EXHIBIT 10.4
LOOMIS INDEMNITY TRUST AGREEMENT
AGREEMENT AND DECLARATION OF TRUST, dated as of January 24, 1997 by
and among Xxxxxx, Fargo & Co., a Delaware corporation ("Xxxxxx Fargo"), the
Xxxxxx Stockholders Trust, a Delaware business trust ("Loomis Stockholders
Trust"), and Xxxxxxxxx X. Xxxx, Xx. (the "Original Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Contribution Agreement (the "Contribution
Agreement") dated as of November 28, 1996, by and among Xxxx-Xxxxxx Security
Corporation, a Delaware corporation, Xxxxx Fargo Armored Service Corporation, a
Delaware corporation and wholly-owned subsidiary of Xxxx-Xxxxxx ("Xxxxx Fargo"),
Loomis Holding Corporation, a Delaware corporation ("Loomis"), Xxxxxx Fargo
(formerly known as Xxxxxx-Xxxxx Corporation), Xxxxxx Armored Inc., a Texas
corporation and wholly-owned subsidiary of Loomis ("Xxxxxx Armored"), and the
Loomis Stockholders Trust, the armored transport businesses of Xxxxxx Armored
and Xxxxx Fargo are to be combined in a transaction intended to satisfy the
requirements of (S) 351 of the Code; and
WHEREAS, the Loomis Stockholders Trust may have certain liabilities
and/or expenses as a result of certain indemnification or payment obligations
under the Contribution Agreement (the "Indemnity Claims"); and
WHEREAS, the Contribution Agreement contemplates that Xxxxxx Fargo
shall convey to the Trustee hereunder cash in the amount specified in the
Contribution Agreement to pay such of the Indemnity Claims as may become
ascertained, due and payable; and
WHEREAS, the Contribution Agreement contemplates that the Loomis
Stockholders Trust pay directly the Indemnity Claims which become due and
payable in excess of the Trust Fund (as hereinafter defined) and that the Loomis
Stockholders Trust will be entitled to receive the Trust Fund to the extent that
it exceeds the aggregate Indemnity Claims which have become due and payable and
have been paid;
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, and subject to the terms and provisions contained in this Trust
Agreement, it is hereby agreed as follows:
ARTICLE I.
NAME AND DEFINITIONS
1.01 NAME. This trust shall be known as the Loomis Indemnity Trust.
1.02 TERMS DEFINED IN THE RECITALS. When used in this Trust
Agreement, terms defined in the recitals hereto have the meanings ascribed
therein.
1.03 TERMS DEFINED IN THE CONTRIBUTION AGREEMENT. When used in this
Trust Agreement (including the recitals hereto), terms defined in the
Contribution Agreement and not otherwise defined herein have the meanings
ascribed to such terms in the Contribution Agreement.
1.04 ADDITIONAL TERMS DEFINED. For purposes of this Trust Agreement
the following words and expressions shall have the following meanings and
usages:
(a) "Asserted Claims": those of the Indemnity Claims that
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have been reported by the Loomis Stockholders Trust to the Trustee after the
Closing pursuant to Section 4.01, as claims requiring payment pursuant to this
Trust Agreement, and any fees, charges or expenses incurred by the Loomis
Stockholders Trust in determining the amount thereof, including litigation and
settlement costs, if any.
(b) "Beneficiaries": collectively, the Class I Beneficiary
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and the Class II Beneficiary.
(c) "Class I Beneficiary": Xxxxxx Fargo.
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(d) "Class II Beneficiary": Loomis Stockholders Trust.
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(e) "Closing": the closing of the Xxxxxx Fargo Consolidation
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pursuant to Section 10.1 of the Contribution Agreement.
(f) "Code": the Internal Revenue Code of 1986, as amended
----
from time to time. Any reference to a section of the Code shall be deemed to
refer as well to any subsequent provision of law enacted in its place, and shall
be deemed to include all Treasury Regulations promulgated under the Code
interpreting or applying that section.
