Exhbit 4(d)
TRUST AGREEMENT
between
XXXXXXX XXXXX TRUST COMPANY (FLORIDA), as the Trustee
and
SOUTHERN ENERGY, INC., as the Employer
Trust Agreement entered into as of January 1, 1998 by and
between the above-named employer (the "Employer") and Xxxxxxx Xxxxx
Trust Company (Florida), a Florida corporation (the "Trustee"), with
respect to a trust ("Trust") forming part of the Southern Energy, Inc.
Bargaining Unit Savings Plan (the "Plan").
The Employer and the Trustee hereby agree as follows:
ARTICLE I
STATUS OF TRUST AND APPOINTMENT
AND ACCEPTANCE OF TRUSTEE
1.01 Status of Trust. The Trust is intended to be a qualified
trust under section 401(a) of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), and exempt from taxation
pursuant to section 501(a) of the Code.
1.02 Appointment of Trustee. The Employer represents that all
necessary action has been taken for the appointment of the Trustee as
trustee of the Trust and that the Trust Agreement constitutes a legal,
valid and binding obligation of the Employer.
1.03 Acceptance of Appointment. The Trustee accepts its
appointment as trustee of the Trust.
1.04 Title of Trust. The Trust shall be known as the Southern
Energy, Inc. Bargaining Unit Savings Plan Trust.
1.05 Effectiveness. This Trust Agreement shall not become
effective until executed and delivered by both the Employer and the
Trustee.
ARTICLE II
ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
2.01 Named Administrative and Investment Fiduciaries. For
purposes of this Trust Agreement, the term "Named Administrative
Fiduciary" refers to the committee or its designee(s) named or provided
for in the Plan as responsible for the administration and operation of
the Plan, and the term "Named Investment Fiduciary" refers to the
committee or its designee(s) provided for in the Plan as responsible
for the investment and management of Plan assets to the extent provided
for in this Trust Agreement. The Named Administrative Fiduciary and the
Named Investment Fiduciary may be the same person. If any such person
is not named or provided for in the Plan, or if so named or provided
for, is not then serving, the Employer shall be the Named
Administrative Fiduciary or the Named Investment Fiduciary or both, as
the case may be.
2.02 Identification of Named Fiduciaries and Designees. The
Named Administrative Fiduciary and the Named Investment Fiduciary under
the Plan shall each be identified to the Trustee in writing by the
Employer, and specimen signatures of each, or of each member thereof,
as appropriate, shall be provided to the Trustee by the Employer. The
Employer shall promptly give written notice to the Trustee of a change
in the identity either of the Named Administrative Fiduciary or the
Named Investment Fiduciary, or any member thereof, as appropriate, and
until such notice is received by the Trustee, the Trustee shall be
fully protected in assuming that the identity of the Named
Administrative Fiduciary or Named Investment Fiduciary, and the members
thereof, as appropriate, is unchanged. Each person authorized in
accordance with the Plan to give a direction to the Trustee on behalf
of the Named Administrative Fiduciary or the Named Investment Fiduciary
shall be identified to the Trustee by written notice from the Employer
or the Named Administrative Fiduciary or the Named Investment
Fiduciary, as the case may be, and such notice shall contain a specimen
of the signature. The Trustee shall be entitled to rely upon each such
written notice as evidence of the identity and authority of the persons
appointed until a written cancellation of the appointment, or the
written appointment of a successor, is received by the Trustee from the
Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary, as the case may be.
ARTICLE III
RECEIPTS AND TRUST FUND
3.01 Receipt by Trustee. The Trustee shall receive in cash or
other assets acceptable to the Trustee all contributions paid or
delivered to it which are allocable under the Plan and to the Trust and
all transfers paid or delivered under the Plan to the Trust from a
predecessor trustee or another trust (including a trust forming part of
another plan qualified under section 401(a) of the Code), provided that
the Trustee shall not be obligated to receive any such contribution or
transfer unless prior thereto or coincident therewith, as the Trustee
may specify, the Trustee has received such reconciliation, allocation,
investment or other information concerning, or such direction,
instruction or representation with respect to, the contribution or
transfer or the source thereof as the Trustee may require. The Trustee
shall have no duty or authority to (a) require any contributions or
transfers to be made under the Plan or to the Trustee, (b) compute any
amount to be contributed or transferred under the Plan to the Trustee,
or (c) determine whether amounts received by the Trustee comply with
the Plan.
