EXHIBIT 4.7
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of the 31st day of August, 1998, by and
between Xxxxx-Sundstrand Company (hereinafter referred to as the "Employer"),
and INSTITUTIONAL TRUST COMPANY, a Colorado corporation (hereinafter referred
to as the "Trustee").
W I T N E S S E T H :
WHEREAS, the Employer has established and sponsors an Internal Revenue
Code of 1986, as amended (hereinafter referred to as the "Code") Section
401(k) profit sharing plan, known as the Xxxxx-Sundstrand Employees' Savings
and Retirement Plan (hereinafter referred to as the "Plan"), for the purpose
of providing retirement and related benefits for certain employees of the
Employer and their beneficiaries; and
WHEREAS, a Committee of at least three individuals (hereinafter referred
to collectively as the "Administrator") has been appointed pursuant to the
provisions of the Plan to administer the same; and
WHEREAS, the Plan calls for the establishment of a trust to which
contributions can be paid from time to time under Code Section 401(a), and
which is exempt from income taxation under Section 501 of the Code; and
WHEREAS, as of August 31, 1998, Investors Fiduciary Trust Company (the
"Prior Trustee") served as trustee under the terms of the Trust Agreement
between the Employer and the Prior Trustee dated October 10, 1995
(hereinafter the "Prior Trust Agreement"); and
WHEREAS, the Employer wishes to (a) appoint the Trustee as successor
trustee as of September 1, 1998, and (b) define and limit the Trustee's
powers, duties and responsibilities to those specifically provided herein; and
WHEREAS, the Employer desires the Trustee to hold and administer the
funds of the trust and any future amounts contributed by the Employer to the
Plan, and the Trustee is willing to do so on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto hereby agree as follows:
ARTICLE I - Contributions
A. The Trustee shall hold all property received by it as Trustee and any
property into which the same or any part thereof may from time to time be
converted, together with the income thereon (all such property being
hereinafter called the "Trust Fund") IN TRUST, without distinction between
the principal and income thereof, and shall apply the same, after the
payment of all necessary expenses, for the exclusive benefit of certain
employees and their beneficiaries. The Trustee shall accept any cash, and
may accept any other property, contributed pursuant to the terms of the
Plan, but shall not be under any duty nor have any right to require the
Employer to
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contribute to the Trust Fund or to determine whether the amount of any
contribution hereunder has been correctly computed under the terms of
the Plan.
B. The Employer hereby agrees to provide to the Trustee within ninety (90)
days of the date of this Agreement, a full and complete written accounting
from the Prior Trustee as of the date of this Agreement setting forth all
investments, receipts, disbursements, allocations, and other transactions
effected by the Prior Trustee during the period beginning on the first day
of the current Plan year and ending on the date of this Agreement, and
certified as to the accuracy of the information contained therein.
ARTICLE II - Powers and Duties of Trustee
A. Directed Trustee
The Trustee shall be a directed trustee. The Trustee shall have no
discretion or authority with respect to the investment of the Trust Fund
and shall act solely as a directed trustee of the funds contributed to the
Trust Fund.
B. Investment Directions
The Trustee shall effect and change investment of the Trust Fund pursuant
to proper directions as and when reported to the Trustee. If participant
direction of investments is permitted under the Plan, the Administrator
shall establish procedures for a participant's proper direction of
investment. The Trustee shall neither effect nor change any such
investments without proper direction, and shall have no right, duty, or
responsibility to recommend investments or investment changes.
The Employer or Administrator may designate such number of separate
accounts as it, in its sole discretion, determines, for the investment of
the Trust Fund.
C. Investment Manager
The Employer may from time to time in its sole discretion appoint, an
investment manager as defined in Section 3(38) of the Employee Retirement
Income Security Act of 1974. The Employer shall notify the Trustee of any
appointment of an investment manager by delivering to the Trustee an
executed copy of the instrument under which the investment manager was
appointed to act as such hereunder and shall specify to the Trustee that
portion of the Trust Fund which shall be subject to investment management.
