TRUST AGREEMENT, hereinafter referred to as the "Agreement," made as of
August 1, 1999, by and between MicroAge, Inc., an Arizona corporation
(hereinafter referred to as the "Company"), and PRUDENTIAL TRUST COMPANY, a
Pennsylvania corporation (hereinafter referred to as the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has determined to adopt or has adopted the MicroAge,
Inc. Retirement Savings Plan (hereinafter referred to as the "Plan"), for the
benefit of the participants and their beneficiaries as therein defined, under
which the participants direct the investment of their account balances pursuant
to ERISA Section 404(c); and
WHEREAS, said Plan provides that contributions thereto may be held, IN
TRUST, by a trustee subject to the provisions of an agreement to be entered into
between the Company and the Trustee; and
WHEREAS, the Company desires the Trustee to act, and the Trustee is willing
to act, as Trustee of the Plan (hereinafter referred to as the "Trust") upon all
of the conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Trustee agree as follows:
SECTION 1. THE FUND. The Company hereby establishes with the Trustee a
Trust, which shall consist of and be limited to such cash and other property
acceptable to the Trustee as shall from time to time be received by the Trustee,
together with the earnings and profits thereon provided, however, that the
Trustee shall not accept: interests in real estate; limited partnership
interests; or securities of the Company (or any of its affiliates) unless such
securities are "qualifying employer securities" (as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). All such property
received by the Trustee, the investments made therewith and proceeds thereof,
and all earnings and profits thereof, less any payments or distributions which
shall have been made by the Trustee pursuant to the terms of this Agreement, are
referred to herein as the "Fund." The Fund shall be held and administered by the
Trustee, IN TRUST, in accordance with the provisions of this Agreement. The Fund
is intended to be a tax-exempt organization within the meaning of the Code
section 501(a). The Plan and Fund together are intended to qualify under section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code"). Any doubt
in the construction or interpretation of this Agreement shall be resolved in
favor of a construction or interpretation preserving such tax-exempt status and
qualification. If the Plan or the Fund cease to qualify under the aforementioned
Code sections by reason of some act or omission by the Company, the Company
agrees to indemnify and hold harmless the Trustee against and from all
liabilities, claims, demands, damages, costs, and expenses, including reasonable
attorneys' fees, the Trustee may incur as a result of such disqualification.
SECTION 2. ANTI-DIVERSION PROVISIONS. Except as may otherwise be permitted
by law, at no time prior to the satisfaction of all liabilities under the Plan
with respect to participants and their beneficiaries shall any part of the
corpus or income of the Fund be used for or diverted to purposes other than for
the exclusive benefit of such participants and their beneficiaries and for
defraying the reasonable expenses of administering the Plan. Except as provided
in the Plan, no part of the fund may revert to the Company. To the extent the
Plan permits a reversion or the return of Company contributions, the Company may
direct the Trustee to make an appropriate payment from the Fund, and the Trustee
shall make such payment as soon as practicable after receipt of such direction.
The Company's direction regarding a return of contributions shall specify (i)
the reason the Company's contribution is being returned, which shall be
consistent with the applicable requirements of the Code and ERISA, (ii) the
amount of the contribution to be returned (less any Fund losses attributable
thereto), and (iii) the date by which the payment of the Company must be made.
The Trustee shall be entitled to rely on the Company's direction given pursuant
to this section 2, and shall have no duty to inquire into the validity thereof.
The Company agrees to indemnify and hold harmless the Trustee against and from
all liabilities, claims, demands, damages, costs and expenses, including
reasonable attorneys' fees, arising from the Trustee's compliance with any such
direction.
SECTION 3. DUTIES OF THE TRUSTEE. The Trustee shall have no authority,
control or responsibility with respect to the Plan or Fund other than as
specifically set forth in this Agreement or the Plan. The Trustee, through its
agents or directly, shall have the following duties:
(a) to hold, invest and reinvest the assets of the Fund solely in
accordance with the investment directions transmitted in accordance with Section
5, provided, however, the Trustee may, in its discretion, delegate its custodial
responsibility to a corporate trustee or insurance company.