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(g) "Expense Reserve": at any given time, an amount of the
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Trust Fund equal to the sum of (i) such amount as the Trustee shall then
reasonably deem necessary to satisfy all claims, expenses, charges, liabilities
and obligations of the Trust, including, without limitation, the Asserted
Claims, plus (ii) such amount as the Trustee would reasonably estimate to be
necessary to meet the expenses of terminating the Trust at such time. For
purposes of determining the Expense Reserve, necessary expenses of the Trust
shall not include any expenses resulting from the Trustee's own recklessness or
its own intentional or willful and wanton misconduct resulting in private gain.
(h) "Initial Contribution": the amount required to be
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delivered to the Trustee at the Closing pursuant to Section 2.01 of this Trust
Agreement.
(i) "Loomis Affiliates": Xxxxxx Fargo, Loomis, Xxxxxx Armored
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and any corporation or other entity successor to any one or more of them.
(j) "Loomis Excess Payment": $4.7 million.
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(k) "Xxxxxx Fargo Consolidation": the transaction contemplated
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by the Contribution Agreement.
(l) "Notice": the tangible expression of a communication
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sent, an instruction or direction given, or an action taken, pursuant to this
Trust Agreement. A Notice shall be effective only if it conforms to the
requirements of Section 12.05.
(m) "Termination Date": the date upon which the Trust
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terminates pursuant to Section 3.01.
(n) "Trust": the separate trust held under this Trust
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Agreement.
(o) "Trust Agreement": this Trust Agreement, as amended from
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time to time.
(p) "Trust Fund": all property (principal plus accrued,
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accumulated and undistributed income) that, at any particular time, belongs to
the Trust.
(q) "Trust Term": the period from the date of the Closing
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though and including the Termination Date.
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(r) "Trustee": each Trustee and all Trustees (including the
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Original Trustee) serving under this Trust Agreement at any particular time.
1.05 GENDER AND NUMBER. Except where the context otherwise
requires, words importing the masculine gender include the feminine and the
neuter, if appropriate, words importing the singular number shall include the
plural number and vice versa and words importing persons shall include firms,
associations, corporations and other entities.
1.06 SUBDIVISION REFERENCES. Except as is otherwise specifically
provided, references herein to Sections and other subdivisions refer to the
corresponding Sections and other subdivisions of this Trust Agreement.
1.07 TITLES. The Article titles and Section headings in this Trust
Agreement are included solely for purposes of identification, and are not be
used to construe any provision contained in this Trust Agreement or for any
other purpose.
ARTICLE II.
INITIAL FUNDING AND UNDERTAKINGS OF THE TRUSTEE
2.01 INITIAL FUNDING. At the Closing, Xxxxxx Fargo shall contribute
the Loomis Excess Payment to the capital of Loomis, and Loomis shall transfer,
assign and deliver to the Trustee, and the Trustee shall receive and accept,
cash in the amount of the Loomis Excess Payment, representing the Initial
Contribution to the Trust.
2.02 UNDERTAKINGS OF THE TRUSTEES. Upon receipt of the Initial
Contribution, (i) the Trustee shall hold such funds, and any additional property
received by the Trustee pursuant to the Contribution Agreement or this Trust
Agreement, in a separate trust in accordance with the provisions of this Trust
Agreement, and (ii) except as may be limited by applicable law, the Trustee, as
instructed by the manager of the Loomis Stockholders Trust pursuant to Section
4.01, shall make distributions to the Class I Beneficiary sufficient to pay
those claims, liabilities and obligations of the Loomis Affiliates with respect
to which an Indemnity Claim may be made against the Loomis Stockholders Trust
pursuant to the Contribution Agreement, including, without limitation, the
Asserted Claims.
2.03 OWNERSHIP AND CONTROL OF TRUST FUND. Except as expressly
provided hereunder, no Beneficiary (as defined in Section 1.04(b)) shall have
title or right to, or possession, management or control of the Trust Fund. The
whole title to all of the Trust
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Fund shall be vested in the Trustee and the sole interest of the Beneficiaries
shall be the rights and benefits given to it under this Trust Agreement.
ARTICLE III.
DURATION AND TERMINATION OF TRUST
3.01 DURATION. Subject to the overriding provisions of Section
3.02, the Trust shall terminate upon the earlier to occur of:
(a) July 24, 1999;
(b) subject to Section 4.04, the earliest time at which the
value of the assets in the Trust Fund does not exceed the amount of the
Expense Reserve.