During the term of such appointment, the investment manager shall have the
sole responsibility for the investment and reinvestment of that portion of
the Trust Fund subject to its investment management. The Trustee may
maintain a separate account within the Trust Fund for the assets of the
Trust Fund subject to investment management. The Employer may terminate its
appointment of an investment manager at any time and shall in writing
notify the Trustee of such termination. Any investment manager shall
exercise such of the powers enumerated in Section D and otherwise contained
in this Agreement with respect to that portion of the Trust Fund subject to
its investment management as may be provided in the instrument under which
the investment manager was appointed to act as such hereunder.
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D. Investment Authority
The Trustee, as a directed trustee, is authorized and empowered with the
following rights, powers and duties, each of which the directed Trustee
exercises solely as directed Trustee in accordance with the direction of
the Employer, Administrator, participant, or Investment Manager, as the
case may be:
1. to invest all or any part of the assets of the Trust Fund in any
collective investment trust or group trust which provides for the
pooling of the assets of plan described in Code Section 401(a) and
exempt from tax under Code Section 501(a). The provisions of the
documents governing such collective investment trusts or group trusts,
as amended from time to time, shall govern any investment therein and
are adopted by and made a part of the Plan and this Trust Fund
Agreement. If this Trust Fund fails to be treated as tax-exempt under
the Code or loses its status as such, the Employer shall immediately
so notify the Trustee and the Trustee shall, without further notice or
direction, remove the Trust Fund assets from any such collective
investment trust or group trust maintained by the Trustee, its
affiliates, or other entity;
2. to invest and reinvest the Trust Fund in securities (including
"qualifying employer securities" as defined in Section 407(d) of the
Employee Retirement Security Act of 1974 ("ERISA")) or other property,
real or personal, within or without the United States, including,
without limitation, interests or part interests in any bond and
mortgage or note and mortgage, certificates of deposit, commercial
paper and other short-term or demand obligations, secured or
unsecured, whether issued by governmental or quasi- governmental
agencies or corporations or by any firm or corporation.
Notwithstanding the foregoing, the Trustee shall not make investments
in securities or other property outside the United States unless (i)
the indicia of ownership thereof are held within the jurisdiction of
the District Courts of the United States or (ii) the Secretary of the
Department of Labor shall have granted the Trustee permission to make
such investments and in no event shall anything contained herein be
deemed to purport to authorize any investment or reinvestment in
violation of the requirements of ERISA;
3. to enter into one or more insurance contracts with one or more legal
reserve life insurance companies and, subject to the provisions of
this Agreement, to remit any payments which it may receive hereunder
to any such insurance company, and to delegate powers in connection
with the administration of the portion of the Trust Fund invested in
any such insurance contract, to the insurance company issuing such
insurance contract;
4. to sell property at public or private sale for cash or upon credit or
partly for cash and partly upon credit and upon such terms and
conditions as it shall deem proper. No purchaser shall be bound or
liable for the application of the proceeds of any such sale;
5. to exchange any securities or property held by it for other securities
or property, or partly for such securities or property and partly for
cash, and to exercise conversion, subscription, option and similar
rights with respect to any securities held by it, and to make payments
in connection therewith;
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6. to vote in person or by proxy at corporate or other meetings and to
participate in or consent to any voting trust, reorganization,
dissolution, merger or other action affecting any securities in its
possession or the issuers thereof, and to make payments in connection
therewith;
7. to improve any real property;
8. to acquire, hold or dispose of property in unregistered form, or in
its name without designation of fiduciary capacity, or in the name of
its nominee, to deposit any property in a depository or clearing
corporation and to deposit with the federal reserve bank in its
district any securities the principal and interest of which the United
States or any department, agency or instrumentality thereof has agreed
to pay or has guaranteed payment;
9. to compromise and adjust all debts or claims due to or made against
it;
10. to make distributions in cash or in specific property, real or
personal, or an undivided interest therein, or partly in cash and
partly in such property; and
11. to retain in cash so much of the Trust Fund as the Administrator may
direct to satisfy liquidity needs of the Plan and to deposit any cash
held in the Trust Fund in any bank or savings account or short term
investment fund.
