Common use of Company Insolvency Clause in Contracts

Company Insolvency. 3.1 The Company shall be considered "Insolvent" for purposes of this Trust Agreement if: (i) The Company shall (A) admit in writing its inability to pay its debts generally as they become due, (B) commence voluntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect, (C) make a general assignment of its assets for the benefit of its creditors, (D) consent to the appointment of a receiver for itself or any substantial part of its property, (E) consent to the relief sought in any involuntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect or (F) take corporate action in furtherance of any of the aforesaid purposes; or (ii) There shall be entered by a court of competent jurisdiction any order, decree or other for relief with respect to the Company: (A) in any involuntary proceedings against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or (B) appointing, without the consent of the Company, a receiver for the Company or any substantial portion of its property, or (C) approving the commencement of involuntary proceedings filed against the Company under any applicable law now or hereafter in effect seeking the winding-up or liquidation of the Company, and in any such instance the order or decree so entered shall not be vacated or set aside or stayed within sixty (60) days after the date of entry thereof. 3.2 At all times during the term of this Trust, the Trust Fund shall be subject to claims of the general creditors of the Company as hereinafter set forth. At any time the Trustee has actual knowledge (or otherwise determines) that the Company is Insolvent, the Trustee shall cease all further Deferred Payments to Participants and shall thereafter hold the Trust Fund solely and exclusively for distribution in payment and satisfaction of any and all claims of the Company's creditors as a court of competent jurisdiction may direct. 3.3 The Company's Chief Financial Officer and the Board shall each have the affirmative duty to provide immediate written notice to the Trustee in the event the Company should become Insolvent. Should the Chief Financial Officer or the Board provide such written notice to the Trustee, or should one or more creditors of the Company allege in writing to the Trustee that the Company has become Insolvent, then the Trustee shall, within thirty (30) days after receipt of such notice or allegation, make an independent determination as to whether the Company is in fact Insolvent. Pending such determination, the Trustee (i) shall make no further Deferred Payments to Participants under the Plan, (ii) shall hold the Trust Fund for the benefit of the Company's creditors and (iii) shall not resume Deferred Payments to Participants in accordance with Article II of this Trust Agreement until such time (if ever) as (A) the Trustee determines that the Company is not Insolvent (or that the Company is no longer Insolvent, if the Trustee initially determines the Company to be Insolvent) or (B) the Trustee is ordered to make the Deferred Payments by a court of competent jurisdiction. 3.4 Unless the Trustee has actual knowledge that the Company is Insolvent, the Trustee shall have no duty to inquire whether the Company is Insolvent or to make any independent investigation thereof. The Trustee may in all events rely on such available evidence concerning the Company's solvency and financial condition as may provide the Trustee with a reasonable basis for determining the Company's solvency. 3.5 Nothing in this Trust Agreement shall adversely affect or in any manner diminish the rights of any Participant to pursue his or her rights as a general creditor of the Company with respect to all amounts credited to his or her book account or accounts under the Plan. 3.6 Should the Trustee discontinue the distribution of Deferred Payments out of the Trust Fund to one or more Participants pursuant to Section 4.3 and subsequently determine, upon a finding that the company is not (or is no longer) Insolvent, that Deferred Payments should subsequently be resumed, then the first Deferred Payment to each of the affected Participants that is made out of the Trust Fund after such period of discontinuance shall be an amount equal to the difference between (i) the aggregate Deferred Payments that would have otherwise been distributed out of the Trust Fund to such Participant (together with any investment return on the unpaid amount to which the Participant is entitled under the Plan) had there been no such discontinuance and (ii) the aggregate Deferred Payments (if any) paid to the Participant out of the Company's general assets during such period of discontinuance in lieu of the distributions provided for hereunder. The Trustee shall be entitled to assume that no such payments were made by the Company unless, prior to making the payment hereunder, the Trustee receives a written certification from the Plan Administrator, in which there is specified the amount of Deferred Payments made to each Participant by the Company during the period of discontinuance.