3.02 Trust Fund. For purposes of this Trust Agreement, the
"Trust Fund" consists of all money and other property received by the
Trustee pursuant to Section 3.01 hereof, increased by any income or
gains on or increment in such assets and decreased by any investment
loss or expense, benefit or disbursement paid pursuant to this Trust
Agreement. The Trustee shall hold the Trust Fund, without distinction
between principal and income, as a nondiscretionary trustee pursuant to
the terms of this Trust Agreement. Assets of the Trust may, in the
Trustee's discretion, be held in an account maintained with an
affiliate of the Trustee.
3.03 Additional Trust Fund. Notwithstanding any other
provision of this Trust Agreement, to the extent that assets of the
Plan are held in trust by a trustee other than the Trustee (such other
trustee to be referred to as a "Second Trustee"), the Employer shall
have created two trust funds under the Plan. The appointment of a
Second Trustee shall be deemed a representation by the Employer that
the Plan contains all appropriate provisions relating to the Second
Trustee. The Trustee (i) shall discharge its duties and
responsibilities hereunder solely with respect to those assets
delivered into its possession, (ii) shall have no duties,
responsibilities or obligations with respect to assets held in trust by
the Second Trustee unless and until such assets are delivered to the
Trustee and (iii) except as otherwise required under the Employee
Retirement Income Security Act of 1974, as amended from time to time
("ERISA"), shall have no liability or responsibility for the acts or
omissions of the Second Trustee. To the extent that assets of the Plan
are held in trust by multiple trustees other than the Trustee, the
foregoing shall apply to each such other trustee.
ARTICLE IV
PAYMENTS, ADMINISTRATIVE DIRECTIONS
AND EXPENSES
4.01 Payments by Trustee. Payments of money or property from
the Trust Fund shall be made by the Trustee upon direction from the
Named Administrative Fiduciary or its designee. Payments by the Trustee
shall be transmitted to the Named Administrative Fiduciary or its
designee for delivery to the proper payees or to payee addresses
supplied by the Named Administrative Fiduciary or its designee, and the
Trustee's obligation to make such payments shall be satisfied upon such
transmittal. The Trustee shall have no obligation to determine the
identity of persons entitled to payments under the Plan or their
addresses.
4.02 Named Administrative Fiduciary's Directions. Directions
from or on behalf of the Named Administrative Fiduciary or its designee
shall be communicated to the Trustee or the Trustee's designee only in
a manner and in accordance with procedures acceptable to the Trustee.
The Trustee's designee shall not, however, be empowered to implement
any such directions except in accordance with procedures acceptable to
the Trustee. The Trustee shall have no liability for following any such
directions or failing to act in the absence of any such directions. The
Trustee shall have no liability for the acts or omissions of any person
making or failing to make any direction under the Plan or this Trust
Agreement nor any duty or obligation to review any such direction, act
or omission.
4.03 Disputed Payments. If a dispute arises over the propriety
of the Trustee making any payment from the Trust Fund, the Trustee may
withhold the payment until the dispute has been resolved by a court of
competent jurisdiction or settled by the parties to the dispute. The
Trustee may consult legal counsel, which legal counsel is in good
standing in the state in which counsel is admitted to the practice of
law, and shall be fully protected in acting upon the advice of counsel.
4.04 Trustee's Compensation and Expenses. To the extent not
previously paid by the Employer, the Trustee shall withdraw from the
Trust Fund such amounts as are necessary to (a) pay the Trustee
reasonable compensation for its services under this Trust Agreement in
accordance with the Trustee's fee schedule in effect and applicable at
the time such compensation becomes payable, and (b) pay or reimburse
the Trustee for all reasonable expenses incurred by the Trustee in
connection with or relating to the performance of its duties under this
Trust Agreement or its status as Trustee, including reasonable
attorneys' fees.
Until paid by the Employer or charged against and withdrawn
from the Trust Fund, as the case may be, the Trustee's compensation and
expenses shall be a lien upon the Trust Fund. The Trustee is authorized
to charge the Trust Fund for and withdraw from the Trust Fund, without
direction from the Named Administrative Fiduciary or any other person,
the amount of any such fees or expenses which the Employer has not
elected to pay and the amount of any such fees or expenses which the
Employer has so elected to pay but which remain unpaid for a period of
60 days after presentation of a statement for such amount to the
Employer. Trust Fund assets shall be applied to pay such fees and
expenses in the following priority by asset category to the extent
thereof held at the time of withdrawal in the Trust Fund subfund or
account to which the fee or expense is allocated: (i) uninvested cash
balances; (ii) shares of any money market fund or funds held in the
Trust Fund; and (iii) any other Trust Fund assets. The Trustee is
authorized to allocate its fees and expenses among these subfunds or
accounts to which the fees or expenses pertain in such manner as the
Trustee deems appropriate under the circumstances unless prior to such
allocation the Employer or the Named Administrative Fiduciary specifies
the manner in which the allocation is to be made. The Trustee is also
authorized but not required to sell any shares or other assets referred
to above to the extent necessary for the purpose.
