EXHIBIT 10.4
TRINITY INDUSTRIES, INC.
SUPPLEMENTAL RETIREMENT AND DIRECTOR RETIREMENT TRUST
This Trust Agreement made by and between TRINITY INDUSTRIES, INC., a
Delaware corporation (the "Company") and Xxxxx Fargo Bank Texas, N. A. (the
"Trustee");
WHEREAS, the Company and certain affiliates (the Company and its
affiliates collectively referred to as the "Employers") have adopted
nonqualified retirement plans known as the Trinity Industries, Inc. Supplemental
Retirement Plan (the "Supplemental Retirement Plan") and the Trinity Industries,
Inc. Director Retirement Plan (the "Director Retirement Plan") (both sometimes
referred to herein as a "Plan" and together referred to herein as the "Plans");
and
WHEREAS, the Employers have incurred or expect to incur liability under
the terms of such Plans with respect to the individuals participating in such
Plans; and
WHEREAS, the Employers wish to establish a trust (hereinafter called the
"Trust") and to contribute to the Trust assets that shall be held therein for
the satisfaction of Plan benefit liabilities of each Employer and shall be
allocated to a Separate Account, as herein defined, for each Employer's Plan
Participants and beneficiaries and, with respect to the Company, a Separate
Account for each Plan, subject to the claims of such Employer's creditors in the
event of the Employer's Insolvency, as herein defined, until paid to Plan
Participants and their beneficiaries in such manner and at such times as
specified in the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Director Retirement Plan as an unfunded plan or the Supplemental Retirement Plan
as an unfunded plan maintained for the purpose of providing deferred
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;
and
WHEREAS, it is the intention of the Employers to make contributions to the
Trust to provide a source of funds to assist them in the meeting of their
liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment Of Trust.
(a) The Employers hereby deposit with the Trustee in trust $1,000.00,
which shall become the principal of the Trust to be held, administered and
disposed of by the Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which each Employer
is the grantor with respect to its Separate Accounts, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue
Code of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Employers and shall be used
exclusively for the uses and purposes of Plan Participants and general creditors
as herein set forth. Plan 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 Plans and this Trust Agreement shall be mere
unsecured contractual rights of Plan Participants and their beneficiaries
against the Employers. Any amounts allocated to a Separate Account under the
Trust will be subject to the claims under federal and state law of the general
creditors of the Employer with respect to which such Separate Account is
maintained in the event of such Employer's Insolvency, as defined in Section
4(a) herein.
(e) The Employers shall 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. In lieu of all or a portion of the contribution to the Trust for a
Separate Account required by this paragraph and paragraph 1(f) below, the
Employers may make contributions in the form of premium payments on insurance
policies that are assets of the Trust allocated to such Separate Account in such
amount and in such manner as the Company may direct. For all purposes of this
Trust, the present value of a Plan benefit liability shall be determined using
the actuarial factors and assumptions set forth in the respective Plan pursuant
to which such liability has accrued.
(f) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change in Control, as defined in the Plans, each
Employer shall (i) as soon as possible, but in no event more than two business
days following the date of such Change in Control, make an irrevocable
contribution to each Separate Account under the Trust maintained with respect to
such Employer in an amount, as determined by an Independent Committee, as
defined below, which when added to the total value of the assets allocated to
such Separate Account at such time equals 125% of the total present value of the
benefit liabilities accrued for Participants by such Employer pursuant to the
Plan for which such Separate Account is maintained as of the date on which the
Change in Control occurred, and (ii) on and after the date of the Change in
Control, make quarterly contributions to each Separate Account under the Trust
maintained with respect to such Employer in amounts sufficient, as determined by
the Independent Committee, to maintain the total value of the assets allocated
to such Separate Account at an amount equal to 125% of the total present value
of the benefit liabilities accrued for Participants by such Employer pursuant to
the Plan for which such Separate Account is maintained as of the last day of the
calendar quarter. Any provision of this Trust Agreement to the contrary
notwithstanding, on and after the date of a Change in Control, the assets
allocated to a Separate Account under this Trust, including any additional
contributions made by an Employer in accordance with this Section 1(f) for the
period following such Change in Control and any earnings on such Separate
Account's proportionate share of the Trust's assets, shall be held exclusively
for the benefit of those Plan Participants (or their beneficiaries) with respect
to whom the Employer for which such Separate Account is maintained has a benefit
liability accrued on its books pursuant to the Plan for which such Separate
Account is maintained as of the date immediately prior to the date of such
Change in Control, subject to the claims of general creditors of such Employer
under federal and state law as set forth below.
