Optum Health, MG Trust Company LLC (2010) MG TRUST COMPANY, LLC
PUBLIC EMPLOYER
VEBA TRUST AGREEMENT
TABLE OF CONTENTS
Page
AGREEMENT 1
ARTICLE I DEFINITIONS 1
1.01 Beneficiary 1
1.02 Code 1
1.03 Confidential Information 1
1.04 Designated Representative 2
1.05 Eligible Employee 2
1.06 Employer 2
1.07 Fiduciary 2
1.08 Force Majeure 2
1.09 Instruction(s) 2
1.10 Investment Manager 2
1.11 IRS 2
1.12 Participant 2
1.13 Person 2
1.14 Plan 2
1.15 Plan Administrator 3
1.16 Trust 3
1.17 Trust Agreement 3
1.18 Trust Fund 3
1.19 Trustee 3
ARTICLE II ESTABLISHMENT AND PURPOSE OF THE TRUST 3
2.01 Designation 3
2.02 Purpose 3
2.03 Exclusive Benefit 3
2.04 Return of Amounts to the Employer 4
2.05 Superseding Effect of the Trust Agreement 4
ARTICLE III ACCEPTANCE OF, CONTRIBUTIONS TO, DISTRIBUTIONS
FROM TRUST 4
3.01 Acceptance of Trust 4
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3.02 Receipt of Contributions 4
3.03 Separate Accounts for Plans 5
3.04 Distributions 5
ARTICLE IV MANAGEMENT AND CONTROL OF TRUST FUND ASSETS 6
4.01 Standard of Conduct and Liabilities of Fiduciaries 6
4.02 Trustee's Powers of Investment and Management 6
4.03 Investments 9
4.04 Authority of Trustee 10
4.05 Power to Do All Necessary Acts 10
4.06 Voting of Proxies 10
4.07 Appointment of Investment Manager and Power to Direct Trustee 10
4.08 Employer Representations and Warranties 11
ARTICLE V THE PLAN ADMINISTRATOR,THE DESIGNATED
REPRESENTATIVE AND THE EMPLOYER 12
5.01 Action by the Plan Administrator 12
5.02 Action by an Employer 12
5.03 Formal Action by Employer 12
5.04 Appointment of Designated Representative;Action by the Designated
Representative 12
ARTICLE VI THE TRUSTEE 13
6.01 Reliance on Written Instrument 13
6.02 Action by the Trustee 13
6.03 Consultation with Counsel and Accountant 13
6.04 Bond Not Required 13
6.05 Returns, Reports and Information 13
6.06 Indemnification 13
6.07 Acts of Prior Trustees 14
6.08 Plan Assets Not Held in Trustee's Trust 14
ARTICLE VII DISPUTE RESOLUTION 14
ARTICLE VIII ACCOUNTS AND RECORDS 15
ARTICLE IX FEES AND EXPENSES 15
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9.01 Expenses of Administration 15
9.02 Authorization with Respect to Taxes 16
ARTICLE X RESIGNATION OR REMOVAL OF TRUSTEE; SUCCESSOR
TRUSTEE 16
10.01 Resignation; Removal of the Trustee 16
10.02 Appointment of Successor Trustee 17
10.03 Transfer of Assets to Successor Trustee 17
10.04 Terminating Trustee's Accounting 17
10.05 Changes in Organization of Trustee 17
10.06 Employer Bankruptcy 18
ARTICLE XI AMENDMENT OF TRUST 18
ARTICLE XII TERMINATION OF TRUST 19
12.01 Termination of Trust Fund 19
12.02 Continuation by an Employer's Successor 19
12.03 Liquidation of Trust 19
ARTICLE XIII MISCELLANEOUS 19
13.01 Applicable Law 19
13.02 Evidence 20
13.03 Notices 20
13.04 Limitation on Claims 20
13.05 Severability of Provisions 20
13.06 Trust Qualification 20
13.07 Construction of Trust Agreement 20
13.08 Spendthrift Provisions 21
13.09 Title of Trust Assets 21
13.10 Rights Determined from Entire Instrument 21
13.11 Waiver 21
13.12 Word Usage 21
13.13 Assignment 21
13.14 Force Majeure 21
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13.15 Complete Agreement 21
13.16 Confidentiality 21
13.17 USA Patriot Act Notification 22
13.18 Execution in Counterparts 22
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PLAN IDENTIFYING INFORMATION
Plan Sponsor: City of Rancho Palos Verdes
Address: 30940 Hawthorne Blvd
City: Rancho Palos Verdes State: CA Zip: 90275
Phone Number: (310) 544-5204
Plan Name: City of Rancho Palos Verdes Retirement Health Savings Plan
Original Effective Date of Plan: January 1,2010
Trust Tax ID#: TBD Trust fiscal year end date: June 30
Plan Administrator(if different from Plan Sponsor):
Address:
City: State: Zip:
Phone Number: ( )
Designated Representative: ODtumHealth Financial Services Company
Address: 11490 Xeon Street NW,Suite 200
City: Coon Rapids State: MN Zip: 55448
Phone Number: (763) 772-1378
AGREEMENT
This Directed Trustee Agreement ("Trust Agreement') is entered into by and between the
Employer, the Designated Representative, and MG Trust Company, LLC ("Trustee") effective as of
January 1,2010.
ARTICLE I
DEFINITIONS
For purposes of the Trust Agreement, the following terms shall have the meanings respectively
indicated unless the context clearly requires otherwise:
1.01 Beneficiary. "Beneficiary"means any Person or entity entitled to receive benefits which
are payable upon or after a Participant's death pursuant to the Plan.
1.02 Code. "Code"means the Internal Revenue Code of 1986, as amended from time to time.
References to any section of the Code shall include any successor provision thereto.
1.03 Confidential Information. "Confidential Information" shall mean (individually and
collectively) proprietary information of the parties to this Trust Agreement, including but not limited to,
their inventions, confidential information, know-how, trade secrets, business affairs, prospect lists,
product designs,product plans,business strategies,finances,and fee structures.
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1.04 Designated Representative. "Designated Representative" means any Person named
above or any authorized successor thereto who agrees to be bound by this Agreement, who is authorized
by the terms of this Agreement to give directions to the Trustee or to act on behalf of the Plan
Administrator hereunder.
1.05 Eligible Employee. "Eligible Employee" means an employee or retiree who is eligible
to participate in the Plan,as set forth in the Plan documents.
1.06 Employer. "Employer" generally means the sponsor of the Plan and related
Trust designated above and any other Employer that adopts the Plan with the consent of the
Sponsor. If the Sponsor is a representative board or group for several employers, "Employer"
refers to the employers participating in the Plan.
1.07 Fiduciary. "Fiduciary" means the Employer, a fiduciary named in the Plan, or
such other Person as is so designated under the Plan's terms and identified as such in Instructions
to the Trustee.
1.08 Force Maieure. "Force Majeure"means a cause or event outside the reasonable control
of the parties or that could not be avoided by the exercise of due care, such as an act of God or any
mechanical,electronic or communications failure.
1.09 Instruction(s). "Instruction(s)" means any oral,written, or electronic direction given to
the Trustee in a form and manner required or accepted by the Trustee. The Trustee may require that any
Instruction be in writing or in an electronic format, and may recognize standing requests, directions, or
requisitions as Instructions.
1.10 Investment Manager. "Investment Manager" means a Person that is a registered
investment adviser, bank, insurance company or other investment professional that is identified as such in
Instructions to the Trustee, and who is appointed in accordance with Section 4.07 to manage, acquire or
dispose of any portion of the Trust Fund. Investment Manager may also be a State governmental entity if
permitted by applicable State law.
1.11 IRS. "IRS"means the Internal Revenue Service.
1.12 Participant. "Participant" means an Eligible Employee who participates in the Plan as
provided in the Plan, and shall include any employee, former employee, or dependent of any of the
foregoing who is eligible to participate in and receive benefits from the Plan, and shall include the
Beneficiary(ies) with respect to any deceased employee or former employee for such time as the
Beneficiary is entitled to receive benefits under the Plan
1.13 Person. "Person" means an individual, committee of individuals, partnership, limited
liability partnership,joint venture,corporation, limited liability corporation,mutual Employer,joint-stock
Employer,non-profit or not-for-profit organization,trust, estate, unincorporated organization, association
or employee organization.
1.14 PP "Plan"means the employee benefit plan or plans listed above,as presently in force
or as hereafter amended by the Plan Sponsor from time to time,some or all of the assets of which are held
by the Trustee pursuant to the terms of this Trust Agreement. The Plan may consist of health, accident,
life insurance, and other such benefits permitted under Section 501(c)(9) of the Code for Eligible
Employees and their dependents and Beneficiaries, the governing instruments of which shall be on file
with the Designated Representative. The Employer shall not be under any obligation to provide any
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specific type or level of benefits to Eligible Employees and their dependents and Beneficiaries solely
because of this Trust Agreement.