By signing this Trust Agreement, the Employer authorizes the
Trustee and/or its affiliates to receive payments from certain mutual
funds (and/or collective trusts) for which no affiliate of the Trustee
acts as investment manager or adviser (or from the principal
distributors and/or advisors of those funds or trusts), in connection
with the performance of reasonable and necessary services (including
recordkeeping, subaccounting, account maintenance, administrative and
other shareholder services). Because different mutual funds (or
collective trusts) may be subject to different fee arrangements, the
Employer should contact the Trustee or its designee to obtain further
details on any specific fee arrangements that may be applicable to
investments under the Plan.
4.05 Taxes. The Trustee is authorized, with or without
direction from the Named Administrative Fiduciary or any other person,
to withdraw from the Trust Fund and pay any federal, state or local
taxes, charges or assessments of any kind levied or assessed against
the Trust or assets thereof. Until paid, such taxes shall be a lien
against the Trust Fund. The Trustee shall give notice to the Named
Administrative Fiduciary of its receipt of a demand for any such taxes,
charges or assessments. The Trustee shall not be personally liable for
any such taxes, charges or assessments.
4.06 Expenses of Administration. Reasonable expenses incurred
by the Employer, the Named Administrative Fiduciary, the Named
Investment Fiduciary, any Investment Manager designated pursuant to
Section 5.02 or any other persons designated to act on behalf of the
Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary, including reimbursement for expenses incurred in the
performance of their respective duties, shall be the obligation of the
Employer or other person specified in the Plan. Such expenses, however,
may be paid from the Trust Fund upon the written direction to the
Trustee of the Named Administrative Fiduciary.
4.07 Restriction on Alienation. Except as provided in Section
4.08 or under section 401(a)(13) of the Code, the interest of any Plan
participant or beneficiary in the Trust Fund shall not be subject to
the claims of such person's creditors and may not be assigned, sold,
transferred, alienated or encumbered. Any attempt to do so shall be
void; and the Trustee shall disregard any attempt. Trust assets shall
not in any manner be liable for or subject to debts, contracts,
liabilities, engagement or torts of any Plan participant or
beneficiary, and benefits shall not be considered an asset of any such
a person in the event of the person's insolvency or bankruptcy.
4.08 Payment on Court Order. The Trustee is authorized to make
any payments directed by court order in any action in which the Trustee
is a party or pursuant to a "qualified domestic relations order" under
section 414(p) of the Code; provided that the Trustee shall not make
such payment if the Trustee is indemnified and held harmless by the
Employer in a manner satisfactory to the Trustee against all
consequences of such failure to pay. The Trustee is not obligated to
defend actions in which the Trustee is named but shall notify the
Employer or Named Administrative Fiduciary of any such action and may
tender defense of the action to the Employer, the Named Administrative
Fiduciary or the participant or beneficiary whose interest is affected.
The Trustee may in its discretion defend any action in which the
Trustee is named and any expenses, including reasonable attorneys'
fees, incurred by the Trustee in that connection shall be paid or
reimbursed in accordance with Section 4.04 hereof.
ARTICLE V
INVESTMENTS
5.01 Investment Management. The Named Investment Fiduciary
shall manage the investment of the Trust Fund except insofar as (a) a
person (an "Investment Manager") who meets the requirements of section
3(38) of the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA") has authority to manage Trust
assets as referred to in Section 5.02 hereof or (b) the Plan provides
for participant or beneficiary direction of the investment of assets
allocable under the Plan to the accounts of such participants and
beneficiaries and the Trustee notifies the Employer that such
directions will be acceptable. In the latter situation, a list of the
participants and beneficiaries and such information concerning them as
the Trustee may specify shall be provided by the Employer or the Named
Administrative Fiduciary to the Trustee and/or such person(s) as are
necessary for the implementation of the directions in accordance with
the procedure acceptable to the Trustee. Except as required by ERISA,
the Trustee shall invest the Trust Fund as directed by the Named
Investment Fiduciary, an Investment Manager or a Plan participant or
beneficiary, as the case may be, and the Trustee shall have no
discretionary control over, nor any other discretion regarding, the
investment or reinvestment of any asset of the Trust. The Trustee may
limit the categories of assets in which the Trust Fund may be invested.
