TRUST AGREEMENT
BETWEEN
CHART INDUSTRIES, INC.
[SPONSOR]
AND
FIDELITY MANAGEMENT TRUST COMPANY
[TRUSTEE]
DATED AS OF NOVEMBER 11, 1997
IMPORTANT NOTE
THIS TRUST AGREEMENT MAY ONLY BE USED IN CONJUNCTION WITH THE CORPORATEPLAN FOR
RETIREMENT SELECT PLAN ADOPTION AGREEMENT AND BASIC PLAN DOCUMENT. AN EMPLOYER
MAY NOT RELY SOLELY ON SAID DOCUMENTS TO ENSURE THAT THE PLAN IS "UNFUNDED AND
MAINTAINED PRIMARILY FOR THE PURPOSE OF PROVIDING DEFERRED COMPENSATION TO A
SELECT GROUP OF MANAGEMENT OR HIGHLY COMPENSATED EMPLOYEES" AND EXEMPT FROM
PARTS 2 THROUGH 4 OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974 WITH RESPECT TO THE EMPLOYER'S PARTICULAR SITUATION. FIDELITY MANAGEMENT
TRUST COMPANY, ITS AFFILIATES AND EMPLOYEES MAY NOT PROVIDE YOU WITH LEGAL
ADVICE IN CONNECTION WITH THE EXECUTION OF THIS DOCUMENT. THIS DOCUMENT SHOULD
BE REVIEWED BY YOUR ATTORNEY AND/OR ACCOUNTANT PRIOR TO EXECUTION.
TABLE OF CONTENTS
SECTION PAGE
SECTION 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..1
0.Xxxxx.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..1
(a) Establishment. . . . . . . . . . . . . . . . . . . . . . . . ..1
(b) Grantor Trust. . . . . . . . . . . . . . . . . . . . . . . . ..1
(c) Trust Assets.. . . . . . . . . . . . . . . . . . . . . . . . ..1
(d) Non-Assignment.. . . . . . . . . . . . . . . . . . . . . . . ..1
SECTION 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..2
2. Payments to Sponsor. . . . . . . . . . . . . . . . . . . . . . . . ..2
SECTION 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..2
3. Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . ..2
(a) Directions from Administrator. . . . . . . . . . . . . . . . ..2
(b) Limitations. . . . . . . . . . . . . . . . . . . . . . . . . ..2
SECTION 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..2
4. Investment of Trust. . . . . . . . . . . . . . . . . . . . . . . . ..2
(a) Selection of Investment Options. . . . . . . . . . . . . . . ..2
(b) Available Investment Options.. . . . . . . . . . . . . . . . ..2
(c) Investment Direction.. . . . . . . . . . . . . . . . . . . . ..3
(d) Mutual Funds.. . . . . . . . . . . . . . . . . . . . . . . . ..3
(e) Trustee Powers.. . . . . . . . . . . . . . . . . . . . . . . ..4
SECTION 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..5
5. Recordkeeping and Administrative Services to be Performed. . . . . ..5
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . . . ..5
(b) Accounts.. . . . . . . . . . . . . . . . . . . . . . . . . . ..5
(c) Inspection and Audit . . . . . . . . . . . . . . . . . . . . ..5
(d) Effect of Plan Amendment . . . . . . . . . . . . . . . . . . ..5
(e) Returns, Reports and Information . . . . . . . . . . . . . . ..6
SECTION 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6
6. Compensation and Expenses. . . . . . . . . . . . . . . . . . . . . ..6
SECTION 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6
7. Directions and Indemnification . . . . . . . . . . . . . . . . . . ..6
(a) Identity of Administrator. . . . . . . . . . . . . . . . . . ..6
(b) Directions from Administrator. . . . . . . . . . . . . . . . ..6
(c) Directions from Sponsor. . . . . . . . . . . . . . . . . . . ..6
(d) Indemnification. . . . . . . . . . . . . . . . . . . . . . . ..7
(e) Survival.. . . . . . . . . . . . . . . . . . . . . . . . . . ..7
SECTION 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..7
8. Resignation or Removal if Trustee. . . . . . . . . . . . . . . . . ..7
(a) Resignation. . . . . . . . . . . . . . . . . . . . . . . . . ..7
(b) Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . ..7
SECTION 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..7
9. Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . ..7
(a) Appointment. . . . . . . . . . . . . . . . . . . . . . . . . ..7
(b) Acceptance.. . . . . . . . . . . . . . . . . . . . . . . . . ..7
