EXHIBIT 10.2


 


 


MERCANTILE
BANKSHARES CORPORATION

DEFERRED COMPENSATION PLAN


 


Trust Agreement


 





















 


TRUST
AGREEMENT


 


Table of
Contents


 


	
  Article

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  Name, Intentions, Revocability, Deposit and
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Name

  	
   

  
	
  1.2

  	
   

  	
  Intentions

  	
   

  
	
  1.3

  	
   

  	
  Irrevocability; Creditor Claims

  	
   

  
	
  1.4

  	
   

  	
  Initial Deposit

  	
   

  
	
  1.5

  	
   

  	
  Definitions

  	
   

  
	
  1.6

  	
   

  	
  Grantor
  Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  General Administration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Administrator Directions and Administration

  	
   

  
	
  2.2

  	
   

  	
  Contributions

  	
   

  
	
  2.3

  	
   

  	
  Trust
  Fund

  	
   

  
	
  2.4

  	
   

  	
  Payments to the Sponsor or the Affiliates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  Powers and Duties of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Investment Directions

  	
   

  
	
  3.2

  	
   

  	
  Management of Investments

  	
   

  
	
  3.3

  	
   

  	
  Securities

  	
   

  
	
  3.4

  	
   

  	
  Substitution

  	
   

  
	
  3.5

  	
   

  	
  Distributions

  	
   

  
	
  3.6

  	
   

  	
  Trustee Responsibility Regarding Payments
  on Insolvency

  	
   

  
	
  3.7

  	
   

  	
  Costs of Administration

  	
   

  
	
  3.8

  	
   

  	
  Trustee Compensation and Expenses

  	
   

  
	
  3.9

  	
   

  	
  Professional Advice

  	
   

  
	
  3.10

  	
   

  	
  Payment on Court Order

  	
   

  
	
  3.11

  	
   

  	
  Protective Provisions

  	
   

  
	
  3.12

  	
   

  	
  Indemnifications

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  Insurance Contracts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Types of Contracts

  	
   

  
	
  4.2

  	
   

  	
  Ownership

  	
   

  
	
  4.3

  	
   

  	
  Restrictions on Trustee’s Rights

  	
   

  
	
  4.4

  	
   

  	
  Trustee’s Duties

  	
   

  



 


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  ARTICLE 5

  	
   

  	
  Trustee’s Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Records

  	
   

  
	
  5.2

  	
   

  	
  Periodic Accounting; Final Accounting

  	
   

  
	
  5.3

  	
   

  	
  Valuation

  	
   

  
	
  5.4

  	
   

  	
  Delegation of Duties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  Resignation or Removal of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Resignation; Removal

  	
   

  
	
  6.2

  	
   

  	
  Successor Trustee

  	
   

  
	
  6.3

  	
   

  	
  Settlement of Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  Controversies, Legal Actions and Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Controversy

  	
   

  
	
  7.2

  	
   

  	
  Joinder of Parties

  	
   

  
	
  7.3

  	
   

  	
  Employment of Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  Amendment and Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Amendment

  	
   

  
	
  8.2

  	
   

  	
  Final Termination

  	
   

  
	
  8.3

  	
   

  	
  Changes In Law Affecting Taxability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Taxes

  	
   

  
	
  9.2

  	
   

  	
  Third
  Persons

  	
   

  
	
  9.3

  	
   

  	
  Nonassignability; Nonalienation

  	
   

  
	
  9.4

  	
   

  	
  The
  Plan

  	
   

  
	
  9.5

  	
   

  	
  Applicable Law

  	
   

  
	
  9.6

  	
   

  	
  Notices and Directions

  	
   

  
	
  9.7

  	
   

  	
  Successors and Assigns

  	
   

  
	
  9.8

  	
   

  	
  Gender and Number

  	
   

  
	
  9.9

  	
   

  	
  Headings

  	
   

  
	
  9.10

  	
   

  	
  Counterparts

  	
   

  
	
  9.11

  	
   

  	
  No Implied Duties; etc.

  	
   

  
	
  9.12

  	
   

  	
  Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A – TRUSTEE COMPENSATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT B – ADOPTING COMPANIES

  	
   

  



 


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TRUST
AGREEMENT

FOR

MERCANTILE BANKSHARES CORPORATION

DEFERRED COMPENSATION PLAN


 


THIS TRUST AGREEMENT (the “Trust Agreement”)
is made and entered into as of this         
day of                           ,
2005, between Mercantile Bankshares Corporation, a Maryland corporation (the “Sponsor”)
and Wilmington Trust Company, a Delaware corporation (the “Trustee”), to
evidence the trust (the “Trust”) to be established, pursuant to the Mercantile
Bankshares Corporation Deferred Compensation Plan (the “Plan”), for the benefit
of a select group of management or highly compensated employees of the Sponsor and any affiliate thereof
that has adopted the Plan in accordance with its terms (a “Company”).  Each Company is listed on Exhibit B hereto
and has adopted or will adopt the Trust.


 


ARTICLE 1

Name, Intentions, Revocability,

Deposit and Definitions


 


1.1                                 Name.  The name of the Trust created by this Agreement
(the “Trust”) shall be:


 


MERCANTILE
BANKSHARES CORPORATION DEFERRED COMPENSATION PLAN TRUST


 


1.2                                 Intentions.  The Sponsor wishes
to establish the Trust, to provide for contributions thereto by the Companies,
so that Trust assets may be held therein, subject to the claims of a Company’s
creditors in the event of its Insolvency (as defined below) until paid to
Participants and their Beneficiaries in such manner and at such times as
specified in the Plan.  It is the
intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded plan
maintained for the purpose of providing supplemental compensation for a select
group of management or highly compensated employees for purposes of Title I
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  In addition, it is the intention of the
Companies to make contributions to the Trust to provide themselves with a
source of funds to assist in the meeting of their liabilities under the Plan.


 


1.3                                 Irrevocability; Creditor Claims. 
Subject to Sections 2.4 and 8.3, the Trust hereby established shall be
irrevocable.  Except as otherwise
provided in Sections 2.4 and 8.2, the principal of the Trust, and any earnings
thereon, shall be held separate and apart from other funds of the Companies and
shall be used exclusively for the uses and purposes of the Participants and the
general creditors of the Companies as herein set forth.  The Participants and their Beneficiaries
shall have no preferred claim on, or any beneficial ownership interest in, any
assets of the Trust.  Any rights created
under the Plan and this Trust Agreement shall be mere unsecured contractual
rights of the Participants and their Beneficiaries against the applicable
Company.  Any assets held by


 


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the Trust will be subject to the claims of the
general creditors of a Company under federal and state law in the event of its
Insolvency.


 


1.4                                 Initial Deposit.  The Sponsor hereby
deposits with the Trustee in trust one hundred dollars ($100), which shall
become the principal of the Trust to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement.