It is understood that the Trustee may, from time to time, have
on hand funds which are received as contributions or transfers to the
Trust which are awaiting investment or funds from the sale of Trust
assets which are awaiting reinvestment. Absent receipt by the Trustee
of a direction from the proper person for the investment or
reinvestment of such funds or otherwise prior to the application of
funds in implementation of such a direction, the Trustee shall in
accordance with the Trustee's normal procedures in this regard cause
such funds to be invested in shares of the money market fund acceptable
to the Trustee as the Employer or Named Investment Fiduciary may in
writing to the Trustee specify for this purpose from time to time. Any
such fund may be sponsored, managed or distributed by an affiliate of
the Trustee. The Employer or the Named Investment Fiduciary, as the
case may be, hereby acknowledges that prior to any such specification
it has read or will have read the then current prospectus for the
specified fund.
5.02 Investment Managers. If so allowed pursuant to the Plan,
the Employer or the Named Investment Fiduciary may appoint one or more
Investment Managers, who may be an affiliate of the Trustee, to direct
the Trustee in the investment of all or a specified portion of the
assets of the Trust. Any such Investment Manager shall be directed by
the Employer or the Named Investment Fiduciary, as the case may be, to
act in accordance with the procedures referred to in Section 5.04. The
Named Investment Fiduciary shall notify the Trustee in writing before
the effectiveness of the appointment or removal of any Investment
Manager.
If there is more than one Investment Manager whose appointment
is effective under the Plan at any one time, the Trustee shall, upon
written instructions from the Employer or the Named Investment
Fiduciary, establish separate funds for control by each such Investment
Manager. The funds shall consist of those Trust assets designated by
the Employer or the Named Investment Fiduciary.
5.03 Direction of Voting and Other Rights. Unless an
Investment Manager, as described in Section 5.02, has been appointed by
the Employer or by the Named Investment Fiduciary and the voting and
other rights in securities or other assets held in the Trust that have
been designated for control by the Investment Manager have been
specifically delegated to and assumed by the Investment Manager, the
voting and other rights in securities or other assets held in the Trust
shall be exercised by the Trustee as directed by the Named Investment
Fiduciary or other person who at the time has the right as referred to
in Section 5.01 hereof to direct the investment or reinvestment of the
security or other asset involved, provided that notwithstanding any
provision of the Plan to the contrary, (a) except as provided in clause
(b) of this Section, such voting and other rights in any such security
or other asset selected by the Employer or the Named Investment
Fiduciary shall be exercised by the Named Investment Fiduciary and (b)
such voting and other rights in any "employer security" with respect to
the Plan within the meaning of Section 407(d)(1) of ERISA ("Employer
Securities") which is held in an account under the Plan over which a
Plan participant or beneficiary has control as to specific assets to be
held therein or which is held in an account which consists solely or
primarily of Employer Securities shall be exercised by the participants
or beneficiaries having interests in that account. Notwithstanding any
provision hereof or of the Plan to the contrary, (i) in the event a
Plan participant or beneficiary or an Investment Manager with the right
to direct a voting or other decision with respect to any security or
other asset held in the Trust does not communicate any decision on the
matter to the Trustee or the Trustee's designee by the time prescribed
by the Trustee or the Trustee's designee for that purpose or if the
Trustee notifies the Named Investment Fiduciary either that it does not
have precise information as to the securities or other assets involved
allocated on the applicable record date to the accounts of all
participants and beneficiaries or that time constraints make it
unlikely that participant, beneficiary or Investment Manager direction,
as the case may be, can be received on a timely basis, the decision
shall be the responsibility of the Named Investment Fiduciary and shall
be communicated to the Trustee on a timely basis, and (ii) in the event
the Named Investment Fiduciary with any right under the Plan or
hereunder to direct a voting or other decision with respect to any
security or other asset held in the Trust, including any such right
under clause (a) or clause (i) of this Section, does not communicate
any decision on the matter to the Trustee or the Trustee's designee by
the time prescribed by the Trustee for that purpose, the Trustee may
obtain advice from a bank, insurance company, investment adviser or
other investment professional (including any affiliate of the Trustee)
or retain an Investment Manager with full discretion to make the
decision. The Employer will reimburse the Trustee for the reasonable
fees and expenses incurred in obtaining this advice if the voting or
other decision relates to a contested proxy matter, a tender or merger
offer, or other decision which requires substantial analysis to
determine whether the economic consequence of the decision will be
material to the Plan. Except as required by ERISA, the Trustee shall
(a) follow all directions above-referred to in this Section and (b)
shall have no duty to exercise voting or other rights relating to any
such security or other asset.
