Exhibit 4.7
Agreement and Declaration of Trust made as of this 14th day
of December, 1995, by and between Amoco Fabrics and Fibers
Company, a Delaware corporation, and BANKERS TRUST COMPANY, a New
York banking corporation.
W I T N E S S E T H:
WHEREAS, Amoco Fabrics and Fibers Company wishes to
establish a master trust to serve as a funding medium for Amoco
Fabrics and Fibers Company Hourly 401(k) Savings Plan, Amoco
Fabrics and Fibers Company Salaried 401(k) Savings Plan, and
other eligible employee benefit plans of Amoco Fabrics and Fibers
Company and its subsidiaries and affiliates, and
WHEREAS, Bankers Trust Company is willing to act as trustee
of such trust upon all of the terms and conditions hereinafter
set forth.
NOW, THEREFORE, Amoco Fabrics and Fibers Company and
Bankers Trust Company declare and agree that Bankers Trust
Company wilI receive, hold and administer all sums of money and
such other property acceptable to Bankers Trust Company as shall
from time to time be contributed, paid or delivered to it
hereunder, IN TRUST, upon all of the following terms and
conditions:
ARTICLE I
Title-Purpose-Policy-Effect
1.1. Name. The master trust established hereunder shall be
known as the Amoco Fabrics and Fibers Company Master Trust and is
sometimes hereinafter referred to as the "Trust"
1.2 Definitions. Where used in this Agreement and Declaration
of Trust, unless the context otherwise requires or unless
otherwise expressly provided:
(b) "Account Party" shall mean the Person designated by the
Company to represent the Company for this prupose, the Named
Fiduciary and any Person to whom the Trustee shall be instructed
by the Named Fiduciary to deliver its annual or other periodic
account under Section 8.2 or Section 8.3, except, that with
respect to any filings, notices, reports or accountings required
to be given under the General Trust, "Account Party" shall be
limited to that officer designated herein to represent the
Company.
(c) "Accounting Period" shall mean either the twelve consecutive
month period conincident with the calendar year or, if different,
the common fiscal year of the Participating Plans or the shorter
period in any year in which the Trustee accepts apointment as
Trustee hereunder or, with respect to any Participating Plan or
Plans, ceases to act as Trustee for any reason.
(d) "Administrative Committee" shall mean, with respect to each
Participating Plan, the Committee or other Person responsible for
benefit administration under such Participating Plan, including
any representative (designated in writing as such) or designee
thereof authoirzed to act on behalf of such Committee.
(e) "Agreement" shall mean all of the provisions of this
instrument and of all other written instruments amendatory
hereof.
(f) "Asset Manager" shall mean the Trustee (other than for
purposes of Article VI), Named Fiduciary or Investment Manager,
individually or colletively as the context shall require, with
respect to those assets held in any Investment Fund established
hereunder over which it exercises, or to the extent it is
authorized to exercise, discretionary investment authority or
control.
(g) "Bank business day" shall mean a day on which the Trustee is
open for business.
(h) "Bankers" shall mean Bankers Trust Company.
(i) "Board of Directors" shall mean the board of directors of
the Company.
(j) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(k) "Common Stock Fund" shall mean an Investment Fund consisting
of common stock of the Company.
(l) "Company" shall mean Amoco Fabrics and Fibers Company or any
successor thereto.
(m) "Company Stock" shall mean the common stock of Amoco
Corporation.
(n) "Directed Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of
the Named Fiduciary or any Investment Manager, other than the
Trustee.
(o) "Discretionary Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of
the Trustee.
(p) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
(q) "General Trust" shall mean the BT Pyramid Trust created by
Bankers Trust Company under Declaration of Trust effective June
30, 1991, as heretofore or hereafter amended.
(r) "Insurance Contract" shall mean any contract or policy
(including any annuity contract) of any kind issued by an
insurance company, whether or not providing for the allocation of
amounts received by the insurance company thereunder solely to
the general account or solely to one or more separate accounts
(including separate accounts maintained for the collective
investment of qualified retirement plans), or a combination
thereof, and whether or not any such allocation may be made in
the discretion of the insurance company.
(s) "Investment Fund" shall mean each pool of assets established
for investment purposes pursuant to Section 5.1 in the Trust in
which one or more Participating Plans has an interest during an
Accounting Period. The term shall also include for all purposes
hereof any sub-fund or account into which an Investment Fund
shall be divided from time to time at the direction of the Named
Fiduciary.
(t) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38)
of ERISA.
(u) "Investment Vehicle" shall mean any common, collective or
commingled trust (other than the General Trust or an Investment
Fund), investment company, corporation functioning as an
investment intermediary, Insurance Contract. partnership, joint
venture or other entity or arrangement to which, or pursuant to
which, assets of an Investment Fund within the Trust may be
transferred or in which the Trust has an interest, beneficial or
otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(v) "Master Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all
investments made therewith and proceeds thereof and all earnings
and profits thereon, less payments, transfers or other
distributions which, at the time of reference, shall have been
made by the Trustee, as authorized herein. The Master Fund shall
include each Investment Fund and all evidences of ownership,
interest or participation in an Investment Vehicle, but shall
not, solely by reason of the Master Fund's investment therein',
be deemed to include any assets of such Investment Vehicle.
(w) "Named Fiduciary" shall mean the Person or its designee with
respect to a Participating Plan, who, within the meaning of
Section 402(a)(2), 402(c)(3) or 403(a)(1) of ERISA, has the
authority to perform the separate functions allocated to that
"Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall
mean the Administrative Committee appointed pursuant to the
Participating Plans.
(x) "Participating Plan" shall mean any employee benefit plan
which meets the requirements for eligibility specified in Section
2.1. [All Participating Plans are listed on Appendix A attached
hereto.]
(y) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock
company, unincorporated organization, association, partnership,
joint venture, employee organization, committee, board,
participant, beneficiary, trustee, partner, or venturer acting in
an individual, fiduciary or representative capacity, as the
context may require.
(z) "Section" shall mean any Section of this Agreement.
(aa) "Share" shall mean the interest of any Participating
Plan in the Master Fund, and where appropriate any Investment
Fund, the accounting for which will be maintained by the Trustee
in a manner agreed upon between the Company and the Trustee and
may be expressed in "units".
(bb) "Trustee" shall mean Bankers Trust Company, as Trustee
of the Trust.
(cc) "Valuation Date" shall mean the last day of the
Accounting Period, calendar quarter or any more frequent date for
reporting and/or investment purposes agreed to by the Trustee.
The plural of any term shall have a meaning corresponding
to the singular thereof as so defined and any neuter pronoun used
herein shall include the masculine or feminine, as the context
may require.
1.3. Purpose. The Trust is established to fund the benefits
payable to participants and their beneficiaries under each
Participating Plan.
