TRUST AGREEMENT (this "Trust Agreement") made this 2nd day of February,
1998, by and between X'Xxxxxx Automotive, Inc. Deferred Compensation Plan, a
Missouri corporation (the "Company" or "Grantor") and BANKERS TRUST COMPANY, a
New York banking corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the nonqualified deferred compensation
plan(s) listed in Appendix A (the "Plan(s)");
WHEREAS, the Company has incurred or expects to incur liability under the
terms of the Plan(s) with respect to the Participants;
WHEREAS, the Company desires to establish a trust (hereinafter called the
"Trust") and, in its discretion, to contribute to the Trust assets that shall be
held therein, subject to the claims of the Company's creditors in the event the
Company is Insolvent, to provide an alternative source of funds to assist the
Company in meeting its liabilities under the Plan(s); and
WHEREAS, Bankers Trust Company is willing to act as Trustee of the Trust
upon all of the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Trustee declare and agree that the
Trustee will receive, hold and administer all sums of money and such other
property acceptable to the Trustee as shall from time to time be contributed,
paid or delivered to it hereunder, IN TRUST, upon all of the following terms and
conditions:
1. Establishment of Trust.
(a) The Company hereby deposits with the Trustee the property listed
on Schedule A attached hereto, and such additional deposits of cash or
other property acceptable to the Trustee, which shall become the principal
of the Trust, to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement. All such cash and other property, all
investments and reinvestments made therewith and the income and proceeds
thereof, less the payments or other distributions which, at the time of
reference, shall have been made by the Trustee, are referred to herein as
the "Trust" or "Fund".
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Code of which
the Company is the grantor. The Company acknowledges that determination of
the status of the Trust as a grantor trust has been made by the Company and
Bankers Trust Company assumes no responsibility in this regard. The Company
represents and covenants to the Trustee that at all times during the
continuation of the Trust: the Trust shall constitute an unfunded
arrangement and the establishment of this Trust shall not affect the status
of any Plan as an unfunded plan maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees and/or as an excess benefit plan for purposes of
Title I of ERISA; if any interests in the Plan(s) are deemed to be
"securities," within the meaning of the Securities Act, each offering by
the Company of any such interests either has been or will be registered
under the Securities Act or falls or will fall within an available
exemption from the registration requirements of such Act, and complies or
will comply with any applicable state securities laws; and the Trust is not
required to resister as an investment company under the Investment Company
Act of 1940, as amended.
(d) Unless and until withdrawn from trust as provided herein, the
principal of the Trust, and any earnings thereon, shall be held separate
and apart from other funds of the Company(or any other grantor trust
established by the Company) and shall be used exclusively for the uses and
purposes of Participants and general creditors of the Company as herein set
forth. Participants shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under a
Plan and this Trust Agreement shall be unsecured contractual rights of
Participants against the Company, and, subject to the other terms and
conditions of this Trust Agreement, to the extent that the Company fails to
pay a Participant benefits to which such Participant is entitled under a
Plan, such Participant shall be entitled to receive such deficiency from
the available assets of the Trust, but not in excess of the amount required
by the Payment Schedule to be paid to such Participant. Any claim of a
Participant to receive benefits under a Plan in addition to the payments
set forth in the Payment Schedule for such Participant shall be solely
against the Company and not against the Trust or the Trustee. Any assets
held by the Trust will be subject to the claims of the general creditors of
the Company under Federal and state law in the event the Company becomes
Insolvent.
(e) The Trustee shall be responsible only for contributions actually
received by it. The amount and timing of each or any contribution shall be
determined in the sole discretion of the Company. The Company may undertake
under the terms of a Plan or a related agreement to which the Trustee is
not a party to make contributions at specific intervals or on the
occurrence of a specific event. If the Company fails to make any such
contribution, in whole or in part, the Company shall be responsible for
notifying affected Participants. The Trustee shall have no obligation to
police the Company's compliance therewith or to notify Participants
thereof. The Trustee shall have no duty or responsibility to any Person to
bring, any proceeding or take any other action to compel any contributions
by the Company, except to add such contributions to the Trust for the
account of the designated Plans if and when received by the Trustee.
(f) The Trustee shall maintain a separate account, and such
sub-accounts as the Company shall deem advisable, to reflect the Equitable
Share of each Plan, or part thereof, in the Trust. The Company shall
provide the Trustee with sufficient information at the time of each
contribution to or distribution from the Trust in order that the Trustee
may determine such Equitable Shares.
2. Payments to Participants.
(a) The Company shall be solely responsible for keeping and providing
to the Recordkeeper, accurate books and records with respect to the
employees of the Company, their compensation and their beneficiaries'
rights and interests in the Trust pursuant to the Plan(s). As soon as
practicable after the establishment of this Trust and the addition of any
nonqualified deferred compensation plan to Appendix A, or the amendment of
any Plan, the Company shall provide the Recordkeeper with certified copies
of such Plans and/or amendments, and all related documents. The Trustee
shall not be required to maintain any separate records or accounts with
respect to any Participant, and any records or accounts required to be
maintained pursuant to the terms of any Plan shall be the responsibility of
the Company or Recordkeeper.
(b) As soon as practicable after the establishment of this Trust, the
Company shall deliver a Payment Schedule to the Trustee. The Company shall
regularly revise or update the Payment Schedule, as required. Except as
otherwise provided in Section 3, upon receipt from the Company of such
Payment Schedule, which shall include the amount of Federal, state and
local tax required to be withheld, the Trustee shall make payments at the
times and in the manner and form specified in such Payment Schedule to
Participants and to the Company with respect to any taxes withheld from
such payments in accordance with the Company's instructions, all to the
extent funds are available in the Trust with respect to the applicable
Plan(s). The Trustee shall not make any payments to Participants from the
Trust other than as required by the Payment Schedule.