3.02 RULE AGAINST PERPETUITIES. Notwithstanding any other provision
of this Trust Agreement, and particularly notwithstanding the provisions of
Section 3.01, the Trust shall terminate, if it shall not have previously
terminated, one (1) day before the twentieth (20th) anniversary of the Closing
Date.
3.03 TERMINATION BY BENEFICIARIES. The Trust may not be revoked or
terminated at any time prior to the Termination Date by the Beneficiaries and/or
the Trustee.
3.04 CONTINUANCE OF TRUST FOR WINDING UP. After the Termination
Date, and solely for the purpose of liquidating and winding up the affairs of
the Trust, the Trustee shall continue to act as such until its duties have been
fully performed. For purposes of winding up the Trust, the Trustee shall pay
out any Asserted Claims that were submitted prior to the Termination Date and
expenses that were incurred prior to liquidation of the Trust, to the extent
that assets in the Trust Fund are sufficient for such purpose (taking into
account any payments requested by the Trustee pursuant to Section 4.04).
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ARTICLE IV.
ADMINISTRATION OF THE TRUST FUND
4.01 NOTIFICATION OF CLAIMS. The Loomis Stockholders Trust shall
promptly notify the Trustee in writing of Asserted Claims which the Manager of
the Loomis Stockholders Trust determines to be valid.
4.02 PAYMENT OF CLAIMS, EXPENSES AND LIABILITIES. The Trustee shall
pay from the Trust Fund all claims, expenses, charges, liabilities and
obligations of the Trust, as contemplated by this Trust Agreement and as
required by law. The Trustee shall pay Asserted Claims, or portions thereof, in
accordance with the instructions of the Manager of the Loomis Stockholders
Trust, promptly but in any event within ten business days following receipt by
the Trustee of the notice required by Section 4.01.
4.03 ACCUMULATION OF NET INCOME. Except as provided below, the
Trustee shall accumulate all of the net income of the Trust Fund not utilized
for the payment of Trust liabilities and expenses pursuant to Section 4.02 and
shall add such accumulated income to the principal of the Trust Fund from time
to time. As promptly as practicable after the Trustee determines, pursuant to
Article V hereof, the taxable income allocable to a Beneficiary with respect to
a period, the Trustee shall distribute to such Beneficiary 40% of the taxable
income of the Trust allocable to such Beneficiary (a "Tax Distribution"). In
the event that there is a final determination pursuant to action by a tax
authority that such taxable income was properly taxable to another Beneficiary,
the Beneficiary which received the Tax Distribution shall promptly pay the Tax
Distribution for the applicable period to the other Beneficiary.
4.04 COLLECTION FOR EXPENSES. If at any time the amount of the then
Expense Reserve exceeds the value of the Trust Fund, the Class II Beneficiary
shall promptly pay to the Trustee as much or all of the excess as the Trustee
shall request.
4.05 FINAL DISTRIBUTION. Upon the Termination Date and after having
given effect to Section 3.04, (i) the Trustee shall distribute the balance of
the Trust Fund (if any) to the Class II Beneficiary, and (ii) the Class II
Beneficiary shall assume any and all liabilities and obligations of the Trustee
with respect to the Indemnity Claims.
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ARTICLE V.
TAX MATTERS
5.01 INCOME TAX STATUS. The Trust is intended to be treated as a
liquidating trust pursuant to Treasury Regulation (S) 301.7701-4(d) and as a
grantor trust subject to the provisions of Subchapter J, Subpart E of the
Internal Revenue Code owned by the Class I Beneficiary as grantor. Any items of
income, deduction, credit or loss of the Trust shall be allocated to the Class I
Beneficiary for federal income tax purposes. The Trustee is authorized to take
any action that may be necessary or appropriate to minimize any potential tax
liability of the Beneficiaries arising out of the operations of the Trust.
5.02 TAX RETURNS AND REPORTS. In accordance with (S) 1.671-4(a) of
the Treasury Regulations, the Trustee will file with the IRS annual information
tax returns (Form 1041), as provided in this Section. Items of income,
deduction and credit attributable to the Trust will not be reported on the Form
1041. Instead, the Trustee will attach to the Form 1041 a separate statement
showing the items of income, deduction and credit attributable to the Trust and
detailing the allocation of such items to the Class I Beneficiary. Within
thirty (30) days after the end of each calendar year, the Trustee shall cause to
be prepared and mailed to the Class I Beneficiary such information with respect
to the Trust as shall be necessary for the Class I Beneficiary to complete and
file its federal, state and local income and other tax returns.
