such instructions are consistent
with the Plan.
SECTION 8 -- REPRESENTATIONS BY THE EMPLOYER.
The Trustee may require the Employer to certify in writing
that any payment of benefits or expenses it instructs the Trustee to make
pursuant to Section 7 is: (a) in accordance with the terms of the Plan, and/or
(b) one which the Employer is authorized by the Plan and any other applicable
instruments to direct, and/or (c) made for the exclusive purpose of providing
benefits to Participants and their beneficiaries, or defraying reasonable
expenses of Plan administration, and/or (d) not made to a party in interest,
within the meaning of Section 3(14) of ERISA or a disqualified person, within
the meaning of Section 4975 of the Internal Revenue Code, and/or (e) not a
prohibited transaction under ERISA or section 4975 of the Internal Revenue Code.
If the Trustee requests, instructions to pay benefits shall be made by the
Employer on forms prepared by the Trustee that include any or all of the above
representations. The Trustee shall be fully protected in relying on the truth of
any such representation by the Employer and shall have no duty to investigate
whether such representations are correct or to see to the application of any
amounts paid to the recipient. The Employer shall indemnify the Trustee and hold
it harmless from any liability resulting from acts or omissions taken in
reliance on such representations.
SECTION 9 -- FORM OF PAYMENT.
Payments of money by the Trustee for any benefit or expense
under the Plan may be made by, when applicable, mailing its check for the amount
thereof to the person designated by the Employer as entitled to receive such
payment to such address as may have been last furnished to the Trustee by the
Employer. If no such address has been furnished, benefits or expenses may be
mailed by the Trustee to such person in care of the Employer.
SECTION 10-- FEES AND EXPENSES OF TRUSTEE.
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The Trustee shall receive as reasonable compensation for its
services as Trustee such amounts as may, from time to time, be agreed upon in
writing between the Employer and the Trustee. The Trustee shall not receive
additional compensation for acting as Trustee. Such fees and expenses may be
charged directly to the Trust Fund unless paid by the Employer. The Trustee
shall have a lien against the Trust Fund for the unpaid amount of any fees and
disbursements due it and, in its discretion, may withdraw the same from the
Trust Fund.
SECTION 11 -- TAXES.
All taxes that may be levied or assessed upon or in respect of
the Trust Fund shall be paid from the Trust Fund. The Trustee shall notify the
Employer of any proposed or final assessments of taxes and may assume that any
such taxes are lawfully levied or assessed unless the Employer advises it in
writing to the contrary within 15 days after receiving the above notice from the
Trustee. In such case, the Trustee, if requested by the Employer in writing,
shall contest the validity of such taxes in any manner deemed appropriate by the
Employer; the Employer may itself contest the validity of any such taxes, in
which case the Employer shall so notify the Trustee and the Trustee shall have
no responsibility or liability respecting such contest. If either party to this
Agreement contests any such proposed levy or assessments, the other party shall
provide such information and cooperation as the party conducting the contest
shall reasonably request.
SECTION 12 -- LIABILITY UNDER THE PLAN.
The duties and obligations of the Trustee shall be limited to
those expressly set forth in this Agreement, notwithstanding any reference
herein to the Plan.
SECTION 13 -- NO LIABILITY FOR ACTS OF OTHERS.
No "fiduciary" (as such term is defined in section 3(21) of
ERISA) under this Agreement shall be liable for an act or omission of another
person in carrying out any fiduciary responsibility where such fiduciary
responsibility is allocated to such other person by this Agreement or pursuant
to a procedure established in this Agreement except to the extent that:
(a) such fiduciary participated knowingly in, or knowingly
understood to conceal, an act or omission of such other
person, knowing such act or omission to be a breach of
fiduciary responsibility;
(b) such fiduciary, by his failure to comply with section
404(a)(1) of ERISA in the administration of his specific
responsibilities which give rise to his status as a fiduciary,
has enabled such other person to commit a breach of fiduciary
responsibility;
(c) such fiduciary has knowledge of a breach of fiduciary
responsibility by such other person, unless he makes
reasonable efforts under the circumstances to remedy the
breach; or
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(d) such fiduciary is a "named fiduciary" (as such term is defined
in section 402(a)(2) of ERISA) and has violated his duties
under section 404(a)(1) of ERISA:
(i) with respect to the allocation of fiduciary
responsibilities among named fiduciaries or the designation of
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement;
(ii) with respect to the establishment of
implementation of procedures for allocating fiduciary
responsibilities among named fiduciaries or for designating
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement; or
(iii) in continuing the allocation of fiduciary
responsibilities among named fiduciaries or the designation of
persons other than named fiduciaries to carry out fiduciary
responsibilities under this Agreement.