5.04 Investment Directions. Directions for the investment or
reinvestment of Trust assets or directions of a type referred to in
Section 5.03 from the Employer, the Named Investment Fiduciary, an
Investment Manager or a Plan participant or beneficiary, as the case
may be, shall, in a manner and in accordance with procedures acceptable
to the Trustee, be communicated to and implemented by, as the case may
be, the Trustee, the Trustee's designee or, with the Trustee's consent,
the broker/dealer designated for the purpose by the Employer or the
Named Investment Fiduciary. Communication of any such direction to such
a designee or broker/dealer shall conclusively be deemed an
authorization to the designee or broker/dealer to implement the
direction even though coming from a person other than the Trustee. The
Trustee shall have no liability for its or any other person's following
such directions or failing to act in the absence of any such
directions. The Trustee shall have no liability for the acts or
omissions of any person directing the investment or reinvestment of
Trust Fund assets or making or failing to make any direction referred
to in Section 5.03. Neither shall the Trustee have any duty or
obligation to review any such investment or other direction, act or
omission or, except upon receipt of a proper direction, to invest or
otherwise manage any asset of the Trust which is subject to the control
of any such person or to exercise any voting or other right referred to
in Section 5.03.
5.05 Communication of Proxy and Other Materials. The Employer
or Named Administrative Fiduciary shall establish a procedure
acceptable to the Trustee for the timely dissemination to each person
entitled to direct the Trustee or its designee as to a voting or other
decision called for thereby or referred to therein of all proxy and
other materials bearing on the decision. In the case of Employer
Securities, at such time as proxy or other materials bearing thereon
are disseminated generally to owners of Employer Securities in
accordance with applicable law, the Employer shall cause a copy of such
proxy or other materials to be delivered directly to the Trustee and,
thereafter, shall promptly deliver to the Trustee such number of
additional copies of the proxy or other materials as the Trustee may
request.
5.06 Common and Collective Trust Funds. Any person authorized
to direct the investment of Trust assets may, if the Trustee and the
Named Investment Fiduciary so permit, direct the Trustee to invest such
assets in a common or collective trust maintained by the Trustee or its
affiliate for the investment of assets of qualified trusts under
section 401(a) of the Code, individual retirement accounts under
section 408(a) of the Code and plans of governmental units described in
section 818(a)(6) of the Code. The documents governing any such common
or collective trust fund maintained by the Trustee or its affiliate,
and in which Trust assets have been invested, are hereby incorporated
into this Trust Agreement by reference.
ARTICLE VI
RESPONSIBILITIES AND INDEMNITY
6.01 Relationship of Fiduciaries. Each fiduciary of the Plan
and the Trust shall be solely responsible for its own acts or
omissions. The Trustee shall have no duty to question any other Plan
fiduciary's performance of fiduciary duties allocated to such other
fiduciary pursuant to the Plan. The Trustee shall not be responsible
for the breach of responsibility by any other Plan fiduciary except as
provided for in ERISA.
6.02 Benefit of Participants. Each fiduciary shall, within the
meaning of the Code and ERISA, discharge its duties with respect to the
Trust solely in the interest of participants in the Plan and their
beneficiaries and for the exclusive purpose of providing benefits to
such participants and beneficiaries and defraying reasonable expenses
of administering the Plan.
6.03 Status of Trustee. The Trustee acknowledges its status as
a "fiduciary" of the Plan within the meaning of ERISA.
6.04 Location of Indicia of Ownership. Except as permitted by
ERISA, the Trustee shall not maintain the indicia of ownership of any
assets of the Trust outside the jurisdiction of the district courts of
the United States.
6.05 Trustee's Reliance. The Trustee shall have no duty to
inquire whether directions by the Employer, the Named Administrative
Fiduciary, the Named Investment Fiduciary or any other person conform
to the Plan, and the Trustee shall be fully protected in relying on any
such direction communicated in accordance with procedures acceptable to
the Trustee from any person who the Trustee reasonably believes is a
proper person to give the direction. The Trustee shall have no
liability to any participant, any beneficiary or any other person for
payments made, any failure to make payments, or any discontinuance of
payments, on direction of the Named Administrative Fiduciary, the Named
Investment Fiduciary or any designee of either of them or for any
failure to make payments in the absence of directions from the Named
Administrative Fiduciary or any person responsible for or purporting to
be responsible for directing the investment of Trust assets. The
Trustee shall have no obligation to request proper directions from any
person. The Trustee may request instructions from the Named
Administrative Fiduciary or the Named Investment Fiduciary and shall
have no duty to act or liability for failure to act if such
instructions are not forthcoming. The Trustee shall have no
responsibility to determine whether the Trust Fund is sufficient to
meet the liabilities under the Plan, and shall not be liable for
payments or Plan liabilities in excess of the Trust Fund.
