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EXHIBIT 4.5
CANYON FUEL COMPANY
CAPITAL ACCUMULATION PLAN
TRUST AGREEMENT
THIS AGREEMENT made this________day of ________, 1997 between CANYON FUEL
COMPANY, LLC a Delaware limited liability company ("Canyon Fuel") and STATE
STREET Bank AND TRUST COMPANY, a banking corporation having its principal place
of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Trustee");
R E C I T A L
A. This instrument creates a trust for purposes of the Canyon Fuel
Company Capital Accumulation Plan (the "Plan").
B. The parties hereto desire to execute a trust agreement which sets
forth the rights and duties of Trustee and the terms and conditions under which
the trust fund is to be administered.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Creation of the Trust
1. There is hereby established with Trustee a trust consisting of all
sums paid to Trustee for purposes of the Plan, investments thereof and earnings
and appreciations thereon, which, less disbursements made by Trustee, are
referred to herein as the "Fund" and shall be dealt with as herein provided.
Trustee shall have no duty or authority to inquire into the correctness of
amounts tendered to it or to enforce the collection of any contribution by
Canyon Fuel or the members of the Plan ("Members").
Investment and Administration of the Fund
2. Trustee shall have the power to hold and invest the principal and
income of the Fund in the following manner:
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(A) In cash, such as deposits in interest-bearing bank accounts,
certificates of deposit, corporate or governmental obligations maturing in not
more than five (5) years, financial futures contracts, deposits under a deposit
administration or similar insurance contract or in a commingled or common
investment account or fund established and maintained by a bank (which bank may
be the Trustee), including any fixed income commingled funds maintained by the
Trustee for qualified employee benefit accounts and the assets of which are
invested primarily in debt obligations, in similar cash accounts managed by
investment managers appointed by Canyon Fuel, or in any combination thereof as
Canyon Fuel determines;
(B) In units of a fund, consisting of specified equity
investments, such as common or capital stock of issuers, other than Canyon Fuel,
Atlantic Richfield Company ("ARCO") or any of their subsidiaries or affiliates,
bonds, debentures or preferred stocks convertible into common or capital stock
of such issuers, financial futures contracts, interests in any commingled or
common equity fund established and maintained by an investment advisor or a bank
(which bank may be the Trustee), interests in any mutual fund or other similar
types of equity investments and cash equivalent short-term investments maturing
in less than one year, or in any combination thereof as Canyon Fuel may
determine;
(C) In units of a fund, consisting of specified types of fixed
income investments, such as public obligations of the United States or foreign
governments or their agencies, securitized financing or corporate bonds of
issuers, other than Canyon Fuel, ARCO or any of their subsidiaries or
affiliates, debentures, financial futures contracts, interests in any commingled
or common fixed income fund established and maintained by an investment advisor
or bank (which bank may be the Trustee), interests in any mutual fund or other
similar types of fixed income investments and cash equivalent short-term
investments, or in any combination thereof as Canyon Fuel may determine;
(D) In units of a fund consisting of specified investments in
global issuers such as common or capital stock, other than Canyon Fuel, ARCO or
any of their subsidiaries or affiliates, preferred stocks, securities
convertible into common or capital stock of such issuers, financial futures
contracts, currency futures or options, forward currency contracts, interests in
any commingled or common equity fund established and maintained by an investment
advisor or a bank (which bank may be the Trustee), interests in any mutual fund
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or other similar types of equity investments and cash equivalent investments, or
similar investments or in any combination thereof as Canyon Fuel may determine;
(E) In units of a fund consisting of units of the funds described
in Subparagraphs (B), (C) or (D), which shall be approximately 45 percent of the
fund described in Subparagraph (B), 40 percent of the fund described in
Subparagraph C and 15 percent of the fund described in Subparagraph (D), as
Canyon Fuel determines; or
(F) The Declaration of Trust creating a commingled or common fund
with respect to which the Trust participates is deemed to be part of this Trust
Agreement to the same extent as if fully set forth at length."