(c) Corporate Action.. . . . . . . . . . . . . . . . . . . . . . ..8
SECTION 10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
10. Termination.. . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
SECTION 11.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
11. Resignation, Removal, and Termination Notices.. . . . . . . . . . ..8
SECTION 12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
12. Duration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
SECTION 13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..8
13. Insolvency of Sponsor . . . . . . . . . . . . . . . . . . . . . . ..8
SECTION 14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..9
14. Amendment or Modification . . . . . . . . . . . . . . . . . . . . ..9
SECTION 15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
15. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(a) Performance by Trustee, its Agents or Affiliates . . . . . . .10
(b) Entire Agreement.. . . . . . . . . . . . . . . . . . . . . . .10
(c) Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(d) Successors and Assigns . . . . . . . . . . . . . . . . . . . .10
(e) Partial Invalidity.. . . . . . . . . . . . . . . . . . . . . .10
(f) Section Headings.. . . . . . . . . . . . . . . . . . . . . . .10
SECTION 16.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
16. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . . . .11
(a) Massachusetts Law Controls.. . . . . . . . . . . . . . . . . .11
(b) Trust Agreement Controls.. . . . . . . . . . . . . . . . . . .11
TRUST AGREEMENT, dated as of the 11th day of November,1997, between CHART
INDUSTRIES, INC., a Delaware corporation, having an office at 00000 Xxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxx 00000 (the "SPONSOR"), and FIDELITY MANAGEMENT TRUST
COMPANY, a Massachusetts trust company, having an office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "TRUSTEE").
WITNESSETH:
WHEREAS, THE SPONSOR IS THE SPONSOR OF THE CHART INDUSTRIES, INC. VOLUNTARY
DEFERRED INCOME PLAN (THE "PLAN"); AND
WHEREAS, THE SPONSOR WISHES TO ESTABLISH AN IRREVOCABLE TRUST AND TO
CONTRIBUTE TO THE TRUST ASSETS THAT SHALL BE HELD THEREIN, SUBJECT TO THE CLAIMS
OF SPONSOR'S CREDITORS IN THE EVENT OF SPONSOR'S INSOLVENCY, AS HEREIN DEFINED,
UNTIL PAID TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES IN SUCH MANNER AND AT
SUCH TIMES AS SPECIFIED IN THE PLAN; AND
WHEREAS, IT IS THE INTENTION OF THE SPONSOR THAT THIS TRUST SHALL
CONSTITUTE AN UNFUNDED ARRANGEMENT AND SHALL NOT AFFECT THE STATUS OF THE PLAN
AS AN UNFUNDED PLAN MAINTAINED FOR THE PURPOSE OF PROVIDING DEFERRED
COMPENSATION FOR A SELECT GROUP OF MANAGEMENT OR HIGHLY COMPENSATED EMPLOYEES
FOR PURPOSES OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
("ERISA"); AND
WHEREAS, IT IS THE INTENTION OF THE SPONSOR TO MAKE CONTRIBUTIONS TO THE
TRUST TO PROVIDE ITSELF WITH A SOURCE OF FUNDS TO ASSIST IT IN THE MEETING OF
ITS LIABILITIES UNDER THE PLAN; AND
WHEREAS, THE TRUSTEE IS WILLING TO HOLD AND INVEST THE AFORESAID ASSETS IN
TRUST AMONG SEVERAL INVESTMENT OPTIONS SELECTED BY THE SPONSOR; AND
WHEREAS, THE SPONSOR WISHES TO HAVE THE TRUSTEE PERFORM CERTAIN MINISTERIAL
RECORDKEEPING AND ADMINISTRATIVE FUNCTIONS UNDER THE PLAN; AND
WHEREAS, THE EMPLOYER OR SUCH OTHER INDIVIDUAL NAMED IN THE PLAN IS THE
ADMINISTRATOR OF THE PLAN; AND
WHEREAS, THE TRUSTEE IS WILLING TO PERFORM RECORDKEEPING AND ADMINISTRATIVE
SERVICES FOR THE PLAN IF THE SERVICES ARE PURELY MINISTERIAL IN NATURE AND ARE
PROVIDED WITHIN A FRAMEWORK OF PLAN PROVISIONS, GUIDELINES AND INTERPRETATIONS
CONVEYED IN WRITING TO THE TRUSTEE BY THE ADMINISTRATOR.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING PREMISES AND THE MUTUAL
COVENANTS AND AGREEMENTS SET FORTH BELOW, THE SPONSOR AND THE TRUSTEE AGREE AS
FOLLOWS:
SECTION 1.
