EXHIBIT 10
MASTER TRUST AGREEMENT
FOR THE
The Xxxxx Group, Inc.
NONQUALIFIED EMPLOYEE PLANS
Amended and Restated Effective as of August 1, 1999
MASTER TRUST AGREEMENT
FOR THE XXXXX GROUP, INC.
NONQUALIFIED EMPLOYEE PLANS
Table of Contents
Article Page
ARTICLE 1 Name, Intentions, Irrevocability, Deposit and Definitions 3
1.1 Name 3
1.2 Intentions 3
1.3 Irrevocability; Creditor Claims 4
1.4 Initial Deposit 4
1.5 Additional Definitions 4
1.6 Grantor Trust 5
ARTICLE 2 General Administration 6
2.1 Committee Directions and Administration Before Change in Control 6
2.2 Administration Upon Change in Control 6
2.3 Contributions 7
2.4 Trust Fund 7
2.5 Distribution of Excess Trust Fund to Employers 7
ARTICLE 3 Powers and Duties of Trustee 8
3.1 Investment Directions 8
3.2 Investment Upon Change In Control 8
3.3 Management of Investments 8
3.4 Securities 11
3.5 Substitution 11
3.6 Distributions 11
3.7 Trustee Responsibility Regarding Payments on Insolvency 15
3.8 Costs of Administration 16
3.9 Trustee Compensation and Expenses 17
3.10 Professional Advice 17
3.11 Payment on Court Order 17
3.12 Protective Provisions 17
3.13 Indemnifications 18
ARTICLE 4 Insurance Contracts 19
4.1 Types of Contracts 19
4.2 Ownership 19
4.3 Restrictions on Trustee's Rights 19
ARTICLE 5 Trustee's Accounts 19
5.1 Records 19
5.2 Annual Accounting; Final Accounting 19
5.3 Valuation 20
5.4 Delegation of Duties 20
ARTICLE 6 Resignation or Removal of Trustee 21
6.1 Resignation; Removal 21
6.2 Successor Trustee 21
6.3 Settlement of Accounts 21
ARTICLE 7 Controversies, Legal Actions and Counsel 22
7.1 Controversy 22
7.2 Joinder of Parties 22
7.3 Employment of Counsel 22
ARTICLE 8 Insurers 22
8.1 Insurer Not a Party 22
8.2 Authority of Trustee 22
8.3 Contract Ownership 22
8.4 Limitation of Liability 23
8.5 Change of Trustee 23
ARTICLE 9 Amendment and Termination 23
9.1 Amendment 23
9.2 Final Termination 24
ARTICLE 10 Miscellaneous 25
10.1 Directions Following Change in Control 25
10.2 Taxes 25
10.3 Third Persons 25
10.4 Nonassignability; Nonalienation 26
10.5 The Plans 26
10.6 Applicable Law 26
10.7 Notices and Directions 26
10.8 Successors and Assigns 26
10.9 Gender and Number 26
10.10 Headings 26
10.11 Counterparts 26
10.12 Beneficial Interest 26
10.13 The Trust and Plans 27
10.14 Effective Date 27
MASTER TRUST AGREEMENT
FOR
THE XXXXX GROUP, INC.
NONQUALIFIED EMPLOYEE PLANS
Effective August 10, 1990
Amended and Restated as of August 1, 1999
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") between The Xxxxx
Group, Inc., formerly known as Xxxxx Yarns, Inc., a Tennessee corporation (the
"Company"), and SunTrust Banks, Inc., formerly known as American National Bank
and Trust Company of Chattanooga, a Tennessee corporation (the "Trustee"),
amends and restates that certain Trust Agreement dated as of August 10, 1990,
between Xxxxx Yarns, Inc. and American National Bank and Trust Company of
Chattanooga, (the "Trust") established, pursuant to those executive deferral
plans of the Company now or hereafter existing that require the establishment of
a trust, for the benefit of a select group of management and highly compensated
employees who contribute materially to the continued growth, development and
business success of the Company and those subsidiaries of the Company, if any,
that participate in the Plans (collectively, "Subsidiaries," or singularly,
"Subsidiary").
ARTICLE 1 Name, Intentions, Irrevocability,
Deposit and Definitions
1.1 Name. The name of the Trust amended and restated by this Agreement (the
"Trust") shall be:
MASTER TRUST AGREEMENT FOR
THE XXXXX GROUP, INC., NONQUALFIED EMPLOYEE PLANS
1.2 Intentions. The Company has established the Trust and wishes to the Trust
assets that shall be held therein, subject to the claims of the Company's and
the Subsidiaries' creditors in the event of their Insolvency (as defined below)
until paid to Participants and their Beneficiaries in such manner and at such
times as specified in the Plans. It is the intention of the parties that this
Trust shall constitute an unfunded arrangement and shall not affect the status
of the Plans as unfunded plans maintained for the purpose of providing
supplemental compensation for a select group of management and highly
compensated employees for purposes of Title I of ERISA (as defined below). In
addition, it is the intention of the Company and the Subsidiaries to make
contributions to the Trust to provide themselves with a source of funds to
assist them in the meeting of their liabilities under the Plans.
1.3 Irrevocability; Creditor Claims. The established Trust shall be
irrevocable. Except as otherwise provided in Sections 2.5 and 9.2,
the principal of the Trust, and any earnings thereon, shall be held separate and
apart from other funds of the Company and the Subsidiaries and shall be used
exclusively for the uses and purposes of the Participants and the general
creditors of the Company and the Subsidiaries as herein set forth. The
Participants and their Beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Master Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against the
Company and the Subsidiaries. Any assets held by the Trust will be subject to
the claims of the Company's and the Subsidiaries' general creditors under
federal and state law in the event of Insolvency.
1.4 Initial Deposit. The Company previously deposited with the Trustee in trust
$100, which constituted the initial principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Master Trust
Agreement.
1.5 Additional Definitions. In addition to the definitions set forth above, for
purposes hereof, unless otherwise clearly apparent from the context, the
following terms have the following indicated meanings:
(a) "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with a Plan, that are entitled to receive
benefits under a Plan upon the death of a Participant.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change in Control" means any event which results in a "person" (as such
term is defined in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder)
acquiring directly or indirectly, whether by sale, transfer, assignment, pledge,
hypothecation, gift, or other disposition, in one or more transactions, a
majority controlling interest in the voting capital stock of the Company, or the
entering into of any agreement with the Company to do any of the foregoing.