5.03 WITHHOLDING. Notwithstanding the preceding provisions of this
Article V, the Trustee may withhold from any amount distributable from the Trust
at any time to any person such sum or sums as may be sufficient to pay any tax
or taxes or other charge or charges which have been or may be imposed on such
person or upon the Trust with respect to the amount distributable or to be
distributed under the income tax laws of the United States or of any state or
political subdivision or entity by reason of any distribution provided for in
this Trust Agreement, whenever such withholding is determined by the Trustee, in
the Trustee's sole discretion, to be required by any law, regulation, rule,
ruling, directive or other governmental requirement.
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ARTICLE VI.
POWERS OF AND LIMITATIONS ON THE TRUSTEE
6.01 LIMITATIONS ON TRUSTEE. The Trustee shall not at any time, on
behalf of the Trust or the Beneficiaries, enter into or engage in any trade or
business, and no part of the Trust Fund shall be used or disposed of by the
Trustee in furtherance of any trade or business. The Trustee shall be
restricted to receiving the Initial Contribution, collecting income from the
Trust Fund, discharging Asserted Claims, bringing suit or defending any suit
against the Trust or the Trustee on behalf of the Trust, and exercising such
other powers and duties as are specified elsewhere in this Trust Agreement,
including, without limitation, the duties specified in Section 6.03, for the
purposes of carrying out the terms of this Trust Agreement.
6.02 LIMITATIONS ON INVESTMENTS. The Trustee shall invest the
Initial Contribution and other funds received by it as Trustee or otherwise held
in the Trust Fund only in (a) short-term marketable direct obligations of, or
guaranteed as to principal and interest by, the United States government or any
agency thereof; (b) commercial paper of one or more corporations having a credit
rating of at least "A"; or (c) insured demand deposit accounts or interest-
bearing certificates of deposit or other similar obligations of domestic banks
or other financial institutions having a shareholders' equity or equivalent
capital of not less than One Billion Dollars ($1,000,000,000), at the then best
generally available rates of interest for like amounts and like periods;
provided, however, that the maturities of any of the foregoing shall not exceed
one (1) year from the date of such investment.
6.03 SPECIFIC POWERS OF TRUSTEE. Subject to the limitations
contained in this Trust Agreement, the Trustee shall have, in addition to any
powers conferred by any other provision of this Trust Agreement, the power to
take any and all actions as, in the sole discretion of the Trustee, are
necessary or advisable to effectuate the purpose of the Trust, including the
following specific powers:
(a) To retain all or any assets constituting part of the Trust
Fund, to hold legal title to property of the Trust in the name of the
Trust, to invest or reinvest funds of the Trust only as provided in Section
6.02 and to cause such investments of any part of the Trust Fund to be
registered and held in its name, as Trustee, or in the names of nominees.
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(b) To maintain appropriate books and records relating to the
Trust and the Trust Fund detailing the acts and transactions of the
Trustee.
(c) To initiate, prosecute, defend, supervise, direct,
compromise or settle any claim, demand, action or proceeding relating to
the Trust or this Trust Agreement, and in connection therewith, at the
Trustee's discretion, to retain and employ such agents, adjusters and
professionals (including professionals affiliated with the Trustee or any
retained by any Loomis Affiliate or the Beneficiaries) and to confer upon
them such authority as the Trustee may deem expedient to carry out its
duties hereunder, and to pay reasonable compensation therefor from the
Trust Fund.
(d) To perform any and all acts, exercise any and all rights,
enter into any and all proceedings, contracts and other instruments
(including, but not limited to, the preparation and filing of any and all
statements and papers, documents and instruments of any kind and nature
with any governmental body having jurisdiction over the Trust or the
Contribution Agreement) that are not inconsistent with the provisions of
this Trust Agreement and that the Trustee deems necessary and advisable in
its opinion for the exercise by the Trustee of all the rights and
privileges accorded to it hereunder, for the protection and safekeeping of
the Trust Fund and for the administration of the Trust in accordance with
the terms of this Trust Agreement and applicable law.