0.XXXXX.
(a) ESTABLISHMENT.
The Sponsor hereby establishes a trust (hereinafter the "Trust"), with the
Trustee. The Trust shall consist of an initial contribution of money or
other property acceptable to the Trustee in its sole discretion, made by
the Sponsor or transferred from a previous trustee under the Plan, such
additional sums of money as shall from time to time be delivered to the
Trustee under the Plan, all investments made therewith and proceeds
thereof, and all earnings and profits thereon, less the payments that are
made by the Trustee as provided herein, without distinction between
principal and income. The Trustee hereby accepts the Trust on the terms
and conditions set forth in this Agreement. In accepting this Trust, the
Trustee shall be accountable for the assets received by it, subject to the
terms and conditions of this Agreement.
(b) GRANTOR TRUST.
The Trust is intended to be a grantor trust, of which the Sponsor is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(c) TRUST ASSETS.
The principal of the Trust, and any earnings thereon shall be held separate
and apart from other funds of the Sponsor and shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of
the Trust. Any rights created under the Plan and this Trust Agreement
shall be mere unsecured contractual rights of Plan participants and their
beneficiaries against the Sponsor. Any assets held by the Trust will be
subject to the claims of the Sponsor's general creditors under federal and
state law in the event of Insolvency, as defined in Section 13(a).
(d) NON-ASSIGNMENT.
Benefit payments to Plan participants and their beneficiaries funded under
this Trust may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered, or subjected to attachment, garnishment,
levy, execution, or other legal or equitable process.
SECTION 2.
2. PAYMENTS TO SPONSOR.
Except as provided under Section 13, the Sponsor shall have no right to
retain or divert to others any of the Trust assets before all payment of
benefits have been made to the participants and their beneficiaries
pursuant to the terms of the Plan.
SECTION 3.
3. DISBURSEMENTS.
(a) DIRECTIONS FROM ADMINISTRATOR.
The Trustee shall disburse monies to the Sponsor for benefit payments in
the amounts that the Administrator directs from time to time in writing.
The Trustee shall have no responsibility to ascertain any direction's
compliance with the terms of the Plan or of any applicable law. The
Trustee shall not be responsible for making benefit payments to
participants under the Plan, nor shall the Trustee be responsible for any
Social Security or Federal, State or local income tax reporting or
withholding with respect to such Plan benefits.
(b) LIMITATIONS.
The Trustee shall not be required to make any disbursement in excess of the
net realizable value of the assets of the Trust at the time of the
disbursement. The Trustee shall not be required to make any disbursement
in cash unless the Administrator has provided a written direction as to the
assets to be converted to cash for the purpose of making the disbursement.
SECTION 4.
4. INVESTMENT OF TRUST.
(a) SELECTION OF INVESTMENT OPTIONS.
The Trustee shall have no responsibility for the selection of investment
options under the Trust and shall not render investment advice to any
person in connection with the selection of such options.
(b) AVAILABLE INVESTMENT OPTIONS.
In accordance with Section 1.14 of the Plan, the Sponsor shall direct the
Trustee as to the investment options available under the Trust provided,
however, that the Trustee shall not be considered a fiduciary with
investment discretion. The Sponsor may add additional investment options
with the consent of the Trustee and upon amendment of the Plan.