Except, a Change of Control shall not include any transaction in which one or
more members of the Xxxxxxxx family (which shall include all current members of
the family of J. Xxxxxx Xxxxxxxx, including descendants and spouses, and trusts
for the benefit of same, who presently own capital stock) have a majority
controlling interest in the Company.
(a) "Committee" shall mean the administrative committee appointed by the Board
to administer this Trust.
(b) "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
(e) "Insolvent" shall have the meaning set forth in Section 3.7(a) below.
(f) "Insolvent Entity" shall have the meaning set forth in Section 3.7(a) below.
(g) "IRS" shall mean the Internal Revenue Service.
(i) "Participant" shall mean a person who is a participant in one or more of the
Plans in accordance with their terms and conditions.
(j) "Payment Schedule" shall have the meaning set forth in Section 3.6(b) below.
(k) "Plan(s)" shall mean The Xxxxx Group, Inc. New Nonqualified Retirement
Savings Plan.
(l) "Plan Year", except for the first Plan Year, which is a period beginning
August 1, 1999, and ending December 30, 1999, means a period beginning on
December 31 of each calendar year and continuing through December 30 of such
calendar year.
(m) the Plan Year chosen for this Master Trust Agreement by the Board.
(n) "Trust Fund" shall mean the assets held by the Trustee pursuant to the terms
of this Master Trust Agreement and for the purposes of the Plans.
(o) Grantor Trust. The Trust is intended to be a "grantor trust," of which the
Company is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended; and the
Trust shall be construed accordingly.
ARTICLE 2 General Administration
2.1 Committee Directions and Administration Before Change in Control. Until a
Change in Control has occurred, this Section 2.1 shall be effective and the
Committee shall direct the Trustee as to the administration of the Trust in
accordance with the following provisions:
(a) The Committee shall be identified to the Trustee by a copy of the resolution
of the Board appointing the Committee. In the absence thereof, the Board shall
be the Committee. Persons authorized to give directions to the Trustee on
behalf of the Committee shall be identified to the Trustee by written notice
from the Committee, and such notice shall contain specimens of the authorized
signatures. The Trustee shall be entitled to rely on such written notice as
evidence of the identity and authority of the persons appointed until a written
cancellation of the appointment, or the written appointment of a successor, is
received by the Trustee.
(b) Directions by the Committee, or its delegate, to the Trustee shall be in
writing and signed by the Committee or persons authorized by the Committee, or
may be made by such other method as is acceptable to the Trustee.
(c) The Trustee may conclusively rely upon directions from the Committee in
taking any action with respect to this Master Trust Agreement, including the
making of payments from the Trust Fund and the investment of the Trust Fund
pursuant to this Master Trust Agreement. The Trustee shall have no liability
for actions taken, or for failure to act, on the direction of the Committee.
The Trustee shall have no liability for failure to act in the absence of proper
written directions.
(d) The Trustee may request instructions from the Committee and shall have no
duty to act or liability for failure to act if such instructions are not
forthcoming from the Committee. If requested instructions are not received
within a reasonable time, the Trustee may, but is under no duty to, act on its
own discretion to carry out the provisions of this Master Trust Agreement in
accordance with this Master Trust Agreement and the Plans.
2.2 Administration Upon Change in Control. In the event of a Change in Control,
the authority of the Committee to administer the Trust and direct the Trustee,
as set forth in Section 2.1 above, shall cease, and the Trustee shall have
complete authority to administer the Trust.
2.3 Contributions. Except as provided in any Plan, the Company and the
Subsidiaries, in their sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with the Trustee to
augment the principal to be held, administered and disposed of by the Trustee as
provided in this Master Trust Agreement. Neither the Trustee nor any
Participant or Beneficiary shall have any right to compel such additional
deposits. The Trustee shall have no duty to collect or enforce payment to it of
any contributions or to require that any contributions be made, and shall have
no duty to compute any amount to be paid to it nor to determine whether amounts
paid comply with the terms of the Plans.
2.4 Trust Fund. The contributions received by the Trustee from the Company and
the Subsidiaries shall be held and administered pursuant to the terms of this
Master Trust Agreement as a single fund without distinction between income and
principal and without liability for the payment of interest thereon except as
expressly provided in this Master Trust Agreement. During the term of this
Trust, all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
2.5 Distribution of Excess Trust Fund to Employers. In the event that the
Committee, prior to a Change in Control, or the Trustee in its sole and absolute
discretion, after a Change in Control, determines that the Trust Fund exceeds
125 percent of the anticipated benefit obligations and administrative expenses
that are to be paid under the Plans, the Trustee, at the direction of the
Committee prior to a Change in Control, or in its sole and absolute discretion
after a Change in Control, shall distribute to the Company and the Subsidiaries
such excess portion of the Trust Fund.
ARTICLE 3 Powers and Duties of Trustee
3.1 Investment Directions. Except as provided in this Section and Section 3.2
below, the Committee shall provide the Trustee with all investment instructions.
The Trustee shall neither affect nor change investments of the Trust Fund,
except as directed in writing by the Committee, and shall have no right, duty or
responsibility to recommend investments or investment changes; provided, that
the Trustee may (i) deposit cash on hand from time to time in any bank savings
account, certificate of deposit, or other instrument creating a deposit
liability for a bank, including the Trustee's own banking department, if the
Trustee is a bank, without such prior direction, or (ii) invest in government
securities, bonds with specific ratings, or stock of "Fortune 500" companies,
all within broad investment guidelines established by the Committee from time to
time.