1.4 Exclusive Benefit. Except as may otherwise be permitted
by law and the terms of the Participating Plan, at no time prior
to the satisfaction of all liabilities with respect to
participants and their beneficiaries under any Participating Plan
shall any part of the Share of such Participating Plan be used
for, or diverted to, any purposes other than for the exclusive
benefit of such participants and their beneficiaries, and for
defraying the reasonable expenses of administering such Plan. No
provision herein designed to provide for the pooling of assets of
Participating Plans for investment purposes shall be deemed or
construed to authorize the utilization of the assets of any
Participating Plan to discharge the obligations and liabilities
of any other Plan.
1.5. Effect. All Persons at any time interested in any
Participating Plan shall be bound by the provisions of this
Agreement and, in the event of any conflict between this
Agreement and the provisions of a Participating Plan or any
instrument or agreement forming part of such Plan other than this
Agreement, the provisions of this Agreement shall control
1.6. Domestic Trust The Trust shall at all times be
maintained as a domestic trust in the United States
1.7. Trustee Not Responsible for Enforcing Contributions or
for Sufficiency. The Trustee shall have no responsibility for
enforcing payment of any contribution to any Participating Plan,
for the timing or amount thereof, or for the adequacy of the
Master Fund or the funding standards adopted for any
Participating Plan to meet or discharge any pension or other
liabilities of such Plan.
ARTICLE II
Participation
2.1. Eligibility. Any employee benefit plan established by
the Company, or a subsidiary or an affiliate of the Company, may
be funded, in whole or in part, through the Trust if (i) the plan
is qualified under Section 401 (a) of the Code, (ii) the Trust is
exempt from taxation under Section 501(a) of the Code, and (iii)
this Agreement has been duly adopted as the trust under the Plan
by the Board of Directors or by the board of directors of a
subsidiary or affiliate of the Company and, in the case of such
subsidiary or affiliate, the Company has consented thereto.
2.2. Effect on Adopting Company. When the Master Trust has
been adopted by any subsidiary or affiliate of the Company, such
subsidiary or affiliate shall be bound by the decisions,
instructions, actions and directions of the Company, the
Administrative Committee or the Named Fiduciary under or
affecting this Agreement, and the Trustee shall be fully
protected by the Company and such subsidiary or affiliate in
relying upon the decisions, instructions, actions and directions
of the Company, the Administrative Committee or the Named
Fiduciary. Except as may be hereafter specifically provided, the
Trustee shall not be required to give notice to or to obtain the
consent of any subsidiary or affiliate with respect to any action
to be taken by the Trustee pursuant to this Agreement, and the
Company shall have the sole authority to enforce this Agreement
on behalf of any subsidiary or affiliate.
2.3. Shares. The Trustee shall maintain a separate account
and such sub-accounts as it and the Company shall deem advisable
to reflect the Share of each Participating Plan, or part thereof
The Named Fiduciary shall provide the Trustee with current
information in order that the Trustee may determine such Shares.
An Investment Fund may be divided into such one or more sub-funds
or accounts or described in a different manner on any books kept
or reports rendered by the Trustee without in any way affecting
the duties or responsibilities of the Trustee under the
provisions of this Agreement; provided, however the books and
records of the Trustee shall at all times be maintained so that
the interest of each Participating Plan may be determined.
2.4. Valuations. The Trustee shall determine the value of
the assets of the Master Fund and each Investment Fund as of each
Valuation Date. Except in the case of an Investment Fund in which
amortized cost is the valuation method designated, assets will be
valued at their market values at the close of business on the
Valuation Date, or, in the absence of readily ascertainable
market values, at such values as the Trustee shall determine in
accordance with methods consistently followed and uniformly
applied. Anything in this Agreement to the contrary
notwithstanding, with respect to assets constituting part of a
Directed Fund, the Trustee may rely for all purposes of this
Agreement on the latest valuation and transaction information
submitted to it by the Person responsible for the investment of
such assets even if such information predates the Valuation Date.
The Named Fiduciary will cause such Person to provide the Trustee
with all information needed by the Trustee to discharge its
obligations to value such assets and to account under this
Agreement.
2.5. Participant Records and Accounts. The Trustee shall
maintain separate accounts for each Participant to which shall be
credited units of participation in the Master Fund in accordance
with the provisions of the Participating Plan. The Trustee shall
render a statement to each Participant at least annually, or more
often if requested by the Committee. with respect to such
accounts in accordance with the Plan. The Committee shall direct
the Trustee as to the names of Participants, the respective
contributions to be credited to the account of each, the
directions of Participants, beneficiaries or legal
representatives, and other data required by the Trustee to
maintain a record of the accounts of Participants, to determine
the amounts to be invested in the respective Investment Fund, and
to make distributions therefrom. The Trustee may rely on
directions received by facsimile transmission, or other
teleprocess or electronic transmission acceptable to it and which
it believes in good faith to have been given by an authorized
person or persons. The Trustee may rely absolutely on all
directions by the Committee. The Trustee shall be under no duty
or obligation to question such direction or to verify the
accuracy of such direction by reference to to records of the
Company or Committee.
The undertaking of the foregoing administrative functions
by the Trustee is neither intended to nor shall be inferred to
confer any other power or responsibility, discretionary or
otherwise, upon the Trustee, or upon any employee of the Trustee
with respect to the administration of the Participating Plan by
the Administrative Committee, the determination of any
Participants rights thereunder, or the investment of any
Participant's account by an Investment Manager.
ARTICLE III
Administration of Participating Plans
3.1. Payment of Benefits. On the direction of the
Administrative Committee, the Trustee shall pay moneys out of the
share of a Participating Plan directly to or for the benefit of
participants in such Plan and their beneficiaries, or to an
insurance company to provide for the payment of such benefits by
the purchase of an Insurance Contract, or to a paying or
disbursing agent (which may be the Administrative Committee). Any
assets disbursed or paid over by the Trustee pursuant to this
Section 3.1 shall no longer be part of the Master Fund.
3.2. Reliance on Administrative Committee. Any directions
pursuant to Section 3.1 may, but need not. specify the
application to be made of moneys so ordered. The Trustee shall
charge such transfer against the Share of such one or more of the
Participating Plans as the Administrative Committee shall direct.
Each direction to the Trustee under Section 3.1 shall constitute
a certification by the Administrative Committee that such
direction is in accordance with applicable law, the terms of any
relevant Participating Plan and the terms of this Agreement, and
the Trustee shall have no duty to make any independent inquiry or
investigation as to any of the foregoing before acting upon such
direction, or to see to the application of any moneys paid over.