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Section 2. Payments to Plan Participants and their Beneficiaries.
(a) The Committee of each Plan shall deliver to the Trustee a schedule
(the "Payment Schedule") that indicates the amounts payable with respect to each
Plan Participant (and his or her beneficiaries) and identifies the Separate
Account of the Employer from which such amounts are payable, that provides to
the Trustee the amounts so payable, the form in which such amount is to be paid
(as provided for or available under the Plans), and the time of commencement for
payment of such amounts. An updated Payment Schedule shall be provided by each
Committee to the Trustee periodically, but no less frequently than once each
calendar quarter. Except as otherwise provided herein, the Trustee shall make
payments to the Plan Participants and their beneficiaries in accordance with
such Payment Schedule. 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 terms of the
Plans and shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by the Company
or an Employer. The Company shall be responsible for any employee records and
federal and tax reporting.
(b) The entitlement of a Plan Participant or his or her beneficiaries to
benefits under a Plan shall be determined by each Committee or such other party
as may be designated under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
(c) The Employers participating in the Supplemental Retirement Plan or
the Company with respect to the Director Plan may make payments of benefits
directly to Plan Participants or their beneficiaries as they become due under
the terms of each Plan in lieu of payment from the Trust. The applicable
Committee shall notify the Trustee of an Employer's or the Company's decision to
make payments of benefits directly prior to the time amounts are payable to
Participants or their beneficiaries. In addition, if the assets allocated to a
Separate Account under the Trust are not sufficient to make payments of benefits
to its respective Plan Participants and beneficiaries in accordance with the
terms of the Plan for which such Separate Account is maintained, the Employer
for which such Separate Account is maintained shall make the balance of each
such payment as it falls due, and the other Separate Accounts hereunder shall
not be liable for the payment of such benefits. The Trustee shall not be
responsible for notifying the Company or other Employer when the assets
allocated to a Separate Account under the Trust are not sufficient to satisfy
all payments due.
(d) Any provision of this Trust Agreement to the contrary
notwithstanding, upon and after a Change in Control, (i) the Trustee shall make
payments to Plan Participants or their beneficiaries in accordance with the
direction of the Independent Committee rather than a Plan Committee, regardless
of whether the Trustee has received a Payment Schedule or any other form of
direction from a Plan Committee to make such payments, and (ii) to the extent
that a Separate Account is not sufficient to satisfy all vested benefit
liabilities of an Employer under the Plan for which the Separate Account is
maintained, whether or not then due or payable, at the time a benefit payment is
owed to one or more Plan Participants or beneficiaries upon or after a Change in
Control, then each such Participant or beneficiary entitled to payment shall
receive from such Separate Account under the Trust Fund only a pro-rata share of
such Separate Account
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determined on the basis of the present value of his or her accrued benefit for
which the Employer is liable under the Plan for which the Separate Account is
maintained compared to the total present value of the accrued benefits for which
such Employer is liable under such Plan, and the remaining amount owed shall be
paid directly by the Employer.
Section 3. Appointment of Independent Committee.
(a) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change in Control, an Independent Committee consisting
of at least three members shall be appointed by the Human Resources Committee of
the Board of Directors of the Company subject to the written approval of a
majority of the Participants in the Plans on the date of such Change in Control.
The Independent Committee shall:
(i) determine the amount of the irrevocable contributions to be
made by each Employer pursuant to Section 1(f) hereof;
(ii) determine in accordance with the Plans the amounts payable
with respect to each Plan Participant (and his or her beneficiaries), the
form in which such amounts are to be paid, and the time of commencement
for payment of such amounts pursuant to Section 2(a) hereof;
(iii) determine the entitlement of Plan Participants and
beneficiaries to benefits under the terms of the Plans pursuant to Section
2(b) hereof;
(iv) direct the Trustee to make payments to Plan Participants and
their beneficiaries pursuant to Section 2 hereof; and
(v) select a successor Trustee for the Trust if a Trustee resigns
or is removed on or after the date of a Change in Control pursuant to
Section 12.
(vi) be responsible for any employee records and federal and tax
reporting beginning on the date of Change in Control.