(b) to pay moneys to or at the direction of the Company, including, when
the Company shall so direct, payments to the participants and their
beneficiaries, or to an insurance company to provide, by the purchase of an
annuity contract or otherwise, for the payment of benefits under the Plan;
provided, however, that the Trustee shall not be responsible in any way for the
application of such payments; and
(c) subject to Section 5, to transfer assets of the Fund at the direction
of the Company to any other trustee or to an insurance company selected to fund
a Plan or, at the direction of the Company, to segregate such assets to be
subject to the exclusive management and control of an investment manager (as
such term is defined in Section 3(38) of ERISA) appointed by the Company. Any
such investment manager shall direct the Trustee in place of the Company as
provided hereunder with respect to the segregated assets.
The Trustee shall be entitled to rely conclusively on any directions
transmitted in accordance with this Section 3 or pursuant to Section 5 and shall
be under no duty to inquire as to the propriety or correctness of any such
direction. In the performance of the foregoing duties, the Trustee shall be
entitled to all of the powers, privileges, limitations and immunities conferred
on it under the following provisions of this Agreement and by law, and no duties
or obligations shall be imposed upon the Trustee with respect to the Fund unless
they have been specifically undertaken by the Trustee by the express terms of
this Agreement. When determining the nature and extent of its responsibilities,
the Trustee is not required to obtain or review the Plan. In the event of any
conflict between the Plan and this Agreement relating to (i) the Trustee's
rights, powers, responsibilities, or liabilities, or (ii) the allocation of
responsibilities among the Plan Fiduciaries, the provisions of this Agreement
shall control. The Trustee shall not be liable for the validity or legality of
any changes made to the Plan by the Company.
SECTION 4. LIMITATION OF DUTIES REGARDING PLAN ADMINISTRATION. In further
illustration of the general limitation of the Trustee's duties contained in
Section 3, but not in limitation thereof, the Trustee shall not be responsible
for:
(a) the determination, computation or application of any Plan benefit,
(b) the form, terms or issuer of any contract issued by an insurance
company which it acquires for the Fund pursuant to paragraph (b) or paragraph
(c) of Section 3,
(c) the performance of any functions as contract-holder under any contract
issued by an insurance company which it may be directed to purchase and hold
(other than the execution of any documents incidental thereto on the
instructions of the Company),
(d) the terms of any other trust agreement which it is directed to enter
into, on the order of the Company, or the selection of any additional,
substitute or successor trustee thereunder,
(e) the payment, or the enforcement of the payment, of any contribution to
the Plan, or
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(f) the formulation or adequacy of the funding policy adopted by the
Company to meet and discharge pension or other liabilities under the Plan, or
(g) any other matter affecting the administration of the Plan by the
Company or any other person or persons to whom responsibility for Plan
administration is allocated or delegated pursuant to the terms of the Plan.
SECTION 5. INVESTMENT OF THE FUND BY THE TRUSTEE. The Trustee shall have no
authority with respect to the investment and reinvestment of the Fund except
upon receipt of investment directions from the Company, or otherwise pursuant to
the provisions of this Section or Sections 8 and 9.
The Company shall be responsible for transmitting to the Trustee written
instructions for the investment and reinvestment of the principal and income of
the Fund in such shares and proportions as the Company, in its discretion and
pursuant to the investment directions of the Plan participants, shall deem
advisable. The Company shall also be responsible for determining the
diversification policy with respect to the investment of Plan assets, for
monitoring adherence to such policy, and for advising the Trustee with respect
to its compliance with any investment limitations on employer or other
securities or property contained in the Plan or imposed on the Plan by
applicable statute.
To the extent the purchase, sale, exchange, conveyance, transfer or
disposition of any Fund asset results in proceeds which cannot be reinvested as
directed prior to the close of business on the day of the transaction, the
Company hereby directs Trustee to invest such "overnight" funds pursuant to its
regularly established practices for the investment of overnight funds. In
addition, if the Trustee holds Fund assets for which it has not received
investment directions from the Company, the Company hereby directs Trustee to
invest such assets in a money market fund managed by Prudential or an affiliate.