Company Insolvency. 3.1 Section 21.1. The Company shall have the duty to inform the Trustee in writing if the Company becomes insolvent, as hereinafter defined. When so informed, the Trustee shall immediately discontinue payments of Supplemental Benefits to Trust Beneficiaries, and shall hold the assets of the Trust for the benefit of the Company’s general creditors. The Company shall be considered "Insolvent" “insolvent” for purposes of this Trust Agreement ifin the event of the following: (i) The Company shall (A) admit in writing its A. the Company’s inability to pay its debts generally as they become due, (B) commence voluntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect, (C) make mature; B. a general assignment of its assets for the benefit of its the Company’s creditors; C. the voluntary commencement by the Company of any proceeding under Title 11 of the United States Code or any other law of any jurisdiction for the relief, liquidation or rehabilitation of debtors (D) consent all of which proceedings are hereinafter collectively referred to as “Insolvency Proceedings”); D. the making of an admission by the Company of any of the material allegations of, or consenting to, or acquiescing in, a petition, application, motion or complaint commencing an Insolvency Proceeding or the seeking by the Company of the appointment of, or the taking of possession by, a receiver receiver, custodian, trustee, liquidator or similar official of or for itself it or any for a substantial part of its propertyassets; E. the involuntary commencement of an Insolvency Proceeding against the Company which is not fully stayed, timely controverted or dismissed within one hundred twenty (E120) consent to days after the relief sought in any involuntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect or (F) take corporate action in furtherance of any of the aforesaid purposesfiling thereof; or (ii) There shall be entered by a court of competent jurisdiction any order, decree or other for relief with respect to F. the Company: (A) in any involuntary proceedings against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter in effectappointment of, or (B) appointing, without the consent taking of the Companypossession by, a receiver receiver, custodian, trustee, liquidator or similar official of or for the Company or any substantial portion of or for all or substantially all of its property, or (C) approving assets. If the commencement Trust Department of involuntary proceedings filed against the Trustee receives a written allegation from a third party that the Company under any applicable law now or hereafter in effect seeking has become insolvent, the winding-up or liquidation of the Company, and in any such instance the order or decree so entered Trustee shall not be vacated or set aside or stayed appoint an independent accounting firm to determine within sixty (60) days after the date of entry thereof. 3.2 At all times during the term of this Trust, the Trust Fund shall be subject to claims of the general creditors of the Company as hereinafter set forth. At any time the Trustee has actual knowledge (or otherwise determines) that the Company is Insolvent, the Trustee shall cease all further Deferred Payments to Participants and shall thereafter hold the Trust Fund solely and exclusively for distribution in payment and satisfaction of any and all claims of the Company's creditors as a court of competent jurisdiction may direct. 3.3 The Company's Chief Financial Officer and the Board shall each have the affirmative duty to provide immediate written notice to the Trustee in the event the Company should become Insolvent. Should the Chief Financial Officer or the Board provide such written notice to the Trustee, or should one or more creditors of the Company allege in writing to the Trustee that the Company has become Insolvent, then the Trustee shall, within thirty (30) days after receipt of such notice or allegation, make an independent determination as to whether the Company is in fact Insolvent. Pending insolvent under the terms of this Trust Agreement and, pending such determination, the Trustee (i) shall make no further Deferred Payments discontinue payments of Supplemental Benefits to Participants under the PlanTrust Beneficiaries, (ii) shall hold the Trust Fund assets for the benefit of the Company's creditors ’s general creditors, and (iii) shall not resume Deferred Payments payments of Supplemental Benefits to Participants in accordance with Article II of this Trust Agreement until Beneficiaries only after such time (if ever) as (A) the Trustee determines independent accounting firm, has determined that the Company is not Insolvent insolvent (or that the Company is no longer Insolventinsolvent, if assuming the Trustee independent accounting firm initially determines determined the Company to be Insolventinsolvent) or (B) after receipt of an order of a court of competent jurisdiction. In making its determination, such independent accounting firm, may rely on a letter from the Company’s Controller, or its Independent Auditors, or on relevant information concerning the Company’s solvency which has been furnished to the Trustee by any other person. Notwithstanding any other