3.2 Investment Upon Change in Control. In the event of a Change in Control, the
authority of the Committee to direct investments of the Trust Fund shall cease
and the Trustee shall have complete authority to direct investments of the Trust
Fund. The president of the Company shall notify the Trustee in writing when a
Change in Control has occurred. The Trustee has no duty to inquire whether a
Change in Control has occurred and may rely on notification by the president of
the Company of a Change in Control; provided, however, that if any officer,
former officer, director, or former director of the Company or any
Subsidiary (other than the president of the Company), or any Participant
notifies the Trustee that there has been or there may be a Change in Control,
the Trustee shall have the duty to satisfy itself as to whether a Change in
Control has in fact occurred. The Company and the Subsidiaries shall indemnify
and hold harmless the Trustee for any damages or costs (including attorneys'
fees) that may be incurred because of reliance on the president's notice or lack
thereof.
3.3 Management of Investments. Subject to Section 3.1 above, the Trustee shall
have, without exclusion, all powers conferred on the Trustee by applicable law,
unless expressly provided otherwise herein, and all rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with
Participants or their Beneficiaries. The Trustee shall have full power and
authority to invest and reinvest the Trust Fund in any investment permitted by
law, excercising the judgment and care that persons of prudence, discretion and
intelligence would exercise under the circumstances then prevailing, considering
the probable income and safety of their capital, including, without limiting
the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income therefrom,
in common stock, preferred stock, convertible preferred stock, mutual funds,
bonds, debentures, convertible debentures and bonds, mortgages, notes, time
certificates of deposit, commercial paper and other evidences of indebtedness
(including those issued by the Trustee or any of its affiliates), other
securities, policies of life insurance, annuity contracts, options to buy or
sell securities or other assets, and other property of any kind (personal, real,
or mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust Fund in
savings accounts or certificates of deposit or other deposits which bear a
reasonable interest rate in a bank, including the commercial department of the
Trustee, if such bank is supervised by the United States or any State;
(c) To hold, manage, improve, repair and control all property, real or personal,
forming part of the Trust Fund and to sell, convey, transfer, exchange,
partition, lease for any term, even extending beyond the duration of this Trust,
and otherwise dispose of the same from time to time in such manner, for such
consideration, and upon such terms and conditions as the Trustee shall
determine;
(d) To have, respecting securities, all the rights, powers and privileges of an
owner, including the power to give proxies, pay assessments and other sums
deemed by the Trustee to be necessary for the protection of the Trust Fund, to
vote any corporate stock either in person or by proxy, with or without power of
substitution, for any purpose; to participate in voting trusts, pooling
agreements, foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with and
transfer title to any protective or other committee under such terms as the
Trustee may deem advisable; to exercise or sell stock subscriptions or
conversion rights; and, regardless of any limitation elsewhere in this
instrument relative to investment by the Trustee, to accept and retain as an
investment any securities or other property received through the exercise of
any of the foregoing powers:
(e) To hold in cash, without liability for interest, such portion of the Trust
Fund which, in its discretion, shall be reasonable under the circumstances,
pending investments, or payment of expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the Trust
Fund from loss due to the default on mortgages held in the Trust including the
appointment of agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to grant such powers
as are necessary or desirable to protect the Trust or its assets, to direct
such agents or trustees, or to delegate such power to direct, and to remove such
agents or trustees;
(g) To employ such agents including custodians and counsel as may be reasonably
necessary and to pay them reasonable compensation; to settle, compromise or
abandon all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or registered in
the individual name of the Trustee, or in the name of its nominee(s) or agents,
or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws of the
State of Tennessee, as provided in Section 10.6 below, so that the powers
conferred upon the Trustee herein shall not be in limitation of any authority
conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute
promissory notes, mortgages or other obligations and to pledge or mortgage any
Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other securities to any
brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings; to pay or
contest any claim; to settle a claim by or against the Trustee by compromise,
arbitration, or otherwise; to release, in whole or in part, any claim belonging
to the Trust to the extent that the claim is uncollectible;
(m) To use securities depositories or custodians and to allow such securities as
may be held by a depository or custodian to be registered in the name of such
depository or its nominee or in the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment funds,
which funds shall be registered under the Investment Company Act of 1940; and
(o) To do all other acts necessary or desirable for the proper administration of
the Trust Fund, as if the Trustee were the absolute owner thereof.
However, nothing in this section shall be construed to mean the Trustee assumes
any responsibility for the performance of any investment made by the Trustee in
its capacity as trustee under the operations of this Master Trust Agreement.
Notwithstanding any powers granted to the Trustee pursuant to this Master
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code of
1986, as amended.
3.4 Securities. Voting or other rights in securities shall be exercised by the
person or entity responsible for directing such investments, and the Trustee
shall have no duty to exercise voting or proxy or other rights relating to any
investment managed or directed by the Committee. If any foreign securities are
purchased pursuant to the direction of the Committee, it shall be the
responsibility of the person or entity responsible for directing such
investments to advise the Trustee in writing of any laws or regulations, either
foreign or domestic, that apply to such foreign securities or to the receipt of
dividends or interest on such securities.
3.5 Substitution. Notwithstanding any provision of any Plan or the Trust to the
contrary, the Company and/or any Subsidiary shall at all times have the power
to reacquire the Trust Fund by substituting readily marketable securities (other
than stock, a debt obligation or other security issued by the Company or any
Subsidiary) and/or cash of an equivalent value and such other property shall,
following such substitution, constitute the Trust Fund.
3.6 Distributions.
(a) The establishment of the Trust and the payment or delivery to the Trustee of
money or other property shall not vest in any Participant or Beneficiary any
right, title, or interest in and to any assets of the Trust. To the extent that
any Participant or Beneficiary acquires the right to receive payments under any
of the Plans, such right shall be no greater than the right of an unsecured
general creditor of the Company and the Subsidiaries and such Participant or
Beneficiary shall have only the unsecured promise of the Company and the
Subsidiaries that such payments shall be made.