 


1.5                                 Definitions.  In addition to the
definitions set forth in this Agreement, the following terms shall have the
following indicated meanings:


 


a.               “Administrator”
shall mean the Employee Benefit Administration Committee, the members of which
shall be appointed from time to time by the Employee Benefit Committee of the
Board of Directors of the Sponsor, which shall be responsible for the general
administration of the Plan except as otherwise specified.  The Administrator may delegate any or all of
its duties to a third-party administrator, and as of the date hereof has
delegated certain of its duties to Westport Worldwide, LLC.


 


b.              “Beneficiaries”
shall mean one or more persons, trusts, estates or other entities designated by
a Participant in accordance with the Plan to receive benefits under the Plan
upon the death of the Participant.


 


c.               “Board” shall mean
the board of directors of the Sponsor.


 


d.              “Committee” shall
mean the Employee Benefit Committee of the Board of Directors of the Sponsor.


 


e.               “Company” shall
mean the Sponsor and any affiliate of the Sponsor that has adopted the Plan in
accordance with its terms.


 


f.                 “Participant”
shall mean an individual who is a participant in the Plan and who continues to
have a current or future right to receive Plan benefits.


 


g.              “Plan Year” for
purposes of Trust reporting shall mean the calendar year unless the Trustee is
notified by the Administrator that a different Plan Year has been chosen for
this Trust.


 


h.              “Trust Fund” shall
mean the assets held by the Trustee pursuant to the terms of this Trust Agreement
and for the purposes of the Plan.


 


1.6                                 Grantor Trust.  The Trust is
intended to be a “grantor trust,” of which the Companies are the grantors,
within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the Trust shall be construed accordingly.


 


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ARTICLE 2

General Administration


 


2.1                                 Administrator
Directions and Administration.  The Administrator shall direct the Trustee as
to the administration of the Trust in accordance with the following provisions:


 


(a)                                  The
Administrator shall be identified to the Trustee by a copy of the resolution of
the Board appointing the Administrator. 
In the absence thereof, the Board shall be the Administrator.  Persons authorized to give directions to the
Trustee on behalf of the Administrator shall be identified to the Trustee by
written notice from the Administrator, and such notice shall contain specimens
of the authorized signatures.  The
Trustee shall be entitled to rely on such written notice as evidence of the
identity and authority of the persons appointed until a written cancellation of
the appointment, or the written appointment of a successor, is received by the
Trustee.


 


(b)                                 Directions
by the Administrator, or its delegate, to the Trustee shall be in writing and
signed by the Administrator or persons authorized by the Administrator, or may
be made by such other method as is acceptable to the Trustee.


 


(c)                                  The
Trustee may conclusively rely upon directions from the Administrator or its
delegate in taking any action with respect to this Trust Agreement, including
the investment of the Trust Fund pursuant to this Trust Agreement; provided,
however, that the Trustee shall accept directions to make payments to
Participants or their Beneficiaries only from the Committee or the applicable
Company, not the Administrator.  The
Trustee shall have no liability for actions taken, or for failure to act, on the
direction of the Administrator, or its delegate.  The Trustee shall have no liability for
failure to act in the absence of proper written directions.


 


(d)                                 The
Trustee may request instructions from the Administrator and shall have no duty
to act or liability for failure to act if such instructions are not forthcoming
from the Administrator.  If requested
instructions are not received within a reasonable time, the Trustee may, but is
under no duty to, act on its own discretion to carry out the provisions of this
Trust Agreement in accordance with this Trust Agreement.


 


(e)                                  The
foregoing provisions shall apply to the Committee instead of the Administrator
with respect to those aspects of administration that are the responsibility of
the Committee hereunder.


 


2.2                                 Contributions.  Except as provided in
the Plan, each Company, in its sole discretion, may at any time, or from time
to time, make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement.  Neither the Trustee nor any Participant or
Beneficiary shall have any right to compel such additional deposits.  The Trustee shall have no duty to collect or
enforce payment to it of any contributions or to


 


3





















 


require that any contributions be made, and
shall have no duty to compute any amount to be paid to it nor to determine
whether amounts paid comply with the terms of the Plan.


 


2.3                                 Trust Fund.  The contributions received by the Trustee
from each Company shall be held and administered pursuant to the terms of this
Trust Agreement without distinction between income and principal and without
liability for the payment of interest thereon except as expressly provided in
this Trust Agreement.  During the term of
this Trust, all income received by the Trust, net of expenses and taxes, shall
be accumulated and reinvested.  Notwithstanding any contrary provision of
this Trust Agreement, as of any determination date, the value of the Trust’s
assets attributable to a Company shall be equal to the total value of the Trust’s
assets as of the determination date multiplied by a fraction, the numerator of
which is such Company’s liability for benefits (whether vested or nonvested)
under the Plan as of the determination date, and the denominator of which is
the total liability of all Companies for benefits (whether vested or nonvested)
under the Plan as of the determination date.


 


2.4                                 Payments
to the Sponsor or the Affiliates.
  Except as expressly provided
herein, after the Trust has become irrevocable, neither the Sponsor, a Company,
the Committee, nor the Administrator shall have the right or power to direct
the Trustee to return to a Company or to divert to others any of the Trust
assets before all payments of benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Plan.  However, in the event that the
Committee, after the Trust has become irrevocable, determines that the Trust
assets exceed one hundred and twenty five percent (125%) of the anticipated
benefit obligations and administrative expenses that are to be paid under the
Plan, the Trustee, at the direction of the Committee, shall distribute to each
Company its allocable share of such excess portion of the Trust assets,
determined in accordance with Section 2.3.


 


ARTICLE 3

Powers and Duties of Trustee


 


3.1                                 Investment Directions.  Except as expressly
provided otherwise in this Section, the Administrator shall provide the Trustee
with all investment and reinvestment instructions.  The Administrator also may appoint an
investment manager or investment managers to direct the Trustee as to the
investment and reinvestment of all or a specified portion thereof.  The Trustee shall neither affect nor change
investments of the Trust Fund, except as directed in writing by the
Administrator, and shall have no right, duty or responsibility to recommend
investments or investment changes; provided, that the Trustee may
(i) unless directed otherwise by the Administrator or investment manager,
deposit cash on hand from time to time in any bank savings account, certificate
of deposit, or other instrument creating a deposit liability for a bank,
including the Trustee’s own banking department, without such prior direction and
without liability for interest thereon notwithstanding the Trustee’s receipt of
“float” from such uninvested cash; and (ii)  unless directed otherwise by
the Administrator or investment manager, the Trustee is specifically authorized
to invest idle, or otherwise uninvested, cash in the Service class shares of
the Wilmington Prime Money Market Portfolio (the “Prime MM Portfolio”), a


 


4





















 


money market mutual fund managed by an
affiliate of the Trustee.  The Sponsor
acknowledges that the Prime MM Portfolio is an entity separate from Wilmington
Trust Company; and that shares in the Prime MM Portfolio are not obligations of
Wilmington Trust Company, are not deposits and are not insured by the FDIC, the
Federal Reserve or any other governmental agency.  Wilmington Trust Company, or its affiliates,
are compensated by the Prime MM Portfolio for investment advisory, custodian,
shareholder servicing and other services, and such
compensation is described in detail in the prospectus for the Prime MM
Portfolio and is in addition to the compensation paid to the Trustee hereunder
with respect to that portion of the Trust Fund, if any, invested in the Prime
MM Portfolio.