provision of this Trust Agreement, the Trustee shall be responsible only for the prudent selection of the independent accounting firm, and shall conclusively rely on such firm’s determination. Nothing in this Trust Agreement shall in any way enlarge or diminish the rights of the Trust Beneficiaries in the event the Company is ordered insolvent to make pursue their rights as general creditors of the Deferred Payments Company with respect to their Supplemental Benefits or otherwise. Section 21.2. In the case of the Company’s notification of insolvency or the determination of insolvency by an independent accounting firm as provided in Section 21.1 of this Trust Agreement, the Trustee shall deliver any undistributed principal and income in the Trust to satisfy claims of the Company’s general creditors as directed by a court of competent jurisdiction. 3.4 Unless Section 21.3. If the Trustee has actual knowledge that discontinues payments of Supplemental Benefits from the Trust pursuant to Section 21.1 of this Trust Agreement and subsequently resumes such payments, the first payment to each Trust Beneficiary following such discontinuance shall include the aggregate amount of all payments which would have been made to such Trust Beneficiary in accordance with the relevant Participating Plan during the period of such discontinuance, less the aggregate amount of payments of Supplemental Benefits made to such Trust Beneficiary by the Company is Insolventduring any such period of discontinuance. Prior to a Change in Control, the Trustee shall have no duty be directed as to inquire whether the Company is Insolvent or to make any independent investigation thereof. The Trustee may in amount, timing, form and payee of all events rely on such available evidence concerning payments by the Company's solvency and financial condition as may provide . Following a Change in Control, the Trustee with a reasonable basis for determining the Company's solvency. 3.5 Nothing in this Trust Agreement shall adversely affect or in any manner diminish the rights of any Participant to pursue his or her rights as a general creditor of the Company with respect to all amounts credited to his or her book account or accounts under the Plan. 3.6 Should the Trustee discontinue the distribution of Deferred Payments out of the Trust Fund to one or more Participants pursuant to Section 4.3 and subsequently determine, upon a finding that the company is not (or is no longer) Insolvent, that Deferred Payments should subsequently be resumed, then the first Deferred Payment to each of the affected Participants that is made out of the Trust Fund after such period of discontinuance shall be an amount equal to the difference between (i) the aggregate Deferred Payments that would have otherwise been distributed out of the Trust Fund to such Participant (together with any investment return on the unpaid amount to which the Participant is entitled under the Plan) had there been no such discontinuance and (ii) the aggregate Deferred Payments (if any) paid to the Participant out of the Company's general assets during such period of discontinuance in lieu of the distributions provided for hereunder. The Trustee shall be entitled to assume that no such payments were made so directed by the Company unless, prior to making the payment hereunder, the Trustee receives a written certification from the Independent Plan Administrator, in which there is specified the amount of Deferred Payments made to each Participant by the Company during the period of discontinuance.

Company Insolvency. 3.1 The Company shall be considered "Insolvent" for purposes of this Trust Agreement if: (ia) The Company shall (A) admit in writing its inability to pay its debts generally as they become due, (B) commence voluntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect, (C) make a general assignment of its assets for the benefit of its creditors, (D) consent to the appointment of a receiver for itself or any substantial part of its property, (E) consent to the relief sought in any involuntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect or (F) take corporate action in furtherance of any of the aforesaid purposes; or (ii) There shall be entered by a court of competent jurisdiction any order, decree or other for relief with respect to the Company: (A) in any involuntary proceedings against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or (B) appointing, without the consent of the Company, a receiver for the Company or any substantial portion of its property, or (C) approving the commencement of involuntary proceedings filed against the Company under any applicable law now or hereafter in effect seeking the winding-up or liquidation of the Company, and in any such instance the order or decree so entered shall not be vacated or set aside or stayed within sixty (60) days after the date of entry thereof. 