(c) The Company may make payment of benefits directly to Participants
as they become due under the terms of the Plan(s). In such event, the
Company shall also provide for the reporting and withholding of any
Federal, state or local taxes that may be required to be withheld with
respect to such benefit payments. The Company shall notify the Trustee of
its decision to pay such benefits directly prior to the time amounts are
payable to Participants, and any such notice received by the Trustee shall
constitute an amendment of the affected Payment Schedule.
(d) If the principal of the Trust, and any earnings thereon, allocated
to a Plan are not sufficient to make payments of all benefits then payable
as of a payment date in accordance with the Payment Schedule, the Trustee
shall allocate the available assets pro rata among the payees and shall
notify the Company of such insufficiency. The Company shall make the
balance of each such payment to affected Participants in accordance with
the Payment Schedule.
(e) The Company shall have sole responsibility for the payment of all
withholding taxes to, and the filing of all required tax returns with, the
appropriate taxing authority and shall furnish each Participant with the
appropriate tax information form evidencing such payment and the amount
thereof. The Company shall provide the Trustee with a schedule of all
benefits that have been paid by the Company directly to Participants and a
schedule of all tax withholding payments made by it to the taxing
authorities within days after the end of the month in which such payments
have been made.
(f) The entitlement of a Participant to benefits under the Plan(s)
shall be determined by the Company and any claim for such benefits shall be
considered and reviewed by the Company or its designee under the procedures
set forth in the applicable Plan. The Trustee shall have no responsibility
with regard to administration of the Plan(s). Without limiting the
generality of the foregoing, the Trustee shall have no responsibility
should the Trust, or any Plan's interest in the Trust, have insufficient
assets from which to make any distribution called for under any Payment
Schedule or Plan, the Trustee shall have no responsibility to interpret the
provisions of the Plan(s), and the Trustee shall have no responsibility for
determining whether any Participant has become entitled to any distribution
under any Plan, or the amount thereof, and the Trustee shall be entitled to
rely solely upon the accuracy, timeliness and completeness of the latest
Payment Schedule delivered to it by the Company.
(g) The Trustee shall notify the Company periodically of any returned
or undeliverable payments to Participants. Any payments remaining unclaimed
for___________( ) months after such notice has been given to the Company
shall be returned to Trust an allocated to the account of the Plan(s)
originally debited.
(h) Anything in this Trust Agreement to the contrary notwithstanding,
payments by the Trustee to Participants under a Plan shall be allocated to
that Plan's Equitable Share. Unless and until all of the liabilities of a
Plan to its Participants have been satisfied, the Equitable Share of one
Plan shall not be used to satisfy the liabilities under any other Plan.
3. Trustee Responsibility Regarding Payments to Trust Beneficiary When
Company is Insolvent.
(a) At all times during the continuance of this Trust, as provided in
Section l(d) hereof, the principal and income of the Trust shall be subject
to claims of general creditors of the Company under Federal and state law.
(b) The Trustee shall cease payment of benefits to Participants if the
Company is Insolvent, as set forth below.
(1) The Board of Directors and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing, if the
Company is Insolvent. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee, or the Trustee has actual
knowledge, or the Trustee otherwise receives, in accordance with
paragraph (f) of Section 15, written notification, that the Company
has become or may be Insolvent, the Trustee shall determine whether
the Company is Insolvent for purposes of this Trust Agreement by
requesting confirmation that the Company is not Insolvent (a "Section
3(b)(1) Confirmation") from the Board of Directors, acting through its
Chairman, and the Chief Executive Officer of the Company. The Trustee
shall, without further inquiry of any Person, conclusively rely on
such confirmation for all purposes of this Trust Agreement, and,
pending such determination, the Trustee shall discontinue payment of
benefits to Participants.
(2) Unless the Trustee, acting through an individual referred to
in the final sentence of paragraph (f) of Section 15, has actual
knowledge that the Company is or may be Insolvent, or has received
written notification, in accordance with paragraph (f) of Section 15,
from the Company or a Person claiming to be a creditor of the Company
alleging that the Company is Insolvent, the Trustee shall have no duty
to the Company or the Company's creditors to inquire whether the
Company is Insolvent.
(3) If the Trustee does not receive a Section 3(b)(1)
Confirmation, the Trustee shall discontinue payments to Participants
and shall hold the assets of the Trust for the benefit of the
Company's general creditors until the Trustee either receives a court
order directing the disposition of the Trust, or the Chairman of the
Board of Directors and the Chief Executive Officer of the Company
deliver a written notice to the Trustee confirming that the Company is
no longer Insolvent (a "Section 3(b)(3) Confirmation"); provided,
however, in no event shall the provisions of Sections 10 and 11
providing for the payment of the Trust's expenses and taxes be
suspended.
(4) Nothing in this Trust Agreement is intended to and shall not
in any way diminish any rights of Participants to pursue their rights
as general creditors of the Company with respect to benefits due under
the Plan(s) or otherwise.
(5) The Trustee shall resume the payment of benefits to
Participants in accordance with Section 2 only after the Trustee has
received a Section 3(b)(1) or a Section 3(b)(3) Confirmation.
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust and subsequently
resumes such payments pursuant to Section 3(b), the first payment following
such discontinuance shall include the aggregate amount of all payments due
to Participants under the terms of the Plan(s) for the period of such
discontinuance, less the aggregate amount of any payments certified by the
Company to the Trustee to have been made to such Participants by the
Company in lieu of the payments provided for hereunder during any such
period of discontinuance.