ARTICLE VII.
ACCOUNTS OF THE TRUSTEE
7.01 ACCOUNTS AND INSPECTION. The Trustee shall keep accurate and
detailed accounts of all investments, receipts and disbursements and other
transactions hereunder and all accounts, books and records relating thereto
shall be open at all reasonable times to inspection and audit by any person
designated by the Beneficiaries. The Trustee shall promptly deliver to such
designee any reports on the Trust Fund that are reasonably requested.
7.02 ACCOUNTING REPORTS. Within a reasonable time period following
the Termination Date, and within one hundred twenty (120) days, or such other
agreed-upon period, after removal or resignation of the Trustee, the Trustee
shall deliver to the
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Beneficiaries a certified written report, in a format acceptable to the
Beneficiaries, setting forth (i) all investments, receipts and disbursements,
and other transactions effected during the period from the date of this Trust
Agreement, or from the close of any preceding period covered by such a report to
the date of such removal, resignation or termination, (ii) all cash, securities
and other property held at the close of such period and the current value
thereof, and (iii) such other information as may be required of the Trustee
under any applicable law.
7.03 RIGHT TO JUDICIAL ACCOUNTING. Nothing contained in this
Article shall be construed as a limitation upon or prohibition against the
Trustee's right to have its accounting judicially settled.
7.04 PRESERVATION OF BOOKS AND RECORDS. All records and accounts
maintained by the Trustee with respect to the Trust shall be preserved for such
period as may be required under any applicable law. Upon the expiration of any
such required retention period, the Trustee shall have the right to destroy such
records and accounts after first notifying the Beneficiaries of its intention
and transferring to the Beneficiaries all records and accounts requested. The
Trustee shall have the right to preserve all records and accounts in original
form, or on microfilm, magnetic tape, or any other similar process.
ARTICLE VIII.
LIABILITIES AND INDEMNIFICATION OF THE TRUSTEE
8.01 GENERALLY. The Trustee accepts and undertakes to discharge the
trust created by this Trust Agreement upon the terms and conditions hereof. The
Trustee shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise as a
prudent man would exercise or use under the circumstances in the conduct of its
own affairs. No provisions of this Trust Agreement shall be construed to
relieve the Trustee from liability for its own recklessness or its own
intentional or willful and wanton misconduct resulting in private gain, except
that:
(a) The Trustee shall not be liable for any action taken in
good faith in reliance upon the advice of professionals.
(b) The Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
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Trust Agreement, and no implied covenants or obligations shall be read into
this Trust Agreement against the Trustee.
(c) The Trustee shall not be liable for any error of judgment
made in good faith.
8.02 REQUIREMENT OF ADEQUATE RESOURCES. Notwithstanding any other
provision of this Trust Agreement, and particularly notwithstanding the
provisions of Section 6.03, the Trustee shall not be required to take any action
with respect to any Asserted Claim or to enter into or maintain any other claim,
demand, action or proceeding relating to the Trust, unless the Trustee shall
have sufficient funds on hand for that purpose or unless the Trustee shall have
been indemnified to its satisfaction against all expenses and liabilities to
which it may, in its judgment, be subjected by any such action on its part.
8.03 RELIANCE BY TRUSTEE. Except as otherwise provided in Section
7.01:
(a) The Trustee may rely and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order or other paper or document reasonably
believed by the Trustee to be genuine and to have been signed or presented
by the proper party or parties.
(b) The Trustee may consult with legal counsel to be selected
by it, and pay the cost of such consultation from the Trust Fund, and the
advice or opinion of such counsel shall be full and complete personal
protection to the Trustee and agents of the Trust in respect of any action
taken or suffered by it in good faith and in reliance on, or in accordance
with, such advice or opinion.
8.04 INDEMNIFICATION OF TRUSTEE. In addition to, and not in
limitation of, the provisions of Section 4.04, the Trustee shall be indemnified
by and receive reimbursement from the Class II Beneficiary against and from any
and all loss, liability, damage or expense that the Trustee may incur or
sustain, in good faith and without recklessness or its own intentional or
willful and wanton misconduct resulting in personal gain, in the exercise and
performance of any of the powers and duties of the Trustee under this Trust
Agreement. The Trustee may receive advance payments in connection with
indemnification under this Section, provided that prior to receiving any such
advance, the Trustee shall first have given a written undertaking to repay any
amount advanced to it and to reimburse the Trust in the event it is subsequently
determined that it is not entitled to such indemnification. The rights
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accruing to the Trustee by reason of the foregoing shall not be deemed to
exclude any other right to which it may legally be entitled, nor shall anything
else contained herein restrict the right of the Trustee to contribution under
applicable law.