SECTION 14 -- INDEMNIFICATION OF TRUSTEE.
Notwithstanding any other provision of this Agreement, any
individual designated as a Trustee hereunder shall be indemnified and held
harmless by the Employer to the fullest extent permitted by law against any and
all costs, damages, expenses and liabilities including, but not limited to
attorneys' fees and disbursements reasonably incurred by or imposed upon such
individual in connection with any claim made against him or her or in which he
or she may be involved by reason of his being, or having been, a Trustee
hereunder, to the extent such amounts are not satisfied by insurance maintained
by the Employer, unless it has been adjudicated to have resulted from the gross
negligence or willful misconduct of the Trustee by reason of any action so
taken. Further, any corporate trustee and its officers, directors and agents may
be held harmless by the Employer to the fullest extent permitted by law against
any and all costs, damages, expenses and liabilities including, but not limited
to, attorneys' fees and disbursements reasonably incurred by or imposed upon
such persons and/or corporation in connection with any claim made against it or
them in which it or they may be involved by reason of its being, or having been,
a trustee, except liability which is adjudicated to have resulted from the gross
negligence or willful misconduct of the Trustee by reason of any action so
taken.
SECTION 15 -- ACCOUNTING.
(a) The Trustee shall maintain accurate and detailed records on all
receipts, investments, disbursements and other transactions performed in its
capacity as Trustee. These records must be open to inspection and audit by the
Plan Administrator and the Employer at all times.
(b) Writing (handwriting, typing, printing) photostating,
photographing, microfilming, magnetic impulse, mechanical or electrical
recording or other forms of data compilation shall be acceptable means of
keeping records.
(c) The Trustee shall file all reports, returns and information that it
is required to file under the Code and regulations and rulings issued under the
Code.
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(d) The Trustee shall file with the Employer a signed, written account
of its transactions as soon as practical (but not later than 60 days) after the
first day of each Plan year and as soon as practical (but not later than 60
days) after removal or resignation of the Trustee or any other date the Employer
may specify. Any report or accounting which the Trustee files with the Employer
is open to inspection by a participant for a period of 90 days following the
date it is filed. At the end of the 90-day period, the Trustee is released and
discharged as to any matters set forth in the report or account, except with
respect to any act or omission as to which a participant, the Plan
Administrator, a named fiduciary or the Employer has filed a written objection
within the 90-day period.
(e) Whenever an account shall have become an account stated as
aforesaid, such account shall be deemed to be finally settled and shall be
conclusive upon the Trustee, the Employer and all persons having or claiming to
have any interest in the Trust Fund or under the Plan, and the Trustee shall be
fully and completely discharged and released to the same extent as if the
account had been settled and allowed by a judgment or decree of a court of
competent jurisdiction in an action or proceeding in which the Trustee, the
Employer and all persons having or claiming to have any interest in the Trust
Fund or under the Plan were parties.
(f) Notwithstanding the provisions of this Section 15, the Trustee and
the Employer, or any of them, shall have the right to apply at any time to a
court of competent jurisdiction for the judicial settlement of the Trustee's
account. In any such case, it shall be necessary to join as parties thereto only
the Trustee and the Employer, and any judgment or decree which may be entered
therein shall be conclusive upon all persons having or claiming to have any
interest in the Trust Fund or under the Plan.
(g) To protect the Trust Fund from expenses which might otherwise be
incurred, the Employer shall have authority to enforce this Agreement on behalf
of all persons claiming any interest in the Trust Fund or under the Plan, and no
other person may institute or maintain any action or proceeding against the
Trustee or the Trust Fund in the absence of written authority from the Employer
or a judgment of a court of competent jurisdiction that in refusing authority
the committee acted fraudulently or in bad faith.
SECTION 16 -- GENERAL STANDARD OF CARE.
The Trustee, the Employer and any Investment Manager shall at
all times discharge their duties with respect to the Trust Fund solely in the
interest of the Plan Participants and their beneficiaries and with the care,
skill, prudence, and diligence that, under the circumstances prevailing, 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 and
consistent with the requirements of ERISA.