3. The Canyon Fuel Company Accumulation Plan Administrative Committee
("Committee") shall furnish in writing to Trustee information sufficient to
enable Trustee to allocate each contribution received by Trustee among the above
several classes of investments in conformity with the provisions of the Plan and
the investment options elected by the Members.
4. This Paragraph is intended to authorize appointment of an investment
manager as contemplated in Section 402(c)(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA").
Canyon Fuel may appoint an investment manager with respect to
some or all of the assets of the Fund. The appointment of the investment manager
shall be made by an officer of Canyon Fuel or other named fiduciary authorized
by a resolution of Canyon Fuel's Management Board to make such appointments. The
authority of the investment manager shall not begin until Trustee receives from
Canyon Fuel notice satisfactory to Trustee that the investment manager has been
appointed and that the investment manager has acknowledged in writing that with
respect to the relevant assets of the Fund he or she or it is a fiduciary with
respect to the Plan within the meaning of ERISA. The investment manager's
authority shall continue until Trustee receives similar notice that the
appointment has been rescinded. By notifying Trustee of the appointment of an
investment manager, Canyon Fuel shall be deemed to warrant that such investment
manager meets the requirements of Section 3(38) of ERISA, but
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Trustee may demand independent evidence that any investment manager meets those
requirements.
The assets with respect to which a particular investment manager
has been appointed shall be segregated from all other assets held by Trustee
under this Agreement and the investment manager shall have the duty and power to
direct Trustee in every aspect of their investment. Upon request, Trustee shall
execute appropriate powers of attorney authorizing an investment manager
appointed hereunder to exercise the powers and duties of the investment manager.
Trustee may rely upon any order, certificate, notice, direction
or other documentary confirmation purporting to have been issued or given by an
investment manager which Trustee believes to be genuine and to have been issued
or given by such investment manager.
Any oral direction shall be followed by a written confirmation as
soon as practical. Trustee shall follow the procedures established by Canyon
Fuel to validate such oral directions.
5. Canyon Fuel may direct that with respect to some or all of the assets
of the Fund, Trustee shall be subject to the direction of a fiduciary named by
Canyon Fuel in a manner prescribed by its Management Board. In such a case,
Trustee shall be subject to proper direction of such fiduciary, and Canyon Fuel
shall be deemed to warrant that all directions given by such fiduciary are
proper, and made in accordance with the Plan, and are not contrary to the
provisions of Title I of ERISA. When so appointed, such a fiduciary shall have
the same powers as an investment manager appointed pursuant to Paragraph 4.
The assets with respect to which a particular fiduciary has been
appointed shall be segregated from all other assets held by Trustee under this
Agreement and the fiduciary shall have the duty and power to direct Trustee in
every aspect of their investment. Upon request, Trustee shall execute
appropriate powers of attorney authorizing a fiduciary appointed hereunder to
exercise the powers and duties of the investment fiduciary.
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Trustee may rely upon any order, certificate, notice, direction
or other confirmation, whether written or oral, purporting to have been issued
or given by a fiduciary which Trustee believes to be genuine and to have been
issued or given by such investment fiduciary.
Any oral direction shall be followed by a written confirmation as
soon as practical. Trustee shall follow the procedures established by Canyon
Fuel to validate such instructions.