8.05 BOND OF TRUSTEE. Neither the Original Trustee nor any
successor Trustee shall be obliged to file or furnish any bond or surety for the
performance of its duties, unless otherwise ordered by a Court, and if so
ordered, all costs and expenses of providing such bond or surety shall be paid
or reimbursed from the Trust Fund as an expense of administration.
8.06 LIABILITY TO THIRD PERSONS. The Beneficiaries shall not be
subject to any personal liability whatsoever, in tort, contract or otherwise, to
any person in connection with the Trust Fund or the affairs of the Trust during
the Trust Term, and no Trustee or agent of the Trust shall be subject to any
personal liability whatsoever, in tort, contract or otherwise, to any person in
connection with the Trust Fund or the affairs of this Trust, except for its own
recklessness or its own intentional or willful and wanton misconduct resulting
in personal gain; and all such persons shall look solely to the Trust Fund for
satisfaction of claims of any nature arising in connection with affairs of the
Trust.
8.07 NONLIABILITY OF TRUSTEE FOR ACTS OF PREDECESSORS. Any
successor Trustee may accept and rely upon any accounting made by or on behalf
of any predecessor Trustee hereunder, and any statement or representation made
as to the assets comprising the Trust Fund or as to any other fact bearing upon
the prior administration of the Trust. A Trustee shall not be liable for having
accepted and relied upon such accounting, statement or representation if it is
later proved to be incomplete, inaccurate or untrue. A Trustee or successor
Trustee shall not be liable for any act or omission of any predecessor Trustee,
nor have a duty to enforce any claims against any predecessor Trustee on account
of any such act or omission.
8.08 NONLIABILITY OF TRUSTEE FOR ACTS OF OTHERS. Nothing contained
in this Trust Agreement shall be deemed to be an assumption by the Trustee of
any of the liabilities, obligations or duties of any of the other parties
hereto, and shall not be deemed to be or contain a covenant or agreement by the
Trustee to assume or accept any such liability, obligation or duty.
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ARTICLE IX.
COMPENSATION OF TRUSTEES
9.01 TRUSTEE COMPENSATION. Each Trustee shall be entitled to such
compensation for services rendered as shall be mutually agreed upon by the
Trustee and the Class II Beneficiary prior to such Trustee's accession to
office, to be paid in such installments and at such intervals as shall have been
specified in such agreement.
9.02 PRIOR LIEN OF TRUSTEE. The Trustee shall have a prior lien
upon the Trust Assets to secure payment of any amounts payable to the Trustee or
to employees or agents of the Trust as compensation for services to the Trust or
for indemnification pursuant to Section 8.04 above.
ARTICLE X.
TRUSTEE AND SUCCESSOR TRUSTEES
10.01 GENERALLY. The Trustee may be a bank or trust company
authorized to act as a corporate fiduciary under the laws of the State of New
York. A Trustee that changes its name or reorganizes, reincorporates or merges
with or into or consolidates with any other entity shall be deemed to be a
continuing entity and shall continue to act as a Trustee hereunder.
10.02 RESIGNATION. The Trustee may resign as Trustee by delivering a
Notice of resignation to the Beneficiaries. Such resignation shall become
effective on the date specified in such Notice (which shall not be less than
thirty (30) days after delivery of such Notice) or upon the appointment of such
Trustee's successor and such successor's acceptance of such appointment,
whichever is later.
10.03 APPOINTMENT OF SUCCESSOR. In the event of the removal,
resignation, bankruptcy or insolvency of the Trustee, a vacancy shall be deemed
to exist and a successor shall be appointed by the Beneficiaries.