E. Funding Policy
The Employer shall advise the Trustee in writing of any funding policy and
method which has been established to carry out the objectives of the Plan
and shall promptly advise the Trustee of any changes therein and the
Trustee shall be obligated to follow such policy and method.
ARTICLE III - Payment of Funds
A. Subject to the provisions of Article XI hereof, the Trustee shall from time
to time withdraw, pay or transfer cash or other property from the Trust
Fund to such persons, in such amounts, and in such manner as the
Administrator may direct.
B. Orders from the Administrator need not specify the purpose of the payments
so ordered, and the Trustee shall not be responsible in any way respecting
the purpose or propriety of such payments or for the administration of the
Plan. Any such order shall constitute a certification that the payment
directed is one which the Administrator is authorized to direct.
Trustee shall be under no duty to enforce payment of any contribution and
shall not be responsible for the adequacy of the Trust Fund to meet and
discharge any liabilities under the Plan. It is expressly understood that
the duties and obligations of the Trustee shall be only those expressly
stated in this Agreement. If a dispute arises as to who is entitled to or
should receive any benefit or payment, the Trustee may withhold or cause to
be withheld such payment until the dispute has been resolved.
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C. In the event that any payment ordered by the Administrator shall be mailed
by the Trustee by registered mail directed to the person specified in such
order at the latest address of such person filed with the Administrator,
and shall be returned to the Trustee because such person cannot be located
at such address, the Trustee shall promptly notify the Administrator of
such return. Upon the expiration of sixty (60) days after such
notification such order shall become void, and unless and until a further
order of the Administrator is received by the Trustee with respect to such
payment, the Trustee shall thereafter continue to administer the Trust Fund
as if such order had not been made by the Administrator. The Trustee shall
not be obligated to search for or ascertain the whereabouts of any such
person (or his duly appointed representative).
ARTICLE IV - Return of Funds to Employer
A. Except as provided below, no part of the Trust Fund shall at any time prior
to the satisfaction of all liabilities with respect to the participants in
the Plan and their beneficiaries be used for, or diverted to, purposes
other than the exclusive benefit of such participants and their
beneficiaries and for the defraying of the reasonable expenses of the Trust
Fund as provided in ERISA. The investments of this Trust Fund shall not be
subject to garnishment, attachment, levy or execution of any kind for the
debts or defaults of the Trust Fund or of any person having or claiming to
have any interest in the Trust Fund. The Trust's Fund investments shall
not be assignable in whole or in part by the Trust Fund or by any person
having or claiming to have any interest in the Trust Fund, except that the
interest in this Trust Fund held by the Trustee may be transferred to a
successor Trustee.
B. In the case of a contribution that is made by the Employer by a mistake of
fact, Section A above shall not prohibit the return to the Employer at the
direction of the Administrator of such contribution within one year after
the payment of the contribution.
C. If a contribution by the Employer is expressly conditioned on the initial
qualification of the Plan under Section 401 of the Code, and if the Plan
does not initially qualify, then Section A above shall not prohibit the
return to the Employer at the direction of the Administrator of such
contribution within one year after the date of denial of qualification of
the Plan.
D. If a contribution by the Employer is expressly conditioned upon the
deductibility of the contribution under Section 404 of the Code, then to
the extent the deduction is disallowed, Section A above shall not prohibit
the return to the Employer at the direction of the Administrator of such
contribution (to the extent disallowed) within one year after the
disallowance of the deduction.
E. In the case of the termination of the Plan, any residual assets of the Plan
may be distributed to the Employer at the direction of the Administrator if
all liabilities of the Plan to participants and their beneficiaries have
been satisfied and the distribution does not contravene any provision of
the law.
ARTICLE V - Standard of Conduct
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A. The Trustee shall discharge its duties 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. The Trustee (or any investment manager appointed pursuant to
Article II hereof) shall not engage in any transaction which it knows or
should know is in violation of any provision of Section 406 of ERISA.