1.15 Plan Administrator. "Plan Administrator"shall have the meaning provided in the Plan.
1.16 Trust. "Trust" means the legal entity resulting from the Trust Agreement between the
Employer(s)and the Trustee who receives the contributions, and holds,invests and disburses funds to and
for the benefit of Participants and their Beneficiaries,and each separate trust, if any,existing hereunder at
the time in question. If the Plan existed prior to the effective date of this Trust Agreement,the Trust shall
constitute a continuation by means of an amendment and restatement of each of the prior trusts from
which Plan assets are transferred to the Trustee.
1.17 Trust Agreement. "Trust Agreement" means this Directed Trust Agreement between
the Employer and the Trustee, as reflected herein, provided that if this instrument, pursuant to its terms,
be amended, "Trust Agreement" as at a particular date, shall mean this instrument, as amended and in
force on such date.
1.18 Trust Fund. "Trust Fund" means all assets of whatsoever kind or nature from time to
time held by the Trustee pursuant to this Trust Agreement,without distinction as to income and principal.
1.19 Trustee. "Trustee" means MG Trust Company, LLC and any duly appointed additional
or successor Trustee or Trustees acting hereunder.
ARTICLE II
ESTABLISHMENT AND PURPOSE OF THE TRUST
2.01 Designation. The Employer hereby establishes the Trust. The Trust shall consist of an
initial contribution of money or other property, acceptable to the Trustee in its sole discretion, made by
the Employer or transferred from a previous trustee under the Plan,and such additional sums of money or
other property acceptable to the Trustee in its sole discretion, as shall from time to time be delivered to
the Trustee under the Plan, all investments made therewith and proceeds thereof, and all earnings and
profits thereon, less the payments that are made by the Trustee as provided herein.
2.02 Purpose. The purpose of this Trust is to provide a source of funding for the Plan,which
provides certain benefits for the Employer's Eligible Employees who become Participants. The
Employer intends the Trust to qualify as a tax exempt trust of a voluntary employees' beneficiary
association ("VEBA") within the meaning of Section 501(c)(9) of the Code and the regulations issued
thereunder. Should the income of the Trust become subject to unrelated business income tax, the
Employer shall so notify the Trustee. The Employer established the Trust to provide funding only for
benefits that are permitted to be provided by a VEBA under Code Section 501(c)(9)and that are payable
to Eligible Employees of the Employer.
2.03 Exclusive Benefit. This Trust shall be maintained for the exclusive benefit of
Participants and their Beneficiaries and, to the extent permitted by the Plan, the payment of reasonable
Plan administration expenses. Except as provided under applicable law or otherwise provided in
Section 2.04 below,no part of the Trust Fund shall be used for, or diverted to any purpose other than that
stated in this Section 2.03. It is intended that this Trust Agreement be construed so that no disqualified
benefit(within the meaning of Section 4976 of the Code)be provided hereunder.
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2.04 Return of Amounts to the Employer. The Employer agrees that at no time shall any
part of the net earnings of the Trust Fund inure to the benefit of the Employer or any individual other than
through the payment of benefits permitted by such Plan and this Trust Agreement, nor shall any part of
the corpus or income of the Trust be used for,or diverted to,purposes other than for the exclusive benefit
of such Participants and their dependents and Beneficiaries. Notwithstanding the above, Trust Funds
maintained for a Plan may be refunded to the Employer upon its Instruction to the Trustee in the
following circumstances if,and only if,a Plan expressly so provides for such refund:
(a) A contribution is made to the Trust Fund by the Employer because of a mistake
of fact and is returned to the Employer within one(1)year after payment of such contribution;
(b) A contribution is conditioned on qualification of the Plan as exempt from tax
under Section 501(a)of the Code, and the contribution is returned within one year after the date of denial
of qualification of the Plan;
(c) Any excess insurance premiums, based on mortality or morbidity experience of
the insurer,may be refunded to the Employer.
Any contributions returned will not include gains on such excess contributions, but must be
reduced by any losses. The Trustee will return contributions to the Employer if the Employer or the Plan
Administrator provides Instructions to the Trustee to do so. In all circumstances, it is understood and
agreed that the Employer is solely responsible for ensuring that an Instruction to return any amount to the
Employer meets all applicable legal requirements. The Trustee has no duty or responsibility to question,
and may conclusively rely upon any such Instruction.
2.05 Superseding Effect of the Trust Agreement. To the extent there are any
inconsistencies between this Trust Agreement and any provisions set forth in the Plan document
pertaining to a matter addressed herein, this Trust Agreement shall control, and its provisions shall
supersede all other provisions in the Plan pertaining to the duties, responsibilities, obligations and
liabilities of the Trustee. Further, this Trust Agreement shall operate as an amendment of the Plan that
replaces all references to trustee discretion in the Plan with references to the discretion of the Plan
Administrator. Under no circumstances shall the terms of the Plan be interpreted as conferring any
investment or administrative discretion on the Trustee.
ARTICLE III
ACCEPTANCE OF,CONTRIBUTIONS TO,DISTRIBUTIONS FROM TRUST
3.01 Acceptance of Trust. The Trustee, by affixing its signature to this Trust Agreement,
accepts this Trust and agrees to act as Trustee of the Trust according to the terms and conditions of this
Trust Agreement, all of which the parties hereto agree, and to which the Employers and the Participants
from time to time hereunder, and all those Persons claiming through or under any of them, shall be
deemed to have agreed. Nothing contained in the Plan, either expressly or by implication, shall be
deemed to impose any powers, duties or responsibilities on the Trustee beyond those imposed by this
Trust Agreement. The Trustee shall not have the authority to interpret the Plan.
3.02 Receipt of Contributions. The Trustee shall receive any contributions under the Plan
paid to it in cash. All contributions so received,together with the income therefrom, any other increment
thereon, and all assets acquired by investment or reinvestment, shall be held, managed, and administered
by the Trustee pursuant to the terms of this Trust Agreement without distinction between principal and
income and without liability for the payment of interest thereon. The Trustee shall not be responsible for
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the collection of any contributions under or required by the Plan, but shall be responsible only for cash
actually received by it hereunder. The Trustee shall have no power or duty to inquire whether the amount
of any contributions delivered to it by an Employer is correct or complies with the terms of the Plan. The
Trustee shall have no duty to compute any amount required to be transferred or paid to it by the
Employer.
3.03 Separate Accounts for Plans. The Trustee will establish an account for each Employer,
and all assets held by it and contributions received by it, and all such contributions and accruals thereto
from time to time, shall be held by the Trustee hereunder in the Trust Fund and shall be invested and
applied by it as herein provided, and all of the assets in the Trust Fund Shall be available to pay benefits
that become payable with respect to the Employer. Notwithstanding the foregoing, the Designated
Representative shall create and maintain separate accounts for each separate Plan of the Employer under
the Trust Fund. The account of each Plan shall be debited or credited, as the case may be, (i) for the
entire amount of every contribution received on behalf of such Plan,every benefit payment or expense or
other charge properly allocated to such Plan, and every transaction relating solely to such Plan, and (ii)
for its equitable share (i.e., in proportion to the relative balance of its then existing account interest) of
any item of allocated or accrued income, gain or loss, and general expenses and other transaction
allocable to the Trust Fund as a whole. With every payment of a contribution to the Trust Fund, the
Employer shall give written notice to the Designated Representative of the Plan with respect to which the
contribution is made.
3.04 Distributions.
(a) Distributions. Upon receipt of Instructions from the Plan Administrator or the
Designated Representative, the Trustee shall make payments from the Trust Fund in such manner,
amounts and times, and for such purposes,as may be specified in such Instructions,or for the payment of
fees and expenses pursuant to Article IX("Distributions"). The Designated Representative shall have the
responsibility for making benefit payments under the Plan. The Designated Representative may open a
benefit account, including through a commercial checking account in a federally insured banking
institution. The Designated Representative shall have the responsibility to assure that any such
commercial banking account is established and maintained in accordance with applicable law and is
properly insured, as applicable. The Trustee shall make transfers of funds to the benefit account at such
time and in such amounts as the Designated Representative may from time to time direct. The
Designated Representative shall identify those individuals who are authorized to sign manually or by
facsimile signature any and all checks, drafts and orders against the benefit account, and the depository
bank is authorized to honor any and all checks, drafts and orders so signed, regardless of by whom or by
what the actual or purported facsimile signature or signatures may have been affixed thereto, if such
signature or signatures resemble those duly filed. The Designated Representative shall have full
responsibility with respect to all matters relating to the benefit account, including the power to direct stop
payment on any check, draft or order, and to reissue and deposit checks. The Trustee shall have no duty
to question the propriety of any direction of the Designated Representative to make transfers from the
Trust Fund to the benefit account, to account for funds retained in or disbursed from the benefit account,
or to pay any tax arising by reason of any benefit payment.
