[HISTORY: Adopted by the Council of Latrobe 8-11-1989. Amendments noted where applicable.]
GENERAL REFERENCES
Pensions — See Ch. 26.
A.
AGREEMENT
APPLICABLE LAWS AND REGULATIONS
BOARD
CODE
COLLECTIVE TRUST FUND
INVESTMENT ACCOUNT
INVESTMENT MANAGER
PERSON
PLAN ADMINISTRATOR
The following terms, unless the context clearly indicates
otherwise, shall have the respective meanings set forth below or in
the other provisions hereof as stated below:
This Investment Management Agreement as the same may be amended
from time to time pursuant to the terms hereof.
The laws of the United States of America, any state or commonwealth
therein or the District of Columbia and the rules, regulations and
requirements and any other of such laws by appropriate governmental
departments or agencies, all as existing or promulgated from time
to time and pertaining to the management and investment in a fiduciary
capacity of the assets of any retirement, pension, profit-sharing
or other trust for employees which is exempt from tax under Section
501 of the Code.
The Council of Latrobe serving as the fiduciary under the
plan.
The Internal Revenue Code of 1986, as amended, or any future
United States internal revenue law. Reference to a section of the
Code shall mean the specified sections thereof or the corresponding
provisions of any such future law, as the case may be.
A collective trust fund maintained by the trustee in which
the investment of assets of the trust is authorized by applicable
law and regulations.
The investment account established pursuant to the provisions
of § 17-2A hereof.
Mellon Bank, N.A.
Any individual, partnership, joint venture, corporation,
company, trust, estate, unincorporated organization, association or
other entity, as the case may be, and their respective successors
and assigns.
The person or committee appointed by the Board or any successor
plan administrator of the plan.
B.
References at any particular time to sections of the
Code shall mean the specified sections of the Internal Revenue Code
of 1986, as amended, or the corresponding provisions of any future
United States internal revenue law.
Effective the first day of May, 1989, the Board
hereby appoints the investment manager as investment manager with
respect to the assets of the plan. The Board has directed the plan
administrator to segregate and hold such assets and any investments
and reinvestments of the same in a separate investment account under
the plan.
A.
The Investment Manager shall have sole responsibility
and authority with respect to the investment of the assets in the
investment account and, as herein provided, shall from time to time
direct the investment and reinvestment of such assets in such stocks,
bonds, notes, securities and other real, personal or mixed property
of whatsoever character wherever located and undivided or part interests
therein, as the investment manager in its sole discretion shall determine.
B.
The investment manager is expressly authorized to
cause any or all of the assets of the investment account to be invested
in units of any collective, common or pooled trust funds operated
or maintained by any bank or trust company, including the investment
manager or any affiliate of the investment manager, exclusively for
the commingling and collective investment of funds or other assets
held under or as part of a plan which is established in conformity
with any that qualifies under Section 401(a) of the Internal Revenue
Code of 1986, as the same shall from time to time be amended, superseded
or renumbered, or of funds held under a governmental entity retirement
plan; provided, however, that notwithstanding any provision of this
agreement which restricts the actions of the investment manager, to
the extent property held hereunder is transferred by the investment
manager to any such trust fund in exchange for an interest in such
trust fund, the terms and conditions of the trust document establishing
such trust fund shall solely govern the investment duties, responsibilities
and powers of the plan administrator of such trust fund, and, to the
extent required by law, such terms and conditions shall be incorporated
by reference and shall be part of the agreement of which the assets
are a part; and provided, further, that for purposes of the valuation
of any interest maintained by any such collective fund trustee in
any such trust fund, the fair market value of the units so held shall
be determined in accordance with generally recognized valuation procedures.
C.
In the exercise of its investment responsibilities
hereunder the investment manager shall not be restricted to investments
of the kind authorized generally for fiduciaries under any statute
or other law of any state, commonwealth or district, all such restrictions
now or hereafter enacted or in force being hereby waived by the Board;
provided, however, that the investment manager shall exercise such
responsibilities in keeping with the purposes of the plan and with
the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in like capacity and familiar
with such matters would use in the conduct of an enterprise of a like
character with like aims.