 


3.2                                 Management of  Investments.  Subject to Section 3.1
above, the Trustee shall have, without exclusion, all powers conferred on the
Trustee by applicable law, unless expressly provided otherwise herein, and all
rights associated with assets of the Trust shall be exercised by the Trustee or
the person designated by the Trustee, and shall in no event be exercisable by
or rest with Participants or their Beneficiaries.  Subject to Section 3.1 above, the
Trustee shall have full power and authority to invest and reinvest the Trust
Fund in any investment permitted by law, including without limiting the
generality of the foregoing, the power:


 


(a)                                  To
invest and reinvest the Trust Fund, together with the income therefrom, in
common stock, preferred stock, convertible preferred stock, mutual funds,
bonds, debentures, convertible debentures and bonds, mortgages, notes, time
certificates of deposit, commercial paper and other evidences of indebtedness
(including those issued by the Trustee or any of its affiliates), other
securities, policies of life insurance, annuity contracts, options to buy or
sell securities or other assets, and other property of any kind (personal,
real, or mixed, and tangible or intangible); provided, however, that in no
event may the Trustee invest in securities (including stock or rights to
acquire stock) or obligations issued by the Sponsor, other than a de minimus
amount held in common investment vehicles in which the Trustee invests;


 


(b)                                 To
deposit or invest all or any part of the assets of the Trust Fund in savings
accounts or certificates of deposit or other deposits which bear a reasonable
interest rate in a bank, including the commercial department of the Trustee, if
such bank is supervised by the United States or any State;


 


(c)                                  To
hold, manage, improve, repair and control all property, real or personal,
forming part of the Trust Fund and to sell, convey, transfer, exchange,
partition, lease for any term, even extending beyond the duration of this
Trust, and otherwise dispose of the same from time to time;


 


(d)                                 To
have, respecting securities, all the rights, powers and privileges of an owner,
including the power to give proxies, pay assessments and other sums deemed to
be necessary for the protection of the Trust Fund, to vote any corporate stock
either in person or by proxy, with or without power of substitution, for any
purpose; to participate in voting trusts, pooling agreements, foreclosures,


 


5





















 


reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with and
transfer title to any protective or other committee; to exercise or sell stock
subscriptions or conversion rights; and, regardless of any limitation elsewhere
in this instrument relative to investment by the Trustee, to accept and retain as
an investment any securities or other property received through the exercise of
any of the foregoing powers;


 


(e)                                  To
take such actions as may be necessary or desirable to protect the Trust Fund
from loss due to the default on mortgages held in the Trust, including the
appointment of agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to grant such
powers as are necessary or desirable to protect the Trust or its assets, to
direct such agents or trustees, or to delegate such power to direct, and to
remove such agents or trustees;


 


(f)                                    To
employ such agents, including custodians and counsel, as may be reasonably
necessary and to pay them reasonable compensation, which shall be paid pursuant
to Sections 3.7 and 3.8 of this Agreement;


 


(g)                                 To
settle, compromise or abandon all claims and demands in favor of or against the
Trust assets;


 


(h)                                 To
cause title to property of the Trust to be issued, held or registered in the
individual name of the Trustee, or in the name of its nominee(s) or agents, or
in such form that title will pass by delivery;


 


(i)                                     To
exercise all of the further rights, powers, options and privileges granted,
provided for, or vested in trustees generally under the laws of the state whose
laws are applicable to this Trust Agreement, as provided in Section 9.5
below, so that the powers conferred upon the Trustee herein shall not be in
limitation of any authority conferred by law, but shall be in addition thereto;


 


(j)                                     To
borrow money from any source (including the Trustee) and to execute promissory
notes, mortgages or other obligations and to pledge or mortgage any Trust
assets as security;


 


(k)                                  To
lend certificates representing stocks, bonds, or other securities to any
brokerage or other firm;


 


(l)                                     To
institute, compromise and defend actions and proceedings; to pay or contest any
claim; to settle a claim by or against the Trustee by compromise, arbitration,
or otherwise; to release, in whole or in part, any claim belonging to the Trust
to the extent that the claim is uncollectible; provided that in no event shall
the Trustee have any liability or responsibility to undertake, defend or
continue any litigation not involving the Trustee’s negligence or willful
misconduct unless payment of related fees and expenses is ensured to the
reasonable satisfaction of Trustee;


 


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(m)                               To
use securities depositories or custodians and to allow such securities as may
be held by a depository or custodian to be registered in the name of such
depository or its nominee or in the name of such custodian or its nominee;


 


(n)                                 To
invest the Trust Fund from time to time in one or more investment funds, which
funds shall be registered under the Investment Company Act of 1940 and
including shares of any registered investment company, whether or not the
Trustee or any of its affiliates is an advisor to, or other service provider
to, such investment company and receives compensation from such investment
company for the services provided (which compensation shall be in addition to
the compensation of the Trustee under this Trust), and the Sponsor acknowledges
that shares in any such investment company are not obligations of the Trustee
or any other bank, are not deposits and are not insured by the FDIC, the
Federal Reserve or any other governmental agency;


 


(o)                                 If
directed by the Administrator, to designate the Trust as the beneficiary under
any life insurance policy held as an asset of the Trust, to borrow from and
reinvest the proceeds of any such policy and to liquidate and reinvest the
proceeds of any such policy; and


 


(p)                                 To
do all other acts necessary or desirable for the proper administration of the
Trust Fund, as if the Trustee were the absolute owner thereof.


 


However, nothing in this section shall
be construed to mean the Trustee assumes any responsibility for the performance
of any investment made by the Trustee in its capacity as trustee under the
operation of this Trust Agreement.  In
addition, the Trustee shall have no responsibility for the selection of any
investment options under the Trust and shall not render investment advice to
any person in connection with the selection of any such options.  The Administrator shall direct Trustee as to
the investment options in which the Trust shall be invested during the term of
the Trust.  Notwithstanding any powers
granted to the Trustee pursuant to this Trust Agreement or to applicable law,
the Trustee shall not have any power that could give this Trust the objective
of carrying on a business and dividing the gains therefrom, within the meaning
of section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Code.


 


3.3                                 Securities.  Voting or other
rights in securities shall be exercised by the person or entity responsible for
directing such investments, and the Trustee shall have no duty to exercise
voting or proxy or other rights relating to any investment managed or directed
by the Administrator.  If any foreign
securities are purchased pursuant to the direction of the Administrator, it
shall be the responsibility of the person or entity responsible for directing
such investments to advise the Trustee in writing of any laws or regulations,
either foreign or domestic, that apply to such foreign securities or to the
receipt of dividends or interest on such securities.