3.3. Trustee Not Responsible for Plan Administration. The
Trustee shall not be responsible under this Agreement, or
otherwise, in any way respecting the determination, computation,
payment or application of any benefit, for the form, terms,
payment provisions or issuer of any Insurance Contract which it
is directed to purchase to provide for the payment of benefits
under any Participating Plan, for performing any functions under
any such Insurance Contract which it may be directed to purchase
and/or hold as contract holder thereunder (other than the
execution of any documents incidental thereto and transfer or
receipt of funds thereunder), or for any other matter affecting
the administration of a Participating Plan, by the Company or the
Administrative Committee or any other Person to whom such
responsibility is allocated or delegated pursuant to the terms of
the Participating Plan.
ARTICLE IV
Investment of Trust Assets
4.1. Asset Managers. Discretionary authority for the
management and control of assets of a Participating Plan from
time to time held in the Master Fund may be retained, allocated
or delegated. as the case may be, for one or more purposes, to
and among the Asset Managers by the Named Fiduciary, in its
absolute discretion. The terms and conditions of appointment,
authority and retention of any Asset Manager shall be the sole
responsibility of the Named Fiduciary. The Named Fiduciary shall
promptly notify the Trustee in writing of the appointment or
removal of an Asset Manager. Any notice of appointment pursuant
to this Section 4.1 shall constitute a representation and
warranty that the Asset Manager has been appointed in accordance
with the provisions of the, Participating Plan and that any Asset
Manager (other than the Trustee or the Named Fiduciary) is an
Investment Manager.
4.2. Investment Discretion. Subject to Section 5.1, the
assets of the Trust shall be invested and reinvested, without
distinction between principal and income, at such time or times
in such investments and pursuant to such investment strategies or
courses of action and in such shares and proportions, as the
Asset Managers, in their sole discretion, shall deem advisable.
4.3. Limitations on Investment Discretion. In addition to
the limitations imposed by Section 5.1, the Named Fiduciary may
limit, restrict or impose guidelines affecting the exercise of
the discretion hereinabove conferred on any Asset Manager. Any
limitations, restrictions or guidelines applicable to the
Trustee, as Asset Manager, shall be communicated in writing to
the Trustee. The Trustee shall have no responsibility with
respect to the formulation of any funding policy or any
investment or diversification policies embodied therein. The
Named Fiduciary shall be responsible for communicating, and
monitoring adherence to, any limitations or guidelines imposed on
any other Asset Manager by Section 5.1 or Section 7.3 or the
guidelines described above.
4.4. Responsibility for Diversification. The Named
Fiduciary shall be responsible for determining the
diversification policy (if required) of the Master Fund, for
monitoring adherence by the Asset Managers to such policy, and
for advising the Asset Managers with respect to limitations on
employer or other securities or property contained in any
Participating Plan or imposed on such Plan by applicable law or
by the Named Fiduciary.
ARTICLE V
Investment Funds Within the Master Fund
5.1. Participating investment Funds. At the direction of
the Named Fiduciary, the interest of a Participating Plan in the
Master Fund may be allocated and held and invested in one or more
Investment Funds established hereunder by the Named Fiduciary as
required or permitted by the terms of each Participating Plan. As
of the date hereof, the Master Fund shall be hold and invested in
the Investment Funds listed and described in [Appendix B]
attached hereto. The Named Fiduciary, to the extent permitted by
a Participating Plan, may establish additional Investment Funds,
or freeze, terminate or modify the description of any Investment
Fund. The determination of the Named Fiduciary of investments
eligible for inclusion in any Investment Fund shall be conclusive
and binding on all Persons interested in the Participating Plans.
Such Investment Funds shall include. where applicable, a Common
Stock Fund which shall consist of Company Stock. The income of
each Investment Fund shall be accumulated and invested in such
Fund. To the extent that any cash shall be allocated to the
Common Stock Fund, the Trustee shall regularly purchase the
Company Stock on the open market or, if the Plan so provides,
from the Company or in private transactions, in accordance with a
non-discretionary purchasing program.
The Trustee shall have no authority or obligation to invest
or reinvest cash balances of any Directed Fund in the General
Trust or otherwise pursuant to this Agreement unless and until it
receives appropriate directions from the Asset Manager. Cash
balances (including interim investment thereof) in the Common
Stock Fund shall be limited to the administrative needs of such
Investment Fund. For the purpose of this Section 5.1 and Section
5.2., "administrative needs" shall mean needs consistent with the
Trustee's implementation of the regular purchasing program
described herein, anticipated distributions and withdrawals from
such Investment Fund, and transfers among the Investment Funds at
the election of participants. Any investment limitation affecting
Company securities shall not be applicable to the extent any
Investment Fund is invested in units of the General Trust.
5.2. The Company Stock Fund. Notwithstanding the
unrestricted powers conferred on the Trustee in this Agreement,
the Trustee shall purchase and retain the Company Stock in the
Common Stock Fund regardless of market fluctuations and, subject
to Article XVI, the Trustee shall sell such stock only to meet
administrative needs of the Participating Plan. The Company shall
undertake the responsibility to inform Participating Plan
participants of the unique nature of the Common Stock Fund.
ARTICLE VI
Responsibility for Directed Funds
6.1. Responsibility for Selection of Agents. All
transactions of any kind or nature in or from a Directed Fund
shall be made upon such terms and conditions and from or through
such brokers, dealers and principals and other agents as the
Asset Manager shall direct. No such transactions shall be
executed through the facilities of the Trustee except where the
Trustee shall make available its facilities solely for the
purpose of temporary investment of cash reserves of a Directed
Fund. However, nothing in the preceding sentence shall confer any
authority upon the Trustee to invest the cash balances of any
Directed Fund unless and until it receives directions from the
Asset Manager.
6.2. Trustee Not Responsible for Investments in Directed
Funds. The Trustee shall be under no duty or obligation to review
or to question any direction of any Asset Manager, or to review
securities or any other property held in any Directed Fund with
respect to prudence or proper diversification or compliance with
any limitation on the Asset Managers authority under this
Agreement or the terms of a Participating Plan, any agreement
entered into between the Company or the Named Fiduciary and the
Asset Manager or imposed by applicable law, or to make any
suggestions or recommendation to the Company, the Named Fiduciary
or the Asset Manager with respect to the retention or investment
of any assets of any Directed Fund, and shall have no authority
to take any action or to refrain from taking any action with
respect to any asset of a Directed Fund unless and until it is
directed to do so by the Asset Manager.
6.3. Investment Vehicles. Any Investment Vehicle, or
interest therein, acquired by or transferred to the Trustee upon
the directions of the Asset Manager shall be allocated to a
designated Directed Fund, and the Trustee's duties and
responsibilities under this Agreement shall not be increased or
otherwise affected thereby. The Trustee shall be responsible
solely for the safekeeping of the physical evidence, if any, of
the Trust's ownership of or interest or participation in such
Investment Vehicle.