The Trustee shall not comply with a Company direction to invest Fund assets
in securities of the Company (or any of its affiliates) unless such direction
includes instructions relating to the amount of cash the Trustee must maintain
to satisfy any liquidity needs occasioned by the provisions of the plan
respecting employer securities. Notwithstanding the preceding sentence, the
Trustee shall not invest in securities of the Company (or any of its affiliates)
unless such securities are "qualifying employer securities" (as defined in
ERISA), nor shall the Trustee invest in any: interest in real estate; or limited
partnership interest. The Trustee will not invest in or hold life insurance
unless further administrative and cost arrangements, satisfactory to it, are
negotiated with the Company.
SECTION 6. COLLECTIVE TRUSTS. The Trustee may, at the direction of the
Company, transfer from time to time, any part or all of the assets of the Fund
to one or more common, collective or commingled funds (hereinafter referred to
as the "Collective Trust") maintained by any corporate trustee including
Prudential Trust Company for the collective investment of eligible employee
benefit trusts. To the extent of the equitable share of the Fund in the
Collective Trust, the Collective Trust shall be part of the Plan pursuant to
which this Trust is administered.
SECTION 7. POWERS OF THE TRUSTEE. In exercise of any powers conferred
herein or applicable by law, the Trustee is authorized and empowered as directed
by the Company:
(a) to purchase, sell, exchange, convey, transfer or dispose of any
securities or other property at any time held by it, in a public or private
transaction and for cash or upon credit, or partly for cash and partly upon
credit, and no person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the Trustee's authority to
engage in any such transaction;
(b) to purchase, sell, write or issue puts, calls or other options, to
enter into futures contracts, forward placement contracts and standby contracts,
and in connection therewith, to hold, pledge or deposit property required as
collateral with any authorized agent or depository (including Prudential Trust
Company);
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(c) to hold uninvested cash waiting investment and to maintain such
additional cash balances as to meet anticipated distributions from or
administrative costs of the Plan or the Fund, without incurring any liability
for the payment of interest on such cash;
(d) to vote in person or by proxy any securities held by it; to exercise
conversion rights or rights to subscribe for additional securities, and to make
any and all necessary payments therefor; to join in or to oppose the
reorganization, recapitalization, consolidation, liquidation, sale or merger of
corporations or properties in which it may be interested as Trustee;
(e) To enter into repurchase agreements;
(f) To purchase units or certificates issued by an investment company or
pooled trust or comparable entity;
(g) to hold one or more annuity contracts or other contracts in such form
or forms, whether or not they are group contracts of such life insurance company
or companies, as the Company shall specify, (hereinafter referred to as the
"Contract" or the "Contracts"); and to take directions, evidenced by written
instrument satisfactory to the Trustee, from the Company relating to any one or
more of the functions normally required of the contract holder under the
Contract or Contracts;
(h) to cause any securities from time to time held by it (including Company
securities) to be registered in or transferred into its name as Trustee or the
name of its nominee or nominees, or to retain them unregistered or in a form
permitting transferability by delivery, and to deposit or arrange for the
deposit of the certificates representing such securities with a Federal Reserve
Bank or with a central certificate depository located within or without the
Commonwealth of Pennsylvania in a manner permitting transfer of ownership or
other interests in such securities by bookkeeping entry on the books and records
of such Bank or depository, but the books and the records of the Trustee shall
at all times show that all such investments are part of the Fund; and to
delegate to another party the right to execute buy and sell orders and trades of
any Company securities which comprise a part of the Fund, provided that such
orders and trades are directed by the Plan and executed in accordance with a
written instrument which sets forth the rules governing such orders and trades;
(i) to make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted;
(j) to employ suitable agents, depositories and counsel, domestic or
foreign, to delegate to them powers vested in the Trustee hereunder which the