4. Payments to Company.
Except as provided in Sections 3, 10 and 11, the Company shall have no
right or power to direct the Trustee to return to the Company or to divert to
others, any of the Trust assets before all payment of benefits have been made to
Participants pursuant to the terms of the Plan(s), as certified to the Trustee
by the Company in writing, and all obligations owed to the Trustee under Section
10, and all taxes under Section 11, have been fully satisfied or otherwise
provided for. If a Plan terminates prior to the termination of this Trust, any
excess assets after the satisfaction of all liabilities thereunder and
hereunder, shall be allocated among the remaining Plans on Schedule A in such
manner, pro rata or otherwise, as the Company shall direct.
5. Investment Authority.
(a) Discretionary authority for the management and control of the
assets of the Trust may be retained, allocated or delegated, as the case
may be, for one or more purposes, to and among the Asset Managers by the
Company in its absolute discretion. The terms and conditions of
appointment, authority and retention of any Asset Manager shall be the sole
responsibility of the Company. Any investment policy, and any related
guidelines, established by the Company from time to time, shall be
communicated to the affected Asset Manager and monitored by the Company.
The assets of the Trust shall be invested and reinvested, without
distinction between principal and income, at such time or times in such
investments pursuant to such investment strategies or courses of action and
in such shares and proportions, as each Asset Manager, in its sole
discretion, shall deem advisable, subject to such policies and guidelines,
if any.
(b) The Company shall promptly notify the Trustee in writing of the
appointment or removal of an Asset Manager and shall specify the portion of
the Trust to be managed by such Asset Manager. Each Asset Manager shall
have sole and complete investment responsibility for the assets of the
Trust that are subject to its discretionary authority or control and the
Trustee shall receive, hold and transfer assets purchased or sold by the
Asset Manager in accordance with the directions of such Asset Manager. The
Trustee shall be under no duty or obligation to review or to question any
direction of any Asset Manager, or to review the securities or any other
property held in any Directed Fund with respect to prudence, proper
diversification or compliance with any limitation on an Asset Manager's
authority under this Trust Agreement or the terms of a Plan, any investment
policies and guidelines, or any agreement entered into between the Company
and the Asset Manager or imposed by applicable law, or to make any
suggestions or recommendations to any Asset Manager or the Company with
respect to the retention or investment of any Directed Fund. The Trustee
shall have no authority to take any action or to refrain from taking any
action with respect to any asset of a Directed Fund unless and until it is
directed to do so by the Asset Manager of such Directed Fund or the
Company.
(c) The Trustee will have no responsibility for any asset allocated to
a Directed Fund upon the resignation or removal of an Asset Manager unless
and until the Trustee has been notified in writing by the Company that the
Asset Manager's authority will be terminated or relinquished, and the
Trustee has agreed in writing to become an Asset Manager or that such
assets are to be integrated with a Discretionary Fund, as the case may be.
In no event shall the Trustee be liable for any losses to the Trust
resulting from the disposition of any investment made for a Directed Fund
or for the retention of any illiquid or unmarketable investment or for the
holding of any other asset acquired therefor if the Trustee is unable to
dispose of such investment because of any securities laws restrictions or
if an orderly liquidation of such investment is difficult under prevailing
conditions, or for failure to comply with any investment or diversification
limitations imposed by the Company, or for any other violation of the terms
of this Trust Agreement, any Plan or applicable law or laws, as a result of
the addition of such assets to the Discretionary Fund.
(d) No person dealing with the Trustee or an Asset Manager hereunder
shall be under any obligation to see to the proper application of any money
paid or property delivered to the Trustee or the Asset Manager, or to
inquire into the authority of the Trustee or the Asset Manager as to any
transaction, or the validity, expediency or propriety thereof.
6. Powers of the Asset Managers.
(a) Without in any way limiting the powers and discretions conferred
upon the Asset Managers by the other provisions of this Trust Agreement or
by law, each Asset Manager shall be vested with the following powers and
discretions, and, upon the directions of the Asset Manager, the Trustee
shall make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be
necessary or appropriate to enable such Asset Manager to carry out such
powers and discretions:
(1) to invest and reinvest in any property, real, personal or
mixed, wherever situated and whether or not productive of income or
consisting of wasting assets, including, without limitation, common
and preferred stocks, bonds, notes, debentures (including, convertible
stocks and securities but not including any stock other security (or
right to acquire such stock or other security) of the Company (other
than a de minimis amount held in commingled investment vehicles in
which an Asset Manager invests)) leaseholds, mortgages, certificates
of deposit or demand or time deposits (including any such deposits
with the Trustee), securities of investment companies, registered or
unregistered (notwithstanding that the Asset Manager or an affiliate
of the Asset Manager, acts as investment adviser, custodian, transfer
agent, registrar, sponsor, distributor or manager or provides, for
compensation, other services to the investment company), interests in
partnerships and trusts, insurance contracts, and oil, mineral or gas
properties, royalties, interests or rights, without being limited to
the classes of property in which trustees are authorized to invest by
any applicable law or any rule or court of any state and without
regard to the proportion any such property may bear to the entire
amount of the Trust assets;
(2) to retain any property at any time received by the Trust;
(3) to purchase, sell, exchange, convey, transfer or otherwise
dispose of any property by private contract or at public auction;
(4) to grant and exercise options for the purchase or exchange of
property held by it;
(5) to enter into contracts or to make commitments, either alone
or in company with others, to sell or acquire property;
(6) to purchase, sell, write or issue puts, calls or other
options, covered or uncovered, to enter into financial futures
contracts, forward placement contracts, standby contracts and similar
arrangements commonly referred to as "derivatives," and in connection
therewith, to deposit, hold (or direct the Trustee to deposit or hold)
or pledge assets of the Trust;
(7) to exercise all voting or other rights (but subject to the
suspension of any voting rights as a result of any broker loan or
similar agreement); to give general or special proxies or powers of
attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to
make any payments incidental thereto; to participate in any plan of
reorganization, consolidation, merger, combination, liquidation or
other similar plan relating to property that is subject to its
management and control and to consent to or oppose any such plan or
any action thereunder or any contract, lease, mortgage, purchase, sale
or other action by any person, and to delegate discretionary powers
and to pay any assessments or charges in connection therewith;
(8) to manage administer, operate, insure, repair, improve,
develop, preserve, mortgage, lease or otherwise deal with, for any
period, any real property or any oil, mineral or gas properties,
royalties, interest, or rights directly or through any corporation,
either alone or by joining, with others, using Trust assets for any
such purposes, to modify, extend, renew, waive or otherwise adjust any
provision of any such mortgage or lease and to make provision for
amortization of the investment depreciation of the value of such
property; and
(9) to acquire the remaining undivided interest of any Affiliate
Trust created by an Affiliate pursuant to Section 18 without notice to
or consent of any other Person.