6.4. Reliance on Asset Manager . The Trustee shall be
required under this Agreement to execute documents, to settle
transactions, to take action on behalf of or in the name of the
Trust and to make and receive payments on the direction of the
Asset Manager. Any direction of the Asset Manager shall
constitute a certification to the Trustee (i) that the
transaction will not constitute a prohibited transaction under
ERISA or the Code, (ii) that the investment is authorized under
the terms of this Agreement and any other agreement or law
affecting the Asset Manager's authority to deal with the Directed
Fund, (iii) that any contract. agency, joinder, adoption,
participation or partnership agreement, deed. assignment or other
document of any kind which the Trustee is requested or required
to execute to effectuate the transaction has been reviewed by the
Asset Manager and, to the extent it deems advisable and prudent,
its counsel, (iv) that such instrument or document is in proper
form for execution by the Trustee, (v) that, where appropriate,
insurance protecting the Trust against loss or liability has been
or will be maintained in the name of or for the benefit of the
Trustee, and (vi) that all other acts to perfect and protect the
Trust's rights have been taken, and the Trustee shall have no
duty to make any independent inquiry or investigation as to any
of the foregoing before acting upon such direction. In addition,
the Trustee shall not be liable for the default of any Person
with respect to any Investment Vehicle or any investment in a
Directed Fund or for the form, genuineness, validity, sufficiency
or effect of any document executed by, delivered to or held by it
for any Directed Fund on account of such investment, or if, for
any reason (other than the negligence or willful misconduct of
the Trustee) any rights of the Trust therein shall lapse or shall
become unenforceable or worthless.
6.5. Merger of Funds. The Trustee shall not have any
discretionary responsibility or authority to manage or control
any asset held in a Directed Fund upon the resignation or removal
of an Asset Manager unless and until it has been notified in
writing by the Named Fiduciary that the Asset Manager's authority
has terminated and that such Directed Fund's assets are to be
integrated with the Discretionary Fund. Such notice shall not be
deemed effective until two bank business days after it has been
received by the Trustee. The Trustee shall not be liable for any
losses to the Master Fund resulting from the disposition of any
investment made by the Asset Manager or for the retention of any
illiquid or unmarketable investment or any investment which is
not widely publicly traded or for the holding of any other
investment acquired by the Asset Manager if the Trustee is unable
to dispose of such investment because of any restrictions imposed
by the Securities Act of 1933 or other Federal or state law, or
if an orderly liquidation of such investment is impractical under
prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4.3 or 5.1, or
for any other violation of the terms of this Agreement, the
Participating Plans or applicable law as a result of the addition
of Directed Fund assets to the Discretionary Fund.
6.6. Notification of Named Fiduciary in Event of Breach. If
the Trustee has knowledge of a breach committed by an Asset
Manager, it shall notify the Named Fiduciary thereof, and the
Named Fiduciary shall thereafter assume full responsibility to
all Persons interested in the Participating Plans to remedy such
breach.
6.7. Definition of Knowledge. The parties hereto
acknowledge that while the Trustee will perform certain duties
(such as custodial, reporting, recording, valuation and
bookkeeping functions) with respect to Directed Funds, such
duties will not involve the exercise of any discretionary
authority to manage or control the assets of the Directed Funds
and will be the responsibility of officers or other employees of
the Trustee who are unfamiliar with and have no responsibility
for investment management Therefore, in the event that knowledge
of the Trustee shall be a prerequisite to imposing a duty upon or
to determining liability of the Trustee under this Agreement or
any statute regulating the conduct of the Trustee with respect to
such Directed Funds or relieving the Company of its undertakings
under Section 16.2, the Trustee will not be deemed to have
knowledge of, or to have participated in, any act or omission of
an Asset Manager involving the investment of assets allocated to
the Directed Funds as a result of the receipt and processing of
information in the course of performing such duties.
6.8. Duty to Enforce Claims The Trustee shall have no duty
to commence or maintain any action, suit or legal proceeding on
behalf of the Trust on account of or growing out of any
investment made in or for a Directed Fund unless the Trustee has
been directed to do so by the Asset Manager or the Named
Fiduciary and unless the Trustee is either in possession of funds
sufficient for such purpose or has been indemnified to its
satisfaction for counsel fees, costs and other expenses and
liabilities to which it, in its sole judgment. may be subjected
by beginning or maintaining such action, suit or legal
proceeding.
6.9. Restrictions on Transfer. Nothing herein shall be
deemed to empower any Asset Manager to direct the Trustee to
transfer any asset of a Directed Fund to itself except for
purposes enumerated in paragraph (j), (l) or (m) of Section 7.1.
ARTICLE VII
Powers of Asset Managers
7.1. General Powers. Without in any way limiting the powers
and discretions conferred upon any Asset Manager by the other
provisions of this Agreement or by law, each Asset Manager shall
be vested with the following powers and discretions with respect
to the assets of the Trust subject to its management and control,
and, upon the directions of to Asset Manager of a Directed Fund,
the Trustee shall make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to enable such
Asset Manager to carry out such powers and discretions:
(a) to sell, exchange, convey, transfer or otherwise
dispose of any property by private contract or at public auction,
and no person dealing with the Asset Manager shall be bound to
see to the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or other
disposition;
(b) to enter into contracts or to make commitments
either alone or in company with others to sell or acquire
property;
(c) to purchase or sell, write or issue, puts, calls or
other options, covered or uncovered. to enter into financial
futures contracts, forward placement contracts and standby
contracts. and in connection therewith, to deposit, hold (or
direct Bankers, as Trustee or in its individual capacity, to
deposit or hold) or pledge assets of the Master Fund;
(d) to purchase part interests in real property or in
mortgages on real property, wherever such real property may be
situated;
(e) to lease to others for any term without regard to
the duration of the Trust any real property or part interest in
real property;
(f) to delegate to a manager or the holder or holders
of a majority interest in any real property or mortgage on real
property or in any oil, mineral or gas properties, the management
and operation of any part interest in such property or properties
(including the authority to sell such part interests or otherwise
carry out the decisions of such manager or the holder or holders
of such majority interest);
(g) to vote upon any stocks, bonds or other securities
(but subject to the suspension of any voting rights as a result
of any broker loan or similar agreement and subject further with
respect to the voting of Company Stock, to the provisions of any
Participating Plan); to give general or special proxies or powers
of attorney with or without power of substitution; to exercise
any conversion privileges, subscription rights or other options
and to make any payments incidental thereto; to consent to or
otherwise participate in corporate reorganizations or other
changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers
of an owner with respect to stocks, bonds, securities or other
property;
(h) to organize corporations under the laws of any
state for the purpose of acquiring or holding title to property
(or, in the case of a Directed Fund, to direct the Trustee to
organize such corporations or to appoint an ancillary trustee
acceptable to the Trustee for such purpose),
(i) to invest in a fund consisting of securities.