6.06 Indemnification. Except as prohibited by ERISA, the
Employer indemnifies the Trustee against, and shall hold the Trustee
harmless from, any and all loss, claims, liabilities, and expenses,
including reasonable attorneys' fees, imposed upon the Trustee or
incurred by the Trustee as a result of any acts taken, or any failure
to act, in accordance with directions given pursuant to and in
accordance with the terms of the Trust from the Named Administrative
Fiduciary, Named Investment Fiduciary, Investment Manager (other than
an Investment Manager which is an affiliate of the Trustee) or any
other person specified in Article IV or V hereof acting under the
control or acting at the direction of the Named Administrative
Fiduciary, the Named Investment Fiduciary, or an Investment Manager
(other than an Investment Manager which is an affiliate of the
Trustee), or any permitted designee of any such person.
6.07 Protection of Designees. To the extent that any designee
of the Trustee is performing a function of the Trustee under this Trust
Agreement, the designee shall have the benefit of all of the applicable
limitations on the scope of the Trustee's duties and liabilities, all
applicable rights of indemnification granted hereunder to the Trustee
and all other applicable protections of any nature afforded to the
Trustee.
ARTICLE VII
POWERS OF TRUSTEE
7.01 Nondiscretionary Investment Powers. At the direction of
the person authorized to direct such action as referred to in Article V
hereof, but limited to those assets or categories of assets acceptable
to the Trustee as referred to in Section 5.01, the Trustee, or the
Trustee's designee or a broker/dealer as referred to in Section 5.04,
is authorized and empowered:
(a) To invest and reinvest the Trust Fund, together with the
income therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and bonds,
mortgages, notes, commercial paper and other evidences of indebtedness
(including those issued by the Trustee), shares of mutual funds (which
funds may be sponsored, managed or offered by an affiliate of the
Trustee), guaranteed investment contracts, bank investment contracts,
other securities, policies of life insurance, annuity contracts,
options, options to buy or sell securities or other assets, and all
other property of any type (personal, real or mixed, and tangible or
intangible);
(b) To deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or other deposits
in a bank or savings and loan association or other depository
institution, including the Trustee or any of its affiliates; provided
that, with respect to such deposits with the Trustee or an affiliate,
the deposits bear a reasonable interest rate;
(c) To hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust Fund; to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the same
from time to time;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee necessary for the
protection of the Trust Fund; to vote any corporate stock either in
person or by proxy, with or without power of substitution, for any
purpose; to participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with or
transfer title to any protective or other committee; to exercise or
sell stock subscriptions or conversion rights; and, regardless of any
limitation elsewhere in this instrument relative to investments by the
Trustee, to accept and retain as an investment any securities or other
property received through the exercise of any of the foregoing powers;
(e) Subject to Section 5.01 hereof, to hold in cash such
portion of the Trust Fund which it is directed to so hold pending
investments, or payment of expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to
protect the Trust from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such other
jurisdictions as may seem desirable, to transfer property to such
agents or trustees, to grant to such agents such powers as are
necessary or desirable to protect the Trust Fund, to direct such agent
or trustee, or to delegate such power to direct, and to remove such
agent or trustee;
(g) To settle, compromise or abandon all claims and demands in
favor of or against the Trust Fund;
(h) To invest in any common or collective trust fund of the
type referred to in Section 5.06 hereof maintained by the Trustee or
its affiliate;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally under
the laws of the state in which the Trustee is incorporated as set forth
above, so that the powers conferred upon the Trustee herein shall not
be in limitation of any authority conferred by law, but shall be in
addition thereto;
(j) To borrow money from any source and to execute promissory
notes, mortgages or other obligations and to pledge or mortgage any
trust assets as security, subject to applicable requirements of the
Code and ERISA; and
(k) To maintain accounts at, execute transactions through, and
lend on an adequately secured basis stocks, bonds or other securities
to, any brokerage or other firm, including any firm which is an
affiliate of the Trustee.
7.02 Additional Powers of Trustee. To the extent necessary or
which it deems appropriate to implement its powers under Section 7.01
or otherwise to fulfill any of its duties and responsibilities as
trustee of the Trust Fund, the Trustee shall have the following
additional powers and authority:
(a) to register securities, or any other property, in its name
or in the name of any nominee, including the name of any affiliate or
the nominee name designated by any affiliate, with or without
indication of the capacity in which property shall be held, or to hold
securities in bearer form and to deposit any securities or other
property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate
powers and responsibilities to, such agents, representatives, advisers,
counsel and accountants as the Trustee considers necessary or
appropriate, any of whom may be an affiliate of the Trustee or a person
who renders services to such an affiliate, and, as a part of its
expenses under this Trust Agreement, to pay their reasonable expenses
and compensation;
(c) to make, execute and deliver, as Trustee, any and all
deeds, leases, mortgages, conveyances, waivers, releases or other
instruments in writing necessary or appropriate for the accomplishment
of any of the powers listed in this Trust Agreement; and
(d) generally to do all other acts which the Trustee deems
necessary or appropriate for the protection of the Trust Fund.