(b) Each member of the Independent Committee so appointed shall serve in
such office until his or her death, resignation or removal. The Human Resources
Committee may remove any member of the Independent Committee effective upon the
written approval of a majority of the Plan Participants. Vacancies on the
Independent Committee shall be filled from time to time by the Human Resources
Committee effective upon the written approval of a majority of the Participants
in the Plans on the date such vacancy is filled.
(c) The Independent Committee shall act by a majority of its members at
the time in office and such action may be taken either by a vote at a meeting or
in writing without a meeting. The Independent Committee may by such majority
action authorize any one or more of its members to execute any document or
documents on behalf of the Independent Committee, in which event the Independent
Committee shall notify the Trustee in writing of such action and the name or
names of its member or members so authorized to act. Every interpretation,
choice,
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determination or other exercise by the Independent Committee of any power or
discretion given either expressly or by implication to it shall be conclusive
and binding upon all parties having or claiming to have an interest under the
Trust or otherwise directly or indirectly affected by such action, without
restriction, however, on the right of the Independent Committee to reconsider
and redetermine such action.
(d) Any provision of this Trust Agreement to the contrary
notwithstanding, in the event that (i) the Human Resources Committee shall not
appoint an Independent Committee within 30 days following a Change in Control or
a majority of the Participants in the Plans do not approve in writing at least
three members selected by the Human Resources Committee to serve on an
Independent Committee within such 30-day period or (ii) the Human Resources
Committee does not fill a vacancy on the Independent Committee within 30 days of
the date such office becomes vacant or a majority of the Participants in the
Plans do not approve in writing the Human Resources Committee's selection to
fill a vacancy on the Independent Committee within such 30-day period, then the
Participants in the Plans shall elect, by majority vote, up to three individuals
to the extent necessary to ensure that the Independent Committee consists of
three members.
Section 4. Trustee Responsibility Regarding Payments to Trust Beneficiary
when an Employer Is Insolvent.
(a) The Trustee shall cease payment of benefits to Plan Participants and
their beneficiaries if the Employer liable for such payment of benefits is
Insolvent. An Employer shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) the Employer is unable to pay its debts as they become
due, or (ii) the Employer is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section l(d) hereof, the principal and income of an Employer's Separate Account
under the Trust shall be subject to claims of general creditors of the Employer
under federal and state law as set forth below.
(i) The Company shall have the duty to inform the Trustee in
writing of the Employer's Insolvency.
(ii) Unless the Trustee has actual knowledge of an Employer's
Insolvency, or has received notice from the Employer or a person claiming
to be a creditor alleging that the Employer is Insolvent, the Trustee
shall have no duty to inquire whether the Employer is Insolvent. The
Trustee may in all events rely on such evidence concerning the Employer's
solvency as may be furnished to the Trustee and that provides the Trustee
with a reasonable notice concerning the Employer's solvency.
(iii) If at any time the Company has notified the Trustee that an
Employer is Insolvent, the Trustee shall discontinue payments to the
Employer's respective Plan Participants and their beneficiaries and shall
hold the assets allocated to the Employer's Separate Account under the
Trust for the benefit of the Employer's general creditors.
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Nothing in this Trust Agreement shall in any way diminish any rights of
Plan Participants or their beneficiaries to pursue their rights as general
creditors of an Employer with respect to benefits due under the Plans or
otherwise.
(iv) The Trustee shall resume the payment of benefits to an
Employer's respective Plan Participants and their beneficiaries in
accordance with Section 2 of this Trust Agreement only after the Company
has notified the Trustee that the Employer is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets allocated to a Separate
Account under the Trust as determined by the actuary, if the Trustee
discontinues the payment of benefits from a Separate Account under the Trust
pursuant to Section 4(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the aggregate amount
of all payments due to Plan Participants and their beneficiaries from the
Employer under the terms of the Plan for which such Separate Account is
maintained for the period of such discontinuance, less the aggregate amount of
any such Plan benefit payments made to Plan Participants or their beneficiaries
by the Employer in lieu of the payments provided for hereunder during any such
period of discontinuance.
Section 5. Payments to the Employers.
(a) Except as provided in Sections 4 and 5(b) hereof, the Employers
shall have no right or power to direct the Trustee to return to the Employers or
to divert to others any of the Trust assets before payment of all benefits have
been made to Plan Participants and their beneficiaries pursuant to the terms of
the Plans.