issued by corporations and selected and retained solely because
of their inclusion in, and in accordance with, one or more
commonly used indices of such securities, with the objective of
providing investment results for the fund which approximate the
overall performance of such designated index;
(j) to enter into any partnership, as a general or
limited partner, or joint venture;
(k) to purchase units or certificates issued by an
investment company or pooled trust or comparable entity;
(l)to transfer money or other property to an insurance
company issuing an Insurance Contract;
(m) to transfer assets of a Discretionary or Directed
Fund to a common, collective or commingled trust fund exempt from
tax under the Code maintained by an Asset Manager or an affiliate
of an Asset Manager or by another trustee who is designated by
the Named Fiduciary, to be hold and invested subject to all of
the terms and conditions thereof, and such trust shall be deemed
adopted as part of the Trust and the Participating Plans to the
extent that assets of the Trust are invested therein; provided,
however, that any transfer from a Directed Fund to the General
Trust may be made only with the prior approval of the Trustee and
shall be invested only in one or more short term investment funds
or other special purpose funds established from time to time
thereunder; and
(n) to be reimbursed for the expenses incurred in
exercising any of the foregoing powers or to pay the reasonable
expenses incurred by any agent, manager or trustee appointed
pursuant hereto.
7.2. Additional Powers of Trustee. In addition, the Trustee
is hereby authorized:
(a) to register any securities held in the Master Fund
in its own name or in the name of a nominee and to hold any
securities in bearer form, and to combine certificates
representing such securities with certificates of the same issue
held by the Trustee in other fiduciary or representative
capacities or as agent for customers, or to deposit or to arrange
for the deposit of such securities in any qualified central
depository even though, when so deposited, such securities may be
merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by other
depositors, or to deposit or arrange for the deposit of any
securities issued by the United States Government, or any agency
or instrumentality thereof, with a Federal Reserve Bank, but the
books and records of the Trustee shall at all times show that all
such investments are part of the Master Fund;
(b) to employ suitable agents, depositories and
counsel, domestic or foreign, and to charge their reasonable
expenses and compensation against the Master Fund, and to confer
upon any such depository the powers conferred upon the Trustee by
paragraph (a) of this Section 7.2 as well as the power to appoint
subagents and depositories, wherever situated, in connection with
the retention of securities or other property;
(c) to borrow money from any source as may be necessary
or advisable to effectuate the purposes of the Trust on such
terms and conditions as the Trustee, in its absolute discretion,
may deem advisable;
(d) to deposit any funds of the Trust in accounts or
savings certificates, which bear a reasonable rate of interest,
issued or maintained by Bankers Trust Company, in its separate
corporate capacity, or in any other institution affiliated with
Bankers Trust Company;
(e) to compromise, compound, submit to arbitration or
settle any debt or obligation owing to or from or otherwise
adjust all claims in favor of or against the Master Fund other
than claims solely affecting the right of any Person to benefits
under a Participating Plan; to reduce or increase the rate of
interest or extend, or otherwise modify, foreclose upon default.
or enforce any such debt or obligation; to xxx or defend suits or
legal proceedings to protect any interest in the Trust and to
represent the Trust in all suits or legal proceedings in any
court or before any other administrative agency, body or
tribunal;
(f)to make any distribution or transfer of assets as of
a Valuation Date authorized under Article X or X1 or to
effectuate participants' rights under a Participating Plan in
cash or in kind, or partly in cash or kind, and, in furtherance
thereof, to value such assets, which valuation shall be
conclusive and binding on all Persons;
(g) upon the direction of the Named Fiduciary, to
maintain and operate one or more market inventory funds as a
vehicle to exchange securities among Discretionary and Directed
Funds without alienating the property from the Trust;
(h) with the consent of the Named Fiduciary, to loan
securities held in the Master Fund to brokers or dealers or other
borrowers under such terms and conditions as the Trustee, in its
absolute discretion, deems advisable, to secure the same in any
manner permitted by law and the provisions of this Agreement, and
during the term of any such loan, to permit the loaned securities
to be transferred into the name of and voted by the borrowers or
others, and, in connection with the exercise of the powers
hereinabove granted, to hold any property deposited as collateral
by the borrower pursuant to any master loan agreement in bulk,
either as provided in paragraph (a) of this Section 7.2 or
otherwise, together with the unallocated interests of other
lenders, and to retain any such property upon the default of the
borrower, whether or not investment in such property is
authorized under this Agreement, and to receive compensation
therefor out of any amounts paid by or charged to the account of
the borrower;
(i) to enroll the Master Fund in a program maintained
by Bankers to permit customer's accounts to participate in
dividend reinvestment plans offered by issuers of securities held
in accounts, such as the Master Fund, in order to realize upon
the discount from market value offered shareholders without
impact on the managed assets in the Master Fund. and to receive
compensation therefor (including reimbursement for certain of its
out-of-pocket costs associated therewith) out of the income
received by the Master Fund from participation in such program;
(j) to hold uninvested cash awaiting investment and
such additional cash balances as it shall deem reasonable or
necessary, without incurring any liability for the payment of
interest thereon; and
(k) generally, consistent with the provisions of this
Agreement to perform all acts (whether or not expressly
authorized herein) which it may deem necessary and prudent for
the protection of the assets of the Trust.
7.3. Limitation of Powers. The foregoing provisions of this
Article V11 shall not be deemed to expand the permissible
investments for any Investment Fund under Section 5.1 or to limit
the Named Fiduciary's power to restrict the exercise of such
powers by an Asset Manager as provided in Section 4.3. In
addition, any powers conferred on the Trustee or any other Asset
Manager thereunder may be suspended or revoked at any time by the
Named Fiduciary upon notice to the Asset Manager or the Trustee,
as the case may be. Any oral notice hereunder shall be promptly
confirmed in writing to the Trustee and the Asset Manager, but
the Trustee shall have no responsibility hereunder unless and
until it has received notice in accordance with Section 15.6.
ARTICLE VIII
Records and Accounts of Trustee
8.1. Records The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other
transactions in the Master Fund and all accounts, books and
records relating thereto shall be open to inspection and audit at
all reasonable times during normal business hours by any Person
designated by the Named Fiduciary.
8.2. Annual. Within ninety (90) days following the close of
each Accounting Period, the Trustee shall file with the Account
Party, in accordance with Section 15.6, a written account setting
forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Person as herein
provided during the Accounting Period.
8.3. Periodic Account. If so required by the terms of any
Participating Plan and agreed to by the Trustee, within thirty
(30) days following the close of each calendar month, calendar
quarter or other time period (but not more frequently than
monthly) the Trustee shall provide the Account Party with, in
accordance with Section 15.6, a written account for any such
Participating Plan, setting forth the receipts and disbursements
of the Master Fund and the investments and other transactions
effected by it upon its own authority or pursuant to the
directions of any Person as herein provided during such period;
provided, however, that such written account shall be limited to
an accounting of investments and transactions in the Master Fund
and shall not affect the responsibilities of the parties, if any,
under Section 2.5 herein.