 


3.4                                 Substitution.  Notwithstanding any
provision of the Plan or the Trust to the contrary, the Companies shall at all
times have the power to reacquire a portion of the Trust Fund by substituting
readily marketable securities (other than stock, a debt obligation or other


 


7





















 


security issued by the Sponsor) acceptable to
the Trustee and/or cash of an equivalent value and such other property shall,
following such substitution, constitute the Trust Fund.


 


3.5                                 Distributions.


 


(a)                                  The
establishment of the Trust and the payment or delivery to the Trustee of money
or other property shall not vest in any Participant or Beneficiary any right,
title, or interest in and to any assets of the Trust.  To the extent that any Participant or
Beneficiary acquires the right to receive payments under the Plan, such right
shall be no greater than the right of an unsecured general creditor of the
applicable Company and such Participant or Beneficiary shall have only the
unsecured promise of the applicable Company that such payments shall be made.


 


(b)                                 Concurrent
with the establishment of this Trust, the Committee shall deliver to the
Trustee a schedule (the “Payment Schedule”) that indicates the amounts
payable in respect of each Participant (and his or her Beneficiaries), provides
a formula or formulas or other instructions acceptable to the Trustee for
determining the amounts so payable, specifies the form in which such amount is
to be paid (as provided for or available under the Plan), and the time of
commencement for payment of such amounts. 
The Payment Schedule shall be updated from time to time as is
necessary.  Except as otherwise provided
herein, the Trustee shall make payments to the Participants and their
Beneficiaries in accordance with such Payment Schedule.  The Trustee, at the direction of the
Committee, may make any distribution required to be made by it hereunder by
delivering:


 


(i)            Its check payable to the
person to whom such distribution is to be made, to such person; or


 


(ii)           Its
check payable to an insurer for the benefit of such person, to the insurer; or


 


(iii)          Contracts
held on the life of the Participant to whom or with respect to whom the
distribution is being made, to the Participant or Beneficiary; or


 


(iv)          If
a distribution is being made, in whole or in part, of other assets, assignments
or other appropriate documents or certificates necessary to effect a transfer
of title, to the Participant or Beneficiary.


 


(c)                                  If
the Trust assets attributable to a Company (determined in accordance with Section 2.3)
are not sufficient to make payments of benefits for Participants employed by
the Company (or their Beneficiaries) in accordance with the terms of the Plan,
the applicable Company shall make the balance of each such payment as it falls
due.  The Trustee shall notify the
applicable Company when


 


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its allocable portion of the Trust assets are
not sufficient to make payments pursuant to the Payment Schedule.


 


(d)                                 A
Company may make payment of benefits directly to its Participants or their
Beneficiaries as they become due under the terms of the Plan.  The Company shall notify the Trustee of its
decision to make payment of benefits directly prior to the time amounts are
payable to Participants or their Beneficiaries, and the Company shall make
provision for the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the payment of
benefits.


 


(e)                                  Subject
to Section 409A of the Code and except as provided in Section 8.3,
notwithstanding any other provision of this Trust Agreement to the contrary, if
a tax is finally determined by the Internal Revenue Service to be payable by
one or more Participants or Beneficiaries with respect to any interest in the
Plan or the Trust Fund prior to payment of such interest to any such
Participant or Beneficiary or if counsel to the Sponsor opines to the Sponsor
that a change in the law results in a tax being payable by one or more
Participants or Beneficiaries with respect to any interest in the Plan or the
Trust Fund prior to payment of such interest to any such Participant or
Beneficiary, the Committee shall immediately determine each affected
Participant’s or Beneficiary’s previous and currently taxable share of the
Trust Fund in accordance with the Plan, and the Trustee shall immediately
distribute such share in a lump sum to each such Participant or Beneficiary
entitled thereto, regardless of whether such Participant’s employment has
terminated (provided such Participant has a vested interest in his or her
accrued benefits under the Plan) and regardless of form and time of payments
specified in or pursuant to the Plan.  If
all of the liabilities under the Plan are discharged in connection with
distributions under this paragraph, any remaining assets (less any expenses or
costs due under Sections 3.7 and 3.8 of this Trust Agreement) shall then
be paid by the Trustee to the applicable Companies in the amounts determined
under Section 2.3, at the direction of the Committee.  If the value of the Trust Fund attributable
to a Company (determined under Section 2.3) is less than the benefit
obligations under the Plan attributable to such Company in connection with
distributions under this paragraph, the foregoing described distributions will
be limited to an affected Participant’s and Beneficiary’s share of such Company’s
portion of the Trust Fund, determined by allocating assets to the Participant
or Beneficiary based on the ratio of the Participant’s or Beneficiary’s vested
benefit entitlements under the Plan to the total vested benefit entitlements of
all Participants employed by the same Company (and their Beneficiaries).  The Trustee shall rely solely on the
directions of the Committee with respect to the occurrence of the foregoing
events and the resulting distributions to be made, and the Trustee shall not be
responsible for any failure to act in the absence of such direction.


 


(f)                                    Except
as otherwise provided in Section 3.5(d), the Trustee shall make provision
for the reporting and withholding of any federal, state or local taxes that may
be required to be withheld with respect to the payment of benefits pursuant to
the


 


9





















 


terms of the Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such amounts
have been reported, withheld and paid by the applicable Company.


 


(g)                                 Payments
by the Trustee shall be delivered or mailed to addresses supplied by the
Committee, and the Trustee’s obligation to make such payments shall be
satisfied upon such delivery or mailing. 
The Trustee shall have no obligation to determine the identity of
persons entitled to benefits or their mailing addresses.


 


(h)                                 The
entitlement of a Participant or his or her Beneficiaries to benefits under the
Plan shall be determined by the Committee or such party as it shall designate
under the Plan, and any claim for such benefits shall be considered and
reviewed under the procedures set out in the Plan.  The Trustee shall have no responsibility or
liability with respect to such determination.


 


3.6                                 Trustee Responsibility  Regarding
Payments  on
Insolvency.


 


(a)                                  The
provisions of this Trust Agreement relating to Insolvency, including but not
limited to this Section 3.6, shall apply separately with respect to the
Insolvency of each Company.  In the case
of the Insolvency of one or more (but not all) of the Companies, only the
assets of the Trust attributable to such Company or Companies (determined as
set forth in Section 2.3) shall be impacted.


 


(b)                                 The
Trustee shall cease payment of benefits to Participants and Beneficiaries of a
Company if the Company is Insolvent.  A
Company shall be considered “Insolvent” for purposes of this Trust Agreement
if:


 


(i)                                     the
Company is unable to pay its debts as they become due; or


 


(ii)                                  the
Company is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.


 


(c)                                  At
all times during the continuance of this Trust, as provided in Section 1.3
above, the Trust assets attributable to a Company shall be subject to claims of
the general creditors of the Company under federal and state law as set forth
below:


 


(i)            The
Board and the CEO of the Company shall have the duty to inform the Trustee in
writing of the Company’s Insolvency.  If
a person claiming to be a creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such determination, the Trustee
shall discontinue payment of benefits to the Participants or Beneficiaries of
such Company.  The Trustee may conclusively
rely on any determination it receives from the Board or the CEO of the Company
with respect to the Insolvency of the Company.