6. When acting hereunder, whether in its discretion or at the direction
of an investment manager or fiduciary named pursuant to Paragraph 4 or 5,
Trustee shall have the powers granted Trustees by law and in addition shall have
the power:
(A) To vote any bonds or other securities of any corporation or
other issuer at any time held in the trust; to otherwise consent to or request
any action on the part of any such corporation or other issuer; to give general
or special proxies or powers of attorney with or without power of substitution;
to participate in any reorganization, recapitalization, merger or similar
transaction with respect to such securities and to deposit such securities in
any voting trust, pooling agreement or with any protective or like committee, or
with a trustee, or with depositories designated thereby; to generally exercise
any of the powers of an owner with respect to the securities or properties
comprising the trust; to institute, compromise and defend actions and
proceedings; to pay or contest any claim; to settle a claim by or against the
trust 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;
(B) To hold property of the Fund in its own name or in the name
of a nominee or nominees, without disclosure of the trust, or in bearer form so
that it will pass by delivery; but no such holding shall relieve Trustee of its
responsibility for the safe custody and disposition of the Fund in accordance
with the provisions of this Agreement; Trustee's books and records shall at all
times show that such property is part of the Fund; and Trustee shall be liable
for any loss occasioned by the acts of its nominee or nominees with respect to
securities registered in the name of the nominee or nominees as much as if such
acts were the acts of Trustee;
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(C) To employ agents in the management of the Fund, provided that
Trustee shall be responsible for the acts of such agents (other than acts of the
United States Postal Service) as much as if they were acts of Trustee;
(D) To make, execute and deliver, as Trustee, any conveyances,
contracts, waivers, or other instruments in writing that Trustee may deem
necessary or desirable in the exercise of its powers under this Agreement;
(E) To apply for, purchase, hold and transfer any annuity
contract for a participant in accordance with written instructions from Canyon
Fuel in conjunction with the termination of the Plan, provided that no such
contract shall provide for a life annuity; and
(F) To do all other acts that Trustee may deem necessary or
proper to carry out any of the powers set forth in this Agreement or otherwise
in the best interests of the Fund.
7. Trustee may hold uninvested or may invest in its discretion in
short-term cash equivalents (including deposits, savings accounts and
certificates of deposit with its own banking department or any common or
collective trust fund maintained by Trustee which satisfies such objective) any
amount stated by Canyon Fuel or believed by Trustee to be needed in the near
future for withdrawals from the Fund.
8. Trustee, as and when directed by Canyon Fuel (or any committee or
person or entity designated for such purpose in the Plan or otherwise by Canyon
Fuel), shall make distributions or pay withdrawals, pay expenses of
administering the Plan, buy, sell or turn in for redemption securities, and
exercise or sell options, rights or warrants as shall be specified in any such
direction. In the case of any such distribution or withdrawal, Trustee shall
make or pay the same in cash or in kind, or in any combination thereof as
provided in the direction. Canyon Fuel shall hold harmless and shall defend
Trustee against any liability arising or asserted to arise out of Trustee's
compliance with directions under this paragraph.
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9. Trustee shall be paid such reasonable compensation for its service as
Trustee as shall from time to time be agreed upon by Canyon Fuel and Trustee.
Unless paid by Canyon Fuel, such compensation, and the expenses of
administration of this Trust, may be withdrawn by Trustee from the Fund.
10. Trustee shall pay out of the Fund all taxes imposed or levied with
respect to the Fund or any part thereof, under existing or future laws, and at
Canyon Fuel's direction, may contest the validity or amount of any tax
assessment, claim or demand respecting the Fund or any part thereof.
11. The following additional rules shall govern the standard of conduct
and liabilities of Trustee hereunder;
(A) Trustee shall perform all of its functions hereunder with the
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims, or in accordance with such other standard as may be required from time to
time by law, and shall not be liable for any conduct on its part (including
reliance on advice of counsel) which conforms to that standard.
(B) Trustee shall hold Canyon Fuel, its subsidiaries and
affiliates and each of the directors, officers or employees of Canyon Fuel and
of any such affiliate or subsidiary harmless (including the cost of outside
counsel) against any liability or excise tax asserted against Canyon Fuel or any
such entity or person as a result of any breach by Trustee of any of its duties
or fiduciary responsibilities. This Clause (B) shall not require Trustee to hold
Canyon Fuel or any other entity or person harmless against any liability or
excise tax arising out of action or inaction of Trustee pursuant to or pending
direction by an investment manager or fiduciary named pursuant to Paragraph 4 or
5 or by Canyon Fuel pursuant to any provision of this Agreement.