8.4. Account Stated. Upon the expiration of ninety (90)
days from the date of filing its annual account with the Account
Party, the Trustee shall be forever released and discharged from
all liability and further accountability to the Company, the
Account Party or any other Person with respect to the accuracy of
such accounting and the propriety of all acts and failures to act
of the Trustee reflected in such account, except with respect to
any such acts or transactions as to which the Account Party
shall, within such 90-day period, file with the Trustee specific
written objections.
8.5. Judicial Accountings Nothing herein shall in any way
limit the Trustee's right to bring any action or proceeding in a
court of competent jurisdiction to settle its account or for such
other relief as it may deem appropriate.
8.6. Necessary Parties Except to the extent that Sections
502 and 5D4 of ERISA may provide otherwise, in order to protect
the Master Fund from the expense of litigation, no Person other
than the Company shall be a necessary party in any proceeding
under Section 8.5 or may require the Trustee to account or may
institute any other action or proceeding against the Trustee or
the Trust.
ARTICLE IX
Compensation. Taxes and Expenses
9.1. Compensation and Expenses. Any expenses incurred by
the Trustee in connection with its administration of the Master
Trust including, but not limited to, fees for legal services
rendered to the Trustee (whether or not rendered in connection
with a judicial or administrative proceeding), such compensation
to the Trustee as shall be agreed upon from time to time between
the Trustee and an officer of the Company, and all other proper
charges and disbursements of the Trustee, shall be paid from the
Master Fund, unless paid by the Company. Anything in the
preceding sentence to the contrary notwithstanding, the Company
shall reimburse the Trustee for any such fees and expenses if for
any reason such expenses are not paid out of the Master Fund. The
Trustee's entitlement to reimbursement hereunder shall not be
affected by the resignation or removal of the Trustee or by the
termination of the Trust. The Named Fiduciary may direct the
Trustee to pay from the Master Fund any other administration
expenses of a Participating Plan Each direction to the Trustee
under this Section and Section 9.3 shall constitute a
certification by the Named Fiduciary that such direction is in
accordance with applicable law, the terms of any relevant
Participating Plan and the terms of this Agreement, and the
Trustee shall have no duty to make any independent inquiry or
investigation as to any of the foregoing before acting upon such
direction, or to see to the application of any moneys paid over.
9.2. Taxes. All taxes of any and all kinds whatsoever that
may be levied or assessed under existing or future laws, domestic
or foreign, upon the Master Fund or the income thereof shall be
paid from the Master Fund.
The Trustee shall notify the Named Fiduciary of any taxes
that may be assessed. In the event that the Named Fiduciary shall
determine that the taxes are not lawfully assessed, it may elect
to direct the Trustee at the expense of the Trust, or may itself,
contest such assessment.
9.3. Allocation. Any tax or expense paid from the Master
Fund hereunder which is determined by the Named Fiduciary to be
specifically allocable to one or more Investment Funds or
Participating Plans, as the case may be, shall be charged against
such Investment Funds or the Share of such Participating Plan or
Plans, in such proportions as the Named Fiduciary shall direct
the Trustee. Any expense which is allocable to all of the
Investment Funds or all of the Participating Plans shall be
charged against the Master Fund as a whole.
ARTICLE X
Resignation or Removal of Trustee
10.1. Resignation or Removal. The Trustee may be removed by
the Company at any time upon ninety (90) days' notice in writing
to the Trustee. The Trustee may resign at any time upon ninety
(90) days' notice in writing to the Company.
10.2. Designation of a Successor. Upon the removal or
resignation of the Trustee, the Company shall either appoint a
successor trustee who shall have the same powers and duties as
those conferred upon the Trustee hereunder, and upon acceptance
of such appointment by the successor trustee, the Trustee shall
assign, transfer and pay over the Master Fund to such successor
trustee, or the Company shall direct the Trustee to assign.
transfer and payover the Master Fund to one or more insurance
companies pursuant to insurance contracts issued to the
Participating Plans. If, for any reason, the Company cannot or
does not act promptly to appoint a successor trustee or designate
an insurance company in the event of the resignation or removal
of the Trustee, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor trustee. Any
expenses incurred by the Trustee in connection therewith -shall
be charged to and paid from the Master Fund as an expense of
administration.
10.3 Reserve for Expenses. The Trustee is authorized to
reserve such amount as to it may doom advisable for payments of
its fees and expenses in connection with the settlement of its
account or otherwise, and any balance of such reserve remaining
after the payment of such fees and expenses shall be paid over in
accordance with the directions of the Company under 10.2. The
Trustee is authorized to invest such reserves in any investment
authorized under the terms of this Agreement appropriate for the
temporary investment of cash reserves of trusts.
ARTICLE X1
Withdrawal of Participating Plans
11.1. Event of Withdrawal. Upon receipt of notice from the
Company of the termination (including any partial termination)
and distribution of the assets of a Participating Plan or of the
withdrawal of any Participating Plan, or part thereof, from the
Trust, the Trustee shall segregate the share of the assets of the
Master Fund allocable to such Participating Plan, or part
thereof, and shall dispose of such assets in accordance with the
directions of the Company.
11.2. Disqualification. The Company shall promptly notify
the Trustee if any Participating Plan has been or is likely to be
disqualified under Section 401 of the Code. In that event, the
Share of such Participating Plan shall be treated as a Plan
withdrawn pursuant to Section 11 1
11.3. Approval of Appropriate Agencies. The Trustee may, in
its absolute discretion, condition delivery, transfer or
distribution of any assets withdrawn from the Master Fund under
this Article XI upon the Trustee's receiving assurances
satisfactory to it that any notice which may be required to be
given under ERISA or the Code to any Person, the Department of
Labor or the Internal Revenue Service has been given, or that any
filing which is required to be made to determine that a
termination has not affected the qualification of a Participating
Plan has been made, and that any plan to which such assets are to
be transferred is a qualified plan under Section 401 (a) of the
Code. The Trustee shall not be responsible under any
Participating Plan to give any such notice or make any such
filings or maintain any records required under ERISA or the Code,
all of which, for purposes of this Agreement, shall be the
responsibility of the Company.
ARTICLE XII
Amendment or Termination
12. 1. Amendment. Subject to Section 1.4, the Company
reserves the right at any time and from time to time to amend, in
whole or in part, any or all of the provisions of this Agreement
by notice thereof in writing delivered to the Trustee; provided,
however, no amendment which affects the rights, duties or
responsibilities of the Trustee may be made without its prior
written consent.