(b) Concurrent with the establishment of this Trust, the Company shall deliver
to the Trustee a schedule (the "Payment Schedule") that indicates the amounts
payable in respect of each Participant (and his Beneficiaries) on a Plan by Plan
basis, provides a formula or formulas or other instructions acceptable to the
Trustee for determining the amounts so payable, specifies the form in which
such amount is to be paid (as provided for or available under the applicable
Plans), and the time of commencement for payment of such amounts. The Payment
Schedule shall be updated from time to time as is necessary. Except as
otherwise provided herein, prior to a Change in Control, the Trustee shall make
payments to the Participants and their Beneficiaries in accordance with such
Payment Schedule. Despite the foregoing, after a Change in Control, the Trustee
shall make payments in accordance with the terms and provisions of each of the
Plans and related plan agreements. The Trustee, at the direction of the
Committee or, after a Change in Control, on its own volition, may make any
distribution required to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such distribution is to be made, to
the person, or, if prior to a Change in Control, to the Company for redelivery
to such person; provided that before a Change in Control, the Committee may
direct the Trustee to deliver one or more lump sum checks payable to the
Company, and the Company shall prepare and deliver individual checks for each
Participant or Beneficiary; or
(ii) Its check payable to an insurer for the benefit of such person, to the
insurer, or, if prior to a Change in Control, to the Company for redelivery to
the insurer; or
(iii) Contracts held on the life of the Participant to whom or with respect to
whom the distribution is being made, to the Participant or Beneficiary, or, if
prior to a Change in Control, to the Company for redelivery to the person to
whom such distribution is to be made; or
(iv) If a distribution is being made, in whole or in part, of other assets,
assignments or other appropriate documents or certificates necessary to effect a
transfer of title, to the Participant or Beneficiary, or, if prior to a Change
in Control, to the Company for redelivery to such person.
(c) If the principal of the Trust, and any earnings thereon, are not sufficient,
determined on a Plan by Plan basis, to make payments of benefits in accordance
with the terms of the Plans, the Company and the Subsidiaries shall make the
balance of each such payment as it falls due. The Trustee shall notify the
Company and the Subsidiaries when principal and earnings are not sufficient.
(d) The Company and the Subsidiaries may make payment of benefits directly to
Participants or their Beneficiaries as they become due under the terms of the
Plans. The Company and the Subsidiaries shall notify the Trustee of their
decisions to make payment of benefits directly prior to the time amounts are
payable to Participants or their Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust Agreement to the
contrary, if at any time the Trust is finally determined by the IRS not to be a
"grantor trust" with the result that the income of the Trust Fund is not treated
as income of the Company or the Subsidiaries pursuant to Sections 671 through
679 of the Internal Revenue Code of 1986, as amended, or if a tax is finally
determined by the IRS to be payable by one or more Participants or Beneficiaries
with respect to any interest in the Plans or the Trust Fund prior to payment of
such interest to any such Participant or Beneficiary, the Trustee shall
immediately determine each Participant's share of the Trust Fund in accordance
with the Plans, and the Trustee shall immediately distribute such share in a
lump sum to each Participant or Beneficiary entitled thereto, regardless of
whether such Participant's employment has terminated (to the extent such
Participant has a vested interest in his accrued benefits under the Plans) and
regardless of form and time of payments specified in or pursuant to the Plans.
Any remaining assets (less any expenses or cots due under Sections 3.8 and 3.9
of this Master Trust Agreement) shall then be paid by the Trustee to the
Company and the Subsidiaries in such amounts, and in the manner instructed by
the Committee. If the value of the Trust Fund is less than the benefit
obligations under the Plans, the foregoing described distributions will be
limited to a Participant's share of the Trust Fund, determined by allocating
assets to the Participant based on the ratio of the Participant's vested benefit
obligations under the Plans to the total benefit obligations under the Plans.
Prior to a Change in Control, the Trustee shall rely solely on the directions
of the Committee with respect to the occurrence of the foregoing events and the
resulting distributions to be made; and the Trustee shall not be responsible for
any failure to act in the absence of such direction.
(f) The Trustee shall make provision for the reporting and withholding of any
federal, state or local taxes that may be required to be withheld with respect
to the payment of benefits pursuant to the terms of the Plans and shall pay
amounts withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by the Company and the
Subsidiaries.
(g) Prior to a Change in Control, payments by the Trustee shall be delivered or
mailed to addresses supplied by the Committee; and the Trustee's obligation to
make such payments shall be satisfied upon such delivery or mailing. Prior to a
Change in Control, the Trustee shall have no obligation to determine the
identity of persons entitled to benefits or their mailing addresses. After a
Change in Control, the Trustee shall have such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant or his
Beneficiaries to benefits under the Plans shall be determined by the Company and
the Subsidiaries or such party as they shall designate under the Plans; and any
claim for such benefits shall be considered and reviewed under the procedures
set out in the Plans.
(i) Notwithstanding Section 3.6(h), upon and after the occurrence of a
Change in Control, the Plan shall be administered by an independent third party
(the "Administrator") who shall be the members of the Retirement Committee of
the Board (which committee may differ from the Committee of this Plan) who were
serving immediately prior to such event. If any person who was named as
Administrator pursuant to the preceding sentence ceases to serve, the remaining
members may serve alone and are authorized to appoint one or more persons so
that the number of members of the Retirement Committee equals the number serving
immediately prior to the Change in Control. The Administrator shall have the
discretionary power to determine all questions arising in connection with the
administation of the Plan and the interpretation of the Plan and Trust
including, but not limited to benefit entitlement determinations; provided,
however, upon and after the occurrence of a Change in Control, the Administrator
shall have no power to direct the investment of Plan or Trust assets or select
any investment manager or custodial firm for the Plan or Trust. Upon and after
the occurrence of a Change in Control, the Company must: (1) pay all reasonable
administrative expenses and fees of the Administrator; (2) indemnify the
Administrator against any costs, expenses and liabilities including, without
limitation, attorney's fees and expenses arising in connection with the
performance of the Administrator hereunder, except with respect to matters
resulting from the gross negligence or willful misconduct of the Administrator
or its employees or agents; and (3) supply full and timely information to the
Administrator on all matters relating to the Plan, the Trust, the Participants
and their Beneficiaries, the Account Balances of the Participants, the date of
circumstances of the Retirement, Disability, death or Termination of Employment
of the Participants, and such other pertinent information as the Administrator
may reasonable require. Upon and after a Change in Control, the Administrator
may be terminated (and a replacement appointed) by the Trustee only with the
approval of those persons who are serving as the Administrator. Upon and after
a change in Control, the Administrator may not be terminated by the Company.
