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EXHIBIT 4.6
CH-TWENTY, INC.
CAPITAL ACCUMULATION PLAN
TRUST AGREEMENT
THIS AGREEMENT made this 1st day of July, 1997 between CH-TWENTY, INC. a
Delaware corporation ("CH-Twenty") 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 CH-Twenty Inc.,
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. Effective as of July 1, 1997, the assets
and liabilities of the Atlantic Richfield Capital Accumulation Plan II allocable
as of June 20, 1997 to participants in the Plan are to be transferred to the
Plan.
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 (including trust assets paid over
to Trustee by the trustee of the Atlantic Richfield Capital Accumulation Plan
II), 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 CH-Twenty 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:
(A) Common Stock of Atlantic Richfield Company ("ARCO") purchased
on the open market or from ARCO as may be directed by CH-Twenty in accordance
with the Plan;
(B) 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
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managed by investment managers appointed by CH-Twenty, or in any combination
thereof as CH-Twenty determines;
(C) In units of a fund, consisting of specified equity
investments, such as common or capital stock of issuers, other than CH-Twenty,
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 CH-Twenty may determine;
(D) 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 CH-Twenty, 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 CH-Twenty may determine;
(E) In units of a fund consisting of specified investments in
global issuers such as common or capital stock, other than CH-Twenty, 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
or other similar types of equity investments and cash equivalent investments, or
similar investments or in any combination thereof as CH-Twenty may determine;
(F) In units of a fund consisting of units of the funds described
in Subparagraphs (C), (D) or (E), which shall be approximately 45 percent of the
fund described in Subparagraph (C), 40 percent of the fund described in
Subparagraph (D) and 15 percent of the fund described in Subparagraph (E), as
CH-Twenty determines; or
(G) 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 CH-Twenty Inc., 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").
CH-Twenty 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
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made by an officer of CH-Twenty or other named fiduciary authorized by a
resolution of CH-Twenty's Board of Directors to make such appointments. The
authority of the investment manager shall not begin until Trustee receives from
CH-Twenty 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, CH-Twenty shall be deemed to warrant that such investment
manager meets the requirements of Section 3(38) of ERISA, but 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 CH-Twenty
to validate such oral directions.
5. CH-Twenty 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
CH-Twenty in a manner prescribed by its Board of Directors. In such a case,
Trustee shall be subject to proper direction of such fiduciary, and CH-Twenty
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.
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.
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Any oral direction shall be followed by a written confirmation as
soon as practical. Trustee shall follow the procedures established by CH-Twenty
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 provided that the shares of ARCO
Common Stock in a Member's account shall be voted by the Trustee in accordance
with the Member's instructions unless such instructions are not given within a
reasonable period of time established by the Trustee; 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; provided that;
(i) Each Member shall be entitled to direct the Trustee as to
the manner in which whole shares of ARCO Common Stock credited to the Member's
account shall be voted. Fractional shares of ARCO Common Stock shall be
aggregated into whole shares of stock and voted by the Trustee in the same
proportion as the aggregate shares which are voted by the Trustee pursuant to
Members' written instructions. In the absence of voting instructions by one or
more Members, the Trustee shall vote such shares in the aggregate in the same
proportion as the aggregate shares which are voted by the Trustee pursuant to
Members' written instructions. With respect to unallocated shares of ARCO Common
Stock held in a loan suspense account, the Trustee shall vote such shares in the
aggregate in the same proportion as the aggregate shares, allocated to Members'
accounts, are voted by the Trustee pursuant to Members' written instructions.
(ii) Each Member shall be entitled to direct the Trustee as
to the manner in which rights other than voting rights attributable to whole
shares of ARCO Common Stock credited to the Member's account shall be exercised.