3.2 At all times during the term continuance of this Trust, as provided in Section 1.01 hereof, the principal and income of the Trust Fund shall be subject to claims of the general creditors of Company under federal and state law as set forth below. The Company shall be considered to be Insolvent if it is unable to pay its debts as they fall due; or, bankruptcy or insolvency proceedings are initiated by its creditors or the Company as hereinafter set forth. At or any time third party under the Trustee has actual knowledge (Bankruptcy Act of the United States or otherwise determines) the bankruptcy laws of any State alleging that the Company is Insolventinsolvent or bankrupt. (b) By its approval and execution of this Agreement, the Company represents and agrees that its Board of Directors and Chief Executive Officer, as from time to time acting, shall have the duty to inform the Trustee in writing of the Company's Insolvency and the Trustee shall be entitled to rely thereon to the exclusion of all directions or claims to pay benefits thereafter made. (c) Notwithstanding any provision in this Agreement to the contrary, if at any time while the Trust is still in existence the Company becomes insolvent (as defined in subsection (a) above), the Trustee shall cease upon written notice thereof suspend the payment of all further Deferred Payments to Participants and benefits from the Fund. (d) The Trustee shall thereafter hold the Trust Fund solely and exclusively for distribution in payment and satisfaction of any and all claims suspense until it receives a court order directing the disposition of the Company's creditors as a Fund; provided, however, the Trustee may deduct or continue to deduct its fees and expenses and other expenses of the Trust, including taxes, pending the receipt of such court of competent jurisdiction may directorder. 3.3 The Company's Chief Financial Officer and the Board shall each have the affirmative duty to provide immediate written notice to (e) If a person, considered by the Trustee in the event the Company should become Insolvent. Should the Chief Financial Officer or the Board provide such written notice to the Trusteebe reliable and responsible, or should one or more creditors claiming to be a creditor of the Company allege Company, alleges in writing to the Trustee that the Company has become Insolvent, then the Trustee shall, within thirty (30) days after receipt of such notice or allegation, make an independent determination as to shall determine whether the Company is in fact Insolvent. Pending Insolvent and, pending such determination, the Trustee (i) shall make no further Deferred Payments discontinue payment of benefits to Participants under the Plan, (ii) shall hold the Trust Fund for the benefit of the Company's creditors and (iii) shall not resume Deferred Payments to Participants in accordance with Article II of this Trust Agreement until such time (if ever) as (A) the Trustee determines that the Company is not Insolvent (Plan participants or that the Company is no longer Insolvent, if the Trustee initially determines the Company to be Insolvent) or (B) the Trustee is ordered to make the Deferred Payments by a court of competent jurisdictiontheir beneficiaries. 3.4 (f) Unless the Trustee has actual knowledge of Company's Insolvency, or has received notice from Company or a person claiming to be a creditor alleging that the Company is Insolvent, the Trustee shall have no duty to inquire whether the Company is Insolvent or to make any independent investigation thereofInsolvent. The Trustee may in all events rely on such available evidence concerning the Company's solvency and financial condition as may provide the be furnished to Trustee and that provides Trustee with a reasonable basis for determining the making a determination concerning Company's solvency. 3.5 Nothing (g) Notwithstanding anything in this Trust Agreement to the contrary, nothing in this Agreement shall adversely affect or in any manner way diminish the any rights of any Participant Participants or their beneficiaries to pursue his or her their rights as a general creditor creditors of the Company with respect to all amounts credited to his or her book account or accounts benefits due under the PlanPlans otherwise. 3.6 Should the Trustee discontinue the distribution of Deferred Payments out of the Trust Fund to one or more Participants pursuant to Section 4.3 and subsequently determine, upon a finding that the company is not (or is no longer) Insolvent, that Deferred Payments should subsequently be resumed, then the first Deferred Payment to each of the affected Participants that is made out of the Trust Fund after such period of discontinuance shall be an amount equal to the difference between (i) the aggregate Deferred Payments that would have otherwise been distributed out of the Trust Fund to such Participant (together with any investment return on the unpaid amount to which the Participant is entitled under the Plan) had there been no such discontinuance and (ii) the aggregate Deferred Payments (if any) paid to the Participant out of the Company's general assets during such period of discontinuance in lieu of the distributions provided for hereunder. The Trustee shall be entitled to assume that no such payments were made by the Company unless, prior to making the payment hereunder, the Trustee receives a written certification from the Plan Administrator, in which there is specified the amount of Deferred Payments made to each Participant by the Company during the period of discontinuance.