D.
The investment and reinvestment of the assets in the
investment account shall be carried out by the investment manager
by its placement of orders with brokers or other dealers to cause
the sale or purchase or other disposition of securities and other
property or by the investment manager, acting directly to effect any
such transaction, or by the plan administrator upon receipt of instructions
from the investment manager to cause the sale or purchase or other
disposition of securities and other property. In the event that the
investment manager places orders or otherwise acts directly with respect
to the acquisition or disposition of securities or other property,
it shall promptly notify the plan administrator of such action. Until
receipt of such notification, the plan administrator shall have no
duty to act with respect thereto, but upon receipt of such notice,
the plan administrator shall promptly deliver securities or other
property in the case of a sale or make settlement in the case of a
purchase, in each case in accordance with the instructions received
from the investment manager. In the event that the plan administrator
is directed by the investment manager to acquire or dispose of securities
or other property for the investment account, the plan administrator
shall promptly comply with such instructions and shall promptly notify
the investment manager upon consummation of each transaction.
E.
Upon the execution of any transaction contemplated by Subsection D hereof, the investment manager or the plan administrator, as the case may be, shall act reasonably under the circumstances to obtain prompt and good delivery of any security or other property upon terms favorable to the plan, and the other shall have no responsibility with respect thereto, except to act promptly in accordance with any instructions so communicated as provided therein.
F.
In the event of a controversy with any broker or other
dealer with regard to any transaction (regardless of whether such
transaction was initiated by the investment manager or the plan administrator),
the sole responsibility of the investment manager shall be to advise
the plan administrator of such controversy and the circumstances thereof
and thereafter only to act in accordance with any written instructions
of the Board to the extent consistent with this agreement. The plan
administrator or the Board shall, as shall be agreed upon by them,
determine whether any proceedings or other action shall be instituted
with respect to such controversy; provided, however, that nothing
herein shall be deemed to prohibit the investment manager from taking
any action which it shall, under the circumstances then prevailing,
reasonably determine to be necessary or desirable to protect the interests
of the plan or otherwise to carry out its investment duties and responsibilities,
and the investment manager shall be entitled to reimbursement for
any expenses, including reasonable attorneys' fees, incurred in connection
therewith.
A.
Except as provided in § 17-3B, the plan administrator shall at all times have physical possession of the assets in the investment account, and the plan administrator shall have sole authority and responsibility for the safekeeping of such assets and to receive any income therefrom and any interest thereon. Nothing in this agreement shall be deemed to affect any responsibility of the plan administrator as plan administrator to collect or account for such income and interest as provided by the terms of the plan or to make any principal disbursements from the plan.
B.
The assets of the investment account as the same shall
be invested and reinvested from time to time shall be accounted for
separately by the plan administrator and appropriately designated
on the books and records of the plan administrator to the end and
purpose of identifying such assets at any particular time and of maintaining
a record of all transactions with respect thereto.
C.
The plan administrator may carry any asset of the
investment account, whatever may be the character of such asset, in
the name of the plan administrator as plan administrator or in the
name of any nominee approved by the plan administrator or in bearer
form, provided that the books and records of the plan administrator
shall at all time show that such asset is part of the investment account.
D.
The investment manager shall have the right to exercise
the voting rights or powers which may be exercisable with respect
to any stocks, bonds, notes and other securities (hereinafter in this
subsection collectively called "securities") of the investment account;
to join in or to dissent from and oppose the reorganization, recapitalization,
consolidation, merger, liquidation or sale of corporations or properties;
to exchange any securities for other securities issued in connection
with or resulting from any such transaction; to cause to be paid from
the investment account any assessments or expenses which the investment
manager shall determine to be advisable for the protection of the
interests or of the investment account as holder of any securities;
to exercise any options appurtenant to any securities for the conversion
thereof into other securities; and to exercise or sell any rights
issued upon or with respect to any securities, all upon such terms
and conditions as the investment manager shall determine, and, upon
receipt of any instructions from the investment manager with respect
thereto, the plan administrator or its nominee, as record owner, shall
act accordingly.