(b) In addition, the Trustee is hereby authorized:
(1) to register any securities held in the Trust or to take title
to any property in its own name or in the name of a nominee or
nominees, with or without the addition of words indicating that such
securities or other property are held as trustee, and to hold any
securities in bearer form, and to combine certificates representing
such securities with certificates of the same issue held by the
Trustee in other representative capacities or as agent for customers,
or to deposit or to arrange for the deposit of such securities in any
qualified central depository, domestic or foreign, even though, when
so deposited, such securities may be merged and held in bulk in the
name of the nominee of such depository with other securities deposited
therein by other depositors, or to deposit or arrange for the deposit
of any securities issued by the United States Government, or any
agency or instrumentality thereof, with a Federal Reserve Bank, but
the books and records of the Trustee shall at all times show that all
such investments are part of the Trust;
(2) to employ on behalf of the Trust suitable agents,
accountants, actuaries, investment advisers, financial or employee
benefits consultants, sub-custodians and depositories, domestic or
foreign, counsel, who may be counsel to the Company or the Trustee,
and others, to assist it in determining or performing its duties or
obligations hereunder, and to pay their reasonable expenses and
compensation from the Trust to the extent not paid by the Company, and
to confer upon any depository or sub-custodian the powers conferred
upon the Trustee by subparagraph (1) of this Section 6(b) as well as
the power to appoint subagents and sub-depositories, wherever
situated, in connection with the retention of securities or other
property;
(3) to extend the time of payment of any obligation held by it;
(4) subject to Section 9(b) and with the consent of the Company:
to compromise, compound, submit to arbitration or settle any claims,
debts, damages or obligations due or owing to or from, or otherwise
adjust all claims in favor of or against, the Trust, except that the
consent of the Company shall not be required in connection with any
claim with respect to which the Trustee is not entitled to be
reimbursed or indemnified for liabilities, damages and expenses under
this Agreement; to commence or defend suits or legal proceedings to
protect any interest of the Trust; and to represent the Trust in all
suits or legal proceedings in any court or before any other body or
tribunal;
(5) to organize under the laws of any state a corporation or
trust for the purpose of acquiring and holding title to any property
which it is authorize or directed to acquire hereunder and to
exercise, or permit the Asset Manager with respect thereto, to
exercise any or all of the powers set forth herein;
(6) to hold uninvested any monies received by it, without
incurring any liability for the payment of interest thereon until such
monies shall be invested or disbursed;
(7) to hold and invest (or permit the investment by Asset
Managers) of the property of two or more Plans, or parts thereof, or
two or more Trusts, or parts thereof, created by the Company and/or
one or more of its Affiliates pursuant to Section 18 in solido,
without distinction or separation between such Plans or Trusts or
parts thereof; provided, however, (i) each separate Plan or Trust, as
the case may be, and part thereof shall have a separate and undivided
interest in the whole, subject to all the terms and conditions of the
separate Trust and the Plans funded thereunder, and (ii) the books and
records of the Trustee shall at all times reflect the Equitable Share
of each Plan or Trust; and
(8) to be reimbursed for the expenses incurred in exercising any
of the foregoing powers or to pay the reasonable expenses incurred by
any agent, manager or trustee appointed pursuant hereto.
(c) All rights associated with the assets of the Trust shall be
exercised by the Company, the Trustee, or an Asset Manager, as hereinabove
provided, and shall in no event be exercisable by, or rest with,
Participants.
(d) The Company reserves the right to transfer to the Trust paid-up
life insurance contracts (each a "PLIC") on or for the life of any
Participant or to direct, in writing, the Trustee to purchase a PLIC on or
for the life of any such Participant out of amounts held in the Trust with
respect to one or more Plans. A PLIC shall be an asset of the Trust subject
to the claims of the Company's creditors in the event the Company is
Insolvent. The proceeds of any PLIC shall, upon the death of the insured
Participant or otherwise, upon receipt by the Trustee, be credited to the
Equitable Share of the applicable Plan. The Trustee shall have no power to
name a beneficiary of the PLIC other than the Trust, to consent to the
assignment of the PLIC (as distinct from conversion of the PLIC to a
different form upon the written direction of the Company) other than to a
successor trustee hereunder, or to loan to any Person (other than the
Company) the proceeds of any borrowing against such PLIC. Except as
provided in this paragraph (d), the Trustee's sole responsibility with
respect to any insurance contract, including a PLIC, to be held under the
Trust or purchased with Trust assets shall be as directed owner and
custodian thereof and the Company shall be solely responsible for
determining the issuer and the terms of any such insurance contract and
monitoring the terms of the insurance contract and the issuer thereof to
determine and protect the Trust's rights and to instruct the Trustee in the
exercise of those rights.