Company Insolvency. 3.1 Section 21.1. The Company shall have the duty to inform the Trustee in writing if the Company becomes insolvent, as hereinafter defined. When so informed, the Trustee shall immediately discontinue payments of Benefits to Trust Beneficiaries, and shall hold the assets of the Trust for the benefit of the Company’s general creditors. The Company shall be considered "Insolvent" “insolvent” for purposes of this Trust Agreement ifin the event of the following: (i) The Company shall (A) admit in writing its A. the Company’s inability to pay its debts generally as they become due, (B) commence voluntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect, (C) make mature; B. a general assignment of its assets for the benefit of its the Company’s creditors; C. the voluntary commencement by the Company of any proceeding under Title 11 of the United States Code or any other law of any jurisdiction for the relief, liquidation or rehabilitation of debtors (D) consent all of which proceedings are hereinafter collectively referred to as “Insolvency Proceedings”); D. the making of an admission by the Company of any of the material allegations of, or consenting to, or acquiescing in, a petition, application, motion or complaint commencing an Insolvency Proceeding or the seeking by the Company of the appointment of, or the taking of possession by, a receiver receiver, custodian, trustee, liquidator or similar official of or for itself it or any for a substantial part of its propertyassets; E. the involuntary commencement of an Insolvency Proceeding against the Company which is not fully stayed, timely controverted or dismissed within one hundred twenty (E120) consent to days after the relief sought in any involuntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect or (F) take corporate action in furtherance of any of the aforesaid purposesfiling thereof; or (ii) There shall be entered by a court of competent jurisdiction any order, decree or other for relief with respect to F. the Company: (A) in any involuntary proceedings against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter in effectappointment of, or (B) appointing, without the consent taking of the Companypossession by, a receiver receiver, custodian, trustee, liquidator or similar official of or for the Company or any substantial portion of or for all or substantially all of its property, or (C) approving assets. If the commencement Trust Department of involuntary proceedings filed against the Trustee receives a written allegation from a third party that the Company under any applicable law now or hereafter in effect seeking has become insolvent, the winding-up or liquidation of the Company, and in any such instance the order or decree so entered Trustee shall not be vacated or set aside or stayed appoint an independent accounting firm to determine within sixty (60) days after the date of entry thereof. 3.2 At all times during the term of this Trust, the Trust Fund shall be subject to claims of the general creditors of the Company as hereinafter set forth. At any time the Trustee has actual knowledge (or otherwise determines) that the Company is Insolvent, the Trustee shall cease all further Deferred Payments to Participants and shall thereafter hold the Trust Fund solely and exclusively for distribution in payment and satisfaction of any and all claims of the Company's creditors as a court of competent jurisdiction may direct. 3.3 The Company's Chief Financial Officer and the Board shall each have the affirmative duty to provide immediate written notice to the Trustee in the event the Company should become Insolvent. Should the Chief Financial Officer or the Board provide such written notice to the Trustee, or should one or more creditors of the Company allege in writing to the Trustee that the Company has become Insolvent, then the Trustee shall, within thirty (30) days after receipt of such notice or allegation, make an independent determination as to whether the Company is in fact Insolvent. Pending insolvent under the terms of this Trust Agreement and, pending such determination, the Trustee (i) shall make no further Deferred Payments discontinue payments of Benefits to Participants under the PlanTrust Beneficiaries, (ii) shall hold the Trust Fund assets for the benefit of the Company's creditors ’s general creditors, and (iii) shall not resume Deferred Payments payments of Benefits to Participants in accordance with Article II of this Trust Agreement until Beneficiaries only after such time (if ever) as (A) the Trustee determines independent accounting firm, has determined that the Company is not Insolvent insolvent (or that the Company is no longer Insolventinsolvent, if assuming the Trustee independent accounting firm initially determines determined the Company to be Insolventinsolvent) or (B) after receipt of an order of a court of competent jurisdiction. In making its determination, such independent accounting firm, may rely on a letter from the Company’s Controller, or its Independent Auditors, or on relevant information concerning the Company’s solvency which has been furnished to the Trustee by any other person. Notwithstanding any other provision of this Trust Agreement, the Trustee shall be responsible only for the prudent selection of the independent accounting firm, and shall conclusively rely on such firm’s determination. Nothing in this Trust Agreement shall in any way enlarge or diminish the rights of the Trust Beneficiaries in the event the Company is ordered insolvent to make pursue their rights as general creditors of the Deferred Payments Company with respect to their Benefits or otherwise. Section 21.2. In the case of the Company’s notification of insolvency or the determination of insolvency by an independent accounting firm as provided in Section 21.1 of this Trust Agreement, the Trustee shall deliver any undistributed principal and income in the Trust to satisfy claims of the Company’s general creditors as directed by a court of competent jurisdiction. 