12.2. Termination Subject to Section 1.4, the Company
reserves the right to terminate this Agreement by notice in
writing thereof delivered to the Trustee. In the event of
termination, the Trustee shall dispose of the Master Fund, after
the payment of or other provision for all of its expenses
(including any compensation to which the Trustee may be
entitled). all in accordance with the written directions of the
Company. In the event that termination results from the removal
of the Trustee or the withdrawal of all of the Participating
Plans. then such disposition shall be implemented in accordance
with the provisions of Article X or Article XI as the case may
be.
12.3. Trustee's Authority to Survive Termination. Until the
final distribution of the Master Fund, the Trustee shall continue
to have and may exercise all of the powers and discretions
conferred upon it by this Agreement.
ARTICLE XIII
Tender Offers
13.1. In General. In the event that any person (other than
the Company or any affiliate thereof) shall make a public offer
for Company Stock held in the Common Stock Fund, the Company
undertakes to provide promptly a copy of the offer, and any other
material information concerning such offer, to each Participating
Plan participant (including, for the purposes of this Article
XIII, any beneficiary of a deceased participant) who has an
interest in the Common Stock Fund with a form for furnishing to
the Trustee timely instructions as to whether the Company Stock
allocated to participants' accounts for purposes of this Article
XIII should be tendered. Each participant may elect that all, but
not less than all, of the Company Stock allocated to his account
be tendered by the Trustee on his behalf. Upon timely receipt of
instructions from a participant to so tender, the Trustee shall
tender all such Company Stock allocated to such participant's
account. Any Company Stock held by the Trustee as to which it
receives either no instruction or incomplete instructions from a
participant to whose account such stock is allocated shall not be
tendered. In the event that participants' instructions cannot
otherwise be returned to the Trustee in a timely fashion, the
Company agrees to collect and tabulate such instructions in a
manner that will assure a confidential and accurate tabulation
and timely tender by the Trustee. Any securities or other
property received by the Trustee as a result of having tendered
Company Stock, as hereinabove provided, shall be held, and any
cash so received shall be invested in short term investments,
pending any further action which the Trustee may be required or
directed to take pursuant to the Plan. Notwithstanding anything
in this Agreement to the contrary, during the period of any
public offer for Company Stock, the Trustee shall refrain from
making purchases of Company Stock under this Agreement. In
addition to any compensation or expenses provided under Section
9.1, the Trustee shall be entitled to reasonable compensation and
reimbursement for its out-of-pocket expenses for any services
attributable to the duties and responsibilities described in this
Section 13. 1.
13.2. Trustee's Indemnification. In addition to any other
claims the Trustee may have under this Agreement or by law, the
Company hereby agrees to hold the Trustee harmless and to
indemnify the Trustee from and against any and all losses,
claims, damages, liabilities or expenses whatsoever (including,
but not limited to, any and all expenses reasonably incurred in
investigating, preparing or defending against any litigation or
proceeding, commenced or threatened, or any claim whatsoever),
(a) arising out of, relating to or in connection with any public
offer of the kind referred to above, whether in respect of the
solicitation of directions from Participating Plan participants,
or tabulating, reporting or acting upon such directions or
otherwise, or (b) arising out of or based upon any untrue
statement or alleged untrue statement contained in any
instrument, document or other material furnished by or through
the Company to Participating Plan participants, or otherwise used
by the Company or authorized by it for use in respect of, any
such public offer or arising out of or based upon an omission or
alleged omission to state a material fact required to be stated
or necessary to make other statements made in any such material
not misleading, except, solely in the case of indemnification
pursuant to clause (a), for a loss, claim, damage, liability or
expense primarily attributable to the bad faith or gross
negligence of the Trustee.
ARTICLE XIV
Authorities
14. 1. Company. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by "the
Company", such action must be authorized by the Board of
Directors. Any resolution adopted by the Board of Directors or
other evidence of such authorization shall be certified to the
Trustee by the Secretary or an Assistant Secretary of the Company
under corporate seal, and the Trustee may rely upon any
authorization so certified until revoked or modified by a further
action of the Board of Directors similarly certified to the
Trustee.
14.2. Subsidiary or Affiliate. Any action required or
permitted to be taken under this Agreement by a subsidiary or
affiliate of the Company shall be given by the Board of Directors
thereof in the manner described in Section 14.1.
14.3. Named Fiduciary and Committee. The Company shall
furnish the Trustee from time to time with a list of the names
and signatures of all Persons (other than the Company) authorized
hereunder (i) to receive accountings under Section 1.2(a); (ii)
to act as a Named Fiduciary-, (iii) as members of the
Administrative Committee; or (iv) in any manner authorized to
issue orders, notices, requests, instructions and objections to
the Trustee pursuant to the provisions of this Agreement. Any
such list and the form of the instructions shall be certified to
the Trustee by the Secretary or an Assistant Secretary of the
Company (or by the Secretary or an Assistant Secretary of any
subsidiary or affiliate of the Company which, in the opinion of
counsel to the Company, has not delegated that authority to the
Company) and may be relied upon for accuracy and completeness by
the Trustee Each such Person shall thereupon furnish the Trustee
with a list of the names and signatures of those individuals, if
any, who are authorized, jointly or severally or otherwise, to
act for such Person hereunder, and the Trustee shall be fully
protected in acting upon any notices or directions received from
any of them.
14.4. Investment Manager . The Named Fiduciary shall cause
each Investment Manager to furnish the Trustee from time to time
with the names and signatures of those persons authorized to
direct the Trustee on its behalf hereunder.
14.5. Form of Communications. Any agreement or
understanding between the Company and any Person (including an
Investment Manager) or any other provision of this Agreement to
the contrary notwithstanding, all notices, directions and other
communications to the Trustee shall be in writing or in such
other form, including transmission by electronic means through
the facilities of third parties or otherwise, specifically agreed
to in writing by the Trustee. The Trustee shall be fully
protected in acting in accordance therewith, but shall not
thereby assume responsibility for the failure or breakdown of any
such means of communication not due to its own negligence or
willful misconduct.
14.6. Continuation of Authority. The Trustee shall have the
right to assume, in the absence of written notice to the
contrary, that no event constituting a change in the composition
or authority of the Named Fiduciary or membership of the
Administrative Committee or terminating the authority of any
Person, including any Investment Manager, has occurred
14.7. No Obligation to Act on Unsatisfactory Notice. The
Trustee shall incur no liability under this Agreement for any
failure to act pursuant to any notice, direction or any other
communication from any Asset Manager, the Company, the Named
Fiduciary, the Administrative Committee, or any other Person or
the designee of any of them unless and until it shall have
received instructions in form specified in this Article XIV.
ARTICLE XV
General Provisions
15.1 Governing Law. To the extent that state law shall not
have been preempted by the provisions of ERISA or any other law
of the United States heretofore or hereafter enacted, this
Agreement shall be administered, construed and enforced according
to the laws of the State of New York.