2
(c) INVESTMENT DIRECTION.
In order to provide for an accumulation of assets comparable to the
contractual liabilities accruing under the Plan, the Sponsor may direct the
Trustee in writing to invest the assets held in the Trust to correspond to
the hypothetical investments made for Participants under the Plan. Such
directions may be made by Plan participants by use of the telephone
exchange system maintained for such purposes by the Trustee or its agent.
In the event that the Trustee fails to receive a proper direction from the
Sponsor or from Participants, the assets in question shall be invested in
Fidelity Retirement Money Market Fund, or such other fund designated by the
Sponsor for this purpose, until the Trustee receives a proper direction.
(d) MUTUAL FUNDS.
The Sponsor hereby acknowledges that it has received from the Trustee a
copy of the prospectus for each Mutual Fund selected by the Sponsor as a
Plan investment option. Trust investment in Mutual Funds shall be subject
to the following limitations:
(i) EXECUTION OF PURCHASES AND SALES.
Purchase and sales of Mutual Funds (other than for Exchanges) shall be made
on the date on which the Trustee receives from the Sponsor in good order
all information and documentation necessary to accurately effect such
purchases and sales (or in the case of a purchase, the subsequent date on
which the Trustee has received a wire transfer of funds necessary to make
such purchase). Exchanges of Mutual Funds shall be made on the same
business day that the Trustee receives a proper direction if received
before 4:00 p.m. eastern time; if the direction is received after 4:00 p.m.
eastern time, the exchange shall be made the following day.
(ii) VOTING.
At the time of mailing of notice of each annual or special stockholders'
meeting of any Mutual Fund, the Trustee shall send a copy of the notice and
all proxy solicitation materials to each Plan participant who has shares of
the Mutual Fund credited to the participant's account, together with a
voting direction form for return to the Trustee or its designee. The
participant shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote the shares credited to the participant's
accounts (both vested and unvested). The Trustee shall vote the shares as
directed by the participant. The Trustee shall not vote shares for which
it has received no directions from the participant. During the participant
recordkeeping reconciliation ("transition") period, the Sponsor shall have
the right to direct the Trustee as to the manner in which the Trustee is to
vote the shares of the Mutual Funds in the Trust. With respect to all
rights other than the right to vote, the Trustee shall follow the
directions of the participant and if no such directions are received, the
directions of the Sponsor. The Trustee shall have no duty to solicit
directions from participants or the Sponsor.
3
(e) TRUSTEE POWERS.
The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b),(c) and (d) of this Section 4,
to sell, exchange, convey, transfer, or otherwise dispose of any property
held in the Trust, by private contract or at public auction. No person
dealing with the Trustee shall be bound to see to the application of the
purchase money or other property delivered to the Trustee or to inquire
into the validity, expediency, or propriety of any such sale or other
disposition.
(ii) To cause any securities or other property held as part of
the Trust to be registered in the Trustee's own name, in the name of one or
more of its nominees, or in the Trustee's account with the Depository Trust
Company of New York and to hold any investments in bearer form, but the
books and records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iii) To keep that portion of the Trust in cash or cash balances
as the Sponsor or Administrator may, from time to time, deem to be in the
best interest of the Trust.
(iv) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein
granted.
(v) To settle, compromise, or submit to arbitration any
claims, debts, or damages due to or arising from the Trust; to commence or
defend suits or legal or administrative proceedings; to represent the Trust
in all suits and legal and administrative hearings; and to pay all
reasonable expenses arising from any such action, from the Trust if not
paid by the Sponsor.
(vi) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from the
Trust if not paid by the Sponsor.
(vii) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the foregoing
powers and the purposes of the Trust.
Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could
give this trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of Section 301.7701-2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
4
SECTION 5.
5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED
(a) GENERAL.
The Trustee shall perform those recordkeeping and administrative functions
described in the CORPORATEplan for Retirement Select Plan Service Agreement
between the Trustee and the Sponsor ("Service Agreement").