3.4 Unless Section 21.3. If the Trustee has actual knowledge that discontinues payments of Benefits from the Trust pursuant to Section 21.1 of this Trust Agreement and subsequently resumes such payments, the first payment to each Trust Beneficiary following such discontinuance shall include the aggregate amount of all payments which would have been made to such Trust Beneficiary in accordance with the relevant Participating Plan during the period of such discontinuance, less the aggregate amount of payments of Benefits made to such Trust Beneficiary by the Company is Insolventduring any such period of discontinuance. Prior to a Change in Control, the Trustee shall have no duty be directed as to inquire whether the Company is Insolvent or to make any independent investigation thereof. The Trustee may in amount, timing, form and payee of all events rely on such available evidence concerning payments by the Company's solvency and financial condition as may provide . Following a Change in Control, the Trustee with a reasonable basis for determining the Company's solvency. 3.5 Nothing in this Trust Agreement shall adversely affect or in any manner diminish the rights of any Participant to pursue his or her rights as a general creditor of the Company with respect to all amounts credited to his or her book account or accounts under the Plan. 3.6 Should the Trustee discontinue the distribution of Deferred Payments out of the Trust Fund to one or more Participants pursuant to Section 4.3 and subsequently determine, upon a finding that the company is not (or is no longer) Insolvent, that Deferred Payments should subsequently be resumed, then the first Deferred Payment to each of the affected Participants that is made out of the Trust Fund after such period of discontinuance shall be an amount equal to the difference between (i) the aggregate Deferred Payments that would have otherwise been distributed out of the Trust Fund to such Participant (together with any investment return on the unpaid amount to which the Participant is entitled under the Plan) had there been no such discontinuance and (ii) the aggregate Deferred Payments (if any) paid to the Participant out of the Company's general assets during such period of discontinuance in lieu of the distributions provided for hereunder. The Trustee shall be entitled to assume that no such payments were made so directed by the Company unless, prior to making the payment hereunder, the Trustee receives a written certification from the Independent Plan Administrator, in which there is specified the amount of Deferred Payments made to each Participant by the Company during the period of discontinuance.

Company Insolvency. 3.1 Notwithstanding any provision in this Trust Agreement to the contrary, if at any time while the Trust is still in existence the Company becomes Insolvent (as defined herein), the Trustee shall upon written notice thereof suspend the payment of all benefits from the Fund and shall thereafter hold the Fund in suspense until it receives a court order directing the disposition of the Fund; provided, however, the Trustee may deduct or continue to deduct its fees and expenses and other expenses of the Trust, including taxes, pending the receipt of such court order. The Company shall be considered "Insolvent" for purposes of this Trust Agreement if: to be Insolvent if (ia) The Company shall (A) admit in writing its inability it is unable to pay its debts generally as they become due, (B) commence voluntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect, (C) make a general assignment of its assets for the benefit of its creditors, (D) consent to the appointment of a receiver for itself or any substantial part of its property, (E) consent to the relief sought in any involuntary proceedings under any applicable bankruptcy, insolvency or other debtor-relief law now or hereafter in effect fall due or (Fb) take corporate action in furtherance of any of the aforesaid purposes; or (ii) There shall be entered bankruptcy or insolvency proceedings are initiated by a court of competent jurisdiction any order, decree its creditors or other for relief with respect to the Company: (A) in any involuntary proceedings against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or (B) appointing, without the consent of the Company, a receiver for the Company or any substantial portion third party under the Bankruptcy Act of its property, the 11 United States or (C) approving the commencement bankruptcy laws of involuntary proceedings filed against any State alleging that the Company under any applicable law now is insolvent or hereafter in effect seeking the winding-up or liquidation of the Company, and in any such instance the order or decree so entered shall not be vacated or set aside or stayed within sixty (60) days after the date of entry thereof. 