10.04 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. The removal,
resignation, bankruptcy or insolvency of the Trustee shall not operate to
terminate the Trust created by this Agreement or to revoke any existing agency
created pursuant to the terms of this Trust Agreement or invalidate any action
theretofore taken by the Trustee. Any
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successor Trustee appointed hereunder shall execute an instrument accepting its
appointment and shall deliver one counterpart thereof to each of the
Beneficiaries, and, in case of the Trustee's resignation, to the retiring
Trustee. Thereupon such successor shall, without any further act, become vested
with all the liabilities, duties, powers, rights, title, discretion and
privileges of its predecessor in the Trust with like effect as if originally
named Trustee. The retiring Trustee shall duly assign, transfer and deliver to
such successor all property and money held by such retiring Trustee hereunder
and shall, as reasonably requested by such successor, execute and deliver an
instrument or instruments conveying and transferring to such successor upon the
trust herein expressed, all the liabilities, duties, powers, rights, title,
discretion and privileges of such retiring Trustee.
ARTICLE XI.
AMENDMENTS
11.01 AMENDMENT AUTHORITY. Whenever necessary to carry out the
purpose of the Trust, this Trust Agreement may be amended by the Trustee with
the unanimous consent and approval of the Beneficiaries; provided, however,
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that:
(a) no such amendment may be made that would have the effect
of (i) changing the beneficial interest of the Beneficiaries, or (ii)
reducing any responsibility of the Trustee with respect to Indemnity Claims
without the consent of Xxxx-Xxxxxx and Xxxxxx Fargo; and
(b) no such amendment may be made under any circumstances that
would have the effect of (i) extending the Termination Date beyond the date
specified in Section 3.02, (ii) authorizing the Trustee to engage in a
trade or business, or (iii) expanding the amendment powers of the Trustee
under this Article.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
12.01 INTENTION OF PARTIES TO ESTABLISH TRUST. This Trust Agreement
is intended to create a trust without transferable certificated beneficial
interests (except as
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permitted by operation of law) and the Trust created hereunder shall be governed
and construed in all respects as a trust.
12.02 INSTRUMENTS OF FURTHER ASSURANCE. The Beneficiaries shall,
upon the reasonable request of the Trustee, execute, acknowledge and deliver
such further instruments and do such further acts as may be necessary or proper
to carry out effectively the purpose of this Trust Agreement.
12.03 GOVERNING LAW. This Trust Agreement shall be construed and
enforced, to the extent possible, according to the internal laws of the State of
New York, and all provisions hereof shall be administered according to the laws
of said State.
12.04 SEVERABILITY. In the event any provision of this Trust
Agreement or the application thereof to any person or circumstances shall be
finally determined by a court of proper jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Trust Agreement, or the
application of such provision to persons or circumstances or in jurisdictions
other than those as to or in which it is held invalid or unenforceable, shall
not be affected thereby, and each provision of this Trust Agreement shall be
valid and enforced to the fullest extent permitted by law.
12.05 NOTICES. (a) Any Notice or other communication required or
permitted to be made in accordance with this Trust Agreement shall be in writing
and shall be deemed to have been sufficiently given, for all purposes, if
delivered personally, or if delivered during regular business hours by facsimile
transmission, telex or other electronic or telegraphic means, or if delivered by
a recognized overnight or two-day delivery service or if mailed by first class
mail:
(i) if to the Trustee, at:
Xxxxxxx Partners, L.P.
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx.
Telecopy No.: (000) 000-0000
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
(ii) if to the Class I Beneficiary, at:
Xxxxxx, Fargo & Co.
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
(iii) if to the Class II Beneficiary, at:
c/o Wingate Partners, L.P.
000 X. Xx. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx.
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
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(b) Any entity may change the address at which it is to receive
Notices under this Trust Agreement by furnishing written Notice thereof to the
Trustee as provided above.
12.06 COUNTERPARTS. This Trust Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officers and the Trustee herein has executed this Trust Agreement, as Trustee,
effective as of the day and year first above written.
XXXXXX, FARGO & CO.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-------------------------------
Name:
Title:
XXXXXX STOCKHOLDERS TRUST
By: /s/ X. X. Xxxx, Xx.
-------------------------------
Xxxxxxxxx X. Xxxx, Xx.,
Manager
XXXXXXXXX X. XXXX, XX.
Trustee
By: /s/ X. X. Xxxx, Xx.
-------------------------------
Xxxxxxxxx X. Xxxx, Xx.,
as Trustee and not individually
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