Notwithstanding the foregoing, the Trustee (or any investment manager
appointed pursuant to Article II hereof) may, in accordance with any
appropriate exemption provided under ERISA or upon the approval of the
Secretary of the Department of Labor, enter into any transaction
otherwise prohibited under Section 406 of ERISA.
B. The Trustee may consult with counsel, who may be counsel for the Employer
or Administrator or for the Trustee, in its individual capacity, and shall
not be deemed imprudent by reason of its taking or refraining from taking
any action in accordance with the opinion of counsel. The Trustee shall
not be required to give any bond or any other security for the faithful
performance of its duties under this Agreement, except as required by law.
To the extent permitted by law, the Trustee shall not be liable for any
loss to or diminution of the Trust Fund resulting from any action taken or
omitted except if due to the failure of the Trustee to act to fulfill its
obligation hereunder (including but not limited to the obligation to make
investments as directed by Plan participants as requested by the
Administrator) 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.
ARTICLE VI - Records
The Trustee shall keep records of all transactions relating to the Trust
Fund, which shall be made available at all reasonable times to any persons
designated by the Administrator or as may otherwise be required by law.
The Trustee shall render to the Employer and the Administrator an
accounting annually within ninety (90) days after receipt of the final Plan
year end contributions. The Trustee shall file with the Employer a written
accounting setting forth all investments, receipts, disbursements and other
transactions effected by it during the year ending on such date (but not
including any part of such year for which such an accounting has previously
been filed) and certified as to the accuracy of the information set forth
therein. The Administrator may approve such accounting for the Employer and
itself by an instrument in writing delivered to the Trustee. In the
absence of the Administrator filing with the Trustee objections to any such
accounting within one hundred twenty (120) days after its receipt, the
Administrator shall be deemed to have so approved such accounting on behalf
of itself and the Employer except as to any act or transaction that the
Administrator cannot reasonably be expected to have discovered after
reviewing such accounting with the care, skill, diligence and prudence
expected of persons in the position and with the knowledge of the
Administrator. In such case, or upon the written approval of the
Administrator of any such accounting, the Trustee shall, to the extent
permitted by applicable law, be discharged from all liability to the
Administrator and the Employer for its acts or failures to act described by
such accounting except for a negligent, willful or other breach of duty
under ERISA on the part of the Trustee. Except to the extent otherwise
provided in Section 502 and 504 of ERISA, no person other than the Employer
or the Administrator may require an accounting or bring any action against
the Trustee with respect to the Trust Fund. The
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Trustee shall render to the Administratr, at least quarterly, a
statement of the Trust Fund assets and their values and, whenever a
contribution is made to the Trust Fund other than in cash, a statement
of the value of such property on the date it is received by the Trustee.
The Trustee shall render to the Employer and the Administrator an
accounting within one-hundred twenty (120) days after the effective date
of the removal or resignation of the Trustee.
The "valuation date" for the Trust Fund and for each investment fund within
the Trust Fund shall be each day on which the New York Stock Exchange is
open.
ARTICLE VII - Instructions From Employer and Administrator
The Employer shall certify to the Trustee the names of the persons from
time to time constituting the Administrator. In the absence of such
notice, the Trustee shall rely solely upon the Employer. Directions to the
Trustee may, but need not be in writing. The Trustee shall be entitled to
rely without further inquiry upon all such directions shall be held
harmless in relying upon such instructions.
ARTICLE VIII - Compensation for Trustee
The Trustee shall be entitled to receive such reasonable compensation for
its services as may be agreed upon between the Administrator and the
Trustee. Such compensation, reasonable attorneys' fees incurred in the
administration of the Trust Fund and all taxes levied or assessed against
the Trust Fund shall be paid out of the Trust Fund unless paid by the
Employer and, until paid, shall constitute a charge upon said Trust Fund.
In addition, the Trustee's ability to earn income on amounts held hereunder
in non-interest bearing transaction accounts for processing receipts and
disbursements has been taken into consideration in establishing the
Trustee's compensation hereunder. The Trustee shall be entitled to retain
any such income as a part of the Trustee's agreed compensation hereunder,
and such income shall not be or become a part of the assets of the Plan.