3.2 bankrupt. At all times during the term continuance of this Trust, as provided in Section 1.1 hereof, the principal and income of the Trust Fund shall be subject to claims of the general creditors General Creditors of Company or its affiliates and subsidiaries under federal and state law as set forth below. By its approval and execution of this Trust Agreement, the Company represents and agrees that its Board of Directors and Chief Executive Officer, as hereinafter set forth. At any from time to time acting, shall have the duty to inform the Trustee has actual knowledge (or otherwise determines) that the Company is Insolvent, the Trustee shall cease all further Deferred Payments to Participants and shall thereafter hold the Trust Fund solely and exclusively for distribution in payment and satisfaction of any and all claims writing of the Company's creditors as a court of competent jurisdiction may direct. 3.3 The Company's Chief Financial Officer Insolvency and the Board Trustee shall each have the affirmative duty be entitled to provide immediate written notice rely thereon to the exclusion of all directions or claims to pay benefits thereafter made. If a person, considered by the Trustee in the event the Company should become Insolvent. Should the Chief Financial Officer or the Board provide such written notice to the Trusteebe reliable and responsible, or should one or more creditors claiming to be a creditor of the Company allege Company, alleges in writing to the Trustee that the Company has become Insolvent, then the Trustee shall, within thirty (30) days after receipt of such notice or allegation, make an independent determination as to shall determine whether the Company is in fact Insolvent. Pending Insolvent and, pending such determination, the Trustee (i) shall make no further Deferred Payments discontinue payment of benefits to Participants under the Plan, (ii) shall hold the Trust Fund for the benefit of the Company's creditors and (iii) shall not resume Deferred Payments to Participants in accordance with Article II of this Trust Agreement until such time (if ever) as (A) the Trustee determines that the Company is not Insolvent (Plan participants or that the Company is no longer Insolvent, if the Trustee initially determines the Company to be Insolvent) or (B) the Trustee is ordered to make the Deferred Payments by a court of competent jurisdiction. 3.4 their beneficiaries. Unless the Trustee has actual knowledge of Company's Insolvency, or has received notice from Company or a person claiming to be a creditor alleging that the Company is Insolvent, the Trustee shall have no duty to inquire whether the Company is Insolvent or to make any independent investigation thereofInsolvent. The Trustee may in all events rely on such available evidence concerning the Company's solvency and financial condition as may provide the be furnished to Trustee and that provides Trustee with a reasonable basis for determining the making a determination concerning Company's solvency. 3.5 . If at any time Trustee has determined that Company is Insolvent, Trustee shall discontinue payments to Participants or their Beneficiaries and shall hold the assets of the Trust for the benefit of Company's General Creditors or its affiliates and subsidiaries. Nothing in this Trust Agreement shall adversely affect or in any manner way diminish the any rights of any Participant Participants or their Beneficiaries to pursue his or her their rights as a general creditor General Creditors of the Company or its affiliates and subsidiaries with respect to all amounts credited to his or her book account or accounts benefits due under the Plan. 3.6 Should Plan otherwise. If after an event of Insolvency, the Company later becomes solvent without the entry of a court order concerning the disposition of the Fund, the Company shall by written notice so inform 12 the Trustee discontinue and the distribution Trustee shall thereupon resume all its duties and responsibilities under this Trust Agreement without regard for this Section 3.4 until and unless the Company again becomes Insolvent as such term is defined herein. Provided that there are sufficient assets, if Trustee discontinues the payment of Deferred Payments out benefits from the Trust pursuant to this Section 3.4 and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Participants or their Beneficiaries under the terms of the Trust Fund to one or more Participants pursuant to Section 4.3 and subsequently determine, upon a finding that Plan for the company is not (or is no longer) Insolvent, that Deferred Payments should subsequently be resumed, then the first Deferred Payment to each of the affected Participants that is made out of the Trust Fund after such period of discontinuance shall be an amount equal to the difference between (i) such discontinuance, less the aggregate Deferred Payments that would have otherwise been distributed out amount of the Trust Fund any payments made to such Participant (together with any investment return on the unpaid amount to which the Participant is entitled under the Plan) had there been no such discontinuance and (ii) the aggregate Deferred Payments (if any) paid to the Participant out of the Company's general assets during such period of discontinuance Participants or their Beneficiaries by Company in lieu of the distributions payments provided for hereunder. The Trustee shall be entitled to assume that no hereunder during any such payments were made by the Company unless, prior to making the payment hereunder, the Trustee receives a written certification from the Plan Administrator, in which there is specified the amount of Deferred Payments made to each Participant by the Company during the period of discontinuance.