Trustee deems necessary to carry out their duties, and to charge their
reasonable expenses and compensation against the Fund;
(k) to compromise, compound and settle any claim, debt or obligation due to
or from it, as Trustee hereunder, and to reduce the rate of interest on, extend
or otherwise modify, or to foreclose upon, default or otherwise enforce or
abandon, any such obligation;
(l) as directed pursuant to section 3 to make any distribution or transfer
of Fund assets in cash or in kind;
(m) to invest and reinvest the assets of the Fund in common with the assets
of qualified employee benefit plans of the Company or its affiliates held, in
trust, as separate trusts by the Trustee, provided, however, that the Trustee's
records shall at all times show the equitable share of the Fund in such Company
common fund;
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(n) to acquire and hold assets that are not publicly traded on a national
exchange or over-the-counter with sufficient volume to permit valuation by
reference to commonly published sources provided the Company obtains and
transmits to the Trustee an independent appraisal of the assets, in form and
substance acceptable to the Trustee in its sole discretion, from a nationally
recognized firm experienced in providing such appraisal report, and such report
is periodically updated in a timely fashion to permit the Trustee to carry out
its valuation and accounting responsibilities hereunder;
(o) to invest and reinvest the assets of the Fund in common with the assets
of qualified employee benefits plans of the Company or its affiliates held, in
trust, as separate trusts by the Trustee, provided, however, that the Trustee's
records shall at all times show the equitable share of the Fund in such Company
common Fund.
Any Contract held by the Trustee pursuant to subparagraph (g) of this
section 7 may provide for the allocation of amounts received by the insurance
company thereunder solely to said insurance company's general account or solely
to one or more of its separate accounts (including separate accounts maintained
for the collective investment of assets of qualified retirement plans) or to the
insurance company's general account and one or more of such separate accounts,
provided that if any Contract shall provide for the allocation of amounts to one
or more of such separate accounts, the Company may appoint the insurance company
an investment manager to the extent that amounts held by the insurance company
under the Contract shall be deemed Plan assets under ERISA and the rules and
regulations thereunder. The insurance company, under any Contract, shall have
exclusive responsibility for the investment and management of any amounts held
under such Contract subject to the right of the Company to specify how amounts
under the Contract are to be allocated among the accounts provided for in the
Contract, provided that the insurance company may be given responsibility for
determining the allocation of amounts among the various such separate accounts
provided for in the Contract. The insurance company shall have all of the powers
with the respect to the assets of the Plan held under a Contract as the Trustee
has pursuant to Paragraphs (a) through (f) and (h) through (l) of this Section
with respect to assets of the Fund held hereunder. Notwithstanding the
foregoing, none of the assets held by an insurer under any Contract, whether or
not they shall be deemed assets of the Plan under ERISA, shall be part of the
Fund. The Trustee shall exercise the powers which it has as contract-holder
under any Contract only when and in the manner directed by the Company.
SECTION 8. LOANS. If the plan permits loans to the plan participants, the
Trustee delegates to its affiliate, Prudential Investments Retirement Services,
responsibility for holding and safeguarding the documents evidencing such
participant loans. The Trustee will deem any direction to disburse Fund assets
for a participant loan as a direction to transfer an equivalent amount of assets
to a suspense account maintained by its affiliate, Prudential Investments
Retirement Services, for disbursement as a loan thereunder.
SECTION 9. DISBURSEMENTS. Pursuant to directions from the Company, the
Trustee will keep a portion of the Fund in cash or cash balances as required for
the proper administration of Plan disbursements, which amounts may be held in a
separate suspense account maintained by its affiliate, Prudential Investments
Retirement Services. The expense of operating and maintaining such suspense
account will be charged against earnings, if any, of such suspense account but
will not otherwise be charged back to the Fund to the extent expenses exceed
earnings. The Company and Trustee hereby acknowledge that such earnings are
never expected to exceed the expenses allocable to the suspense account.