(b) Trustee Liability for Distributions Pursuant to Instructions. Subject to
Section 6.01, the Trustee shall not be liable for any Distribution made by it pursuant to Instructions
received from the Designated Representative or the Plan Administrator, and shall be under no duty to
make inquiry as to whether any Distribution directed by the Designated Representative or the Plan
Administrator is made pursuant to the provisions of the Plan or any applicable law, or as to the effect of
any Instruction for tax purposes or otherwise. Likewise,the Trustee need not see to the application of any
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Distribution made to or for the benefit of a Participant pursuant to the Instructions of the Designated
Representative or the Plan Administrator.
(c) Limitations. The Trustee shall neither be responsible for the adequacy of the
Trust Fund to discharge any payments and liabilities under the Plan, nor be required to make any
Distributions under the Plan in excess of the net realizable value of the assets of the Trust allocable to
such Plan at the time of the Distribution. The Trustee shall not be required to make any Distribution in
cash unless the Designated Representative or the Plan Administrator has/have provided Instructions as to
the assets to be converted to cash for the purpose of making such Distribution.
ARTICLE IV
MANAGEMENT AND CONTROL OF TRUST FUND ASSETS
4.01 Standard of Conduct and Liabilities of Fiduciaries. The Trustee and each fiduciary
hereunder shall discharge its duties hereunder solely in the interest of the Participants and for the
exclusive purpose of providing benefits to Participants and for paying reasonable expenses of
administering the Plan. The Trustee and each fiduciary hereunder shall perform all of its duties with the
care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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, or in accordance with such other standard as may, from time to time, be required by
law, and in accordance with the Plan and this Trust Agreement, insofar as they are consistent with
applicable law. The Trustee and each fiduciary hereunder shall not cause the Trust to engage in a
transaction if it knows or should know that such transaction directly or indirectly constitutes a prohibited
transaction under applicable law. The fiduciary standards reflected in this Section 4.01 shall apply to the
parties hereunder according to and limited by the scope of such party's duties, as expressly described in
this Trust Agreement. The Trustee shall not maintain the indicia of ownership in any assets of the Trust
Fund outside of the jurisdiction of the District Courts of the United States.
4.02 Trustee's Powers of Investment and Management.
(a) The Trustee shall have no discretion over the investment of Trust assets, no
responsibility for the selection of investment options under the Trust, and shall not render investment
advice to any Person in connection with the selection of such options. Except to the extent required by
applicable law or as otherwise provided in this Trust Agreement, the Trustee shall have no duty or
responsibility to review, initiate action, or make recommendations regarding Trust assets and the Trustee
shall retain assets until it receives Instructions from the Designated Representative or the Plan
Administrator regarding disposal of them.
Except as provided below,the Plan Administrator shall have all power over and responsibility for
the management, disposition, and investment of the Trust assets, and the Trustee shall comply with the
Instructions of the Plan Administrator concerning those assets. The Plan Administrator represents to the
Trustee that it shall not issue Instructions that violate the terms of the Plan and Trust or that are prohibited
by applicable law.
(b) The Plan Administrator shall have the exclusive authority and discretion to select
the investments pursuant to Section 4.03, and to provide Instructions to the Trustee regarding investment
of contributions hereunder unless an Investment Manager is appointed for such purpose. If permitted
under the Plan,the Designated Representative shall maintain separate accounts for Participants under one
or more Plans and each separate account for each Participant under each Plan shall be maintained in
accordance with procedures or systems approved or arranged by the Employer. The Employer may direct
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the Trustee in writing to divide the Trust Fund into two (2) or more subfunds, including an interest-
bearing account to hold balances in Employees' accounts below a minimum threshold determined by the
Employer(the"Base Account"),and an array of investment subfunds which shall serve as vehicles for the
investment of Employees' accounts at the direction of Employees. The Employer shall determine the
general investment characteristics and objectives of each investment subfund. The Employer or the
investment manager designated by the Employer, as the case may be, shall have complete investment
discretion over each investment subfund assigned to it, subject only to the general investment
characteristics and objectives established for the particular investment. The Employer acknowledges and
agrees that the Trustee shall not select the Base Account or the investment subfunds. The account of each
Participant shall have a ratable interest in the Base Account or investment subfund. Participant directions
regarding investments of such accounts shall be furnished to the Plan Administrator under procedures
adopted by the Employer or the Plan Administrator consistent with the Plan document, and the
Designated Representative or the Plan Administrator shall provide Instructions to the Trustee regarding
the investment of such amounts. The Plan Administrator is responsible for ensuring that the design and
operation of a Participant-directed investment program satisfies the requirements of the Plan. The Trustee
shall not be liable for any loss, or by reason of any breach, which results from such Participant's exercise
of control with respect to Plan investments. If a Participant who has the right to direct investments under
the terms of the Plan fails to provide such direction to the Plan Administrator, the Plan Administrator
shall direct the investment of such Participant's account. The Designated Representative or the Plan
Administrator shall maintain records showing the interest of each Participant or Beneficiary in the Trust
Fund. The Trustee shall have no duty or responsibility to review, make recommendations, or otherwise
render advice regarding investments made pursuant to Instructions received from the Plan Administrator
or the Designated Representative,and shall be required to act only upon receipt of such Instructions.
(c) When acting hereunder, subject to the Instructions of the Designated
Representative or the Plan Administrator, as provided in the remaining Sections of this Trust Agreement,
the Trustee shall have the following powers with respect to any and all cash and other assets at any time
held by it and constituting part of the Trust Fund:
(1) To purchase or subscribe for securities or other property and to retain
them in trust; to sell any securities or other property at any time held by it at either public or private sale
for cash or other consideration or on credit at such time or times and on such terms and conditions as may
be deemed appropriate;to exchange such securities or other property and to grant options for the purchase
or exchange thereof, and to convey, partition or otherwise dispose of, with or without covenants,
including covenants of warranty of title, any securities or other property free of all trusts; to charge the
Trust for the cost of all securities purchased or received against a payment and to credit the Trust with the
proceeds received from the securities sold or delivered against payment. For any trades not settled
immediately upon placement, the Trustee shall have the right to sell securities from the Trust in a
reasonably prudent fashion sufficient to recover any funds advanced;
(2) To oppose, or consent to and participate in, any plan of reorganization,
consolidation, merger, combination or other similar plan; to oppose or to consent to any contract, lease,
mortgage,purchase,sale or other action by any corporation pursuant to such plan,and to accept and retain
any securities or other property issued under any such plan; to deposit any securities or other property
with any protective, reorganization or other similar Plan Administrator; to delegate discretionary power
thereto and to pay and agree to pay part of its expenses and compensation and any assessments levied
with respect to any such securities or other property so deposited;
(3) To assign, renew, extend or discharge or participate in the assignment,
renewal, extension or discharge of any debt, mortgage or other lien, upon such terms, including a partial
release, as may be deemed advisable by the Trustee, and to agree to a reduction in the rate of interest
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thereon or to any other modification or change in the terms thereof or of any guarantee pertaining thereto,
in any manner and to any extent that may be deemed in the best interest of the Trust Fund;to waive any
default,whether in the performance of any covenant or condition of any note,bond or mortgage or in the
performance of any guarantee,or to enforce any such default in such manner and to such extent as may be
deemed advisable;to exercise and enforce any and all rights of foreclosure and to exercise and enforce,in
any action, suit or proceeding at law or in equity,any rights or remedies in respect of any debt,mortgage,
lien or guarantee;
(4) To exercise all conversion and subscription rights pertaining to any
securities or other property;
(5) Except as limited in Section 3.02 hereof, to collect and receive any and
all moneys, securities or other property of whatsoever kind or nature due or owing or belonging to the
Trust Fund and to give full discharge and acquittance therefor;
(6) Upon the receipt of Instructions from an Investment Manager or other
Plan fiduciary,to exercise,personally or by general or limited power of attorney,any right, including the
right to vote or grant proxies, discretionary or otherwise, appurtenant to any assets held by the Trust, and
the right to participate in voting trusts with other stockholders. The Plan Administrator shall have
responsibility for instructing the Trustee as to voting such shares and the tendering of such shares, by
proxy or in person,except to the extent such responsibility is delegated to another Person,under the terms
of the Plan or Trust Agreement or under an agreement between the Fiduciary of the Plan and an
Investment Manager, in which case such Persons shall have such responsibility. In no event shall the
Trustee be responsible for the voting or tendering of shares of securities held in the Trust or for
ascertaining or monitoring whether or how proxies are voted or whether the proper number of proxies is
received;
(7) To register any securities or other property held by it hereunder in the
name of the Trustee or in the names of nominees with or without the addition of words indicating that
such securities or other property are held in a fiduciary capacity,to take and hold the same unregistered or