(b) To the extent that a Plan Committee at any time determines based
upon information provided to the Committee by the Trustee that the value of the
assets allocated to an Employer's Separate Account under the Trust exceeds 125%
of the total present value of the benefit liabilities accrued for Participants
by such Employer under the Plan for which the Separate Account is maintained as
of the last day of the immediately preceding calendar quarter, the Trustee shall
pay such excess to such Employer upon receipt of written request therefor from
the Employer; provided, however, that no such payment of excess assets to an
Employer shall be made on or after the date of a Change in Control without the
written approval of two-thirds of the Participants with respect to whom such
Employer has a benefit liability accrued on its books for the Plan for which
such Separate Account is maintained.
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Section 6. Investment Authority.
(a) The Trustee shall establish and maintain a separate account within
the Trust for each Employer with respect to each Plan in which the Employer
participates, in amounts as directed by the Company (the "Separate Account").
All amounts deposited with the Trustee by an Employer for a Plan shall be
allocated to the Separate Account maintained for such Employer for such Plan.
The Separate Accounts shall be maintained for record keeping purposes only, and
the assets of the Trust may remain invested as a single fund; provided, however,
that the Company may direct the Trustee to segregate all or any portion of the
Trust Funds for investment solely for one or more of the Separate Accounts. At
the end of each calendar quarter and at such other times as the Company may
determine, the Trustee shall determine the fair market value of the assets of
the Trust. On the basis of such valuation, the Trustee shall adjust each
Separate Account to reflect its proportionate share of the earnings, losses and
expenses of the Trust for the valuation period then ended.
(b) The Trustee shall have full power and authority to invest and
reinvest the Trust assets, or any part thereof, in such stocks (common or
preferred), bonds, mortgages, notes, interest-bearing deposits (including such
deposits with any corporate trustee acting hereunder), mutual funds, or
collective funds, options and contracts for the future or immediate receipt or
delivery of property of any kind, or other securities, producing or
nonproducing oil and gas royalties and payments and other producing and
nonproducing interests in minerals, or in commodities, life insurance policies,
annuity contracts or other property of any kind or nature whatsoever, whether
real, personal or mixed, as the Trustee, in the Trustee's absolute discretion
and judgment, deems appropriate for the Trust, and to hold cash uninvested at
any time and from time to time in such amounts and to such extent as the
Trustee, in the Trustee's absolute discretion and judgment, deems appropriate
for the Trust. The Trustee shall have full power and authority to manage,
handle, invest, reinvest, sell for cash or credit, or for part cash or part
credit, exchange, hold, dispose of, lease for any period of time (whether or not
longer than the life of the Trust), improve, repair, maintain, work, develop,
use, operate, mortgage, or pledge, all or any part of the assets and property
from time to time constituting any part of the trust funds held in trust under
the Trust; borrow or loan money or securities; write options and sell securities
or other property short or for future delivery; engage in hedging procedures;
buy and sell futures contracts; execute obligations, negotiable and
nonnegotiable; vote shares of stock in person and by proxy, with or without
power of substitution; register investments in the name of a nominee; sell,
convey, lease and/or otherwise deal with any producing or nonproducing oil, gas
and mineral leases or mineral rights, payments and royalties; pay all reasonable
expenses; execute and deliver any deeds, conveyances, leases, contracts, or
written instruments of any character appropriate to any of the powers or duties
of the Trustee, and shall, in general, have as broad power respecting the
management, operation and handling of the Trust assets and property as if the
Trustee were the owner of such assets and property in the Trustee's own right.
The preceding provisions of this paragraph to the contrary notwithstanding, the
Company shall have the right and power at any time and from time to time to give
the Trustee broad guidelines within which it shall invest the assets of the
Trust; provided, however, that on and after the date of a Change in Control, the
Independent Committee, rather than the Company, shall have the sole authority to
exercise such right.
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(c) 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 Plan Participants.
(d) Each Employer shall have the right, at any time, and from time to
time in its sole discretion, to substitute assets of equal fair market value for
any asset held by the Trust allocated to the Separate Account of such Employer
or any asset held by the Trust that is not allocated to the Separate Account of
another Employer acceptable to the Trustee; provided, however, that on and after
the date of a Change in Control, any assets transferred to the Trust in
substitution for assets held by the Trust must consist of cash or marketable
securities acceptable to the Independent Committee and the Trustee and the fair
market value of the respective assets shall be determined by the Trustee. This
right is exercisable by the Employer in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
Section 7. Disposition of Income. During the term of this Trust, all
income received by the Trust, net of any applicable expenses and taxes paid from
the Trust, shall be accumulated and reinvested; provided, however, that the
Employers shall pay all taxes, fees and expenses associated with the Plans and
the Trust. In the event the Employers do not pay all taxes, fees and expenses
owed with respect to the Trust, any portion not paid by the Employers may be
paid from the Trust, provided, that the Trustee shall immediately notify the
Employers in writing that such payment has been made and the Employers shall
reimburse the Trust for such payment within 15 days from the date of such
notice.