ARTICLE VIII
RECORDS, ACCOUNTINGS AND VALUATIONS
8.01 Records. The Trustee shall maintain or cause to be
maintained accurate records and accounts of all Trust transactions and
assets. The records and accounts shall be available at reasonable times
during normal business hours for inspection or audit by the Named
Administrative Fiduciary and the Named Investment Fiduciary or any
person designated for the purpose by either of them.
8.02 Accountings. Within 60 days following the close of each
fiscal year of the Plan or the effective date of the removal or
resignation of the Trustee, the Trustee shall file with the Named
Administrative Fiduciary a written accounting setting forth all
transactions since the end of the period covered by the last previous
accounting. The accounting shall include a listing of the assets of the
Trust showing the value of such assets at the close of the period
covered by the accounting. On direction of the Named Administrative
Fiduciary, and if previously agreed to by the Trustee, the Trustee
shall submit to the Named Administrative Fiduciary interim valuations,
reports or other information pertaining to the Trust.
The Named Administrative Fiduciary may approve the accounting
by written approval delivered to the Trustee or by failure to deliver
written objections to the Trustee within 60 days after receipt of the
accounting. Any such approval shall be binding on the Employer, the
Named Administrative Fiduciary, the Named Investment Fiduciary and, to
the extent permitted by ERISA, all other persons.
8.03 Valuation. The assets of the Trust shall be valued as of
each valuation date under the Plan at fair market value as determined
by the Trustee based upon such sources of information as it may deem
reliable, including, but not limited to, stock market quotations,
statistical evaluation services, newspapers of general circulation,
financial publications, advice from investment counselors or brokerage
firms, or any combination of sources. The reasonable costs incurred in
establishing values of the Trust Fund shall be a charge against the
Trust Fund, unless paid by the Employer.
When the Trustee is unable to arrive at a value based upon
information from independent sources, it may rely upon information from
the Employer, Named Administrative Fiduciary, Named Investment
Fiduciary, appraisers, or other sources, and shall not incur any
liability for inaccurate valuation based in good faith upon such
information.
8.04 Loans. In the event that participant loans are available
under the Plan, the Trustee's records shall reflect one aggregate
balance for participant loans under the Plan. Records reflecting the
specific loan balances for each participant and the amortization
schedules for each participant loan shall be maintained as directed by
the Employer or Named Administrative Fiduciary.
ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.01 Resignation. The Trustee may resign at any time upon at
least 60 days' written notice to the Employer.
9.02 Removal. The Employer may remove the Trustee upon at
least 60 days' written notice to the Trustee.
9.03 Appointment of a Successor. Upon resignation or removal
of the Trustee, the Employer shall appoint a successor trustee. Upon
failure of the Employer to appoint, or the failure of the effectiveness
of the appointment by the Employer of, a successor trustee by the
effective date of the resignation or removal, the Trustee may apply to
any court of competent jurisdiction for the appointment of a successor.
Promptly after receipt by the Trustee of notice of the
effectiveness of the appointment of the successor trustee, the Trustee
shall deliver to the successor trustee such records as may be
reasonably requested to enable the successor trustee to properly
administer the Trust Fund and all property of the Trust after deducting
therefrom such amounts as the Trustee deems necessary to provide for
expenses, taxes, compensation or other amounts due to or by the Trustee
pursuant to Sections 4.04 or 5.03 hereof not paid by the Employer prior
to the delivery.
9.04 Settlement of Account. Upon resignation or removal of the
Trustee, the Trustee shall have the right to a settlement of its
account, which settlement shall be made, at the Trustee's option,
either by an agreement of settlement between the Trustee and the
Employer or by a judicial settlement in an action instituted by the
Trustee. The Employer shall bear the costs of any such judicial
settlement, including reasonable attorneys' fees.
9.05 Expenses and Compensation. The Trustee shall not be
obligated to transfer Trust assets until the Trustee is provided
assurance by the Employer satisfactory to the Trustee that all fees and
expenses reasonably anticipated will be paid.
9.06 Termination of Responsibility and Liability. Upon
settlement of the account and transfer of the Trust Fund to the
successor trustee, all rights and privileges under this Trust Agreement
shall vest in the successor trustee and all responsibility and
liability of the Trustee with respect to the Trust and assets thereof
shall, except as otherwise required by ERISA, terminate subject only to
the requirement that the Trustee execute all necessary documents to
transfer the Trust assets to the successor trustee.