(C) Trustee shall not be liable for the acts or omissions of an
investment manager or fiduciary appointed under Paragraph 4 or 5, and, except
with respect to short-term investments under Paragraph 7, Trustee shall be under
no
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obligation to invest or otherwise manage any asset of the Plan which is subject
to the management of such investment manager or fiduciary, it being the
intention of the parties that, except with respect to investments under
Paragraph 7, Trustee shall have the full protection of Section 405 of ERISA.
(D) Where an investment manager or fiduciary has been named
pursuant to Paragraph 4 or 5 or where Canyon Fuel is required to give directions
to Trustee, Canyon Fuel shall hold harmless and defend Trustee against any
liability or excise tax arising out of Trustee's action or inaction pursuant to
or pending direction by such investment manager, fiduciary or Canyon Fuel. This
Clause (D) shall not apply to any liability arising out of any act or omission
in which Trustee knowingly participates or which Trustee knowingly undertakes to
conceal, knowing such act or omission to be a breach of fiduciary
responsibility.
(E) When so instructed by Canyon Fuel, Trustee shall deposit any
assets held by it with a custodian named by Canyon Fuel, and Canyon Fuel shall
hold harmless and defend Trustee against any liability arising or asserted to
arise out of Trustee's compliance with directions under this paragraph.
Accounting By Trustee
12. Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements, withdrawals and other transactions
hereunder, and all records relating thereto shall be open to inspection and
audit at all reasonable times by any person or corporation designated by Canyon
Fuel. At such intervals as Canyon Fuel may from time to time designate, and as
of the date of the removal or resignation of Trustee, Trustee shall file with
Canyon Fuel a written account setting forth all investments, receipts,
disbursements, withdrawals and other transactions effected by it during the
period from the date of its last such account and a list of the assets of the
Fund at the close of such period. Such account may be in the form of monthly or
quarterly statements which taken together reflect the matters set forth in the
preceding sentence. As between Canyon Fuel and Trustee, Trustee shall be forever
released and discharged from all liability with respect to the propriety of acts
and transactions shown in such account, except with respect to any such act or
transaction as to which Canyon Fuel shall within 90 days following notification
thereof have filed written objections with
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Trustee and except that no such accounting shall foreclose any liability of
Trustee to Canyon Fuel arising under Paragraph ll(B). Except as provided in
Paragraph ll(B), the liability of Trustee to persons other than Canyon Fuel
shall be limited to actions under ERISA brought within the period permitted by
law for the bringing of such actions.
Removal and Resignation of Trustee
13. Trustee may be removed by Canyon Fuel at any time upon not less than
30 days' written notice and Trustee may resign at any time upon not less than 90
days' written notice. In either case, such notice may be wholly or partially
waived by the party to whom it is due. Upon Trustee's removal or resignation,
Canyon Fuel shall appoint a successor trustee who shall have the same powers and
duties as those conferred upon Trustee hereunder, and upon acceptance of such
appointment by the successor trustee, Trustee shall assign, transfer and pay
over to such successor trustee the funds and properties then constituting the
Fund. If Canyon Fuel fails within a reasonable time to name a successor trustee
or otherwise direct proper disbursement of the Fund, Trustee may apply to any
court of competent jurisdiction for appropriate relief. Trustee may in any event
reserve such reasonable sum of money as it may deem advisable, to provide for
any charges against the Fund for which it may be liable, and for payment of its
fees and expenses in connection with the settlement of its account or otherwise.
Any balance of such reserve remaining after the payment of such fees and
expenses shall be paid over as aforesaid.
14. If the Plan is wholly or partially terminated, Trustee shall
disburse the portion of the Fund affected by the termination as directed by
Canyon Fuel. Trustee may elect to treat any such disbursement as a removal of
Trustee with respect to the assets disbursed. in which case the provisions of
Paragraph 13 shall apply.
15. Canyon Fuel may amend this Agreement by an instrument in writing
signed by an authorized officer of Canyon Fuel or by any other named fiduciary
authorized by a resolution of Canyon Fuel's Management Board to sign such
amendment, provided that no such amendment shall divert any part of the Fund to
purposes other than payment of benefits to Plan members and their beneficiaries
or defrayal of reasonable expenses of administering the Plan, and, except with
Trustee's consent, no amendment affecting the duties, responsibilities or rights
of Trustee shall
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take effect until 30 days after a copy of said amendment is furnished to Trustee
or, if Trustee gives notice of resignation within such 30-day period, until the
resignation becomes effective.