(e) When the Trustee delivers property against payment, delivery of
the property and receipt of payment may not be simultaneous. In such case,
the risk of non-receipt of payment shall be the Trust's, and the Trustee
shall have no liability therefor. All credits to the Trust of the
anticipated proceeds of sales and redemption of property and of anticipated
income from property shall be conditional upon receipt by the Trustee of
final payment and may be reversed to the extent final payment is not
received. At the discretion of the Trustee, the Trust may make use of such
conditional credits. To the extent such credits do not become unconditional
by receipt of final payment, the Trust shall reimburse the Trustee upon
demand for the amount of such conditional credits. When the Trustee is to
receive property, it is authorized to accept documents in lieu of such
property as long as such documents contain the agreement of the issuer
thereof to hold such property subject to the Trustee's sole order. The
Trustee may, in its discretion, advance funds to the Trust to facilitate
the settlement of any trade. In the event of such an advance, the Trust
shall immediately reimburse the Trustee for the amount thereof.
7. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses charged to income and taxes, shall be added to principal and
reinvested.
8. Accounting by Trustee.
(a) The Trustee shall maintain records of all investments, receipts,
and disbursements under this Trust Agreement, and all accounts, books and
records relating thereto shall be open to inspection and audit at all
reasonable times during normal business hours by any Person designated by
the Company.
(b) Within a reasonable time after the close of each calendar year (or
such shorter period as to which the Company and Trustee may agree), or of
any termination of the duties of the Trustee hereunder, the Trustee shall
deliver to the Company a written statement of transactions reflecting its
acts and transactions as trustee hereunder during such calendar year (or
such shorter period), or during such period from the close of the last
calendar year or last statement period to the termination of the Trustee's
duties, respectively, including a statement of the then current value of
the Trust. Any such statement shall be deemed an account stated and
accepted and approved by the Company, and the Trustee shall be relieved and
discharged to all Persons with respect to all matters and things contained
in such statement as though such account had been settled and allowed by a
judgment or decree of a court of competent jurisdiction in an action or
proceeding to which the Company and all Persons having any beneficial
interest in the Trust were parties, unless the Company shall have filed
with the Trustee specific written exceptions or objections to any such
statement within sixty (60) days of receipt thereof by the Company.
(c) The Trustee will determine the value of the Trust as of each
reporting date under Section 8. Except in the case of an investment in
which amortized cost is the valuation method designated, assets will be
valued at their market values at the close of business on such date, or, in
the absence of readily ascertainable market values, at such values as the
Trustee determines in, accordance with methods consistently followed and
uniformly applied or obtained as provided below. The Company acknowledges
and agrees that in the normal course of valuing assets, the Trustee may
rely on pricing information provided by recognized pricing services which
the Trustee deems to be reliable or provided by the Asset Manager or
dealers or sponsors of pooled investment vehicles ("dealers"), and that the
Trustee does not verify, warrant or represent the accuracy or completeness
of such information, and shall not be liable for any diminution or
inflation in the value of any assets as a result of any inaccurate or
incomplete information furnished or transmitted by such pricing services or
the Asset Managers or dealers. The Trustee may rely for all purposes of
this Trust Agreement on the latest valuation information submitted to it
even if such information predates the purported valuation date. The Company
will provide or cause the Asset Managers to provide the Trustee with all
information needed by the Trustee to value such assets and to report and
account under this Trust Agreement.
(d) The Trustee shall have the right, at the expense of the Trust, to
apply at any time to a court of competent Jurisdiction for judicial
settlement of any account of the Trustee not previously settled as herein
provided or for the determination of any question of construction or for
instructions. In any such action or proceeding it shall be necessary to
join as parties only the Trustee and the Company (although the Trustee may
also join such other Persons as it may deem appropriate), and judgment or
decree entered therein shall be conclusive.
9. Indemnification; Liabilities of the Trustee.
(a) The Trustee shall be held harmless by the Company from and against
any claim, liability, loss, damage or expenses (including, but not limited
to, reasonable attorneys' fees and expenses incurred in preparing,
investigating or defending any claim) that may be asserted against the
Trustee arising out of any action taken or omitted by the Trustee pursuant
to this Trust Agreement, except due to the Trustee's own gross negligence
or willful misconduct. Any loss, damage or expense that is not paid by the
Company under this Section or Section 10 shall be paid from the assets of
the Trust and, until so paid, shall constitute a charge on the Trust and a
lien against the assets of the Trust in favor of the Trustee.
(b) If the Trustee undertakes or defends any litigation, action,
proceeding or appeal arising in connection with this Trust, the Company
agrees to indemnify the Trustee against the Trustee's costs, expenses and
liabilities (including without limitation, reasonable attorneys' fees and
expenses) relating thereto and to be primarily liable for such payments,
and to make periodic payments in respect of such fees and expenses during
the course of any such proceedings. The Trustee shall not be required to
take any action pursuant to Section 6(b)(4), or pursuant to a direction by
the Company pursuant to Section 11 (c), or otherwise, unless it shall have
been indemnified by the Company or the Trust to the Trustee's reasonable
satisfaction against any liabilities and expenses it might incur therefrom.
The Trustee shall also be entitled to reasonable payment from the Trust for
allocation of the Trustee's personnel to the investigation and defense or
prosecution thereof, at the Trustee's normal hourly billing rates. If the
Company does not pay such costs, fees, expenses and liabilities in a
reasonably timely manner, the Trustee shall discontinue participation in
any such litigation, action, proceeding or appeal, and shall charge the
assets of the Trust to the extent sufficient for any unpaid costs, fees,
expenses and liabilities.
(c) Any charges allocable to the Trust under this Section or Section
10 shall be allocated pro rata, to and among the Equitable Shares of the
Plans having an interest in the claim, action or proceeding.