Section 8. Accounting by Trustee. The Trustee shall keep accurate and
detailed records of all investments, receipts, disbursements, and all other
transactions required to be made, including such specific records as shall be
agreed upon in writing between the Company and the Trustee. Within 60 days
following the close of each twelve-month period ending December 31 and within 60
days after the removal or resignation of the Trustee, the Trustee shall deliver
to the Company a written account of its administration of the Trust and to each
Employer a written account of its administration of the Employer's Separate
Account during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be. All Trustee accountings,
including final accounting, are approved by the lapse of 60 days form the date
of the accounting.
Section 9. Responsibility of the Trustee.
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by an Employer which is given in writing
by the Employer.
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(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Employers agree to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Employers do not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust;
provided, however, that in the event any such costs, expenses and liabilities
are paid from the Trust, the Trustee shall notify the Employers in writing that
such payment has been made and the Employers shall reimburse the Trust for such
payment within 15 days from the date of such notice.
(c) The Trustee may consult with legal counsel (who may also be counsel
for the Employers generally) with respect to any of its duties or obligations
hereunder. The Trustee may seek remediation in both State and Federal courts.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that except as provided in Sections 5(b) and 6(d) hereof, if
an insurance policy is held as an asset of the Trust, 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.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or 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 Internal Revenue Code.
Section 10. Compensation and Expenses of the Trustee. The Trustee shall be
paid such reasonable compensation commensurate with the services and
responsibilities involved hereunder as shall from time to time be agreed upon by
the Trustee and the Company. The Employers shall pay all administrative and the
Trustee's fees and expenses, but, if not so paid, such fees and expenses shall
be paid from the Trust; provided, however, that in the event any such fees and
expenses are paid from the Trust, the Trustee shall notify the Employers in
writing that such payment has been made and the Employers shall reimburse the
Trust for such payment within 15 days from the date of such notice.
Section 11. Resignation and Removal of the Trustee.
(a) The Trustee may resign at any time by written notice to the Company,
which shall be effective 30 days after receipt of such notice unless the Company
and the Trustee agree otherwise.
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(b) The Trustee may be removed by the Company on 30 days notice or upon
shorter notice accepted by the Trustee; provided, however, that the Trustee may
not be removed by the Company on or after the date of a Change in Control except
with the written consent of a majority of the Plan Participants.
(c) 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 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
(d) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 12 hereof, by the effective date of
resignation or removal under paragraph(s) (a) or (b) of this Section. 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.
Section 12. Appointment of Successor.
(a) If the Trustee resigns or is removed in accordance with
Section 11(a) or (b) hereof, the Company may appoint any third party, such as a
bank trust department or other party that may be granted corporate trustee
powers under state law, as a successor to replace the Trustee upon resignation
or removal; provided, however, that if the Trustee resigns or is removed on or
after the date of a Change in Control, the Independent Committee shall select a
successor Trustee in accordance with this Section 12. The appointment shall be
effective when accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 8 and 9 hereof. The successor Trustee shall not be responsible for and
the Employers shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed
by the Trustee and the Company. Notwithstanding the foregoing, (i) no such
amendment shall conflict with the terms of the Plans or shall make the Trust
revocable, and (ii) this Trust Agreement may not be amended on or after the date
of a Change in Control without the written consent of a majority of the
Participants in the Plans.
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(b) The Trust shall not terminate until the date on which Plan
Participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plans. Upon termination of the Trust any assets that remain
allocated to an Employer's Separate Account under the Trust shall be returned to
such Employer.
(c) Upon written approval of all of the Participants (including any
beneficiaries of deceased Participants entitled to payment of benefits pursuant
to the terms of the Plans), the Company may terminate this Trust prior to the
time all benefit payments under the Plans have been made. All assets allocated
to an Employer's Separate Account under the Trust at termination shall be
returned to such Employer.