SECTION 10. COMPENSATION AND EXPENSES. The expenses incurred by the Trustee
in connection with the administration or investment of the Fund, including fees
for legal services rendered to the Trustee in connection with any matter arising
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out of or in connection with the performance of the Trustee's duties hereunder,
the expense of a judicial accounting, such compensation to the Trustee as may be
agreed upon from time to time between the Trustee and an officer of the Company,
and all other proper charges and disbursements shall be paid by the Company,
unless the Company and Trustee arrange for such compensation and expenses to be
a charge against participants accounts. Anything in the preceding sentence to
the contrary notwithstanding, the Company shall reimburse the Trustee for any
such expenses if, for any reason, such expenses are not paid out of the Fund.
SECTION 11. EXPENSES OF THE PLAN. The Company may direct the Trustee to pay
out of the Fund other proper administrative expenses of the Plan, including
auditors, actuaries, and consultants hired or retained by the Company.
SECTION 12. TAXES. All Taxes of any and all kinds whatsoever that may be
levied or assessed under existing or future laws upon or in respect to the Fund
or the income thereof shall be paid from the Fund.
SECTION 13. RELIANCE ON EXPERTS. The Trustee may consult with experts,
including appraisers, legal counsel and professional accountants, selected with
due care, with respect to the meaning and construction of this Agreement or any
provision hereof, or concerning its powers and duties hereunder, and shall be
protected for any action taken or omitted by it in good faith pursuant to the
opinion of any such expert.
SECTION 14. RECORDS. The Trustee, or its agent, shall keep separate,
accurate and detailed accounting records of all investments, receipts,
disbursements, distributions and other transactions of the Fund, which records
shall be open to inspection and audit at the office of the Trustee by the
Company and any other person designated by either at all reasonable times during
normal business hours.
SECTION 15. ANNUAL REPORTS. The Trustee or its agent, shall prepare an
annual report which shall include: a list of all investments comprising the Fund
at the end of the accounting period covered by the report (which shall be from
the date of the last report through the end of the fiscal year of the Fund or
the date of the removal or resignation of the Trustee, if earlier) showing the
valuation placed on each investment by the Trustee as of the end of such period;
a summary statement of investment changes since the last preceding report; all
payments and distributions from the fund; and appropriate comments as to any
investment in default as to principal or interest. Anything herein to the
contrary notwithstanding, any valuations of any interest in a Collective Trust
or in any policy or Contract issued by Prudential shall be made in accordance
with the terms of and on the basis of the latest report of the Trustee of the
Collective Trust or the insurance company, as the case may be.
SECTION 16. FURNISHING ANNUAL REPORTS TO INTERESTED PERSONS. Copies of the
annual reports shall be sent to Company within 90 days following the close of
the fiscal year of the Fund.
SECTION 17. REPORT EXPENSES. The compensation and expenses of accountants
and auditors, other than auditors who are regular employees of Prudential Trust
Company or its affiliates, shall be payable out of the Fund, in such reasonable
amounts as the Trustee, in its discretion, deems appropriate.
SECTION 18. ACCOUNT STATED. Unless the Company files with the Trustee a
written statement of specific objections to the annual report showing gross
negligence, willful misconduct or lack of good faith, the annual report shall
become an account stated within 90 days from the date of the mailing of such
report and the Trustee shall be forever released and discharged of and from any
and all liability and accountability to any person interested in the Fund on
account of transactions shown in such report.
SECTION 19. JUDICIAL ACCOUNTINGS. In all events and at the expense of the
Fund, the Trustee shall be entitled to a judicial settlement of its accounts by
any court of competent jurisdiction.
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SECTION 20. NECESSARY PARTIES. In order to save the Fund from unnecessary
expense, the only persons who shall be necessary parties in any action or
proceeding under Section 19 or in any action or proceeding to enforce the
Agreement shall be the Trustee and the Company.
SECTION 21. SPECIAL AUDITS. Any special audits or reports required to be
undertaken by the Trustee on account of the Fund, in addition to the annual
report furnished pursuant to the foregoing provisions of this Agreement and
other reports or statements regularly furnished by the Trustee to employee
benefit trusts administered by it, shall be charged to and paid by the Fund.
SECTION 22. RESIGNATION AND REMOVAL OF TRUSTEE. The Trustee may be removed
by the Company at any time upon 60 days' notice in writing to the Trustee. The
Trustee may resign at any time upon 60 days' notice in writing to the Company.