 


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(ii)           Unless
the Trustee has actual knowledge of the Company’s Insolvency, or has received
notice from the Company or a person claiming to be a creditor alleging that the
Company is Insolvent, the Trustee shall have no duty to inquire whether the
Company is Insolvent.  The Trustee may in
all events rely on such evidence concerning the Company’s solvency as may be
furnished to the Trustee and that provides the Trustee with a reasonable basis
for making a determination concerning the Company’s solvency.  In this regard, the Trustee may rely upon a
letter from the Company’s auditors as to the Company’s financial status.


 


(iii)          If
at any time the Trustee has determined that the Company is Insolvent, the
Trustee shall discontinue payments to the Participants or Beneficiaries of such
Company, and shall hold the assets of the Trust attributable to such Company
for the benefit of the Company’s general creditors.  Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits due under
the Plan or otherwise.


 


(iv)          The
Trustee shall resume the payment of benefits to Participants or their
Beneficiaries in accordance with this Article 3 of this Trust Agreement
only after the Trustee has determined that the Company is not Insolvent (or is
no longer Insolvent).


 


(d)                                 Provided
that there are sufficient assets, if the Trustee discontinues the payment of
benefits from the Trust pursuant to Section 3.6(b) hereof and subsequently
resumes such payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants or their
Beneficiaries under the terms of the Plan for the period of such
discontinuance, less the aggregate amount of any payments made to Participants
or their Beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance.  The Committee shall instruct the Trustee as to
such amounts.


 


3.7                                 Costs of  Administration.  The Trustee, at the
expense of the Sponsor or the Trust, may hire agents, accountants, actuaries,
investment advisors, financial consultants, or other professionals, including
legal counsel, to assist it in performing any of its duties or obligations
hereunder.  The fees and expenses of such
professionals shall be paid by the Sponsor, provided that the Trustee shall
provide advance notice to the Sponsor of its intention to hire such
professionals, or if advance notice is not practicable, then Trustee shall
provide notice as soon as feasibly possible. 
The Trustee is authorized to pay such amounts from the Trust Fund if the
Sponsor fails to pay them within sixty (60) days of presentation of a statement
of the amounts due.


 


3.8                                 Trustee Compensation  and
Expenses.  The Trustee shall be entitled to reasonable
compensation for its services as from time to time agreed upon between the
Trustee and the Sponsor.  The initial fee
schedule is as set forth in Exhibit A attached hereto.  The


 


11





















 


Trustee shall be entitled to additional
reasonable compensation for the performance of extraordinary services,
including services rendered in the event of an insolvency or for services
pursuant to Section 9.1.  If the
Trustee and the Sponsor fail to agree upon a compensation, the Trustee shall be
entitled to compensation at a rate equal to the rate charged by the Trustee for
similar services rendered by it during the current fiscal year for other trusts
similar to this Trust.  Subject to Section 3.7,
the Trustee shall be entitled to reimbursement for expenses incurred by it, on
behalf of and for the benefit of the Trust, in the performance of its duties as
the Trustee, including reasonable fees for legal counsel.  The Trustee’s compensation and expenses shall
be paid by the Sponsor.  The Trustee is
authorized to withdraw such amounts from the Trust Fund if the Sponsor fails to
pay them within sixty (60) days of presentation of a statement of the
amounts due.  In each instance in this Trust Agreement
where the Sponsor agrees to pay an expense relating to the Trust, the Sponsor
may charge an allocable portion of such expense back to one or more Companies,
as the Sponsor deems appropriate.


 


3.9                                 Professional Advice.  The Sponsor specifically acknowledges that
the Trustee may find it desirable or expedient to retain legal counsel (who may
also be legal counsel for the Sponsor generally) or other professional advisors
to advise it in connection with the exercise of any duty under this Trust
Agreement, including, but not limited to, any matter relating to or following
the Insolvency of a Company.  The Trustee
shall be fully protected in acting upon the advice of such legal counsel or
advisors.


 


3.10                           Payment on  Court  Order.  To the extent permitted by law, the Trustee
is authorized to make any payments directed by court order in any action in
which the Trustee has been named as a party. 
The Trustee is not obligated to defend actions in which the Trustee is
named, but shall notify the Sponsor, applicable Company, Committee, or
Administrator of any such action and may tender defense of the action to the
Sponsor, applicable Company, Committee, Administrator, Participant or
Beneficiary whose interest is affected. 
The Trustee may in its discretion defend any action in which the Trustee
is named, and any expenses incurred by the Trustee shall be paid by the Sponsor
to the extent that the Trustee is entitled to indemnification pursuant to Section 3.12
below.  The Trustee is authorized to pay
such amounts from the Trust Fund if the Sponsor fails to pay them within sixty
(60) days of presentation of a statement of the amounts due.


 


3.11                           Protective Provisions.  Notwithstanding any
other provision contained in this Trust Agreement to the contrary, the Trustee
shall have no obligation to (i) determine the existence of any conversion,
redemption, exchange, subscription or other right relating to any securities
purchased of which notice was given prior to the purchase of such securities
and shall have no obligation to exercise any such right unless the Trustee is
advised in writing by the Administrator both of the existence of the right and
the desired exercise thereof within a reasonable time prior to the expiration
of the right to exercise, or (ii) advance any funds to the Trust.  Furthermore, the Trustee is not a party to
the Plan.  The Sponsor acknowledges that
it has relied on parties other than the Trustee for the structure and design of
this Trust, for tax and other purposes, and releases the Trustee from any
responsibility related to the structure and design of the Trust.


 


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3.12                           Indemnifications.


 


(a)                                  The
Sponsor shall indemnify and hold the Trustee harmless from and against all loss
or liability (including expenses and reasonable attorneys’ fees) to which it
may be subject by reason of its execution of its duties under this Trust, or by
reason of any acts taken in good faith in accordance with any directions, or
acts omitted in good faith due to absence of directions, from the Sponsor, a
Company, the Committee, the Administrator, or other persons or entities
authorized to give directions hereunder, unless such loss or liability is due
to the Trustee’s negligence or willful misconduct.  The indemnity described herein shall be
provided by the Sponsor, and amounts due hereunder shall be paid after the
matter giving rise to the losses and/or liabilities has concluded and the
Trustee has established that such losses and/or liabilities are not due to its
negligence or willful misconduct.


 


(b)                                 All
releases and indemnities provided in this Trust Agreement shall survive the
termination of this Trust Agreement.


 


ARTICLE 4

Insurance Contracts


 


4.1                                 Types of
Contracts.  To the extent that
the Trustee is directed by the Administrator to invest part or all of the Trust
Fund in insurance contracts, the type and amount thereof shall be specified by
the Administrator.  The Trustee shall be
under no duty to make inquiry as to the propriety of the type or amount so
specified.