(b) ACCOUNTS.
The Trustee shall keep accurate accounts of all investments, receipts,
disbursements, and other transactions hereunder and shall report the value
of the assets held in the Trust as of the last day of each fiscal quarter
of the Plan and, if not on the last day of a fiscal quarter, the date on
which the Trustee resigns or is removed as provided in Section 8 of this
Agreement or is terminated as provided in Section 10 (the "Reporting
Date"). Within thirty(30) days following each Reporting Date or within
sixty (60) days in the case of a Reporting date caused by the resignation
or removal of the Trustee, or the termination of this Agreement, the
Trustee shall file with the Administrator a written account setting forth
all investments, receipts, disbursements, and other transactions effected
by the Trustee between the Reporting Date and the prior Reporting Date, and
setting forth the value of the Trust as of the Reporting date. Except as
otherwise required under applicable law, upon the expiration of six(6)
months from the date of filing such account with the Administrator, the
Trustee shall have no liability or further accountability to anyone with
respect to the propriety of its acts or transactions shown in such account,
except with respect to such acts or transactions as to which the Sponsor
shall within such six(6) month period file with the Trustee written
objections.
(c) INSPECTION AND AUDIT.
All records generated by the Trustee in accordance with paragraphs(a) and
(b) shall be open to inspection and audit, during the Trustee's regular
business hours prior to the termination of this Agreement, by the
Administrator or any person designated by the Administrator. Upon the
resignation or removal of the Trustee or the termination of this Agreement,
the Trustee shall provide to the Administrator, at no expense to the
Sponsor, in the format regularly provided to the Administrator, a statement
of each participant's accounts as of the resignation, removal, or
termination, and the Trustee shall provide to the Administrator or the
Plan's new recordkeeper such further records as are reasonable, at the
Sponsor's expense.
(d) EFFECT OF PLAN AMENDMENT.
The Trustee's provision of the recordkeeping and administrative services
set forth in this Section 5 shall be conditioned on the Sponsor delivering
to the Trustee a copy of any amendment to the Plan as soon as
administratively feasible following the amendment's adoption, and on the
Administrator providing the Trustee on a timely basis with all the
information the Administrator deems necessary for the Trustee to perform
the recordkeeping and administrative services and such other information as
the Trustee may reasonably request.
(e) RETURNS, REPORTS AND INFORMATION.
The Administrator shall be responsible for the preparation and filing of
all returns, reports, and information required of the Trust or Plan by law
including but not limited to any annual fiduciary tax return. The Trustee
shall provide the Administrator with such information as the Administrator
may reasonably request to make these filings. The Administrator shall also
be responsible for making any disclosures to participants required by law.
SECTION 6.
6. COMPENSATION AND EXPENSES.
As consideration for its services, the Trustee shall be entitled to the
fees computed and billed in accordance with the Service Agreement. All
expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes of
any kind whatsoever that may be levied or assessed under existing or future
laws upon or in respect of the Trust or the income thereof, shall be a
charge against and paid from the appropriate Plan participants' accounts.
SECTION 7.
7. DIRECTIONS AND INDEMNIFICATION
(a) IDENTITY OF ADMINISTRATOR.
The Trustee shall be fully protected in relying on the fact that the
Administrator under the Plan is the individual or persons named as such
above or such other individuals or persons as the Sponsor may notify the
Trustee in writing.
(b) DIRECTIONS FROM ADMINISTRATOR.
Whenever the Administrator provides a direction to the Trustee, the Trustee
shall not be liable for any loss, or by reason of any breach, arising from
the direction if the direction is contained in a writing (or is oral and
immediately confirmed in written) signed by any individual whose name and
signature have been submitted (and not withdrawn) in writing to the Trustee
in the Service Agreement provided the Trustee reasonably believes the
signature of the individual to be genuine. Such direction may be made via
EDT in accordance with procedures agreed to by the Administrator and the
Trustee; provided, however, that the Trustee shall be fully protected in
relying on such direction as if it were a direction made in writing by the
Administrator. The Trustee shall have no responsibility to ascertain any
direction's (i) accuracy, (ii) compliance with the terms of the Plan or any
applicable law, or (iii) effect for tax purposes or otherwise.