ARTICLE X
AMENDMENT AND TERMINATION
10.01 Amendment. The Employer reserves the right to amend this
Trust Agreement, provided that no amendment of this Trust Agreement or
the Plan shall be effective which would (a) cause any assets of the
Trust Fund to be used for, or diverted to, purposes other than the
exclusive benefit of Plan participants or their beneficiaries other
than an amendment permissible under the Code and ERISA, or (b) affect
the rights, duties, responsibilities, obligations or liabilities of the
Trustee without the Trustee's written consent. The Employer shall amend
this Trust Agreement as requested by the Trustee to reflect changes in
law which counsel for the Trustee advises the Trustee require such
changes. Amendments to the Trust Agreement or a certified copy of the
amendments shall be delivered to the Trustee promptly after adoption,
and if practicable under the circumstances, any proposed amendment
under consideration by the Employer shall be communicated to the
Trustee to permit the Trustee to review and comment thereon in due
course before the Employer acts on the proposed amendment.
10.02 Termination. The Trust may be terminated by the Employer
upon at least 60 days' written notice to the Trustee. Upon such
termination, and subject to Section 11.01 hereof, the Trust Fund shall
be distributed as directed by the Named Administrative Fiduciary.
ARTICLE XI
MISCELLANEOUS
11.01 Exclusive Benefit Rule. Except as provided in Section
11.02, or as otherwise permitted or required by ERISA or the Code, no
asset of the Trust shall be used for, or diverted to, purposes other
than the exclusive benefit of Plan participants or their beneficiaries
or for the reasonable expenses of administering the Plan and Trust
until all liabilities for benefits due Plan participants or their
beneficiaries have been satisfied.
11.02 Refunds to Employer. The Trustee shall, upon the written
direction of the Named Administrative Fiduciary which shall include a
certification that such action is proper under the Plan, ERISA and the
Code specifying any relevant sections thereof, return to the Employer
any amount referred to in section 403(c)(2) of ERISA.
11.03 Authorized Action. Any action to be taken under this
Trust Agreement by an Employer or other person which is: (a) a
corporation shall be taken by the board of directors of the corporation
or any person or persons duly empowered by the board of directors to
take the action involved, (b) a partnership shall be taken by an
authorized general partner of the partnership, and (c) a sole
proprietorship by the sole proprietor.
11.04 Text of Plan. The Employer represents that, prior to the
execution of this Trust Agreement by both parties, it delivered to the
Trustee the text of the Plan as in effect as of the date of this Trust
Agreement. The Employer shall deliver to the Trustee promptly after
adoption thereof a certified copy of any amendment of the Plan.
11.05 Conflict with Plan. The rights, duties,
responsibilities, obligations and liabilities of the Trustee are as set
forth in this Trust Agreement, and no provision of the Plan or any
other document shall be deemed to affect such rights, duties,
responsibilities, obligations and liabilities. If there is a conflict
between provisions of the Plan and this Trust Agreement with respect to
any subject involving the Trustee, including but not limited to the
responsibility, authority or powers of the Trustee, the provisions of
this Trust Agreement shall be controlling.
11.06 Failure to Maintain Qualification. If the Trust fails to
qualify as a qualified trust under section 401(a) of the Code, or loses
its status as such a qualified trust, the Employer shall immediately so
notify the Trustee, and the Trustee shall, without further notice or
direction, remove the Trust assets from any common or collective trust
fund maintained by the Trustee or its affiliate for investments by
qualified trusts.
11.07 Governing Law and Construction. This Trust Agreement and
the Trust shall be construed, administered and governed under ERISA and
other pertinent federal law, and to the extent that federal law is
inapplicable, under the laws of the state in which the Trustee is
incorporated as set forth above. If any provision of this Trust
Agreement is susceptible to more than one interpretation, the
interpretation to be given is that which is consistent with the Trust
being a qualified trust under section 401(a) of the Code. If any
provision of this Trust Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions
shall continue to be fully effective to the extent possible under the
circumstances.
11.08 Successors and Assigns. This Trust Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
11.09 Gender. As used in this Trust Agreement, the masculine
gender shall include the feminine and the neuter genders and the
singular shall include the plural and the plural the singular, as the
context requires.
11.10 Headings. Headings and subheadings in this Trust
Agreement are for convenience of reference only and are not to be
considered in the construction of the provisions of the Trust
Agreement.
11.11 Counterparts. This Trust Agreement may be executed in
several counterparts, each of which shall be deemed an original, and
these counterparts shall constitute one and the same instrument which
may be sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the Employer and the Trustee have executed
this Trust Agreement each by action of a duly authorized person.
XXXXXXX XXXXX TRUST SOUTHERN ENERGY, INC.
COMPANY (FLORIDA)
By: ____________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ___________________________ Title: ____________________________