ARTICLE IX - Indemnification
The Employer and the Administrator shall indemnify and hold harmless the
Trustee and its shareholders, directors, officers, employees and agents
from and against any and all claims, losses, damages, expenses and
liabilities (including, without limitation, any amounts paid in settlement
and reasonable attorneys' fees) arising either prior to the execution of
this agreement, after termination of this agreement, or from the Trustee's
action or failure to act under the Plan and Trust Fund, unless such
liability arises from the Trustee's negligence, willful misconduct or
dishonesty in the performance of its duties. The exception to
indemnification contained in the last clause of the preceding sentence
shall not preclude indemnification of the Trustee with respect to any
action taken by the Trustee, or any failure to act, if the action taken or
the failure to act was directed by the Administrator, the Employer or any
investment manager, and the Trustee reasonably relied on such direction.
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ARTICLE X - Resignation of Trustee
The Trustee may resign at any time by giving ninety (90) days prior written
notice to the Employer. The Employer may remove the Trustee at any time by
giving written notice to the Trustee. In the case of the resignation or
removal of the Trustee, the Employer shall appoint a successor Trustee.
Upon the resignation or removal of the Trustee and the appointment of a
successor Trustee, the Trustee shall account for the administration of the
Trust Fund up to the date of its resignation or removal in the manner
provided in Article VI hereof and, upon the approval of such account, shall
transfer to the successor Trustee all of the assets then constituting the
Trust Fund. The term "Trustee" as used in this Agreement shall be deemed
to apply to any successor Trustee acting hereunder.
ARTICLE XI - Amendment
The parties hereto may amend in writing all or any part of this Agreement,
except Article IV, at any time and from time to time; provided, however,
that any amendment shall not be effective until the instrument of amendment
has been submitted to the Trustee and the Trustee shall have executed such
instrument.
ARTICLE XII - Termination of Agreement
This Agreement and the Trust Fund hereby created may be terminated at any
time by the Employer by written notice, executed and acknowledged so as to
authorize it to be recorded in the State of Colorado and delivered to the
Trustee. Upon receipt of notice of termination, the Trustee shall, after
payment of all expenses incurred in the administration and closing out of
the Trust Fund and the compensation to which the Trustee may be entitled,
and upon approval of the appropriate governmental or quasi-governmental
authorities (if such approval shall be required under applicable law), then
distribute the Trust Fund, in cash or such other property to such persons
and in such amounts as the Administrator shall direct.
ARTICLE XIII - Notices
All notices or other communications required or permitted to be given
hereunder by either party to the other shall be in writing and shall be
sent to such party by personal delivery or by first class mail, postage
prepaid, addressed as follows:
If to the Administrator/Employer, at:
Xxxxxx Xxxxxxxx
Xxxxx-Sundstrand Company
0000 Xxxx 00xx Xxxxxx
Xxxx, Xxxx 00000
If to the Trustee, at
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INSTITUTIONAL Trust Company
c/o R. Xxxx Xxxxx
INVESCO Retirement Plan Services
000 Xxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Any such notice or other communication shall be deemed received by the
party to whom sent upon the earlier of actual receipt or three business
days after mailing as aforesaid. Any party hereto may change such address
for delivery of notices and other communications by giving notice in the
manner set forth above.
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ARTICLE XIV - Applicable Law
This Agreement shall be construed in accordance with the Employee
Retirement Income Security Act of 1974 and, to the extent not preempted by
said Act, the laws of the State of Colorado.
ARTICLE XV - Successors
This Agreement shall be binding upon the respective successors and assigns
of the Employer and the Trustee.
IN WITNESS WHEREOF, the parties and the Trustee have caused this instrument
to be executed as of the day and year first above written.
XXXXX-SUNDSTAND COMPANY
By _________________________________
Title:
INSTITUTIONAL TRUST COMPANY
(Corporate Seal)
By _________________________________
Attest:
_______________________________
ADMINISTRATOR
By __________________________________
By ___________________________________
By ___________________________________
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