 


4.2                                 Ownership.  Each insurance
contract issued shall provide that the Trustee shall be the owner thereof with
the power to exercise all rights, privileges, options and elections granted by
or permitted under such contract or under the rules of the insurer.  The exercise by the Trustee of any incidents
of ownership under any contract shall be subject to the direction of the
Administrator.


 


4.3                                 Restrictions on  Trustee’s  Rights.  The Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against such policy.


 


4.4                                 Trustee’s Duties.   The Trustee shall
have no duty or obligation with respect to any insurance policy held by the
Trust except the safekeeping of the policy, until, in accordance with
directions received by the Trustee from the Administrator, (i) the policy
becomes due and payable upon the death of the insured to the Trust, as
beneficiary under the policy, and the proceeds thereof become distributable
from the Trust, or (ii) the policy is terminated or there is a withdrawal or
loan from the policy or the policy is distributed in kind.  The Trustee shall have no responsibility for
the validity of any insurance policy held by the Trust, nor shall the Trustee
be liable for the performance or financial strength of any insurance company
issuing any such policy.  The Trustee
shall assume no responsibility for the ongoing performance or performance rating
of any insurance policy held by the Trust or any insurance company issuing any
such policy.  Further, the Trustee shall
have no responsibility with respect to: (i) the truth or accuracy of


 


13





















 


any representation or warranty made in any
application or related document provided to the insurer in connection with the
issuance or renewal of any insurance policies or insurance contracts, including
the representation that the person on whose life an application is being made
is eligible to have a contract issued on his or her life; (ii) the selection or
monitoring (ongoing or periodic) of any insurance policies or insurance
contracts held in the Trust or the insurers issuing such policies or contracts;
(iii) the payment of premiums with respect to such policies or contracts except
as directed in writing by the Administrator; or (iv) the exercise of any rights
relating to any such policies or contracts except as directed in writing by the
Administrator.


 


ARTICLE 5

Trustee’s Accounts


 


5.1                                 Records.  The Trustee shall maintain accurate records
and detailed accounts of all investments, receipts, disbursements and other
transactions hereunder.  Such records
shall be available at all reasonable times for inspection by the Sponsor or its
authorized representative. 
Notwithstanding anything to the contrary contained herein, and unless
otherwise provided in a separate written agreement to which the Trustee is a
party, the Sponsor or its designees, and not the Trustee, shall be solely
responsible for maintaining records evidencing respective interests of the
Participants and Beneficiaries in the Trust Fund.  The Trustee, at the direction of the
Administrator, shall submit to the Administrator and to any insurer such
valuations, reports or other information as the Administrator may reasonably
require and, in the absence of fraud or bad faith, the valuation of the Trust
Fund by the Trustee shall be conclusive.


 


5.2                                 Periodic Accounting; Final  Accounting.


 


(a)                                  Within
sixty (60) days following the end of each Plan Year and any other period for
which the Trustee agrees to provide an accounting and within sixty (60) days
after the removal or resignation of the Trustee or the termination of the
Trust, the Trustee shall file with the Administrator a written account setting
forth a description of all properties purchased and sold, all receipts,
disbursements and other transactions effected by it during the applicable
period or, in the case of removal, resignation or termination, since the close
of the previous Plan Year, and listing the properties held in the Trust Fund as
of the last day of the Plan Year or other period and indicating their
values.  Such values shall be either cost
or market as directed by the Administrator in accordance with the terms of the
Plan.


 


(b)                                 The
Administrator may approve such account either by written notice of approval
delivered to the Trustee or by its failure to express written objection to such
account delivered to the Trustee within sixty (60) days after the date of which
such account was delivered to the Administrator.  Upon the expiration of sixty (60) days from
the date of the Trustee’s annual or any other account, the Trustee shall be
forever released and discharged from all liability and further accountability
to Sponsor or any other person with respect to the accuracy of such accounting
and all acts and failures to act of the Trustee reflected in such account.  Neither the Sponsor, any Participant nor any
other person shall be


 


14





















 


entitled to any additional or different
accounting by the Trustee, and the Trustee shall not be compelled to file in
any court any additional or different accounting.  For purposes of regulations promulgated by
the Federal Deposit Insurance Corporation (“FDIC”), the Trustee’s account
statements shall be sufficient information concerning securities transactions
effected for the Trust, provided that the Sponsor, upon written request, shall
have the right to receive at no additional cost written confirmations of such
securities transactions, which shall be mailed or otherwise furnished by the
Trustee within the timeframe required by applicable regulations.


 


(c)                                  The
approval by the Administrator of an accounting shall be binding as to all
matters embraced in such accounting on all parties to this Trust Agreement and
on all Participants and Beneficiaries, to the same extent as if such accounting
had been settled by a judgment or decree of a court of competent jurisdiction
in which the Trustee, the Committee, the Administrator, the Sponsor and all
persons having or claiming any interest in the Plan or the Trust Fund were made
parties.


 


(d)                                 Despite
the foregoing, nothing contained in this Trust Agreement shall deprive the
Trustee of the right to have an accounting judicially settled, if the Trustee,
in the Trustee’s sole discretion, desires such a settlement.


 


5.3                                 Valuation.  The assets of the
Trust Fund shall be valued at their respective fair market values on the date
of valuation, as determined by the Trustee based upon such sources of
information as it may deem reliable, including, but not limited to, stock
market quotations, statistical valuation services, newspapers of general
circulation, financial publications, advice from investment counselors,
brokerage firms or insurance companies, or any combination of sources.  The Administrator shall instruct the Trustee
as to the value of assets for which market values are not readily obtainable by
the Trustee.  If the Administrator fails
to provide such values, the Trustee may take whatever action it deems
reasonable, including employment of attorneys, appraisers, life insurance
companies or other professionals, the expense of which shall be an expense of
administration of the Trust Fund and payable by the Sponsor or otherwise as set
forth in Sections 3.7 and 3.8.  The
Trustee may rely upon information from the Sponsor, the Administrator,
appraisers or other sources and shall not incur any liability for an inaccurate
valuation based in good faith upon such information.


 


5.4                                 Delegation of
Duties.  The Sponsor, the Committee, the
Administrator, or any of them, may at any time employ the Trustee as their
agent to perform any act, keep any records or accounts and make any
computations that are required of them by this Trust Agreement or the Plan.  The Trustee may be compensated for such
employment and such employment shall not be deemed to be contrary to the
Trust.  Nothing done by the Trustee as
such agent shall change or increase its responsibility or liability as Trustee
hereunder.


 


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ARTICLE 6

Resignation or Removal of Trustee


 


6.1                                 Resignation; Removal.  The Trustee may resign at any time by written
notice to the Sponsor, which shall be effective sixty (60) days after receipt
of such notice unless the Sponsor and the Trustee agree otherwise.  The Trustee may be removed by the Sponsor on
sixty (60) days notice or upon shorter notice accepted by the Trustee.


 


6.2                                 Successor Trustee.  If the Trustee
resigns or is removed, a successor shall be appointed by the Sponsor, in
accordance with this Section, by the effective date of the resignation or
removal under Section 6.1 above. 
The successor shall be a bank, trust company, or similar independent
third party that is granted corporate trustee powers under state law.  If no such appointment has been made, the
Trustee may apply to a court of competent jurisdiction for appointment of a
successor or for instructions.  All
expenses of the Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.