in form permitting transferability by delivery, to deposit or arrange for the deposit of securities in a
qualified central depository even though, when so deposited, such securities or other property may be
held in the name of the nominee of such depository with other securities deposited therein by other
Persons,or to deposit or to arrange for the deposit of any securities or other property issued by the United
States government, or any agency or instrumentality thereof, with a Federal Reserve bank, provided that
the books and records of the Trustee shall at all times disclose that all such securities or other property are
part of the Trust Fund;
(8) To settle, compromise or submit to arbitration, any claims, debts or
damages due or owing to or from the Trust Fund; to commence or defend suits or legal proceedings
whenever, in its judgment, any interest of the Trust Fund so requires, and to represent the Trust Fund in
all suits or legal proceedings in any court of law or equity or before any other body or tribunal and to
charge against the Trust Fund all reasonable expenses and attorney's fees in connection therewith;
(9) To borrow money for the purposes of the Trust Fund from others,
excluding the Trustee in its corporate capacity and excluding any other party in interest;
(10) To invest all or part of the Trust Fund in interest bearing deposits with a
bank or similar financial institution related to the Trustee if such bank or other institution is a fiduciary
with respect to the Plan, including but not limited to investments in time deposits, negotiable order of
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withdrawal (NOW) accounts, savings deposits, certificates of deposit or time accounts which bear a
reasonable interest rate;
(11) To invest and reinvest all or a part of the Trust Fund, in accordance with
the Designated Representative or the Plan Administrator's Instructions, in any available investments and
to dispose of all or any part of the Securities or other property which may from time to time or at any time
constitute the Trust Fund, in accordance with Instructions provided by the Designated Representative or
the Plan Administrator,and furnished to the Trustee pursuant to Section 4.03;
(12) The Trustee may invest and reinvest all or a portion of the Trust Fund
pursuant to an agreement between the Employer and the Trustee establishing a special designated"pooled
investment fund" primarily for the purpose of valuing certain trust assets held by the Trustee in a
fiduciary capacity. The terms and conditions of such an agreement specifically creating such a pooled
investment fund shall be incorporated by reference into this Trust Agreement;
(13) To register Trust Fund property in the Trustee's own name, in the name
of a nominee or in bearer form,provided the Trustee's records and accounts show that such property is an
asset of the Trust Fund;
(14) To exercise or dispose of any right it may have as the holder of any
security, to convert the same into another security, to acquire any additional security or securities, to
make any payments,to exchange any security, or to do any other act with reference thereto;
(15) To exchange any property for other property upon such terms and
conditions as the Trustee may deem proper,and to give or receive money to effect equality in price;
(16) To deposit any security with any protective or reorganization committee,
to delegate to that committee such power and authority as the Trustee may deem proper, and to agree to
pay out of the Trust Fund that portion of the expenses and compensation of that committee as the Trustee
may deem proper;
(17) To appoint agents as necessary or desirable, including legal counsel who
may be counsel for the Employer;
(18) To hold that portion of the Trust Fund as the Trustee may deem
necessary for ordinary administration, to transfer assets to another trust or fiduciary, pending investment
Instructions, and to disburse funds in cash, without liability for interest, by depositing the same in any
bank(including deposits that bear no interest or a reasonable rate of interest in a bank or similar financial
institution supervised by the United States or a State, even where a bank or financial institution is the
Trustee, or otherwise is a fiduciary of the Plan, subject to the rules and regulations governing such
deposits, and without regard to the amount of any such deposit);and
(19) To retain insurance contracts that are guaranteed investment contracts.
4.03 Investments.
(a) Investment Options. The Plan Administrator and the Designated Representative
(or, if applicable, the Investment Manager) shall from time to time notify the Trustee in writing or
electronically of its selection of the investments available under the Plan. The Plan Administrator(or, if
applicable, the Investment Manager) shall have the sole duty to ascertain whether such investments are
consistent with the Plan's investment policy, if any, or are otherwise a suitable investment of the Plan's
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assets. Cash or other property received by the Trustee as contributions, or otherwise, as permitted
hereunder, shall,per the Plan Administrator's or the Designated Representative's Instructions,be credited
to any or all of such investments.
(b) Investment Direction. The Plan Administrator or the Designated Representative
shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by
the Trustee of all amounts allocated to this Trust Fund among any one or more of the available
investments. All investment Instructions provided to the Trustee by the Plan Administrator or the
Designated Representative shall be timely furnished. In making any investment of the assets of the Trust
Fund, the Trustee shall be fully entitled to rely on such directions furnished to it by the Plan
Administrator or the Designated Representative or Fiduciary in accordance with the Plan Administrator's
or the Designated Representative's approved rules and procedures, and shall be under no duty to make
any inquiry or investigation with respect thereto. If the Trustee receives any contribution under the Plan
that is not accompanied by Instructions directing its investment, the Trustee shall notify the Plan
Administrator of that fact within a reasonable period of time, and the Trustee may, in its discretion, hold
uninvested or return all or a portion of such contribution without liability for loss of income or
appreciation pending receipt of proper investment Instructions. It is specifically intended under the Plan
and this Trust Agreement that the Trustee shall have no discretionary authority to determine the
investment of the assets of the Trust Fund except as otherwise provided in Section 4.02(c)(18) and this
Section 4.03.
4.04 Authority of Trustee. A third party dealing with the Trustee shall not make, or be
required by any Person to make, any inquiry concerning the authority of the Trustee to take or omit any
action but shall be fully protected in relying upon the certification of the Trustee that it has authority to
take such proposed action. No Person dealing with the Trustee shall be required to follow the application
by the Trustee of any moneys,securities or other property paid or delivered to the Trustee.
4.05 Power to Do All Necessary Acts. To the extent not inconsistent with the express
provisions hereof, enumeration of any power herein shall not be by way of limitation, but shall be
cumulative and construed as full and complete power in favor of the Trustee. In addition to the authority
specifically herein granted,the Trustee shall have such power to do all acts as may be deemed necessary
for full and complete management of the Trust Fund and appropriate to carry out the purposes of this
Trust Fund,and shall further have all powers and authorities conferred on trustees by the laws of the State
of Colorado.
4.06 Voting of Proxies. The Trustee shall maintain a complete record of the manner in which
it votes securities held as part of the Trust Fund, which shall be voted only in accordance with
Instructions provided to the Trustee by the Plan Administrator or other Plan fiduciary independent of the
Trustee,as provided under this Trust Agreement.
4.07 Appointment of Investment Manager and Power to Direct Trustee.
(a) Appointment. The fiduciary named in the Plan as having such authority,may in
its sole discretion appoint one or more Investment Managers with respect to some or all of the assets of
the Trust Fund. Any such Investment Manager shall: (1)be registered as an investment adviser under the
Investment Advisers Act of 1940 or registered under the laws of the applicable state; (2) be a bank, as
defined in the Investment Advisers Act of 1940; or (3) be an insurance company qualified to manage,
acquire or dispose of Plan assets under the laws of more than one state. The authority of the Investment
Manager shall not begin until the Trustee receives Instructions from the Employer regarding the
appointment of such Investment Manager. Such Instructions shall specify the scope of the Investment
Manager's authority with respect to the assets of the Trust Fund, and the Investment Manager's authority
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thereunder shall continue and the Trustee shall be fully protected in relying on the notice of appointment
provided hereunder until the Trustee receives an Instruction containing notice that such appointment has
been rescinded.
(b) Power to Direct Trustee. The assets with respect to which a particular
Investment Manager has been appointed shall be specified by the Employer,and the Trustee shall account
for such assets separately from all other Trust assets. The Investment Manager shall, in accordance with
the standard of conduct contained in Section 4.01 hereof,have the duty and power to direct the Trustee in
every aspect of its investments specifically including (1) the power to direct the Trustee to invest and
reinvest any securities or other property under its management and control so that such investments are
diversified so as to minimize the risk of large losses unless under the circumstances it is prudent not to do
so, and (2) the voting of proxies with respect to shares of stock which are subject to such Investment
Manager's management, control, and responsibility with respect to investment and reinvestment. The
Employer shall require the Investment Manager to maintain a record of the reasons for the manner in
which it voted such proxies and the date it instructed the Trustee to vote and communicate such
information from time to time to the Employer, but not less frequently than annually. The Trustee shall
follow the Instructions of the Investment Manager regarding the investment and reinvestment of the Trust
Fund or such portion thereof as shall be under management by the Investment Manager. The Trustee
shall be under no duty or obligation to review any investment to be acquired,held or disposed of pursuant
to such Instructions nor to make any recommendations with respect to the disposition or continued
retention of any such investment. The Investment Manager shall have the sole duty and responsibility of
determining the acceptability of any contributions of property made under this Trust if such contributed
property is to be part of its investment responsibility.