Upon the removal or resignation of the Trustee, the Company shall appoint a
successor trustee who shall have the same powers and duties as those conferred
upon the Trustee hereunder and, upon acceptance of such appointment by the
successor trustee, the Trustee shall assign, transfer and pay over the Funds, as
then constituted, to such successor trustee. The Trustee is authorized, however,
to reserve such sum of money, as to it may seem advisable, for payment of its
fees and expenses in connection with the settlement of its account or otherwise,
and any balance of such reserve remaining after the payment of such fees and
expenses shall be paid over as hereinabove provided. The Trustee may, in its
discretion, invest and reinvest such reserves in any investment or investment
vehicle (including the Collective Trust) appropriate for the temporary
investment of cash reserves of trusts. If for any reason the Company cannot or
does not act in the event of the resignation or removal of the Trustee, the
Trustee may apply to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. Any expenses incurred by the Trustee in
connection therewith shall be paid from the Fund as an expense of
administration.
SECTION 23. EVIDENCE OF COMPANY'S ACTIONS. Any action or direction by the
Company pursuant to any of the provisions of this Agreement shall be in writing
or via electronic or magnetic media submitted to the Trustee, or its agent; in
form satisfactory to the Trustee or its agent. When such actions or directions
are issued in a form that is not customarily used by the Trustee and its
affiliates, such actions and directions shall be properly certified by an
officer of the Company and the Trustee shall be fully protected and indemnified
in acting in accordance therewith.
SECTION 24. ADOPTION OF AGREEMENT BY AFFILIATES. With the consent of the
Trustee, the Company may adopt the Trust as a trust under any other plan which
it maintains for the benefit of its employees, or the employees of any
subsidiary or affiliated corporation, provided such plan is a "qualified plan"
within the meaning of Section 401 of the Code. The Company is solely responsible
for ensuring the qualified status of the Plan and any such additional plans and
that the tax-exempt status of the Fund is not thereby adversely affected. In
addition, any such subsidiary or affiliated corporation, with the consent of the
Company and the Trustee, may adopt the Trust as a trust under a qualified plan
maintained by it by delivering to the Trustee a certified copy of a resolution
of its Board of Directors to the effect that such corporation agrees to be bound
by all the terms and conditions of this Agreement, as then in effect or
thereafter amended, and constitutes the Company as its agent to exercise on its
behalf all of the powers and authorities conferred on the Company under this
Agreement, including, but not limited to, the power to terminate and amend this
Agreement as hereinafter provided. The Company is solely responsible for
supervising the process by which such affiliated employer participates in the
Plan for ensuring the qualified status of the Plan and the tax-exempt status of
the Fund is not thereby adversely affected. Nothing in this Section 24 is
intended to cause a merger of the assets or liabilities of any plans. In the
event that this Trust is adopted as a funding medium by any other plan
maintained by the Company or a subsidiary or affiliated corporation, the Company
shall maintain, or provide the Trustee with all information necessary to
maintain, separate equitable shares evidencing the proportionate interest of
each separate plan in the Fund.
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SECTION 25. WITHDRAWAL OF AFFILIATES OR PLANS. Any corporation (other than
the Company) shall 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 hereunder. In such event, or in the event of the termination
or disqualification of a participating plan (including the Plan), or in the
event of any transaction (such as a merger, sale, transfer of assets or the
like) affecting any employees covered by any participating plan which has
adopted the Trust, the Trustee shall segregate that portion of the Fund
certified by the actuary designated by the Company as equal to the equitable
shares of the Fund attributable to the employees affected by such termination or
other transaction. Until directed otherwise by the Company, the Trustee shall
continue to hold any portion of the Fund so segregated, IN TRUST, as a separate
trust in accordance with the provisions of the Agreement, except that the
corporation (or its successors or assigns) whose employees are affected by such
termination or transaction shall be deemed to be the "Company" for all purposes
of this Agreement.