3.7 Trustee Responsibility Regarding Payments on Insolvency.
(a) The Trustee shall cease payment of benefits to Participants and their
Beneficiaries if the Company, or any Subsidiary, is Insolvent (the "Insolvent
Entity"). The Insolvent Entity shall be considered "Insolvent" for purposes of
this Master Trust Agreement if:
(i) the Insolvent Entity is unable to pay its debts as they become due, or
(ii) the Insolvent Entity is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
For purposes of this Section 3.7, if an entity is determined to be Insolvent,
each Subsidiary in which such entity has an equity interest shall also be deemed
to be an Insolvent Entity. However, the insolvency of a Subsidiary will not
cause a parent corporation to be deemed Insolvent.
(b) At all times during the continuance of this Trust, as provided in Section
1.3 above, the principal and income of the Trust shall be subject to claims of
the general creditors of the Company and its Subsidiaries under federal and
state law as set forth below:
(i) The Board and the president of the Company shall have the duty to inform the
Trustee in writing of the Company's or any Subsidiary's Insolvency. If a
person claiming to be a creditor of the Company or any Subsidiary alleges in
writing to the Trustee that the Company or any Subsidiary has become Insolvent,
the Trustee shall determine whether the Company or any Subsidiary is Insolvent
and, pending such determination, the Trustee shall discontinue payment of
benefits to the Insolvent Entity's Participants or their Beneficiaries. Prior
to a Change in Control, the Trustee may conclusively rely on any determination
it receives from the Board or the president of the Company with respect to the
Insolvency of the Company or any Subsidiary.
(ii) Unless the Trustee has actual knowledge of the Company's or a Subsidiary's
Insolvency, or has received notice from the Company, a Subsidiary, or a person
claiming to be a creditor alleging that the Company or a Subsidiary is
Insolvent, the Trustee shall have no duty to inquire whether the Company or any
Subsidiary is Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's or any Subsidiary's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's or any Subsidiary's solvency. In this
regard, the Trustee may rely upon a letter from the Company's or a Subsidiary's
auditors as to the Company's or any Subsidiary's financial status.
(iii) If at any time the Trustee has determined that the Company or any
Subsidiary is Insolvent, the Trustee shall discontinue payments to the Insolvent
Entity's Participants or their Beneficiaries, and shall hold the portion of the
assets of the Trust allocable to the Insolvent Entity for the benefit of the
Insolvent Entity's general creditors. Nothing in this Master Trust Agreement
shall in any way diminish any rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the Insolvent Entity with respect to
benefits due under the Plans or otherwise.
(iv) The Trustee shall resume the payment of benefits to Participants or their
Beneficiaries in accordance with this Article 3 of this Master Trust Agreement
only after the Trustee has determined that the alleged Insolvent Entity is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3.7(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to
Participants or their Beneficiaries by the Company or any Subsidiary in lieu of
the payments provided for hereunder during any such period of discontinuance.
Prior to a Change in Control, the Committee shall instruct the Trustee as to
such amounts; and after a Change in Control, the Trustee shall determine such
amounts in accordance with the terms and provisions of the Plans.
3.8 Costs of Administration. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust, including
attorneys' fees, Administrator fees, other administrative fees and appraisal
fees. Such obligations shall be paid by the Company and the Subsidiaries. The
Trustee is authorized to pay such amounts from the Trust Fund if the Company or
the Subsidiaries fail to pay them within 60 days of presentation of a statement
of the amounts due.
3.9 Trustee Compensation and Expenses. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed upon
between the Trustee and the Company. If the Trustee and the Company fail to
agree upon a compensation, or following a Change in Control, the Trustee shall
be entitled to compensation at a rate equal to the rate charged by the Trustee
for similar services rendered by it during the current fiscal year for other
trusts similar to this Trust. The Trustee shall be entitled to reimbursement
for expenses incurred by it in the performance of its duties as the Trustee,
including reasonable fees for legal counsel. The Trustee's compensation and
expenses shall be paid by the Company and the Subsidiaries. The Trustee is
authorized to withdraw such amounts from the Trust Fund if the Company or the
Subsidiaries fail to pay them within 60 days of presentation of a statement of
the amounts due.
3.10 Professional Advice. The Company and the Subsidiaries specifically
acknowledge that the Trustee and/or the Administrator may find it desirable or
expedient to retain legal counsel (who may also be legal counsel for the Company
generally) or other professional advisors to advise it in connection with the
exercise of any duty under this Master Trust Agreement, including, but not
limited to, any matter relating to or following a Change in Control or the
Insolvency of the Company or any Subsidiary. The Trustee and/or Administrator
shall be fully protected in acting upon the advice of such legal counsel or
advisors.
3.11 Payment on Court Order. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action in which
the Trustee has been named as a party. The Trustee is not obligated to defend
actions in which the Trustee is named, but shall notify the Company or Committee
of any such action and may tender defense of the action to the Company,
Committee, Participant or Beneficiary whose interest is affected. The Trustee
may in its discretion defend any action in which the Trustee is named, and any
expenses incurred by the Trustee shall be paid by the Company and the
Subsidiaries. The Trustee is authorized to pay such amounts from the Trust Fund
if the Company or the Subsidiaries fail to pay them within sixty (60) days of
presentation of a statement of the amounts due.
3.12 Protective Provisions. Notwithstanding any other provision contained in
this Master Trust Agreement to the contrary, the Trustee shall have no
obligation to (i) determine the existence of any conversion, redemption,
exchange, subscription or other right relating to any securities purchased of
which notice was given prior to the purchase of such securities and shall have
no obligation to exercise any such right unless the Trustee is advised in
writing by the Committee both of the existence of the right and the desired
exercise thereof within a reasonable time prior to the expiration of the right
to exercise, or (ii) advance any funds to the Trust. Furthermore, the Trustee
is not a party to the Plans.
3.13 Indemnifications.
(a) The Company and the Subsidiaries shall indemnify and hold the Trustee
harmless from and against all loss or liability (including expenses and
reasonable attorneys' fees) to which it may be subject by reason of its
execution of its duties under this Trust, or by reason of any acts taken in good
faith in accordance with any directions, or acts omitted in good faith due to
absence of directions, from the Company, the Committee or a Participant, unless
such loss or liability is due to the Trustee's gross negligence or willful
misconduct. The indemnity described herein shall be provided by the Company
and the Subsidiaries.