 


6.3                                 Settlement of  Accounts.  Upon resignation or
removal of the Trustee and appointment of a successor Trustee, all assets shall
subsequently be transferred to the successor Trustee.  The transfer shall be completed within ninety
(90) days after receipt of notice of resignation, removal or transfer, unless
the Sponsor extends the time limit.  Upon
the transfer of the assets, the successor Trustee shall succeed to all of the
powers and duties given to the Trustee in this Trust Agreement.  The resigning or removed Trustee shall render
to the Administrator an account in the form and manner and at the time
prescribed in Section 5.2.  The
approval of such accounting and discharge of the Trustee shall be as provided
in such Section.


 


ARTICLE 7

Controversies, Legal Actions and Counsel


 


7.1                                 Controversy.  If any controversy
arises with respect to the Trust, the Trustee shall take action as directed by
the Administrator or, in the absence of such direction, as it deems advisable,
whether by legal proceedings, compromise or otherwise.  The Trustee may retain the funds or property
involved without liability pending settlement of the controversy.  The Trustee shall be under no obligation to
take any legal action of whatever nature with respect to a matter not involving
its own negligence or willful misconduct unless there shall be sufficient
property in the Trust to indemnify the Trustee with respect to any expenses or
losses to which it may be subjected.


 


7.2                                 Joinder of
Parties.  In any action or other judicial proceedings
affecting the Trust, it shall be necessary to join as parties the Trustee, the
Committee, the Administrator, the applicable Company, and the Sponsor.  No Participant or other person shall be
entitled to any notice or service of process. 
Any judgment entered in such a proceeding or action shall be binding on
all persons claiming under the Trust. 
Nothing in this Trust Agreement shall be construed as to deprive a
Participant or Beneficiary of his or her right to seek adjudication of his or
her rights by administrative process or by a court of competent jurisdiction.


 


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7.3                                 Employment of
Counsel.  The Trustee may consult with legal counsel
(who may be counsel for the Sponsor) and shall be fully protected with respect
to any action taken or omitted by it in good faith pursuant to the advice of
counsel.


 


ARTICLE 8

Amendment and Termination


 


8.1                                 Amendment.  Subject to the
limitations set forth in this Article 8, this Trust Agreement may be
amended by a written instrument executed by the Trustee and the Committee.  Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable.  Any amendment, change or
modification shall be subject to the following rules:


 


(a)                                  General
Rule.  Subject to
Sections 8.1(b), (c) and (d) below, this Trust Agreement may be
amended by the Committee and the Trustee.


 


(b)                                 Limitation.  Notwithstanding that an amendment may be
permissible under Section 8.1(a) above, this Trust Agreement shall not be
amended by an amendment that would:


 


(i)            Cause any of the assets of the
Trust to be used for or diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries as set forth in the Plan, except as
is required to satisfy the claims of the general creditors of the Companies; or


 


(ii)           Be inconsistent with the terms
of the Plan, including the terms of the Plan regarding termination, amendment
or modification of the Plan.


 


(c)                                  Writing
and Consent.  Any amendment to this
Trust Agreement shall be set forth in writing and signed by the Committee and
the Trustee.  Any amendment may be
current, retroactive or prospective, in each case as provided therein.


 


(d)                                 The
Committee and Trustee.  In connection
with the exercise of the rights under this Section 8.1, the Trustee shall
have no responsibility to determine whether any proposed amendment complies
with the terms and conditions set forth in Sections 8.1(a) and (b)
above and may conclusively rely on the directions of the Committee with respect
thereto.


 


(e)                                  Taxation.  Subject to Section 8.3, this Trust
Agreement shall not be amended, altered, changed or modified in a manner that
would cause the Participants and/or Beneficiaries
under the Plan to be taxed on the benefits under the Plan in a year other than
the year of actual receipt of benefits.


 


8.2                                 Final Termination.   The Trust shall
not terminate until the date on which Participants and their Beneficiaries are
no longer entitled to benefits pursuant to the terms of the Plan, and on such
date the Trust shall terminate.  Upon
termination of the Trust, any assets remaining in the Trust shall be returned
to the applicable Company or


 


17





















 


Companies. 
Such remaining assets shall be paid by the Trustee to the applicable
Company or Companies in such amounts determined under Section 2.3, as
instructed by the Sponsor, whereupon the Trustee shall be released and
discharged from all obligations hereunder. 
From and after the date of termination and until final distribution of
the Trust Fund, the Trustee shall continue to have all of the powers provided
herein as are necessary or expedient for the orderly liquidation and
distribution of the Trust Fund.


 


8.3                                 Changes
in Law Affecting Taxability.


 


(a)                                  Operation.  This Section shall become operative,
subject to Code section 409A, upon the enactment of any change in
applicable statutory law or the promulgation by the Internal Revenue Service of
a final regulation or other pronouncement having the force of law, which
statutory law, as changed, or final regulation or pronouncement, as
promulgated, would cause any Participant to include in his or her federal gross
income amounts accrued by the Participant under the Plan on a date (an “Early
Taxation Event”) prior to the date on which such amounts are made available to
him or her under the Plan due to the existence of this Trust.  The Company shall be obligated to notify the
Trustee of the occurrence of an Early Termination Event and in no event shall
the Trustee be responsible for monitoring or determining whether or not an
Early Taxation Event has occurred.


 


(b)                                 Revocability.  Notwithstanding any other Section of
this Trust Agreement to the contrary, as of an Early Taxation Event, the
Company and its creditors shall have access to the Trust Fund to the extent,
and only to the extent, required to prevent the Participant from being required
to include in his or her federal gross income amounts accrued by the
Participant under the Plan that are held in the Trust prior to the date on
which such amounts are made available to him or her under the Plan.  No consent of any Participant or Beneficiary
shall be required in this regard.  Upon
the occurrence of an Early Taxation Event, the Trustee shall separately account
for the assets of the Trust Fund that were contributed to the Trust Fund on and
after the date on which the making of contributions under this Trust would
require taxation to a Participant, and earnings on such contributions.  Trustee may employ agents in the performance
of those duties whose expenses shall be paid pursuant to Sections 3.7 and
3.8.  The portion of the Trust Fund held
prior to such date shall not be impacted by this Section.  If the law only impacts a Participant who has
a certain status with respect to the Company, this Section shall apply
only to amounts identified by the Company in writing to the Trustee as are
intended by the Company to be attributable to Participants in the impacted
class.  The Trustee shall be entitled to
additional reasonable compensation for any separate accounting required
pursuant to this Section 8.3.  In
addition, prior to the Trustee separately accounting for any assets of the
Trust Fund at the direction of the Company, the Trustee shall be entitled, upon
request to the Company, to receive an opinion of legal counsel confirming that
the extent of access by the Company and its creditors to the Trust Fund as
directed by the Company in its direction to the Trustee for separate
accountings is required by


 


18





















 


an Early Taxation Event and is in conformity
with the provisions of this Section 8.3.