15.2. Entire Agreement. The Trustee's duties and
responsibilities to any Participating Plan or any Person
interested therein shall be limited to those specifically set
forth in this Agreement. No amendment to any Participating Plan
or agreement or instrument affecting any Participating Plan or
any other document shall affect the Trustee's duties or
responsibilities hereunder without its prior written consent.
15.3. Mistake. No mistake made in good faith and in the
exercise of due care in connection with the administration of the
Master Fund shall be deemed to be a breach of the Trustee's
duties if, promptly after discovery of the mistake, the Trustee
takes whatever action may be practicable in the circumstances to
remedy the mistake.
15.4. Reliance on Experts. The Trustee may consult with
experts (who may be experts employed by the Company) including
legal counsel, appraisers, pricing services, accountants or
actuaries, selected by it with due care with respect to the
meaning and construction of this Agreement or any provision
hereof, or concerning its powers and duties hereunder, and shall
be protected for any action taken or omitted by it in good faith
pursuant to or on the basis of the opinion of any such expert.
15.5. Successor to the Trustee. Any successor, by merger or
otherwise, to substantially all of the trust business of Bankers
shall automatically and without further action become the Trustee
hereunder, subject to all the terms and conditions and entitled
to all the benefits and immunities hereof.
15.6. Notices. All notices, reports. annual accounts and
other communications from the Trustee to the Company. the Named
Fiduciary, Administrative Committee, Investment Manager, or any
other Person shall be deemed to have been duly given if mailed,
postage prepaid. or delivered in hand to such Person at its
address appearing on the records of the Trustee, which address
shall be filed with the Trustee at the time of the establishment
of the Trust and shall be kept current thereafter by the Named
Fiduciary. All directions, notices, statements, objections and
other communications to the Trustee shall be deemed to have been
given when received by the Trustee at its offices in the form
provided in Article XIV.
15.7. Plan Documents. The Named Fiduciary shall provide the
Trustee with complete, current copies of all Participating Plans
and the most recent tax qualification letters relative thereto.
The Trustee shall be entitled to rely upon the Named Fiduciary's
attention to this obligation and shall be under no duty to
inquire of any Person as to the existence of any documents not
provided hereunder.
15.8. No Waiver Reservation of Rights. The rights,
remedies, privileges and immunities expressed herein are
cumulative and are not exclusive, and the Trustee shall be
entitled to claim all other rights, remedies, privileges and
immunities to which it may be entitled under applicable law.
15.9 Descriptive Headings. The captions in this Agreement
are solely for convenience of reference and shall not define or
limit the provisions hereof.
15.10 Spendthrift Provision. Except as may be required by
law, no interest or claim of interest of any kind of any
participant in any Participating Plan under the provisions of
this Trust is assignable, nor may any such interest or claim be
subject to garnishment, attachment, execution or levy of any
kind, and no attempt to transfer, assign, pledge or otherwise
encumber or dispose of such interest by act of the Person
involved or by operation of law will be recognized.
ARTICLE XVI
Undertaking by Company
16.1. Undertaking In consideration of Bankers' agreeing to
enter into this Agreement, the Company hereby agrees to hold
harmless Bankers, individually and as Trustee, and Bankers'
directors, officers, and employees, from and against all amounts,
including without limitation taxes, expenses (including
reasonable counsel fees), liabilities, Claims, damages, actions,
suits or other charges, incurred by or assessed against Bankers,
individually or as Trustee, or its directors, officers or
employees (i) as a direct or indirect result of any act or
omission of any predecessor trustee or fiduciary appointed under
any Participating Plan; (ii) as a direct or indirect result of
anything done in good faith, or alleged to have been done, by or
on behalf of Bankers in reliance upon the directions of any
Investment Manager, the Administrative Committee, the Company, or
the Named Fiduciary, or anything omitted to be done in good
faith, or alleged to have been omitted, in the absence of such
directions; or (iii) as a direct or indirect result of the
failure of the Company, the Administrative Committee, or the
Named Fiduciary, directly or indirectly, to adequately, carefully
and diligently discharge its fiduciary responsibilities with
respect to the Participating Plans.
16.2. Limitation on Undertaking. Anything hereinabove to
the contrary notwithstanding, the Company shall have no
responsibility to Bankers under Section 16.1 (ii) or (iv) if
Bankers knowingly participated in or knowingly concealed any act
or omission of any Person described therein knowing that such act
or omission constituted a breach of such Person's fiduciary
responsibilities, or if Bankers fails to perform any of the
duties specifically undertaken by it under the provisions of this
Agreement in the manner herein provided, or if Bankers fails to
act in conformity with duly given and authorized directions
hereunder
16.3. Waiver of Defense The Company expressly waives and
shall be forever estopped from asserting as a defense against
Bankers, or any of its directors, officers or employees, in any
action to enforce this undertaking that any one of them failed to
discharge any obligation he, she or it may have or to be deemed
to have had under any statute governing the conduct of
fiduciaries in following the directions of the Company, the Named
Fiduciary or Administrative Committee, the Investment Manager or
any Person duly authorized to act for any of them under Article
XIV.
16.4. Survival of Undertakings. The Company further agrees
that the undertakings made in this Article XVI shall be binding
on its successors or assigns and shall survive termination,
amendment or restatement of this Agreement, or the resignation or
removal of the Trustee, and that this Article shall be construed
as a contract between the Company and the Trustee according to
the laws of the State of New York in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized and their corporate seals to be hereunto affixed
and attested to as of the day and year first above written.
AMOCO FABRICS AND FIBERS COMPANY
By_________________________________
(Title)
BANKERS TRUST COMPANY
By_________________________________
(Title)
STATE OF NEW YORK ,
)SS.
COUNTY OF NEW YORK)
On the _____ day of _________, in the year two thousand, before
me personally came ________________________ to me known , who
being by me duly sworn, did depose and say:that he/she resides
in__________ that he/she is the ____________ of BANKERS
TRUST COMPANY, the corporation described in and which executed
the above instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he/she signed his/her
name thereto by like order.
Notary Public
APPENDIX A .
Participating Plans in the Amoco Fabrics and Fibers Company
Master Trust:
1. Amoco Fabrics and Fibers Company Hourly 401 (k) Savings Plan
2. Amoco Fabrics and Fibers Company Salaried 401(k) Savings Plan
APPENDIX B
Investment funds the Master Fund is held and invested in:
1. Bankers Trust Company's Money Market Fund
2. Bankers Trust Company's Balanced Fund
3. Bankers Trust Companys Equity Index Fund
4. A fund consisting of the Common Stock of Amoco
Corporation purchased by the Trustee or distributed by
the Company to the extent permitted by the Participating
Plans.