(b) In the event that the Trustee is named as a defendant in a lawsuit or
proceeding involving one or more of the Plans or the Trust Fund, the Trustee
shall be entitled to receive on a current basis the indemnity payments provided
for in this Section, provided however that if the final judgment entered in the
lawsuit or proceeding holds that the Trustee is guilty of gross negligence or
willful misconduct with respect to the Trust Fund, the Trustee shall be
required to refund the indemnity payments that it has received.
(c) The Company and the Subsidiaries shall indemnify and hold the Administrator
harmless from and against all loss or liability (including expenses and
reasonable attorneys' fees) to which it may be subject by reason of its
execution of its duties under this Trust, or by reason of any acts taken in good
faith in accordance with any directions, or acts omitted in good faith due to
absence of directions, from the Company, the Committee or a Participant, unless
such loss or liability is due to the Administrator's gross negligence or willful
misconduct. The indemnity described herein shall be provided by the Company
and the Subsidiaries.
(d) In the event that the Administrator is named as a defendant in a lawsuit or
proceeding involving one or more of the Plans or the Trust Fund, the
Administrator shall be entitled to receive on a current basis the indemnity
payments provided for in this Section, provided however that if the final
judgment entered in the lawsuit or proceeding holds that the Administrator is
guilty of gross negligence or willful misconduct with respect to its duties
under the Plans or the Trust, the Administrator shall be required to refund
the indemnity payments that it has received.
(e) All releases and indemnities provided in this Master Trust Agreement shall
survive the termination of this Master Trust Agreement.
ARTICLE 4 Insurance Contracts
4.1 Types of Contracts. To the extent that the Trustee is directed by the
Committee prior to a Change in Control to invest part or all of the Trust Fund
in insurance contracts, the type and amount thereof shall be specified by the
Committee. The Trustee shall be under no duty to make inquiry as to the
propriety of the type or amount so specified.
4.2 Ownership. Each insurance contract issued shall provide that the Trustee
shall be the owner thereof with the power to exercise all rights, privileges,
options and elections granted by or permitted under such contract or under the
rules of the insurer. The exercise by the Trustee of any incidents of ownership
under any contract shall, prior to a Change in Control, be subject to the
direction of the Committee.
4.3 Restrictions on Trustee's Rights. The Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against such policy. Despite the foregoing, the Trustee may (i) loan to the
Company or any Subsidiary the proceeds of any borrowing against an insurance
policy held in the Trust Fund or (ii) assign all, or any portion, of a ploicy to
the Company or any Subsidiary if under other provisions of this Master Trust
Agreement the Company or any Subsidiary is entitled to receive assets from the
Trust.
ARTICLE 5 Trustee's Accounts
5.1 Records. The Trustee shall maintain accurate records and detailed accounts
of all investments, receipts, disbursements and other transactions hereunder.
Such records shall be available at all reasonable times for inspection by the
Company and Subsidiaries or their authorized representative. The Trustee, at
the direction of the Committee, shall submit to the Committee and to any
insurer such valuations, reports or other information as the Committee may
reasonably require and, in the absence of fraud or bad faith, the valuation of
the Trust Fund by the Trustee shall be conclusive.
5.2 Annual Accounting; Final Accounting.
(a) Within 60 days following the end of each Plan Year and within 60 days after
the removal or resignation of the Trustee or the termination of the Trust, the
Trustee shall file with the Committee a written account setting forth a
description of all properties purchased and sold, all receipts, disbursements
and other transactions effected by it during the Plan Year or, in the case of
removal, resignation or termination, since the close of the previous Plan Year,
and listing the properties held in the Trust Fund as of the last day of the Plan
Year or other period and indicating their values. Such values shall be either
cost or market as directed by the Committee in accordance with ther terms of the
Plans.
(b) The Committee may approve such account either by written notice of approval
delivered to the Trustee or by its failure to express written objection to such
account delivered to the Trustee within 60 days after the date of which such
account was delivered to the Committee.
(c) The approval by the Committee of an accounting shall be binding as to all
matters embraced in such accounting on all parties to this Master Trust
Agreement and on all Participants and Beneficiaries, to the same extent as if
such accounting had been settled by a judgment or decree of a court of
competent jurisdiction in which the Trustee, the Committee, the Company, the
Subsidiaries and all persons having or claiming any interest in any Plan or the
Trust Fund were made parties.
(d) Despite the foregoing, nothing contained in this Master Trust Agreement
shall deprive the Trustee of the right to have an accounting judicially settled,
if the Trustee, in the Trustee's sole discretion, desires such a settlement.
5.3 Valuation. The assets of the Trust Fund shall be valued at their respective
fair market values on the date of valuation, as determined by the Trustee based
upon such sources of information as it may deem reliable, including, but not
limited to, stock market quotations, statistical valuation services, newspapers
of general circulation, financial publications, advice from investment
counselors, brokerage firms or insurance companies, or any combination of
sources. Prior to a Change in Control, the Committee shall instruct the Trustee
as to the value of assets for which market values are not readily obtainable by
the Trustee. If the Committee fails to provide such values, the Trustee may
take whatever action it deems reasonable, including employment of attorneys,
appraisers, life insurance companies or other professionals, the expense of
which shall be an expense of administration of the Trust Fund and payable by the
Company and the Subsidiaries. The Trustee may rely upon information from the
Company and the Subsidiaries, the Committee, appraisers or other sources and
shall not incur any liability for an inaccurate valuation based in good faith
upon such information.
5.4 Delegation of Duties. The Company or the Committee, or both, may at any
time employ the Trustee as their agent to perform any act, keep any records or
accounts and make any computations that are required of the Company, any
Subsidiary or the Committee by this Master Trust Agreement or the Plans. The
Trustee may be compensated for such employment and such employment shall not be
deemed to be contrary to the Trust. Nothing done by the Trustee as such agent
shall change or increase its responsibility or liability as Trustee hereunder.