(c) DIRECTIONS FROM SPONSOR
The Trustee shall not be liable for any loss which arises from the
Sponsor's exercise or non-exercise of rights under Section 4 over the
assets in a participant's account.
6
(d) INDEMNIFICATION.
The Sponsor shall indemnify the Trustee against, and hold the Trustee
harmless from, any and all loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against
the Trustee by reason of any claim, regulatory proceeding or litigation
arising from any act done or omitted to be done by any individual or person
with respect to the Plan or Trust, excepting only any and all loss, etc.,
to the extent or failure to properly discharge its responsibilities under
this Agreement or applicable law arising solely from the Trustee's
negligence or bad faith.
(e) SURVIVAL.
The provisions of this Section 7 shall survive the termination of this
Agreement.
SECTION 8.
8. RESIGNATION OR REMOVAL IF TRUSTEE.
(a) RESIGNATION.
The Trustee may resign at any time upon sixty (60) days' notice in writing
to the Sponsor, unless a shorter period of notice is agreed upon by the
Sponsor.
(b) REMOVAL.
The Sponsor may remove the Trustee at any time upon sixty(60) days' notice
in writing to the Trustee, unless a shorter period of notice is agreed upon
by the Trustee.
SECTION 9.
9. SUCCESSOR TRUSTEE.
(a) APPOINTMENT.
If the office of Trustee becomes vacant for any reason, the Sponsor may in
writing appoint a successor trustee under this Agreement. The successor
trustee shall have all of the rights, powers, privileges, obligations,
duties, liabilities, and immunities granted to the Trustee under this
Agreement. The successor trustee and predecessor trustee shall not be
liable for the acts or omissions of the other with respect to the Trust.
(b) ACCEPTANCE.
When the successor trustee accepts its appointment under this Agreement,
title to and possession of the Trust assets shall immediately vest in the
successor trustee without any further action on the part of the predecessor
trustee. The predecessor trustee shall execute all instruments and do all
acts that reasonably may be necessary or reasonably may be requested in
writing by the Sponsor or the successor trustee to vest title to all Trust
assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
7
(c) CORPORATE ACTION.
Any successor of the Trustee or successor trustee, through sale or transfer
of the business or trust department of the Trustee or successor trustee, or
through reorganization, consolidation, or merger, or any similar
transaction, shall, upon consummation of the transaction, become the
successor trustee under the Agreement.
SECTION 10.
10. TERMINATION.
This Agreement may be terminated at any time by the Sponsor upon sixty (60)
days' notice in writing to the Trustee. On the date of the termination of
this Agreement, the Trustee shall forthwith transfer and deliver to such
individual or entity as the Sponsor shall designate, all cash and assets
then constituting the Trust. If, by the termination date, the Sponsor has
not notified the Trustee in writing as to whom the assets and cash are to
be transferred and delivered, the Trustee may bring an appropriate action
or proceeding for leave to deposit the assets and cash in a court of
competent jurisdiction. The Trustee shall be reimbursed by the Sponsor for
all costs and expenses of the action or proceeding including, without
limitation, reasonable attoneys' fees and disbursements.
SECTION 11.
11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES.
All notices of resignation, removal, or termination under this Agreement
must be in writing and mailed to the party to which the notice is being
given by certified or registered mail, return receipt requested, to the
Sponsor at the address designated in the Service Agreement, and to the
Trustee at the afore-mentioned address or to such other addresses as the
parties have notified each other of in the foregoing manner.
SECTION 12.
12. DURATION.
This Trust shall continue in effect without limit as to time, subject,
however, to the provisions of this Agreement relating to amendment,
modification, and termination thereof.
SECTION 13.
13. INSOLVENCY OF SPONSOR.
(a) Trustee shall cease disbursement of funds for payment of benefits
to Plan participants and their beneficiaries if the Sponsor is Insolvent.