(c) Reliance Upon Directions. The Trustee may rely upon any order, certificate,
notice, direction, or other documentary confirmation purporting to have been issued or given by an
Investment Manager, which the Trustee believes to be genuine and to have been issued or given by such
Investment Manager. The Trustee shall not be liable for the acts or omissions of an Investment Manager
and shall have no liability or responsibility for acting or not acting pursuant to the direction of, or failing
to act in the absence of, any direction from the Investment Manager (except with respect to short-term
investments under Sections 4.02(c)(18)and 4.03(a)hereof), unless the Trustee knows that by such action
or failure to act, it would be itself committing a breach of fiduciary duty or participating in a breach of
fiduciary duty by the Investment Manager, it being the intention of the parties that,except with respect to
investments under Sections 4.02(c)(18) and 4.03(a) hereof, the Trustee shall have the full protection of
applicable law.
4.08 Employer Representations and Warranties.
(a) Proper Appointment of Investment Manager. The Employer hereby
represents and warrants to the Trustee that it has taken the necessary and advisable steps to properly
appoint,accredit,and supervise any Investment Manager authorized hereunder, including:
(1) Execution by the fiduciary named in the Plan as having such authority of
instruments appointing the Investment Manager;and
(2) Receipt of an instrument executed by the Investment Manager accepting
such appointment and acknowledging that it is a fiduciary under applicable law with respect to the
relevant assets of the Trust Fund, and that the Investment Manager meets the requirements of Section
4.07(a)(1)—(3)above.
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(b) Survival. The provisions of this Section 4.08 shall survive the termination of
this Trust Agreement.
ARTICLE V
THE PLAN ADMINISTRATOR,THE DESIGNATED REPRESENTATIVE AND THE
EMPLOYER
5.01 Action by the Plan Administrator. Subject to Section 6.01, the Trustee shall be fully
protected in relying upon Instructions provided by the Plan Administrator.
5.02 Action by an Employer. Any action by an Employer, including action taken pursuant to
the Plan, shall be evidenced by a copy of a written instrument executed in accordance with Section 5.03
hereof. Subject to Section 6.01, the Trustee shall be fully protected in acting in accordance with such
written instrument delivered to it.
5.03 Formal Action by Employer. Any formal action herein permitted or required to be
taken by an Employer shall be by resolution of its board of directors or other governing board or body,or
by written instrument executed by a person or group of persons who has been authorized by resolution of
its board of directors or other governing board or body as having authority to take such action
5.04 Appointment of Designated Representative; Action by the Designated
Representative. The Employer hereby designates and authorizes its Designated Representative to
provide Instructions to the Trustee on behalf of the Employer, including to place orders for the purchase
and sale of securities, and authorizes the Trustee to disburse funds on behalf of the Employer upon
Instruction from such Designated Representative and perform as otherwise described in this Trust
Agreement. The Employer hereby also authorizes and directs the Trustee to pay for securities and receive
payment from the sale of securities or other investment transactions arising out of Instructions of the
Designated Representative. Designation of a Designated Representative is subject to the following
provisions:
(a) The Employer agrees that the Trustee may rely on Instructions from the
Designated Representative, and the Employer agrees that the Trustee shall be under no duty to make an
investigation with respect to any Instructions received from the Designated Representative;
(b) Except to the extent delegated to an Investment Manager or another trustee, the
Employer is solely responsible for managing the investment of the Trust Fund and for the direction and
supervision of the Designated Representative. All Instructions,directions, and confirmations received by
the Trustee from a Designated Representative shall be deemed to have been authorized by the Employer;
(c) The Employer agrees that a Designated Representative is not an agent of the
Trustee; and
(d) The Employer may remove a Designated Representative and designate a new
representative at any time by written notice to the Trustee in a form satisfactory to the Trustee. The
Employer will give the Trustee prompt written notice of any change in the identity or authority of any
Designated Representative. Removal of a Designated Representative will not have the effect of canceling
any Instruction that has been received by the Trustee from the Designated Representative prior to the date
that notice of removal is received by the Trustee. Until written notice of such change is received, the
Trustee may conclusively rely upon and be protected in acting on the latest identification provided to it
without further inquiry or verification.
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ARTICLE VI
THE TRUSTEE
6.01 Reliance on Written Instrument. The Trustee shall be fully protected in relying on the
identity of the Plan Administrator identified above, and the identities of successors to such Person or
others authorized to provide Instructions to the Trustee to the extent that the Trustee is provided
Instructions regarding appointment of same. 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. The Trustee shall be under no duty to make any investigation or inquiry as to any
statement contained in any such writing but may accept the same as conclusive evidence of the truth and
accuracy of the statements therein contained.
6.02 Action by the Trustee. The Trustee may delegate ministerial acts, specifically
including, but not limited to, the signing of checks, endorsement of stock certificates, production of
statements and accountings provided for hereunder, execution of transfer instruments and any other
document,and the signing of tax returns and governmental reports to be done by any agent of the Trustee.
6.03 Consultation with Counsel and Accountant. The Trustee may from time to time
consult with counsel or an accountant who may also be counsel or an accountant for an Employer,and as
long as the Trustee acts in conformity with the standards of Section 4.01 hereof, the opinion of such
counsel or accountant with respect to legal matters or accounting matters,respectively,shall have full and
complete authorization and protection in respect of any action taken or suffered by the Trustee in good
faith and in accordance with such opinion.
6.04 Bond Not Required. The Trustee shall not be required to furnish any bond or security
for the performance of its powers and duties hereunder. The cost of any bond required by applicable law
shall be paid as an expense of the Trust Fund,unless paid by the Employer.
6.05 Returns,Reports and Information. Except as set forth in a written agreement between
the parties, the Plan Administrator shall be responsible for the preparation and filing of all returns,
reports,and information required of the Trust or Plan by law, including(as applicable)Forms 990, 990-T,
W-2,or any other information or tax returns. The Plan Administrator shall also be responsible for making
any disclosures to Participants required by law.
6.06 Indemnification. The Plan Sponsor, Plan Administrator and Employer each hereby
agree to indemnify,defend and hold the Trustee and its affiliates,and their respective directors,managers,
officers, employees, agents and other representatives (the "Indemnified Parties") harmless from any and
all losses, costs, excise taxes, expenses, fees, liabilities, damages, claims of any nature whatsoever,
including but not limited to legal expenses,court costs,legal fees,costs of or associated with enforcement
actions, investigations, suits, and regulatory or other actions and appeals thereof resulting from their
reliance upon any certificate, notice, confirmation, or Instruction, purporting to have been delivered by
the Plan Administrator, a Fiduciary, an Investment Manager, or a Designated Representative hereunder
("Plan Representative(s)"). The Plan Sponsor, Plan Administrator and Employer each waive any and all
claims of any nature each now has or may have against the Indemnified Parties, which arise, directly or
indirectly,from any action that the Trustee takes in good faith in accordance with any certificate, notice,
confirmation, or Instruction from a Plan Representative. The Plan Sponsor, Employer and the Plan
Administrator also hereby agree to indemnify,defend and hold the Indemnified Parties harmless from and
against any and all losses, costs, excise taxes, expenses, fees, liabilities, damages, claims of any nature
whatsoever, including but not limited to legal expenses, court costs, legal fees,costs of or associated with
enforcement actions, investigations, suits, and regulatory or other actions and appeals thereof, arising,
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directly or indirectly,out of any loss or diminution of the Trust Fund resulting from changes in the market
value of the Trust Fund assets; reliance,or action taken in reliance, on Instructions from the Employer or
one or more Plan Representatives;any exercise or failure to exercise investment direction authority by the
Employer or by a Plan Representative; the Trustee's refusal on advice of counsel to act in accordance
with any investment direction provided by the Employer or a Plan Representative; any other act or failure
to act by the Employer or a Plan Representative; any prohibited transaction due to any actions taken or
not taken by the Trustee in reliance on Instructions from the Employer or a Plan Representative; or any
other act the Trustee takes in good faith hereunder that arises under this Trust Agreement or the
administration of the Trust Fund.
The Trustee shall not be liable to the Employer, Plan Sponsor or a Plan Representative for any
act, omission, or determination made in connection with this Trust Agreement except for its gross
negligence or willful misconduct. Without limiting the generality of the foregoing,the Trustee shall not
be liable for any losses arising from its compliance with Instructions from the Employer,Plan Sponsor or
a Plan Representative; or executing, failing to execute, failing to timely execute or for any mistake in the
execution of any Instructions,unless such action or inaction is by reason of the gross negligence or willful
misconduct of the Trustee.