SECTION 17 -- AMENDMENT.
The Employer reserves the right to amend this Agreement at any
time. An amendment shall not increase the duties or responsibilities of the
Trustee without the Trustee's written consent nor permit any part of the corpus
or income of the Trust Fund to be used for, or diverted to, purposes other than
for the exclusive benefit of employees of the Employer, retired employees or
their
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beneficiaries under the Plan. Any such amendment shall be by written instrument
delivered to the Trustee.
SECTION 18 -- TERMINATION.
(a) The Employer reserves the right to terminate this Agreement at any
time by a written instrument delivered to the Trustee. This Agreement shall
terminate upon the dissolution or liquidation of the Employer unless a successor
corporation or business organization agrees in writing to assume the obligations
of the Plan and this Agreement.
(b) In the event of termination of Trust while the Plan is being
continued, the assets of the Trust Fund shall be transferred to the person or
institution authorized in writing by the Employer to receive such assets.
(c) In the event of termination of Trust on account of termination of
Plan, the assets of the Trust Fund shall be applied to provide the benefits
specified in the Plan upon termination of the Plan.
SECTION 19 -- INSURANCE COMPANY.
(a) If any portion of the assets of the Trust are held by an insurance
company, such insurance company shall in no event be deemed to be a party to
this Trust or to be responsible for its validity. The obligations and
responsibilities of the insurance company shall be measured and determined
solely by the terms of the annuity contract and any insurance policy and it
shall not be required to do any act not provided in or any act contrary to the
provisions of such annuity contract and insurance policy.
(b) The insurance company shall not be required to look into the terms
of this Trust or question any action of the Trustee, nor shall it be responsible
to see that any action of the Trustee is authorized. The insurance company shall
act only upon the written direction of the Trustee and shall be fully discharged
from any and all liability for any amount paid to the Trustee or paid in
accordance with the direction of the Trustee or for any change made or action
taken upon such direction; and shall not be obligated to see that any money paid
by it to the Trustee or to any person shall be properly distributed or applied.
Any instrument executed by the Trustee may be treated as conclusive. The
insurance company shall be without liability in taking, permitting, or omitting
any action on the faith of any such instrument and shall incur no liability
responsibility for doing so.
SECTION 20 -- LIMITATION ON RIGHTS AND REMEDIES.
In any action or proceeding involving the Trust Fund, or the
administration of the Trust Fund, only the Trustee and the Employer shall be the
necessary parties. Unless otherwise ordered by the Court entertaining
jurisdiction thereover, no other person having or claiming to have an interest
in the Trust Fund shall be entitled to any notice or service of process. Any
final judgment entered in such action or proceeding shall be conclusive upon all
persons claiming under this Agreement.
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SECTION 21 -- BINDING EFFECT; ASSIGNABILITY.
This Agreement shall be binding upon, and the powers granted
to the Employer and the Trustee, respectively, shall be exercisable by, the
respective successors and assigns of the Employer and the Trustee.
SECTION 22 -- AFFILIATED COMPANIES.
(a) Any other company which adopts the Plan in accordance with
its terms may, with the written consent of the Trustee and Employer, become a
party to this Agreement as an "Affiliated Company" by delivering a certified
copy of a resolution of its board of directors to the effect that it agrees to
adopt the Plan, to become a party to this Agreement and to be bound by all the
terms and conditions of the Plan and this Agreement, as then in effect and as it
may thereafter be amended. The Employer shall have the sole authority to enforce
this Agreement on behalf of any such Affiliated Company and the Trustee need not
deal with any Affiliated Company except by dealing with the Employer as its
agent. The Trustee shall invest and administer the Trust Fund as a single fund
for investment and accounting purposes without identification or allocation
among the Employer and any Affiliated Companies or to any employee or group of
employees or their beneficiaries, unless the Trustee, the Employer, and the
Affiliated Companies concerned agree in writing to segregate funds.
(b) Any Affiliated Company may cease to be a party to this
Agreement by delivering to the Trustee a certified copy of a resolution of its
board of directors terminating its participation in the Plan or this Agreement.
In such case, or in the event of the merger, consolidation, sale of property or
stock, separation, reorganization or liquidation of any Affiliated Company, the
Trustee, until directed otherwise by the Employer, shall continue to hold, in
accordance with the provisions of this Agreement, that portion of the Trust Fund
which it is advised by the Employer is attributable to the participation in the
Plan of the employees and their beneficiaries affected by such termination or by
such transaction.