16. Canyon Fuel may terminate this Agreement by directing disbursement
of the entire Fund pursuant to Paragraph 13.
Miscellaneous
17. Prior to satisfaction of all liabilities under the Plan, no part of
the Fund shall inure to the benefit of Canyon Fuel or be used other than for
purposes of providing benefits to Members and their beneficiaries and defraying
reasonable expenses of administering the Plan. However;
(A) If a contribution under the Plan is made by a mistake of
fact, this paragraph shall not prohibit the return of an amount not in excess of
such contribution at the direction of Canyon Fuel within one year after the
contribution is paid;
(B) If a contribution under the Plan is expressly conditioned on
initial qualification of the Plan under Section 401 of the Internal Revenue Code
of 1986, as amended, and if the Plan does not qualify, or continue to so
qualify, this paragraph shall not prohibit the return of an amount not in excess
of such contribution at the direction of Canyon Fuel within one year after the
date of denial of qualification of the Plan; and
(C) If a contribution under the Plan is expressly conditioned
upon the deductibility of the contribution under Section 404 of the Internal
Revenue Code of 1986, as amended, then, to the extent the deduction is
disallowed, this paragraph shall not prohibit the return of an amount not in
excess of such contribution (to the extent disallowed) at the direction of
Canyon Fuel within one year after the disallowance of the deduction.
Trustee may demand assurance satisfactory to it that the sum of
all amounts being returned from the Trust under the Plan does not exceed the
amount described above.
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18. This Trust is intended to be entitled to an income tax exemption
under Section 501(a) of the Internal Revenue Code of 1986 and wherever possible
shall be construed to carry out that intention. Trustee may demand assurances
satisfactory to it that any action it is directed to take will not adversely
affect the tax exemption of the Trust.
19. Any successor in interest to Trustee shall automatically become
Trustee hereunder.
20. Any successor to all or part of the business of Canyon Fuel may
become a party to this Agreement and, with respect to assets of the Fund which
Canyon Fuel warrants to Trustee are allocable to such successor, this Agreement
shall be deemed to create a separate trust composed of such assets and
administered according to this Agreement, except that such successor shall be
substituted for Canyon Fuel for all purposes hereunder.
21. Unless otherwise provided in this Agreement, any communications
(including notices, instructions, or directions) required or permitted hereunder
to be given by Canyon Fuel shall be given in writing addressed to the trust
officer with whom Canyon Fuel customarily deals and signed by the officer
delegated such power, or any other person or persons whom Canyon Fuel notifies
Trustee are from time to time authorized to sign such communications. Canyon
Fuel shall furnish Trustee specimen signatures of all persons authorized to sign
communications to Trustee.
22. If any payment mailed by regular U.S. Mail to the last address of
the payee furnished by Canyon Fuel is returned unclaimed, Trustee shall so
notify Canyon Fuel and shall discontinue further payments to such payee until it
received further instructions of Canyon Fuel.
23. No amount held hereunder shall be subject to voluntary or
involuntary alienation or to the claims of any creditor.
24. This Agreement shall be controlled by the law of the State of
Massachusetts in all respects in which the law is not inconsistent with ERISA.
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25. This Agreement may be executed in counterparts, each of which shall
be an original although the others are not produced.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed the date first written above.
ATTEST: CANYON FUEL COMPANY, LLC
By:
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XXXXXXX X. XXXXXXXX
As named fiduciary appointed by the
Management Board of Canyon Fuel
Company, LLC with power and
authority to negotiate, execute and
deliver this Trust Agreement on
behalf of Canyon Fuel Company, LLC
ATTEST: STATE STREET BANK AND TRUST COMPANY
As Trustee for Canyon Fuel Company
Capital Accumulation Plan
By:
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