(d) The Company may terminate this Trust with respect to a Separate
Account of any Employer with the written approval of all of such Employer's
respective Plan Participants (including any beneficiaries of deceased
Participants of such Employer who are entitled to payment of benefits pursuant
to the terms of the Plans) covered by the Plan for which such Separate Account
is maintained. All assets allocated to an Employer's Separate Account under the
Trust on the date of such termination shall be returned to such Employer.
Section 14. Miscellaneous.
(a) 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.
(b) Benefits payable to Plan 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.
(c) This Trust Agreement shall be governed and construed in accordance
with the internal laws (and not the principles relating to conflicts of laws) of
the State of Texas, except where superseded by federal law.
(d) Unless the context clearly indicates otherwise, when used in this
Trust Agreement:
(i) "Committee" or "Plan Committee" shall mean the "Committee"
appointed to administer the Supplemental Retirement Plan and the Human
Resources Committee of the Board of Directors of the Company with respect
to the Director Retirement Plan.
(ii) "Human Resources Committee" shall mean the Human Resources
Committee of the Board of Directors of the Company.
(iii) "Participant" shall mean each "Participant as that term is
defined in the Supplemental Retirement Plan and each Director who has
accrued a benefit under the Director Retirement Plan.
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(e) Except where otherwise defined, capitalized terms used herein
shall have the meaning given to them in the Plans.
(f) In the event that a dispute arises between a Plan Participant
or beneficiary and the Participant's Employer, the Company or the Trustee
with respect to the payment of amounts from the Trust and the Participant
or beneficiary is successful in pursuing a benefit to which he or she is
entitled under the terms of the Plans and this Trust against the
Participant's Employer, the Company, the Trustee or any other party in the
course of litigation or otherwise and incurs attorneys' fees, expenses and
costs in connection therewith, the Company or with respect to the
Supplemental Retirement Plan, the Participant's Employer, if other than
the Company, shall reimburse the Plan Participant or beneficiary for the
full amount of any such attorneys' fees, expenses and costs.
(g) Upon the written consent of the Company delivered to the
Trustee, any other Affiliate of the Company which adopts the Supplemental
Retirement Plan may become a party to this Trust by delivering to the
Trustee a certified copy of a resolution of its board of directors or
other governing authority adopting this Trust. For purposes of this Trust,
any such Affiliate, which adopts this Trust with the written consent of
the Company shall be an Employer hereunder.
(h) Any controversy arising out of, or relating to, the payment of
Plan benefits that are payable from this Trust shall be
resolved pursuant to the provisions of the applicable Plan,
including provisions relating to the procedures for making
benefit claims under the Plan and in accordance with the
provisions, if any, requiring arbitration of Plan benefit
disputes.
(i) The Trustee shall receive written notification of the
Committee members or authorized signers and specimen
signatures, and may rely without question on those authorized
signers.
(j) The Trustee is not liable for acts of other fiduciaries and is
indemnified for loss due to acts or omissions of other
fiduriaries' Trustee, the Trustee's liability is limited to
gross negligence.
12
IN WITNESS WHEREOF, this Agreement has been executed this 12 day of
November, 2002 to be effective as of January 1, 2002.
TRINITY INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Title: Vice President, Shared Services
XXXXX FARGO BANK TEXAS, N. A.
By /s/ Xxxxx Xxxx
--------------------------------
Title: VICE PRESIDENT
00
XXX XXXXX XX XXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF DALLAS Section
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared Xxxxxx X. Xxxxx, known to me
to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said TRINITY INDUSTRIES,
INC., a Delaware corporation, and that he/she executed the same as the act of
such corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 12 day of November, 2002.
XXXXXX X. XXXXXXXX
Notary Public, State of Texas
My Commission Expires
07/29/2003
My Commission expires: /s/ XXXXXX X. XXXXXXXX
--------------------------------
07/29/2003 Notary Public, State of Texas
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared XXXXX XXXX, known to me to be
the person whose name is subscribed to the foregoing instrument and acknowledged
to me that the same was the act of the said XXXXX FARGO BANK TEXAS, N. A., and
that he/she executed the same as the act of such banking association for the
purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 26 day of November, 2002.
/s/ XXXXXXXX X. XXXXXXX
--------------------------------
Notary Public, State of Texas
My Commission expires: DENETHIA XXXXXX XXXXXXX
Notary Public, State of Texas
July 05, 2003 My Commission Expires
July 05, 2003
14