ARTICLE 6 Resignation or Removal of Trustee
6.1 Resignation; Removal. The Trustee may resign at any time by written notice
to the Company, which shall be effective 60 days after receipt of such notice
unless the Company and the Trustee agree otherwise. Prior to a Change in
Control, the Trustee may be removed by the Company on 60 days notice or upon
shorter notice accepted by the Trustee. After a Change in Control, the Trustee
may be removed by a majority vote of the Participants, and if a Participant is
dead, his. Beneficiaries (who collectively shall have one vote among them and
shall vote in place of such deceased Participant), on 60 days notice or upon
shorter notice accepted by the Trustee.
6.2 Successor Trustee. If the Trustee resigns or is removed, a successor shall
be appointed by the Company, in accordance with this Section, by the effective
date of the resignation or removal under Section 6.1 above. The successor shall
be a bank, trust company, or similar independent third party that is granted
corporate trustee powers under state law. After the occurrence of a Change in
Control, a successor Trustee may not be appointed without the consent of a
majority of the Participants. If no such appointment has been made, the
Trustee may apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of the Trustee in connection with
the proceeding shall be allowed as administrative expenses of the Trust.
6.3 Settlement of Accounts. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within 90 days after
receipt of notice of resignation, removal or transfer, unless the Company
extends the time limit. Upon the transfer of the assets, the successor Trustee
shall succeed to all of the powers and duties given to the Trustee in this
Master Trust Agreement. The resigning or removed Trustee shall render to the
Committee an account in the form and manner and at the time prescribed in
Section 5.2. The approval of such accounting and discharge of the Trustee shall
be as provided in such Section.
ARTICLE 7 Controversies, Legal Actions and Counsel
7.1 Controversy. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the absence of
such direction or after a Change in Control, as it deems advisable, whether by
legal proceedings, compromise or otherwise. The Trustee may retain the funds or
property involved without liability pending settlement of the controversy. The
Trustee shall be under no obligation to take any legal action of whatever
nature unless there shall be sufficient property to indemnify the Trustee with
respect to any expenses or losses to which it may be subjected.
7.2 Joinder of Parties. In any action or other judicial proceedings affecting
the Trust, it shall be necessary to join as parties the Trustee, the Committee,
the Company and the Subsidiaries. No Participant or other person shall be
entitled to any notice or service of process. Any judgment entered in such a
proceeding or action shall be binding on all persons claiming under the Trust.
Nothing in this Master Trust Agreement shall be construed as to deprive a
Participant or Beneficiary of his right to seek adjudication of his rights by
administrative process or by a court of competent jurisdiction.
7.3 Employment of Counsel. The Trustee may consult with legal counsel (who may
be counsel for the Company or any Subsidiary) and shall be fully protected with
respect to any action taken or omitted by it in good faith pursuant to the
advice of counsel.
ARTICLE 8 Insurers
8.1 Insurer Not a Party. No insurer shall be deemed to be a party to the
Trust and an insurer's obligations shall be measured and determined solely by
the terms of contracts and other agreements executed by it.
8.2 Authority of Trustee. An insurer shall accept the signature of the Trustee
to any documents or papers executed in connection with such contracts. The
signature of the Trustee shall be conclusive proof to the insurer that the
person on whose life an application is being made is eligible to have a contract
issued on his life and is eligible for a contract of the type and amount
requested.
8.3 Contract Ownership. An insurer shall deal with the Trustee as the sole and
absolute owner of any insurance contracts and shall have no obligation to
inquire whether any action or failure to act on the part of the Trustee is in
accordance with or authorized by the terms of the Plans or this Master Trust
Agreement.
8.4 Limitation of Liability. An insurer shall be fully discharged from any and
all liability for any action taken or any amount paid in accordance with the
direction of the Trustee and shall have no obligation to see to the proper
application of the amounts so paid. An insurer shall have no liability for the
operation of the Trust or the Plans, whether or not in accordance with their
terms and provisions.
8.5 Change of Trustee. An insurer shall be fully discharged from any and all
liability for dealing with a party or parties indicated on its records to be the
Trustee until such time as it shall receive at its home office written notice
of the appointment and qualification of a successor Trustee.
ARTICLE 9 Amendment and Termination
9.1 Amendment. Subject to the limitations set forth in this Section 9.1, this
Master Trust Agreement may be amended by a written instrument executed by the
Trustee and the Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plans or shall make the Trust revocable after it
has become irrevocable in accordance with Section 1.3 above. Any amendment,
change or modification shall be subject to the following rules:
(a) General Rule. Subject to Sections 9.1(b), (c) and (d) below, this Master
Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however, that if an amendment
would in any way adversely affect the rights accrued under the Plans in the
Trust Fund by any Participant or Beneficiary, each and every Participant and
Beneficiary whose rights in the Trust Fund would be adversely affected must
consent to the amendment before this Master Trust Agreement may be so amended;
and
(ii) By the Company and the Trustee as may be necessary to comply with laws
which would otherwise render the Trust void, voidable or invalid in whole or in
part.
(b) Limitation. Notwithstanding that an amendment may be permissible under
Section 9.1(a) above, this Master Trust Agreement shall not be amended by an
amendment that would:
(i) Cause any of the assets of the Trust to be used for or diverted to purposes
other than for the exclusive benefit of Participants and Beneficiaries as set
forth in the Plans, except as is required to satisfy the claims of the Company's
or a Subsidiary's general creditors; or
(ii) Be inconsistent with the terms of any Plan, including the terms of any Plan
regarding termination, amendment or modification of the Plan.
(c) Writing and Consent. Any amendment to this Master Trust Agreement shall be
set forth in writing and signed by the Company and the Trustee and, if consent
of any Participant or Beneficiary is required under Section 9.1(a), the
Participant or Beneficiary whose consent is required. Any amendment may be
current, retroactive or prospective, in each case as provided therein.
(d) The Company and Trustee. In connection with the exercise of the rights
under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have no responsibility to
determine whether any proposed amendment complies with the terms and conditions
set forth in Sections 9.1(a) and (b) above and may conclusively rely on the
directions of the Committee with respect thereto, unless the Trustee has
knowledge of a proposed transaction or transactions that would result in a
Change in Control; and
(ii) after a Change in Control, the power of the Company to amend this Master
Trust Agreement shall cease, and the power to amend that was previously held by
the Company shall, instead, be exercised by a majority of the Participants and,
if a Participant is dead, his. Beneficiaries (who collectively shall have one
vote among them and shall vote in place of such deceased Participant), with the
consent of the Trustee, provided that such amendment otherwise complies with the
requirements of Sections 9.1(a), (b) and (c) above.