(d) Under no circumstances shall the Trustee incur liability in
contract, tort or otherwise to any Person for any consequential, special or
punitive damages, whether or not foreseeable, with respect to the Trust or
its role as Trustee of the Trust.
10. Expenses and Compensation of Trustee.
The Company shall pay to or reimburse the Trustee its reasonable expenses
incurred or arising of the management and administration of the Trust,
including, without limitation, advances for or prompt reimbursement of
reasonable fees and expenses of counsel and any other Person which provides
services contemplated herein or under any Plan, and, in addition, the Company
shall pay the Trustee reasonable compensation for the Trustee's services
hereunder, the amount of which shall be agreed upon from time to time by the
Company and the Trustee in writing; provided, however, that, to the extent that
the Company does not timely pay or reimburse any amounts payable or reimbursable
by the Company pursuant to this Section 10, such amounts shall be paid or
reimbursed from the assets of the Trust and, until so paid or reimbursed, shall
be a charge on the Trust and shall constitute a lien on the assets of the Trust
in favor of the Trustee. If the Trustee amends its fee schedules and forwards an
amended fee schedule to the Company requesting its agreement thereto and the
Company fails to object thereto in writing within ninety (90) days thereafter,
the amended fee schedule shall be deemed to be agreed upon by the Company and
the Trustee, as of its stated effective date.
11. Taxes.
(a) All income, deductions and credits attributable to the Trust
belong to the Company and will be included on the Company's income tax
returns. Any and all Federal, state, local or other tax returns required to
be filed with respect to the Trust shall be prepared and filed by the
Company. The Company shall pay any Federal, state, local or other taxes
imposed or levied with respect to the assets and/or income of the Trust or
any part thereof under existing, or future laws. Upon furnishing the
Trustee with evidence reasonably required by the Trustee of any such tax
payments made directly by the Company, the Company shall be entitled to
receive reimbursement from the assets of the Trust for the full amount of
such taxes paid by it. The Trustee shall promptly notify the Company of any
notice it receives relating to any taxes imposed or levied with respect to
the assets and/or income of the Trust. If the Trustee receives notice that
any such taxes are not timely paid by the Company, the Trustee shall pay
such taxes from the assets of the Trust to the extent sufficient therefor,
prior to any payments to Participants, after notifying the Company as
herein provided. As provided in Section 2, the Trustee shall deduct any
taxes required to be withheld with respect to any payments made to
Participants pursuant to the Trust, with any such taxes being paid out of
the Trust.
(b) The Company, in its discretion, may undertake, at the sole expense
of the Company, to defend any tax claims which are asserted by the Internal
Revenue Service against any Participant and which the Company determines
would affect Participants generally. In addition, the Company may contest
or, subject to Section 9(b), direct the Trustee to contest the validity or
amount of any tax, claim, assessment or demand otherwise respecting the
Trust or any part thereof, but the Company shall have the sole authority
and responsibility to determine whether or not to appeal any determination
made by the Internal Revenue Service or by any court. The Company also
agrees to reimburse any Participant for any interest or penalties in
respect of tax claims hereunder which the Company determines would affect
Participants generally, upon receipt of documentation of same. Any
distributions from the Trust to a Participant under this Section 11 (c)
(other than reimbursements of interest or penalties referred to in the
preceding sentence) shall reduce the benefits payable to such Participant
under the Plan(s).
12. Resignation and Removal of Trustee; Appointment of Successor.
(a) The Trustee may resign or be removed upon sixty (60) days prior
written notice to or from the Company, as the case may be, at any time.
(b) Such resignation or removal shall be effective upon the earlier of
the expiration of the notice period provided herein (unless a shorter
period is agreed upon by the parties) and the appointment of a successor
trustee.
(c) Upon resignation or removal of the Trustee, the Company shall
appoint any natural person or persons or a bank or trust company, or
combination thereof, as a successor to replace the Trustee hereunder. Any
such successor trustee shall have all the rights, powers and duties granted
the Trustee hereunder, including ownership rights in the Trust assets. Such
appointment of a successor trustee shall be effected by delivery to the
Trustee of (i) a written appointment of such successor trustee, duly
executed by the Company and (ii) a written acceptance by such successor
trustee, duly executed thereby. The Trustee shall execute any instruments
necessary or reasonably requested by the successor trustee to evidence the
transfer.
(d) If a successor trustee shall not have been appointed prior to the
effective time of the Trustee's resignation, the Trustee may apply to any
court of competent jurisdiction for the appointment of a successor trustee
or for instructions. All expenses of the Trustee in connection with such
proceeding shall be allowed and charged to the Trust as administrative
expenses of the Trust.
(e) The Trustee is authorized to reserve such amount as it may deem
advisable for payments of its fees and expenses in connection with the
settlement of its account or otherwise, and any balance of such reserve
remaining after the payment of such fees and expenses shall be paid over to
the successor trustee. The Trustee is authorized to invest such reserves in
any investment authorized under the terms of this Trust Agreement
appropriate for the temporary investment of cash reserves of trusts. After
the acceptance and approval of its account and the payment of its expenses,
the Trustee shall transfer and deliver the balance of the Trust to such
successor, and the Trustee shall have no further responsibilities to any
Person under this Trust Agreement.
13. Amendment or Termination.
(a) This Trust Agreement (including any Appendices or Schedules) may
be amended, in whole or in part, at any time and from time to time, by the
Company. Notwithstanding the foregoing, (i) the Company shall ensure that
no such amendment conflicts with the terms of the Plan(s) or shall make the
Trust revocable, and (ii) no amendment (including the deletion or addition
of a Plan on Appendix A) which affects the rights, duties or
responsibilities of the Trustee may be made without the Trustee's prior
written consent.