The provisions of this Section 6.06 shall survive the termination, amendment or expiration of this
Trust Agreement.
6.07 Acts of Prior Trustees. The assets of the Trust Fund or evidence of ownership shall be
held by the Trustee under the terms of the Plan and this Trust Agreement. If the assets represent amounts
transferred from another trustee,the Trustee named hereunder shall not be responsible for any actions or
inactions of prior fiduciaries, including the review of the propriety of any investment under the former
trust; said review to be the responsibility of prior fiduciaries. The Trustee named hereunder shall not be
required to examine or question in any way the administration of the Trust prior to its appointment.
6.08 Plan Assets Not Held in Trustee's Trust. If, as provided in the Plan, other trustees of
separate trusts under the Plan may be appointed, the Trustee under this Trust Agreement shall have no
duties or responsibilities for Plan assets not held in the Trust by the Trustee.
ARTICLE VII
DISPUTE RESOLUTION
The parties acknowledge that this Trust Agreement evidences a transaction involving interstate
commerce. Except as provided in Section 10.02, the parties agree that any misunderstandings,
controversies or disputes arising from this Trust Agreement shall be decided by binding arbitration which
shall be conducted, upon request by either party, in Denver, Colorado, before three (3) arbitrators
designated by the American Arbitration Association (the "AAA"), in accordance with the terms of the
Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the United States
Arbitration Act(Title 9 of the United States Code). The decision of the majority of the arbitrators shall
be binding and conclusive upon the parties. Notwithstanding anything herein to the contrary,either party
may proceed to a court of competent jurisdiction to obtain equitable relief at any time, other than to stay
arbitration. Further, any such court proceeding shall only be brought in the federal district court in
Denver,Colorado. The arbitration panel shall have no authority to award special, indirect,consequential,
punitive or other damages not measured by the prevailing party's actual damages. To the maximum
extent practicable, an arbitration proceeding under this Trust Agreement shall be concluded within one
hundred eighty (180) days of the filing of the dispute with the AAA. The provisions of this arbitration
clause shall survive any termination, amendment or expiration of the Trust Agreement and if any term,
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covenant, condition or provision of this arbitration clause is found to be unlawful or invalid or
unenforceable,the remaining parts of the arbitration clause shall not be affected thereby and shall remain
fully enforceable. Judgment on any award rendered by the arbitration panel may be entered in any court
having competent jurisdiction. The parties shall each pay one-half of the forum and arbitrators' fees. The
prevailing party in the arbitration, or in any court proceeding, shall be entitled to its reasonable attorney's
fees and expenses from the non-prevailing party.
ARTICLE VIII
ACCOUNTS AND RECORDS
The Trustee shall maintain true, accurate, and detailed accounts of all investments, receipts,
disbursements and other transactions hereunder. All accounts,books,and records relating thereto shall be
open to inspection and may be audited from time to time by any person designated by the Plan
Administrator during the Trustee's regular business hours as mutually agreed to in writing by the parties.
Within thirty(30)days after the close of the calendar year of the Trust Fund, within thirty(30)days after
the removal or resignation of the Trustee, and from time to time as mutually agreed to by the Plan
Administrator and the Trustee, the Trustee shall file an account with the Plan Administrator which shall
show: (a)the assets of the Trust Fund, as of the end of such period,and current value thereof; and(b)all
investments, receipts, disbursements, and other transactions effected by it during such calendar year or
other period for which such accounting is filed. The Plan Administrator may approve such accounting by
notice of approval delivered to the Trustee or by failure to express objection to such accounting delivered
to the Trustee within sixty (60) days from the date upon which the accounting is delivered to the Plan
Administrator. Upon the expiration of sixty(60)days from the date of filing such account with the Plan
Administrator or upon earlier specific approval thereof by the Plan Administrator,the Trustee,as between
each Employer,the Plan Administrator and the Trustee, shall be forever released and discharged from all
liability as to all items and matters included in such accounting as if settled by the decree of a court of
competent jurisdiction, except with respect to any such action or transaction to which the Plan
Administrator shall within such sixty (60) day period, file written objections with the Trustee. The
liability of the Trustee to persons other than an Employer or the Plan Administrator shall be limited to
actions under statutory authority brought within the period permitted by law for the bringing of such
action. Nothing herein contained, however, shall be deemed to diminish the right of the Trustee to have
its accounts judicially settled by a court of competent jurisdiction.
In any case, the Trust Fund shall be valued by the Trustee at the frequency agreed to by the
Trustee and the Employer,but in any event not less than annually at the fair market value as of the close
of business at the end of the last business day of the fiscal year of the Plan. Except as specified below,in
the absence of fraud,the Trustee's valuation of the Trust Fund shall be conclusive.
ARTICLE IX
FEES AND EXPENSES
9.01 Expenses of Administration.
(a) Generally. The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon by the Employer and the Trustee. Compensation payable hereunder
shall include any earnings on funds retained pursuant to Section 4.02(d)(18) hereof. Such compensation
may be paid by the Employer or the Designated Representative or, upon receipt of Instructions from
either,may be deducted from the Trust Fund.
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Subject to the Plan Administrator's approval, the Trustee may pay outside counsel, independent
accountants, actuaries, and other outside persons engaged by it, such compensation and expenses as are
reasonable and proper as expenses of administration of the Trust Fund. All such compensation and all
expenses of administration of the Trust, and the Plan of which it is a part, including fees of outside
counsel, independent accountants, and actuaries, shall be a charge against and may be withdrawn by the
Trustee out of the Trust Fund. However, nothing herein shall prohibit the Employer from paying such
amounts if the Trust Fund is sufficient and the Employer so elects.
The Trustee may charge the Trust for the cost of all securities purchased or received against a
payment and credit the Trust with the proceeds received from the securities sold or delivered against the
payment. For any trades not settled immediately upon placement,the Trustee shall have the right to sell
securities from the Trust in a reasonably prudent fashion sufficient to recover any funds advanced.
Expenses incurred by the Trustee that it believes to be subject to indemnification under Section
6.06 of this Trust Agreement shall be paid by the Employer upon the Trustee's request, provided that the
Employer may delay payment of any amount in dispute until such dispute is resolved according to the
provisions of Article VII hereof. Such resolution may include the award of interest on unpaid amounts
determined to be payable to the Trustee under this Section. The Trustee shall not be held liable for its use
of Plan assets to the extent that the use of such assets is permitted by applicable law.
In the event a successor Trustee is named pursuant to Section 10.02,prior to transferring assets to
such successor, the Trustee is authorized to reserve such sum of money as it may deem advisable for
payment of its fees and expenses in connection with the settlement of its accounts or other proper Trust
expenses, and any balance of such reserve remaining after the payment of such fees and expenses shall be
paid to the successor Trustee. If the Trust applies to a court for appointment of a successor Trustee, as
permitted under Section 10.02, the Trustee shall be entitled to reasonable compensation and
reimbursement for costs associated with bringing such action.
(b) Disclosure. The Designated Representative shall disclose any compensation,
reimbursements, fees and expenses payable from the Trust Fund pursuant to Section 9.01(a), and any
changes to such amounts,to the Employer and the Participants,as required by applicable law.
9.02 Authorization with Respect to Taxes. The Trustee may execute, as trustee, any
declarations or certificates pertaining to the Trust that may be required under any tax law(s) or
governmental regulation(s) now or hereafter without prior approval of the Employer. The Trustee shall
notify the Plan Administrator or the Designated Representative of any tax levied upon or assessed against
the Trust Fund of which the Trustee has knowledge. If the Trustee receives no Instructions from the Plan
Administrator or the Designated Representative,the Trustee may pay the tax from the Trust Fund. If the
Plan Administrator or the Designated Representative wishes to contest the tax assessment, it shall give
appropriate and timely instructions to the Trustee. The Trustee shall not be required to bring any legal
actions or proceedings to contest the validity of any tax assessments unless the Trustee has been
indemnified to its satisfaction against loss or expense related to such actions or proceedings, including
reasonable attorney's fees.
ARTICLE X
RESIGNATION OR REMOVAL OF TRUSTEE; SUCCESSOR TRUSTEE
10.01 Resignation; Removal of the Trustee. The Trustee may resign at any time by giving at
least thirty (30) days' prior notice of such resignation to the Employer, the Plan Administrator and all
other fiduciaries of the Plan that have been identified in Instructions provided to the Trustee. The
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Employer may remove the Trustee, with or without cause, upon giving at least thirty (30) days' prior
notice to the Trustee,the Plan Administrator and all other fiduciaries of the Plan that have been identified
in Instructions provided to the Trustee. As directed by Employer, notice of removal of the Trustee may
be provided by the Designated Representative.