A.
The Board acknowledges that the assets of the investment
account constitute only a part of the assets of the plan. The Board
agrees that the only responsibility which the investment manager shall
have with respect to diversification in the investment of such assets
shall be to diversify such assets in accordance with investment policies
established by the Board from time to time so as to minimize the risk
of large losses with respect to the investment and reinvestment of
the same and may do so without regard to or consideration of any other
assets which may from time to time be held by the plan.
B.
The investment manager shall not be required to take cognizance of any assumed rate of return or cash flow in the exercise of its investment responsibility, unless the same is stipulated as part of the investment policy established by the Board and communicated to the investment manager by the Board as provided by § 17-3D hereof. All such matters shall be the sole responsibility of the Board.
C.
The investment manager shall act, and shall not be
subject to any liability on account of so acting, in accordance with
the provisions of this agreement. The Board warrants that the provisions
of this agreement and any instructions communicated to the investment
manager as contemplated hereunder are, shall be and shall continue
to be in conformity with the provisions and purposes of the plan and
with applicable laws and regulations and agrees to indemnify the investment
manager for any expenses, including attorneys' fees, it may incur
on account of the taking of or of the failure to take, in good faith,
any action in accordance with any such provision or instruction. The
Board further agrees that the investment manager shall have no liability
of whatsoever character as a result of any breach of fiduciary responsibility
by the Board or the plan administrator or any other fiduciary, other
than the investment manager, serving under or acting with respect
to the plan.
D.
The Board may from time to time direct that additional
assets of the plan be placed in the Investment Account and may from
time to time direct that a portion of the assets in the investment
account be withdrawn from the investment account. The investment manager
shall be promptly notified by the Board of any such action.
E.
Upon withdrawal of any assets from the investment
account, the investment manager shall, as of the date of such withdrawal,
be discharged from any and all future responsibility with regard to
the investment management of such withdrawn assets.
F.
All communications hereunder to the investment manager
from the Board shall be made in writing and transmitted to the investment
manager by persons properly authorized by the Board. Any such communication
appropriately indicating that it reflects action by the Board may
be so accepted by the investment manager, and the investment manager
shall have no obligation to inquire further with respect thereto and
shall be fully protected in relying and acting upon the writing so
indicating the action of the Board.
G.
The Board may from time to time, by an appropriate
writing, designate one or more persons to communicate instructions
to the investment manager.
H.
This agreement may be terminated at any time by either
the investment manager or the Board upon 30 days' written notice to
the other and may be amended or altered as agreed upon, in writing,
by the Board and the investment manager.
I.
Upon the termination of this agreement, the investment
manager shall be discharged from any and all future responsibility
with regard to the investment management of the assets in the investment
account without the necessity of any formal accounting; provided,
however, that nothing contained herein shall be construed to deny
the investment manager the right to have an account judicially determined.
A.
The investment manager shall furnish to the Board
statements of transactions and investments at such times as shall
mutually be agreed upon by the investment manager and the Board or
as shall be required by law. The Board's approval of any such statement
shall, as to all matters and transactions shown or reflected therein,
be final and binding upon all persons who are then or may thereafter
become interested in the property held hereunder. Unless the Board
submits to the investment manager, within 60 days of receipt of any
statement, written objections to such statement, the Board shall be
deemed conclusively to have approved such statement.
B.
The investment manager shall be entitled to receive
compensation in accordance with its schedule of compensation in effect
at the time its services are performed hereunder and shall be reimbursed
for all expenses, disbursements or liabilities made or incurred in
the performance of such services.
This agreement shall be construed and governed
in accordance with the laws of the Commonwealth of Pennsylvania and
any federal laws, regulations or rules which may from time to time
be applicable.