(b) Any limitations contained in Section 13(a) shall not apply with
respect to any amendment which is reasonably necessary, in the opinion of
counsel to the Company and reasonably acceptable to the Trustee, to
preserve the status of the Trust as a grantor trust and the status of the
Plan(s) as unfunded for Federal income tax purposes and for purposes of
ERISA.
(c) The Trust shall not terminate until the date on which Participants
are no longer entitled to benefits pursuant to the terms of the Plan(s);
provided, however, the Trust shall terminate prior to such date if and when
all of the assets of the Trust are consumed in satisfaction of the claims
of the general creditors of the Company pursuant to Section 3. Upon
satisfaction of all liabilities under the Plans with respect to all
Participants, the Company, pursuant to a resolution of its Board of
Directors, may terminate the Trust by delivery to the Trustee of (i) a
certified copy of such resolution, (ii) a certification of the Plans,
enrolled actuary confirming, that all liabilities under the Plans have been
satisfied, and (iii) a written instrument of termination duly executed and
acknowledged in the same form as this Trust.
(d) Upon termination of the Trust in accordance with this Section 13,
the Trustee shall, after acceptance and approval of its account, at the
direction of the Company, return any assets remaining in the Trust to the
Company. Upon completing such distribution, the Trustee shall be relieved
and discharged of any responsibilities under this Trust Agreement. The
powers of the Trustee under this Section and Section 12 shall continue as
long as any assets of the Trust remain in its possession.
14. Authorities.
(a) After the execution of this Trust Agreement, the Company or any
successor thereto shall promptly file with the Trustee a certified list of
the names and specimen signatures of the officers of the Company and any
Persons authorized to act for the Company or any successor thereto. The
Company shall cause each Investment Manager to file with the Trustee a
certified list of the names and specimen signatures of those individuals
authorized to direct the Trustee on its behalf. The Trustee shall be fully
protected in acting upon any certifications, instructions, notices,
directions, requests or approvals and other communications
("Instructions"), howsoever transmitted, received by the Trustee and
purporting to be from any such Persons which the Trustee reasonably
believed to be from such a Person, each such Instruction constituting a
certification by the Person so giving that such Instruction is in
conformity with the terms of the Plan(s), the Trust and/or other related
documents, and the Trustee shall be fully protected in omitting to act in
the absence of Instructions.
(b) Any agreement or understanding between the Company and any Person
(including an Investment Manager) or any other provision of this Trust
Agreement to the contrary notwithstanding, all Instructions to the Trustee
shall be in writing or in such other form, including transmission by
electronic means through the facilities of third parties or otherwise,
agreed to by the Trustee. The Trustee shall be fully protected in acting in
accordance therewith, but shall not thereby assume responsibility for any
errors or inaccuracies contained in the Instructions to the Trustee or for
any delays or failures in such transmission facilities caused by the
failure, breakdown or unavailability of any such means of communication or
equipment not due to the Trustee's own gross negligence or willful
misconduct.
(c) The Trustee shall have the right to assume, in the absence of
notice in writing to the contrary, that no event constituting a change in,
or terminating, the authority of any Person, including any Asset Manager,
has occurred.
(d) The Trustee shall incur no liability under this Trust Agreement
for any failure to act pursuant to any Instruction from any Asset Manager,
the Company or any other Person or the designee of any of them unless and
until it shall have been received in the form acceptable to the Trustee.
15. 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) Except as required by law, benefits payable to Participants 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 by
creditors of Participants.
(c) This Trust Agreement shall be construed and interpreted under, and
the Trust hereby created shall be governed by, the laws of the State of New
York, insofar as such laws do not contravene any applicable Federal laws,
rule or regulations. Section 9 of this Trust Agreement shall be construed
as a contract between the Company and the Trustee according to the laws of
the State of New York in effect from time to time. Nothing in this Trust
Agreement shall be construed to subject the Trust created hereunder to
ERISA or to cause it to be treated as other than a grantor trust.
(d) This Trust Agreement shall be binding upon and inure to the
benefit of any successor(s) or assign(s) of the Company or the Trustee, or
any of its businesses, in whole or in part, as the result of merger,
consolidation, reorganization, transfer of assets or otherwise, and any
subsequent successor thereto. In the event of any such merger,
consolidation, reorganization, transfer of assets or other similar
transaction, the successor to the Company or the Trustee or its business or
relevant part thereof or any subsequent successor thereto shall promptly
notify the other party hereto in writing of its successorship and furnish
it with the information specified in Section 14.
(e) The undertakings and obligations of the Company, and the
entitlements of the Trustee, under Sections 9 and 10 of this Trust
Agreement shall survive the termination, amendment or restatement of this
Trust Agreement, or the resignation or removal of the Trustee.
(f) Until notice be given in writing to the contrary, all
instructions, notices and other communications shall be delivered or sent:
If to the Trustee to:
If to the Company to:
(g) Notwithstanding, any powers granted to the Trustee or any other
Person pursuant to this Trust Agreement or to applicable law, no Person
shall 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.
(h) The Company shall, at any time and from time to time, upon the
reasonable request of the Trustee, execute and deliver such further
instruments and do such further acts as may be necessary or proper to
effectuate the purpose of this Trust Agreement.
(i) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
(j) The words "paragraph" and "Section" shall be to provisions of this
Trust Agreement and the titles to Sections of this Trust Agreement are for
convenience of reference only, and this Trust Agreement is not to be
construed by reference thereto.
(k) This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which shall together constitute only one agreement.
(l) The Trustee's obligations are limited to those set out in this
Trust Agreement. No additional duties or obligations shall be imposed on
the Trustee or implied from the terms of this Trust Agreement. In case of
any conflict or inconsistency between the terms of this Trust Agreement and
any Plan, in determination, the obligations and responsibilities of the
Trustee, the terms of this Trust Agreement shall control.