10.02 Appointment of Successor Trustee. The Employer shall appoint a successor Trustee or
additional Trustees to fill the vacancy occurring as the result of the resignation or removal of the Trustee.
The Employer shall designate the successor Trustee by an instrument, delivered by Employer or the
Designated Representative to the Trustee so removed and to the successor Trustee,the Plan Administrator
and all other fiduciaries of the Plan that have been identified in Instructions provided to the Trustee. The
successor Trustee shall have all of the rights, powers, privileges, liabilities, and duties of a Trustee as set
forth in this Trust Agreement. If either party has given notice of termination as provided under this Trust
Agreement, and upon the expiration of the advance notice period no other successor Trustee has been
appointed and has accepted such appointment, this provision shall serve as (a) notice of appointment as
Trustee of the Designated Representative if authorized under state law to serve as a trustee, and (b) as
acceptance by the Designated Representative of that appointment.
If no appointment of a successor is made by the Employer within thirty (30) days after
the resignation or removal of the Trustee,after notice to the other party,the Trustee or the Employer may
apply to any court of competent jurisdiction for appointment of a successor. The Trustee shall be
furnished with notice from the Employer or the court, as the case may be, of the appointment of the
successor, and shall also be furnished with evidence of the successor's acceptance of trusteeship.
10.03 Transfer of Assets to Successor Trustee. Upon acceptance of such appointment by a
successor Trustee,the Trustee shall assign, transfer, pay over and deliver the assets then constituting the
Trust Fund to the successor Trustee. The Trustee is authorized, however,to reserve such reasonable sum
of money, as to it may seem advisable, to provide for any sums chargeable against the Trust Fund for
which it may be liable, or for its fees and expenses in connection with the settlement of its account or
otherwise, and any balance of such reserve remaining after payment of such fees and expenses shall be
paid over to the successor Trustee. If the reserve is not sufficient for all amounts otherwise payable
hereunder, the resigning or removed Trustee shall be entitled to reimbursement for any deficiency from
the successor Trustee and the Employer, which shall be jointly and severally liable therefor. Each,
successor Trustee shall succeed to the title of all securities or other property then held in the Trust Fund
and vested in its predecessor 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 such title of record in any
successor Trustee. The terminating Trustee shall transfer all property of the Trust Fund then held by it to
such successor Trustee. The terminating Trustee may require as a condition of making such transfer that
the successor Trustee present evidence that any bonding requirement under applicable law has been met
and may require that the Employer provide the Trustee with an indemnification against any losses arising
from the replacement of the Trustee.
10.04 Terminating Trustee's Accounting. Within thirty (30) days after the transfer to the
successor Trustee, the terminating Trustee shall provide the Employer with an account in the form and
manner prescribed for the annual account by Article VIII hereof. Unless the Employer files written
objections with the Trustee within sixty (60) days after such account has been mailed or otherwise
delivered,the account shall be deemed to have been approved by the Employer.
10.05 Changes in Organization of Trustee. Any corporation, banking association or trust
company into which a corporate Trustee may be merged, converted or with which it may be consolidated,
or any corporation, banking association, or trust company, resulting from any merger, reorganization or
consolidation to which a corporate Trustee may be a party, or any corporation, banking association or
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trust company to which all or substantially all of the trust business of a corporate Trustee may be
transferred shall be the successor of the corporate Trustee hereunder without the execution or filing of any
instrument or the performance of any other act and with the same powers and duties as conferred upon the
Trustee hereunder. In any such event, it shall not be necessary for the Trustee or any successor Trustee to
give advance notice thereof to any person, and any requirements, statutory or otherwise, that any such
notice shall be given are hereby waived. Notwithstanding the foregoing,the Trustee agrees to provide the
Employer with notice in writing promptly after any such organizational change of the Trustee.
10.06 Employer Bankruptcy.
(a) If the Employer becomes insolvent, files for or becomes subject to bankruptcy or
a similar proceeding in state or federal court, the Employer will notify the Trustee in writing as soon as
possible. The notification will include confirmation of the individual(s) who will direct the Trustee. If,
within sixty(60)days of such filing the Employer does not notify the Trustee,the Trustee may invoke the
provisions of Section 10.06(c).
(b) Notwithstanding any provision hereof to the contrary, in the case of bankruptcy,
insolvency,or dissolution of the Employer,the Trustee will have the right to petition a court of competent
jurisdiction to appoint a new Trustee,the costs of such action being payable from the Trust Fund.
(c) In the case of dissolution of the Employer,or at any other time that the Employer
does not respond to requests from the Trustee for confirmation of the individuals who will provide
direction to the Trustee,the Trustee may, in its sole discretion, assume the Plan has been terminated and
distribute assets according to applicable law. Before the Trustee may make such assumption, however,
the Trustee will send to the last known address of the Employer, and the individuals who last had
authority for providing direction to the Trustee,via certified mail, a written notice of the Trustee's intent
to begin such action. The Trustee will then wait at least thirty(30)days before beginning such action.
(d) If the Trustee receives notice of the Employer's bankruptcy, insolvency or
dissolution(either by the Employer or a court of competent jurisdiction), or if the Plan has been deemed
abandoned as described in Section 10.06(c) above, any fees and other expenses relating to the provision
of services under this Trust Agreement(whether current or overdue)may be immediately deducted from
the Trust Fund.
ARTICLE XI
AMENDMENT OF TRUST
This Trust Agreement may be amended by an instrument executed by the Plan Sponsor and the
Trustee, and the provisions of any such amendment may be made applicable to the Trust Fund as
constituted at the time of the amendment as well as to any part of the Trust Fund subsequently acquired.
Any amendment shall, unless otherwise provided therein, become effective upon execution by the Plan
Sponsor and the Trustee. However, no amendment shall alter the duties, liabilities, or compensation of
the Trustee without its consent. Nor shall any amendment cause any part of the Trust Fund to revert to or
be recoverable by the Employer or to be used for or diverted to purposes other than the exclusive benefit
of Participants and their dependents and Beneficiaries,except to the extent permitted by law and the Plan.
An amendment to this Trust Agreement that is mutually agreed to hereunder by the Plan Sponsor and the
Trustee shall be binding upon all Employers as of the effective date of such amendment.
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ARTICLE XII
TERMINATION OF TRUST
12.01 Termination of Trust Fund. This Trust Agreement and the Trust created hereby may
be terminated at any time by the Employer upon thirty(30)days notice.
12.02 Continuation by an Employer's Successor. Any corporation or other business entity
succeeding to the interest of an Employer by sale, transfer, consolidation, merger, or bankruptcy, may
elect to continue this Trust or any separate trust then existing hereunder, subject to the approval of the
Employer,by adopting this Trust Agreement and assuming the duties and responsibilities of the Plan and
Trust, or such corporation or other business entity may establish a separate plan and trust for the
continuation of benefits for its employees, in which event, subject to the approval of the Employer, the
Trust assets held on behalf of the employees of the prior employer shall be transferred to the trustee of the
new trust.
12.03 Liquidation of Trust. The Employer reserves the right to terminate the Trust upon
notice in writing delivered to the Trustee as described above;provided,however,that at no time may any
part of the corpus or income of the Trust Fund be used for, or diverted to, purposes other than for the
exclusive benefit of Participants and their Beneficiaries under a Plan, and defraying the administrative
expenses of the Plan until all Plan liabilities have been satisfied,except as set forth in Section 2.04. If the
Trust is terminated,the Trustee shall distribute all cash, securities and other property then constituting the
Trust Fund, less any amount constituting charges against the Trust Fund, in such manner and at such
times as may be prescribed by the Plan or Plans. If a Plan is terminated, this Trust Agreement shall
nevertheless continue in effect. If, upon termination of a Plan,there remains a balance in the Trust Fund
with respect to the Plan, the Trustee shall apply and distribute such balance, less the amount of any
charges against those assets arising under the terminated Plan, in such manner and at such times as the
Employer shall determine. Notwithstanding the foregoing, in no event shall any part of the corpus or net
earnings of the Trust Fund inure to the benefit of any individual other than through the payment of
benefits described or otherwise provided in Section 501(c)(9) of the Code. Any assets remaining after
payment of all obligations of the Trust and satisfaction of liabilities to Participants and their Beneficiaries
shall be used exclusively to provide additional benefits permitted under Section 501(c)(9). The Trustee
may condition the transfer or distribution of any assets of the Trust Fund in its sole discretion, on the
indemnification of the Trustee against any liability arising from such transfer or distribution that is
provided by the Employer or may require the Employer to post a bond sufficient to protect the Trustee
against such liability.