(e) Taxation. This Master Trust Agreement shall not be amended, altered,
changed or modified in a manner that would cause the Participants and/or
Beneficiaries under any Plan to be taxed on the benefits under any Plan in a
year other than the year of actual receipt of benefits.
9.2 Final Termination. The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans, and on such date the Trust shall terminate.
Upon termination of the Trust, any assets remaining in the Trust shall be
returned to the Company and the Subsidiaries. Such remaining assets shall be
paid by the Trustee to the Company and the Subsidiaries in such amounts and in
the manner instructed by the Company, whereupon the Trustee shall be released
and discharged from all obligations hereunder. From and after the date of
termination and until final distribution of the Trust Fund, the Trustee shall
continue to have all of the powers provided herein as are necessary or
expedient for the orderly liquidation and distribution of the Trust Fund.
ARTICLE 10 Miscellaneous
10.1 Directions Following Change in Control. Despite any other provision of
this Master Trust Agreement that may be construed to the contrary, following a
Change in Control, all powers of the Committee, the Company and the Board to
direct the Trustee under this Master Trust Agreement shall terminate, and the
Trustee shall act on its own discretion to carry out the terms of this Master
Trust Agreement in accordance with the Plans and this Master Trust Agreement.
10.2 Taxes. The Company and the Subsidiaries shall from time to time pay taxes
of any and all kinds whatsoever that at any time are lawfully levied or assessed
upon or become payable in respect of the Trust Fund, the income or any property
forming a part thereof, or any security transaction pertaining thereto. To the
extent that any taxes lawfully levied or assessed upon the Trust Fund are not
paid by the Company and the Subsidiaries, the Trustee shall have the power to
pay such taxes out of the Trust Fund and shall seek reimbursement from the
Company and the Subsidiaries. Prior to making any payment, the Trustee may
require such releases or other documents from any lawful taxing authority as it
shall deem necessary. The Trustee shall contest the validity of taxes in any
manner deemed appropriate by the Company or its counsel, but at the Company's
and the Subsidiaries' expense, and only if it has received an indemnity bond or
other security satisfactory to it to pay any such expenses. Prior to a Change
in Control, the Trustee (i) shall not be liable for any nonpayment of tax when
it distributes an interest hereunder on directions from the Committee, and (ii)
shall have no obligation to prepare or file any tax return on behalf of the
Trust Fund, any such return being the sole responsibility of the Committee. The
Trustee shall cooporate with the Committee in connection with the preparation
and filing of any such return. After a Change in Control, the Trustee shall
have such duties and obligations.
10.3 Third Persons. All pearsons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from seeing to the
application of any monies, securities or other property paid or delivered to the
Trustee.
10.4 Nonassigability. Nonalienation. Benefits payable to Participants and
their Beneficiaries under this Master 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.
10.5 The Plans. The Trust and the Plans are parts of a single, integrated
employee benefit plan system and shall be construed together. In the event of
any conflict between the terms of this Master Trust Agreement and the agreements
that constitute the Plans, such conflict shall be resolved in favor of this
Master Trust Agreement.
10.6 Applicable Law. Except to the extent, if any, preempted by ERISA, this
Master Trust Agreement shall be governed by and construed in accordance with
the internal laws of the State of Tennessee. Any provision of this Master Trust
Agreement prohibited by law shall be ineffective to the extent of any such
prohibition, without invalidating the remaining provisions hereof.
10.7 Notices and Directions. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section 2.1.
Actions by the Company shall be by the Board or a duly authorized officer, with
such actions certified to the Trustee by an appropriately certified copy of
the action taken. The Trustee shall be protected in acting upon any such
notice, resolution, order, certificate or other communication believed by it to
be genuine and to have been signed by the proper party or parties.
10.8 Successors and Assigns. This Master Trust Agreement shall be binding upon
and inure to the benefit of the Company, the Subsidiaries and the Trustee and
their respective successors and assigns.
10.9 Gender and Number. Words used in the masculine shall apply to the feminine
where applicable, and when the context requires, the plural shall be read as
the singular and the singular as the plural.
10.10 Headings. Headings in this Master Trust Agreement are inserted for
convenience of reference only and any conflict between such headings and the
text shall be resolved in favor of the text.
10.11 Counterparts. This Master Trust Agreement may be executed in an original
and any number of counterparts, each of which shall be deemed to be an original
of one and the same instrument.
10.12 Beneficial Interest. The Company and the Subsidiaries are the true
beneficiaries hereunder in that the payment of benefits, directly or indirectly
to or for a Participant or Beneficiary by the Trustee, is in satisfaction of the
Company's and the Subsidiaries' liability therefor under the Plans. Nothing in
this Master Trust Agreement shall establish any beneficial interest in any
person other than the Company and the Subsidiaries.
10.13 The Trust and Plans. This Trust, the Plans and each Participant's Plan
Agreement are part of and constitute a single, integrated employee benefit plan
and trust, shall be construed together as the entire agreement between the
Company, the Trustee, the Participants and the Beneficiaries with regard to the
subject matter thereof, and shall supersede all previous negotiations,
agreements and commitments with respect thereto.
10.14 Effective Date. The effective date of this Amended and Restated Master
Trust Agreement shall be August 1, 1999.
IN WITNESS WHEREOF the Company and the Trustee have signed this Amended and
Restated Master Trust Agreement as of the date first written above.
TRUSTEE:
SunTrust Banks, Inc.,
Formerly known as
American National Bank and Trust Company of Chattanooga
/s/ S. Xxxxx Xxxxxx
THE COMPANY:
The Xxxxx Group, Inc.,
Formally known as Xxxxx Yarns, Inc.
a Tennessee corporation,
/s/ W. Xxxxx Xxxxx
By:_______________________________
By:_______________________________
Title: Vice President & Trust Officer
Title: V.P., Human Resources