Rights attributable to fractional shares of ARCO Common Stock shall be
aggregated into whole shares of stock and exercised by the Trustee in the same
proportion as rights which are exercised by the Trustee pursuant to Members'
written instructions. In the absence of instructions by one or more Members, the
Trustee shall exercise such rights in the aggregate in the same proportion as
the aggregate rights which are exercised by the Trustee pursuant to Members'
written instructions. With respect to unallocated shares of ARCO Common Stock
held in a loan suspense account, the Trustee shall exercise such rights in the
aggregate in the same proportion as the aggregate shares, allocated to Members'
accounts, are exercised by the Trustee pursuant to Members' written
instructions.
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(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;
(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
CH-Twenty 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.
(G) As directed by CH-Twenty, to borrow from any lender
(including CH-Twenty or the Trustee) to finance the acquisition of ARCO Common
Stock, and to make payments on such loans, giving its note as Trustee with such
reasonable interest and security for the loan as may be appropriate or
necessary; provided that any such borrowing shall comply with the provisions of
the Plan.
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) (i)
any amount stated by CH-Twenty or believed by Trustee to be needed in the near
future for withdrawals from the Fund, or (ii) all or a portion of the proceeds
of a loan described in Section 6(G) pending the acquisition of ARCO Common
Stock.
8. Trustee, as and when directed by CH-Twenty (or any committee or
person or entity designated for such purpose in the Plan or otherwise by
CH-Twenty), 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. CH-Twenty 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 CH-Twenty and Trustee.
Unless paid by CH-Twenty, 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
CH-Twenty'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 CH-Twenty, its subsidiaries and affiliates
and each of the directors, officers or employees of CH-Twenty and of any such
affiliate or subsidiary harmless (including the cost of outside counsel) against
any liability or excise tax asserted against CH-Twenty 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 CH-Twenty 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
CH-Twenty 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 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 CH-Twenty is required to give directions
to Trustee, CH-Twenty 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 CH-Twenty. 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 CH-Twenty, Trustee shall deposit any
assets held by it with a custodian named by CH-Twenty, and CH-Twenty shall hold
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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
CH-Twenty. At such intervals as CH-Twenty may from time to time designate, and
as of the date of the removal or resignation of Trustee, Trustee shall file with
CH-Twenty 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 CH-Twenty 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 CH-Twenty shall within 90 days following notification
thereof have filed written objections with Trustee and except that no such
accounting shall foreclose any liability of Trustee to CH-Twenty arising under
Paragraph ll(B). Except as provided in Paragraph ll(B), the liability of Trustee
to persons other than CH-Twenty 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 CH-Twenty 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,
CH-Twenty 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 CH-Twenty 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
CH-Twenty. 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. CH-Twenty may amend this Agreement by an instrument in writing
signed by an authorized officer of CH-Twenty or by any other named fiduciary
authorized by a resolution of CH-Twenty's Board of Directors to sign such
amendment, provided that no such amendment shall divert any part of the Fund to
purposes other than payment of
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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 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. CH-Twenty 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 CH-Twenty 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 CH-Twenty 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 CH-Twenty 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
CH-Twenty 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.
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 CH-Twenty may become
a party to this Agreement and, with respect to assets of the Fund which
CH-Twenty 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
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Agreement, except that such successor shall be substituted for CH-Twenty 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 CH-Twenty shall be given in writing addressed to the trust
officer with whom CH-Twenty customarily deals and signed by the officer
delegated such power, or any other person or persons whom CH-Twenty notifies
Trustee are from time to time authorized to sign such communications. CH-Twenty
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 CH-Twenty is returned unclaimed, Trustee shall so notify
CH-Twenty and shall discontinue further payments to such payee until it received
further instructions of CH-Twenty.
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.
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: CH-TWENTY, INC.
By:
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XXXXXXX X. XXXXXXXX
As named fiduciary appointed by the
Board of Directors of CH-Twenty,
Inc., with power and authority to
negotiate, execute and deliver this
Trust Agreement on behalf of
CH-Twenty, Inc.
ATTEST: STATE STREET BANK AND TRUST COMPANY
As Trustee for CH-Twenty, Inc.,
Capital Accumulation Plan
By:
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