TRUST AGREEMENT
between
XXXXXXX XXXXX TRUST COMPANY OF AMERICA, as the Trustee
and
ETHYL CORPORATION, as the Employer
Trust Agreement entered into as of October 15, 1997 by and between the
above-named employer (the "Employer") and Xxxxxxx Xxxxx Trust Company of
America, an Illinois corporation (the "Trustee"), with respect to a trust
("Trust") forming part of the Savings Plan for the Employees of Ethyl
Corporation (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 Savings Plan for the Employees of Ethyl
Corporation 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 person 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 person 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, receipt of which shall be promptly
confirmed in writing by the Trustee, 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,
receipt of which shall be promptly confirmed in writing by the Trustee, 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 and
agreed to by the Named Administrative Fiduciary. The Trustee's designee shall
not, however, be empowered to implement any such directions except in accordance
with procedures acceptable to the Trustee and agreed to by the Named
Administrative Fiduciary. The Trustee shall have no liability for properly
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.
4.04. Trustee's Compensation and Expenses
If the Employer so elects in a manner satisfactory to the Trustee, the
Employer shall (a) pay the Trustee 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 administrative 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, subject to prior
approval by the Named Administrative Fiduciary, reasonable attorneys' fees
provided, however, that the Trustee shall not be entitled to payment if the
expense was attributable to the Trustee's negligence or bad faith. If the
Employer does not so elect, such compensation and expenses shall be charged
against and withdrawn from the Trust Fund as provided below.
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 reasonable
fees or reasonable administrative expenses which the Employer has not elected to
pay and the amount of any such reasonable fees or reasonable administrative
expenses which the Employer has so elected to pay but which remain unpaid for a
period of 90 days after presentation of a statement for such amount to the
Employer except in the case of any fees or expenses which are subject to a
dispute between the Trustee and the Named Administrative Fiduciary or which
represent extraordinary fees or expenses. 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. The Trustee agrees to provide the Employer with sufficient information to
permit the Employer to determine the approximate amount of the payments received
by the Trustee and/or its affiliates attributable to the Plan's investment in
such mutual funds (or collective trusts).
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
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, subject to the prior approval of
the Named Administrative Fiduciary, 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 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. 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 and agreed to by the Named Administrative Fiduciary.
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
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
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 (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 or other single stock funds selected by the Named
Administrative Fiduciary ("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. To the extent
consistent with ERISA, (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, at the cost of the Employer, obtain advice from a
bank, insurance company, investment adviser or other investment professional
(including any affiliate of the Trustee) or retain an Investment Manager or
other independent fiduciary with full discretion to make the decision. 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 and agreed to by the Employer and the Named
Investment Fiduciary, 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 properly 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 in accordance with such direction.
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 required under
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 and agreed to by the Named Administrative Fiduciary,
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 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
The Employer hereby indemnifies the Trustee against, and shall hold the
Trustee harmless from, any and all loss, claims, liability, and expense,
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 the proper directions from the Named Administrative Fiduciary, Named
Investment Fiduciary, Investment Manager or any other person specified in
Article IV or V hereof, or any designee of any such person, or by reason of the
Trustee's good faith execution of its duties with respect to the Trust,
including, but not limited to, its holding of assets of the Trust as provided
for in Section 3.02, the Employer's obligations in the foregoing regard to be
satisfied promptly on request by the Trustee, unless the loss, claim, liability
or expense involved resulted from the negligence or bad faith of the Trustee.
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 90 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. To the
extent permitted by ERISA, any such approval shall be binding on the Employer,
the Named Administrative Fiduciary and the Named Investment Fiduciary.
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 shall reflect one aggregate balance for participant loans under the Plan
and shall reflect changes thereto only as directed by the Employer or Named
Administrative Fiduciary. The Trustee has no responsibility with respect to
maintenance of promissory notes or monitoring of loan amortization schedules.
ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.01. Resignation
The Trustee may resign at any time upon at least 30 days' written
notice to the Employer.
9.02. Removal
The Employer may remove the Trustee upon at least 30 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.
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.
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. Subject to the approval of
the Employer's legal counsel, 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 me 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 in accordance with the Plan.
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 agrees to deliver 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
COMPANY OF AMERICA ETHYL CORPORATION
By:_______________________________ By:________________________________
Name:_____________________________ Name:______________________________
Title:______________________________ Title:_______________________________