 


19





















 


ARTICLE 9

Miscellaneous


 


9.1                                 Taxes.  The Sponsor shall from time to time pay taxes
of any and all kinds whatsoever that at any time are lawfully levied or
assessed upon or become payable in respect of the Trust Fund, the income or any
property forming a part thereof, or any security transaction pertaining
thereto.  To the extent that any taxes
lawfully levied or assessed upon the Trust Fund are not paid by the Sponsor,
the Trustee shall have the power to pay such taxes out of the Trust Fund and
shall seek reimbursement from the Sponsor. 
Prior to making any payment, the Trustee may require such releases or
other documents from any lawful taxing authority as it shall deem
necessary.  The Trustee shall contest the
validity of taxes in any manner deemed appropriate by the Sponsor or its
counsel, but at the Sponsor’s expense, and only if it has received an indemnity
bond or other security satisfactory to it to pay any such expenses.  The Trustee (i) shall not be liable for any
nonpayment of tax with respect to the Trust Fund when it distributes an
interest hereunder on directions from the Committee, and (ii) shall have no
obligation to prepare or file any tax return on behalf of the Trust Fund, any
such return being the sole responsibility of the Administrator.  The Trustee shall cooperate with the
Administrator in connection with the preparation and filing of any such return.


 


9.2                                 Third Persons.  All persons dealing
with the Trustee are released from inquiring into the decisions or authority of
the Trustee and from seeing to the application of any moneys, securities or
other property paid or delivered to the Trustee.


 


9.3                                 Nonassignability;
Nonalienation.  Benefits payable to Participants and their
Beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.


 


9.4                                 The Plan.  In the event of any
conflict between the terms of this Trust Agreement and the agreement that
constitutes the Plan, such conflict shall be resolved in favor of this Trust
Agreement, but only with regard to the Trustee’s rights, immunities, duties and
responsibilities or any other matter affecting the Trustee.  For greater certainty, it is expressly
understood by the parties that the Trustee’s rights, immunities, duties and
responsibilities shall be determined solely by reference to this Trust
Agreement.


 


9.5                                 Applicable Law.  Except to the
extent, if any, preempted by ERISA, this Trust Agreement shall be governed by
and construed in accordance with the internal laws of the State of Delaware,
without reference to any conflicts of laws principles.  Any provision of this Trust Agreement
prohibited by law shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.


 


9.6                                 Notices and  Directions.  Whenever a notice
or direction is given by the Committee or the Administrator to the Trustee, it
shall be in the form required by Section 2.1.  Actions by the Sponsor shall be by the Board
(and actions by a Company other than


 


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the Sponsor shall be by its Board of
Directors) or a duly authorized officer thereof, with such actions certified to
the Trustee by an appropriately certified copy of the action taken.  The Trustee shall be protected in acting upon
any such notice, resolution, order, certificate or other communication believed
by it to be genuine and to have been signed by the proper party or parties.


 


9.7                                 Successors and  Assigns.  This Trust
Agreement shall be binding upon and inure to the benefit of the Sponsor, the
Companies and the Trustee and their respective successors and assigns.


 


9.8                                 Gender and
Number.  Words used in the masculine shall apply to
the feminine where applicable, and when the context requires, the plural shall
be read as the singular and the singular as the plural.


 


9.9                                 Headings.  Headings in this Trust Agreement are inserted
for convenience of reference only and any conflict between such headings and
the text shall be resolved in favor of the text.


 


9.10                           Counterparts.   This Trust
Agreement may be executed in an original and any number of counterparts, each
of which shall be deemed to be an original of one and the same instrument.


 


9.11                           No Implied Duties; etc.


 


(a)                                  The
Trustee shall have no duty or responsibility not expressly set forth in this
Trust Agreement.  By way of example, but
without limiting the matters subject to the foregoing sentence, Trustee shall
have no responsibility with respect to the administration or interpretation of
the Plan, payment of Plan benefits other than from the assets of the Trust,
withholding of taxes other than from payments made with Trust assets to Plan
Participants, or maintaining Participant records with respect to the Plan.


 


(b)                                 The
Trustee represents that it qualifies for Federal Deposit Insurance Corporation
(“FDIC”) prorata worth pass-through insurance coverage in accordance with the
standards set forth in applicable federal law and FDIC insurance regulations.  If the Trustee fails at any time in the
future to so qualify for prorata worth pass-through insurance coverage, it will
promptly notify the Sponsor.


 


(c)                                  In
no event will the Trustee have any obligation to provide, and in no event will
the Trustee provide, any legal, tax, accounting, audit or other advice to the
Sponsor with respect to the Plan or this Trust. 
The Sponsor acknowledges that it will rely exclusively on the advice of
its accountants and/or attorneys with respect to all legal, tax, accounting,
audit and other advice required or desired by the Sponsor with respect to the
Plan or this Trust.  The Sponsor
acknowledges that the Trustee has not made any representations of any kind, and
will not make any


 


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representations of any kind, concerning the
legal, tax, accounting, audit or other treatment of the Plan or this Trust.


 


(d)                                 The
Sponsor acknowledges that the Trustee is not an advisor concerning or a
promoter with respect to the Plan or the Trust, but merely is a service
provider offering the Trust services expressly set forth in this
Agreement.  In particular, the Sponsor
acknowledges that the Trustee is not a joint venturer or partner with the Sponsor’s
accountants, auditors, consultants or with any other party, with respect to the
Plan or this Trust, and that the Trustee and the Sponsor’s accountants,
auditors and consultants at all times remain independent parties dealing at arm’s
length, and independently, with each other and with the Sponsor.


 


(e)                                  The
Trustee shall have no liability for any losses arising out of delays in
performing the services which it renders under this Trust Agreement which
result from events beyond its control, including without limitation,
interruption of the business of the Trustee due to acts of God, acts of
governmental authority, acts of war, riots, civil commotions, insurrections,
labor difficulties (including, but not limited to, strikes and other work
slippages due to slow-downs), or any action of any courier or utility,
mechanical or other malfunction, or electronic interruption.


 


9.12                           Effective Date.  The effective date
of this Trust Agreement shall be May 1, 2005.


 


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left blank]


 


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IN WITNESS WHEREOF the Sponsor and the
Trustee have signed this Trust Agreement as of the date first written above.


 


 


	
  TRUSTEE:

  	
   

  	
  THE SPONSOR:

  
	
   

  	
   

  	
   

  
	
  WILMINGTON TRUST COMPANY,

  as Trustee

  	
   

  	
  MERCANTILE BANKSHARES

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
  [Corporate Seal]

  	
   

  	
  [Corporate Seal]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  (Ass’t.) Secretary

  	
   

  	
  (Ass’t.) Secretary

  
															



 


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EXHIBIT A – TRUSTEE COMPENSATION


 


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EXHIBIT B – ADOPTING COMPANIES





 


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