16. Definitions.
When used herein, the following terms shall have the following meanings:
(1) "Asset Manager" shall mean, individually or collectively as the
context shall require, the Trustee, with respect to those assets of the
Trust allocated to the Discretionary Fund, or an Investment Manager or the
Company with respect to those assets of the Trust allocated to a Directed
Fund to the extent each is authorized to exercise, discretionary investment
authority or control over such assets under Section 5(a).
(2) "Chief Executive Officer" shall mean the highest ranking officer
of the Company at the relevant time.
(3) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and the regulations promulgated and rulings issued thereunder.
(4) "Directed Fund" shall mean each portion of the Trust subject to
the discretionary management and control of an Asset Manager other than the
Trustee. If more than one Directed Fund is established under this Trust
Agreement, "Directed Fund" shall also mean the Directed Fund subject to the
management and control of a particular Asset Manager, as the context may
require.
(5) "Discretionary Fund" shall mean any portion of the Trust subject
to the discretionary management and control of the Trustee pursuant to a
separate written asset management agreement between the Company and the
Trustee.
(6) "Equitable Share" shall mean the interest of any Plan in the Trust
or, if the context shall require, an Investment Fund.
(7) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated and rulings issued
thereunder.
(8) "Insolvent" shall mean (i) the Company is generally not paying its
debts as such debts become due unless such debts are the subject of a bona
fide dispute, or (ii) the Company is subject to a pending proceeding, as a
debtor under the United States Bankruptcy Code, Title 11 of the United
States Code, or other proceedings intended to liquidate or rehabilitate the
Company's estate, or (iii) the Company is subject to regulation by Federal
or state regulators and such regulators have determined that the Company is
insolvent or should be placed in insolvency or similar proceedings [or
insert other industry-specific language].
(9) "Investment Fund" shall mean an account allocated to an Asset
Manager for investment in which one or more Plans may have an interest.
(10) "Investment Manager" shall mean (i) an investment adviser
registered under the Investment Advisers Act of 1940, (ii) a bank as
defined in that Act, or (iii) an insurance company qualified to manager,
acquire or dispose of any assets of the trusts under the laws of one or
more State.
(11) "Participant" shall mean an active or former employee or director
of the Company who is a participant under a Plan, and any beneficiary of
such an employee or director.
(12) "Payment Schedule" means the document delivered to the Trustee by
the Company or Recordkeeper showing the amounts payable in accordance with
the terms of the Plan(s) in respect of each Participant, the manner in
which such amounts are to be paid (as provided for or available under the
Plan(s)), the time of commencement for payment of such amounts, the
addresses or depository to which such payments are to be sent, and the
Plan(s), and if relevant, the Investment Fund(s), to be charged.
(13) "Person" shall mean a natural person, trust, estate, corporation
of any kind or purpose, mutual company, joint-stock company, unincorporated
organization, association, partnership, joint venture, employee
organization, committee, board, Participant, trustee, partner, or venturer
acting in an individual, fiduciary or representative capacity, as the
context may require.
(14) "Recordkeeper" shall mean the Company, or, if different, the
Person (other than the Trustee) appointed by the Company to discharge the
Company's obligations under Section 2.
(15) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(16) "writing," or "written" shall mean a manually signed instrument
or electronic transmission through a facility approved by the Trustee.
17. Effective Date.
The effective date of this Trust Agreement shall be the date of its
execution set forth on page 1 of this Trust Agreement, or, if later, the date of
its adoption by a Plan added to Appendix A after such date.
18. Establishment of Trust by Affiliates.
(a) Any affiliate or subsidiary of the Company (an "Affiliate" and
"Parent", respectively) that is obligated to provide benefits to
Participants under one or more non-qualified deferred compensation or
supplemental retirement Plans may, with the consent of the Parent and the
Trustee, by execution of an adoption agreement substantially in the form of
Appendix B, elect to establish a trust (the "Affiliate Trust"), which shall
be a separate trust subject to all of the terms and conditions of this
Trust Agreement (including the provisions of this Section 18) to the same
extent and effect as if it had been separately negotiated between the
Trustee and such Affiliate (the "Affiliate Trust Agreement"), pursuant to
which (and except as herein provided) such Affiliate shall be "the Company"
and Grantor thereof for all purposes of such Affiliate Trust Agreement
(including, without limitation, the provisions of paragraphs (c) and (d) of
Section I and Section 3, which provisions shall be construed to apply
separately to the Parent and each Affiliate.
(b) The Affiliate-Grantor appoints Parent, including its designees
under Section 14, as its agent for all purposes of the Affiliate Trust
Agreement to receive notices, reports or other communications hereunder, to
give Confirmations under Section 3, or, where action is required to or may
be taken by or on behalf of the "Company" to take or refrain from taking
such acts, and Affiliate shall be bound by the decisions, Instructions and
actions of the Parent under or affecting the Affiliate Trust Agreement, and
the Trustee shall be fully protected by the Parent and the
Affiliate-Grantor under Section 9 and Section 15(e) in relying upon the
decisions, instructions, actions, and directions of the Parent; provided,
however, in no event shall Parent use the power and authority granted it
hereunder to direct the Trustee to pay over any assets of the Trust to the
Parent under Section 4 or Section 13, or creditors of Parent under Section
3.
(c) The Trustee shall not be required to give notice to or to obtain
the consent of the Affiliate-Grantor with respect to any action to be taken
by the Trustee on or pursuant to the actions of the Parent pursuant to the
Affiliate Trust Agreement, and the Parent shall have the sole authority to
enforce the Affiliate Trust Agreement on behalf of any Affiliate.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written
Attest: X'XXXXXX AUTOMOTIVE, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxx
Title: Executive Assistant Title: Vice-President, Human Resources
Attest: BANKERS TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary Title: Vice-President