From the date of termination of the Plan and until the final distribution of the Trust
assets, the Trustee shall continue to have all the powers provided under this Trust Agreement that are
necessary or desirable for the orderly liquidation and distribution of the Trust Fund.
ARTICLE XIII
MISCELLANEOUS
13.01 Applicable Law.
(a) Choice of Law. Except where inconsistent with the express provisions hereof,
the powers and duties of the Trustee and all questions of interpretation,construction,operation, and effect
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E 0,, S
of this Trust Agreement shall be governed by the laws of the State of Colorado. All contributions to the
Trustee shall be deemed to take place in the State of Colorado, and the Trustee shall be liable to account
in the courts of that state.
(b) Choice of Venue. All controversies, disputes, and claims arising under this
Trust Agreement and not otherwise resolved will be submitted to the United States District Court for the
district where the Trustee has its principal place of business,and by executing this Trust Agreement,each
party hereto consents to that court's exercise of personal jurisdiction over them
13.02 Evidence. Evidence required of anyone under this Trust Agreement may be by
certificate, affidavit, document, facsimile, E-mail or other form which the person acting in reliance
thereon considers to be pertinent and reliable,and to be signed,made,or presented by the proper party.
13.03 Notices. The address of the Employer shall be as set forth in this Trust Agreement, but
may be changed by providing written notice to the Trustee sent by certified mail,return receipt requested.
13.04 Limitation on Claims. No claim may be made by the Employer against the Trustee for
any lost profits or any special, indirect or consequential damages in respect of any breach or wrongful
conduct in any way related to this Trust Agreement.
13.05 Severability of Provisions. Should any provision of this Trust Agreement be held
invalid or illegal for any reason, such illegality or invalidity shall not affect the remaining provisions of
this Trust Agreement, but shall be fully severable, and the Trust Agreement shall be construed and
enforced as if such illegal or invalid provision had never been inserted herein.
13.06 Trust Qualification. The Trust is intended to qualify as a tax-exempt trust under Code
Section 501(a) such that it may be part of a plan that is qualified under Code Section 501(c)(9) as a
"voluntary employees' beneficiary association." The Employer shall be solely responsible for ensuring
the compliance of the Plan and Trust with the applicable sections of the Code, and the Trustee may
assume, unless advised to the contrary that the Plan is qualified and that the Trust is entitled to tax
exemption. If the Plan ceases to be qualified within the meaning of Code Section 501(c)(9), the
Employer shall notify the Trustee of same as promptly as is reasonable, and such notice shall include
Instructions to the Trustee as to the disposition of the assets remaining in the Trust. If the qualification of
the Trust as exempt from tax under Section 501(a) of the Code is denied, the Trust Agreement may be
restated as a governmental trust under Section 115 of the Code, and in such event, all assets of the Plan
will remain in the Trust Fund pursuant to the terms of the restated Trust Agreement.
13.07 Construction of Trust Agreement. If and whenever the Trustee be, in good faith, in
doubt as to the proper construction or interpretation of this Trust Agreement, or any other question that
may arise during the administration of the Trust herein created, the Trustee is authorized to resolve all
such doubts and questions in such manner as it may deem proper, without the necessity of resorting to a
court for construction or instructions, and all decisions so made shall be binding and conclusive on all
persons ever interested hereunder. In addition, the Trustee may apply to the Plan Administrator for
Instructions, directions, authorizations or information, and the Trustee may demand assurances
satisfactory to it that any action that it is directed to take will not adversely affect the tax exemption of the
Trust; provided, however, that no such assurances shall be required if, in the opinion of counsel (which
counsel may also be counsel for the Employer), such action does not adversely affect the tax exemption
of the Trust. This Trust Agreement shall be binding upon all persons who are ever entitled to such
benefits hereunder, their heirs, executors, administrators and legal representatives, and upon all
Employers and their successors,and upon the Trustee and its successors.
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13.08 Spendthrift Provisions. Any claimed interest of a Participant, or of a dependent or
Beneficiary of a Participant, in the Trust Fund or to a benefit from the Plan shall not be subject to the
claims of any creditors or others, or to legal or equitable process, and may not be voluntarily or
involuntarily alienated, encumbered or assigned. Neither the Trust Fund nor any benefits hereunder shall
be liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person to whom
such benefits or funds are payable, nor shall the Trust Fund or any benefits hereunder be considered an
asset of such person in the event of his bankruptcy.
13.09 Title of Trust Assets. The legal and equitable title and ownership of all assets at any
time constituting a part of the Trust Fund shall be and remain with the Trustee, and neither any Employer
nor any Participant in the Plan(or any person who may be entitled to benefits under the Plan) shall ever
have any legal or equitable estate therein, save and except that a Participant shall be entitled to receive
distribution as and when lawfully made under the terms hereof.
13.10 Rights Determined from Entire Instrument. This Trust Agreement embodies the
entire agreement and understanding of the parties relating to the subject matter hereof. This Trust
Agreement, for convenience only, has been divided into Articles and Sections, but the rights, powers,
duties, privileges, and other legal relationships shall be determined from this Trust Agreement as an
entirety and without regard to the division into Articles and Sections or to the headings prefixing such
Sections.
13.11 Waiver. No waiver by either party of any failure or refusal to comply with an obligation
hereunder shall be deemed a waiver of any other obligation hereunder or any subsequent failure or refusal
to comply with any other obligation hereunder.
13.12 Word Usage. Whenever appropriate,words used in this Trust Agreement in the singular
may mean the plural,the plural may mean the singular, and the masculine may mean the feminine. The
words"herein,""hereof,""hereto"and"hereunder"shall refer to this Trust Agreement.
13.13 Assignment. This Trust Agreement, and any of the rights and obligations hereunder,
may not be assigned by the Employer without the prior written consent of the other party(ies), and such
consent may be withheld in any such party's sole discretion. The Trustee may assign this Trust
Agreement in whole or in part, and any of its rights and obligations hereunder without the consent of the
Employer,provided notice of such assignment is sent to the Employer at least thirty(30)days prior to the
effective date of any such assignment. All provisions in this Trust Agreement shall extend to and are
binding upon the parties hereto and their respective successors and permitted assigns.
13.14 Force Majeure. The Trustee may delay the processing of any transaction provided for
hereunder due to a Force Majeure.
13.15 Complete Agreement. This Trust Agreement and any schedule of fees provided to the
Trustee by the Employer or the Plan Administrator embody the entire agreement and understanding of the
parties relating to the subject matter hereof.
13.16 Confidentiality. The parties to this Trust Agreement recognize that in the course of
implementing and providing the services described herein, each party may disclose to the other
Confidential Information. All such Confidential Information, individually and collectively, and other
proprietary information disclosed by a party shall remain the sole property of the party disclosing the
same, and the receiving party shall have no interest or rights with respect thereto. Each party agrees to
maintain all such Confidential Information in trust and confidence to the same extent that it protects its
own proprietary information, and not to disclose such Confidential Information to any third party without
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the written consent of the other party(ies). Each party further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of Confidential Information. In addition, each party agrees not to
disclose or make public to anyone, in any manner,the terms of this Trust Agreement, except as required
by law,without the prior written consent of the other party(ies).
13.17 USA Patriot Act Notification. The following notification is provided to Employer
pursuant to Section 326 of the USA Patriot Act of 2001,31 U.S.C.Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.
To help the government fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information that identifies each Person or
entity that opens an account, including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for the Employer: When
Employer opens an account, if the Employer is an individual, the Trustee will ask for the Employer's
name, taxpayer identification number, residential address, date of birth, and other information that will
allow the Trustee to identify Employer, and, if Employer is not an individual, Trustee will ask for the
Employe '-s-e eial-nametax-payer identification. numberrbusiness-ad d-other- ormation at
will allow the Trustee to identify the Employer. The Trustee may also ask, if the Employer is an
individual,to see a valid driver's license or other identifying documents, and, if the Employer is not an
individual,to see the Employer's legal organizational documents or other identifying documents.
13.18 Execution in Counterparts. This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and no other counterpart need be produced.
Telephonic or electronic facsimile copies of original signatures, writings, or initials on this Trust
•
Agreement shall be as valid as the original signatures,writings,or initials.
IN WITNESS WHEREOF,the parties have caused this Trust Agreement to be executed by their
duly authorized officers effective as of the date and year first written above.
PLAN SPONSOR/EMPLOYER MG TRUST COMPANY,LLC
c
' L dL/ / . By:
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Ti ,�,'!: or Title:
Date: /2-/6-09 Date: s "9q110
DESIGNA ED REPRESENTATIVE
BY:
Title: 1...r-0
Date: //d
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077296,000002,102517443.2
10/16/08
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