Sponsor shall be considered "Insolvent" for purposes of this Trust
Agreement if (i) Sponsor is unable to pay its debts as they become due or
(ii) Sponsor is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code.
8
(b) All times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Sponsor under federal and state Law as set forth below.
(i) The Board of Directors and the Chief Executive Officer of
the Sponsor shall have the duty to inform Trustee in writing of Sponsor's
Insolvency. If a person claiming to be a creditor of the Sponsor alleges
in writing to trustee that Sponsor has become Insolvent, Trustee shall
determine whether Sponsor is Insolvent and pending such determination,
Trustee shall discontinue disbursements for payment of benefits to Plan
participants or their beneficiaries.
(ii) Unless Trustee has actual knowledge of Sponsor's
Insolvency, or has received notice from Sponsor or a person claiming to be
a creditor alleging that Company is Insolvent, Trustee shall have no duty
to inquire whether Sponsor is Insolvent. Trustee may in all events rely on
such evidence concerning Sponsor's solvency as may be furnished to Trustee
and that provides Trustee with a reasonable basis for making a
determination concerning Sponsor's solvency.
(iii) If at any time Trustee has determined that Sponsor is
Insolvent, Trustee shall discontinue disbursements for payments to Plan
participants or their beneficiaries and shall hold the assets of the Trust
for the benefit of Sponsor's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Plan participants or
their beneficiaries to pursue their rights as general creditors of Sponsor
with respect to benefits due under the Plan or otherwise.
(iv) Trustee shall resume disbursement for the payment of
benefits to Plan participants or their beneficiaries in accordance with
Section 2 of this Trust Agreement only after Trustee has determined that
Sponsor is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to (a) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Plan participants or their beneficiaries under the terms of the Plan for
the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants or their beneficiaries by Sponsor in
lieu of the payments provided for hereunder during any such period of
discontinuance.
SECTION 14.
14. AMENDMENT OR MODIFICATION.
This agreement may be amended or modified at any time and from time to time
only by an instrument executed by both the Sponsor and the Trustee.
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SECTION 15.
15. GENERAL
(a) PERFORMANCE BY TRUSTEE, ITS AGENTS OR AFFILIATES.
The sponsor acknowledges and authorizes that the services to be provided
under this Agreement shall be provided by the Trustee, its agents or
affiliates, including Fidelity Investments Institutional Operations Company
or its successor, and that certain of such services may be provided
pursuant to one or more other contractual agreements or relationships.
(b) ENTIRE AGREEMENT.
This Agreement contains all of the terms agreed upon between the parties
with respect to the subject matter hereof.
(c) WAIVER.
No waiver by either party of any failure or refusal to comply with an
obligation hereunder shall be deemed a waiver of any other or subsequent
failure or refusal to so comply.
(d) SUCCESSORS AND ASSIGNS.
The stipulations in this Agreement shall inure to the benefit of, and shall
bind, the successors and assigns of the respective parties.
(e) PARTIAL INVALIDITY.
If any term or provision of this Agreement or the application thereof to
any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
(f) SECTION HEADINGS.
The headings of the various sections and subsections of this Agreement have
been inserted only for the purposes of convenience and are not part of this
Agreement and shall not be deemed in any manner to modify, explain, expand
or restrict any of the provisions of this Agreement.
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SECTION 16.
16. GOVERNING LAW.
(a) MASSACHUSETTS LAW CONTROLS.
This Agreement is being made in the Commonwealth of Massachusetts, and the
Trust shall be administered as a Massachusetts trust. The validity,
construction, effect and administration of this Agreement shall be governed
by and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, except to the extent those laws are superseded under Section
514 of ERISA.
(b) TRUST AGREEMENT CONTROLS.
The Trustee is not a party to the Plan, and in the event of any conflict
between the provisions of the Plan and the provisions of this Agreement,
the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
[SPONSOR]
By /s/ XXXX X. XXXXXX
--------------------------------
Controller
FIDELITY MANAGEMENT TRUST COMPANY
[TRUSTEE]
By /s/ XXXX X. XXXXX
--------------------------------
Authorized Signatory
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