SECTION 26. AMENDMENT OR TERMINATION OF AGREEMENT. Subject to the
provisions of Section 2, the Company reserves the right, at any time and from
time to time, to terminate or amend, in whole or in part, any or all of the
provisions of this Agreement by notice in writing delivered to the Trustee;
provided, however, that no such amendment which affects the rights, duties or
responsibilities of the Trustee shall become effective without its consent. In
the event of the termination of the Plan or of the Trust, the Trustee shall
continue to administer the Fund as herein provided until all of the purposes for
which it has been established have been accomplished or dispose of the Fund
after the payment or other provision for all expenses incurred in the
administration and termination of the Trust (including any compensation to which
the Trustee may be entitled), in accordance with the written order of the
Company or any successor thereto. Until the final distribution of the Fund, the
Trustee and the Company, or any successors thereto, shall continue to have and
exercise all of the powers and discretion conferred upon them by this Agreement.
SECTION 27. APPLICABLE LAW. To the extent that the State law shall not have
been preempted by the provisions of ERISA, or any other laws of the United
States heretofore or hereafter enacted, this Agreement shall be administered,
construed and enforced according to the laws of the Commonwealth of
Pennsylvania.
SECTION 28. PROVISION OF PLAN DOCUMENTS. The Company shall provide the
Trustee or its agent with copies of all documents then constituting any plan
utilizing the Trust as a funding medium, and the latest determination letter
issued by the Internal Revenue Service that such plan is a qualified plan within
the meaning of the Section 401 of the Internal Revenue Code of 1986. The Trustee
shall be entitled to rely upon the Company's attention to this obligation and
shall be under no duty to inquire of the Company as to the existence of any
documents not provided by the Company hereunder.
SECTION 29. INDEMNIFICATION. In consideration of the Trustee's agreeing to
enter into this Agreement, the Company hereby agrees to hold harmless Prudential
Trust Company, individually and as Trustee under said Agreement, and its
directors, officers, and employees, from and against all amounts, including
without limitation taxes, expenses (including reasonable counsel fees),
liabilities, claims, damages, actions, suits or other charges, incurred by or
assessed against Prudential Trust Company, individually or as Trustee, or its
directors, officers, or employees, (i) as a direct or indirect result of
anything done in good faith, or alleged to have been done, by or on behalf of
Prudential Trust Company in reliance upon the directions of the Company, or any
Investment Manager appointed by the Company, or any person or committee
authorized to act on behalf of the Company, or anything omitted to be done in
good faith, or alleged to have been omitted, in the absence of such directions,
(ii) as a direct or indirect result of the failure of the Company or any person
or committee to adequately, carefully or diligently discharge its
responsibilities under the Plan, this Agreement, or applicable Department of
Labor or Treasury regulations or rulings, or (iii) if the Trustee is named as a
defendant in any lawsuit or other proceeding involving the Plan or the Fund for
any reason including, without limitation, an alleged breach by the Trustee of
its responsibilities under the Agreement, unless the final judgment entered in
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the lawsuit or proceeding holds the Trustee guilty of gross negligence, willful
misconduct, or an intentional breach of fiduciary responsibility under ERISA. If
the final judgment holds the trustee guilty of gross negligence, willful
misconduct, or an intentional breach of fiduciary responsibility under ERISA,
the Company hereby agrees to indemnify the Trustee only against liability in
excess of the Trustee's allocable share of such liability. The Company further
agrees that the undertakings made by it in this Agreement shall be binding on
its successors or assigns and shall survive termination, amendment or
restatement of this Agreement, or the resignation or removal of the Trustee.
SECTION 30. INVALID PROVISIONS. If any paragraph, section, sentence, clause
or phrase contained in this Agreement shall become illegal, null, or void, or
against public policy, for any reason, or shall be held by any court of
competent jurisdiction to be incapable of being construed or limited in a manner
to make it enforceable, or is otherwise held by such court to be illegal, null,
or void, or against public policy, the remaining provisions of this Agreement
shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
MICROAGE, INC.
By:
--------------------------------
Title:
Date:
Attest:
Title:
PRUDENTIAL TRUST COMPANY
By:
--------------------------------
Title:
Attest:
Title:
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