SECTION 23 -- NOTICES.
Any communication to the Trustee, including any notice,
direction, designation, certification, order, instruction, or objection shall be
in writing and signed by the person authorized under the Plan to give the
communication. The Trustee shall be fully protected in acting in accordance with
these written communications. Any notice required or permitted to be given to a
party hereunder shall be deemed given if in writing and hand delivered or
mailed, postage prepaid, certified mail, return receipt requested, to such party
at the following address or at such other address as such party may by notice
specify:
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If to the Employer:
The Warwick Savings Bank
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
If to the Trustee:
Trustee, The Warwick Savings Bank
401(k) Savings Plan
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
SECTION 24 -- SEVERABILITY.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity of enforceability of the remaining
provisions.
SECTION 25 -- WAIVER.
Failure of any party to insist at any time or times upon
strict compliance with any provision of this Agreement shall not be waiver of
such provision at such time or any later time unless in a writing designated as
a waiver and signed by or on behalf of the party against whom enforcement of the
waiver is sought.
SECTION 26 -- NON-ALIENATION.
No interest, right or claim in or to any part of the Trust
Fund or any payment therefrom shall be assignable, transferable or subject to
sale, mortgage, pledge, hypothecation, commutation, anticipation, garnishment,
attachment, execution, or levy of any kind except as otherwise provided under
Section 414(p) of the Internal Revenue Code and Section 206(d)(3) of ERISA; and
the Trustee and the Employer shall not recognize any attempt to assign,
transfer, sell, mortgage, pledge, hypothecate, commute, or anticipate the same,
except to the extent required by law.
SECTION 27 -- QUALIFIED PLAN AND TRUST.
This Agreement and the trust hereby created are part of an
employee benefit plan which the Employer intends shall be qualified under
section 401(a) of the Code and until advised to the contrary, the Trustee may
assume that the Plan so qualifies and that the trust is exempt from tax under
section 401(a) of the Code. However, any taxes that may be assessed on or in
respect of the Trust Fund shall be a charge against the Trust Fund. All
contributions made prior to the receipt by the Employer of a determination from
the Internal Revenue Service to the effect that the trust forming part of the
Plan is a qualified trust under section 401(a) of the Code and that the trust is
exempt from federal income tax under section 401(a) of the Code shall be made on
the express condition that such
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a determination is received, and in the event that the Internal Revenue Service
determines that the trust and the Plan are not so qualified, all contributions
made prior to the date of the receipt of such determination after giving to any
income gain or loss, less any compensation and expenses properly chargeable
thereto, shall be returned to the Employer.
SECTION 28 -- COMPLIANCE WITH SECURITIES LAWS.
In the event that the Plan or any portion thereof, or any
interest therein, by virtue of any of its investments, shall be deemed to be a
"security" for purposes of the Securities Act of 1933, the Securities Exchange
Act of 1934 or any other federal or state law, for which there is no exemption
from the registration, reporting, blue sky or other requirements applicable to
securities under such laws, the Employer shall, at its sole cost and expense,
take all such actions as are necessary or appropriate to comply with the
requirements of such laws. The Employer hereby agrees to indemnify the Trustee
and hold it harmless from and against any claim or liability which may be
asserted against the Trustee by reason of any determination that the Plan or any
portion thereof, or any interest therein, constitutes such a security.
SECTION 29 -- HEADINGS.
The headings of Articles and sections are included solely for
convenience of reference. If there is any conflict between such headings and the
text of the Agreement, the text shall control.
SECTION 30 -- CONSTRUCTION OF LANGUAGE.
Whenever appropriate in this Agreement, words used in the
singular may be read in the plural; words used in the plural may be read in the
singular; and words imposing the masculine gender shall be deemed equally to
refer to the female gender or the neuter. Any reference to a section number
shall refer to a section of this Agreement, unless otherwise indicated.
SECTION 31 -- COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Trust
Agreement as of this 23rd day of August, 2000.
THE WARWICK SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name and Title:
The undersigned hereby accepts appointment as Trustee hereunder and agree to be
bound by the terms of this Trust Agreement.
ACCEPTANCE OF TRUSTEE:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Nanch X. Xxxxxxx-Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx-Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx
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