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EXHIBIT 10.5
TRUST UNDER DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
RETIREMENT PLAN
This Agreement made as of the 5th day of December, 1998 by and between
Dollar Thrifty Automotive Group, Inc. ("DTAG"), Thrifty Rent-A-Car System, Inc.,
and Dollar Rent A Car Systems, Inc.,(each individual entity referred to herein
as "Company" and collectively referred to as "Company", as the context so
indicates) and Bank of Oklahoma, N.A., an Oklahoma corporation ("Trustee");
WHEREAS, Company has adopted the DTAG Retirement Plan (a nonqualified
plan) as set forth in the Company's Retirement Plan;
WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan.
WHEREAS, each Company wishes to establish a separate trust (the
"Trust") and to contribute to the Trust assets that shall be held therein, with
each separate trust being subject to the claims of each separate Company's
individual creditors in the event of a particular Company's Insolvency, until
paid to Plan Participants in such manner and at such times as specified in the
Plan;
WHEREAS, it is the intention of the parties 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 retirement
compensation for a select group of management or highly compensated employees
for purpose of Title I of the Employee Retirement Income Security Act of 1974.
WHEREAS, it is the intention of Company 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;
WHEREAS, defined terms in the Plan document shall have the same meaning
where they appear in this Trust as they have in the Plan document;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) Each Company hereby deposits with Trustee in trust such amounts, as
it determines from time to time, which shall become the principal of the Trust
to be held, administered and disposed of by Trustee as provided in this Trust
Agreement.
(b) The Trust hereby established shall be irrevocable.
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(c) The Trust is intended to be a grantor trust, of which the Company
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.
(d) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan Participants and general creditors of each
individual Company as herein set forth. Plan Participants 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 against Company. Any assets
held by the Trust shall be subject to the claims of only each individual
Company's general creditors under federal and state law in the event of a
particular Company's Insolvency.
(e) The Company, in its sole discretion, may at any time, or from time
to time, make additional deposits of cash or other property acceptable to the
Trustee in trust with Trustee to augment the principal to be held, administered
and disposed of by Trustee as provided in this Trust Agreement. Neither Trustee
nor any Plan Participant shall have any right to compel such additional
deposits.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS.
(a) The Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
Participant, that provides a formula or other instructions acceptable to Trustee
for determining the amounts so payable, the form in which such amount is to be
paid (as provided for or available under the Plan), and the time of commencement
for payment of such amounts. Except as otherwise provided herein, Trustee shall
make payments to Plan Participants in accordance with such Payment Schedule. The
Trustee shall make provisions for the reporting and withholding of any
appropriate taxes required to be withheld with respect to the payment of
Benefits pursuant to the terms of the Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by Company.
(b) The entitlement of a Plan Participant to Benefits under the Plan
shall be determined by the Company or such party as it shall designate under the
Plan, and any claim for such Benefits shall be considered and reviewed under the
procedures set out in the Plan.
(c) Alternatively, the Company may make payment of Benefits directly to
a Plan Participant as they become due under the terms of the Plan. The Company
shall notify Trustee of its decision to make payment of Benefits directly, in
which case the Company shall withhold appropriate taxes and direct the Trustee
to reimburse the Company the appropriate amount from such Participant's Account.
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SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN
COMPANY IS INSOLVENT.
(a) The Trustee shall cease payment of Benefits to Plan Participants of
a specific Company hereto if that Company is Insolvent. The Insolvency of one
Company under the Plan and Trust shall not be considered the Insolvency of any
other Company which has adopted the Plan and Trust.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the separate Trust shall be
subject to claims of general creditors of the specific Company under federal and
state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform Trustee in writing of a Company's
Insolvency. If a person claiming to be a creditor of a Company alleges in
writing to Trustee that a Company has become Insolvent, Trustee shall determine
whether the Company is Insolvent and, pending such determination, Trustee shall
discontinue payment of Benefits to Plan Participants of the alleged insolvent
Company.
(2) Unless Trustee has actual knowledge of a Company's
Insolvency, or has received notice from Company or a person claiming to be a
creditor alleging that Company is Insolvent, Trustee shall have no duty to
inquire whether Company is Insolvent. Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to Trustee and that
provides Trustee with a reasonable basis for making a determination concerning
Company's solvency.
(3) If at any time Trustee has determined that a Company is
Insolvent, Trustee shall discontinue payments to Plan Participants of that
Company and shall hold the assets of the Trust for the benefit of only that
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan Participants to pursue their rights as general
creditors of the Company with respect to Benefits due under the Plan or
otherwise.
(4) The Trustee shall resume the payment of Benefits to Plan
Participants in accordance with Section 2 of this Trust Agreement only after
Trustee has determined that the Company 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 Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
Participants under the terms of the Plan for the period of such discontinuance,
less the aggregate amount of any payments made to Plan Participants by Company
in lieu of payments provided for hereunder during any such period of
discontinuance.
SECTION 4. PAYMENTS TO COMPANY.
Except as provided in Section 3 hereof, the Company shall have no right
or power to direct Trustee to return to Company or to divert to others any of
the Trust assets before all payment of Benefits have been made to Plan
Participants pursuant to the terms of the Plan.
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SECTION 5. INVESTMENT AUTHORITY.
ALTERNATIVES - Select one provision, as appropriate.
___ (a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Company, other than a de
minimis amount held in common investment vehicles in which the Trustee invests.
All rights associated with assets of the Trust shall be exercised by Trustee or
the person designated by Trustee, and shall in no event be exercisable by or
rest with Plan Participants.
___ (a) Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by Company. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan Participants.
OPTIONAL
___ ,except that voting rights with respect to Trust
assets will be exercised by Company.
OPTIONAL
___ ,except that rights to receive dividends with respect
to Trust assets will rest with Company.
(b) The Company shall have the right at any time, and from time to
time, in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercised by Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
(c) Trustee may appoint one or more investment advisers who are
registered as investment advisers under the Investment Advisers Act of 1940, who
may be affiliates of Trustee, to provide investment advice on a discretionary or
nondiscretionary basis with respect to all or a specified portion of the assets
of the Trust.
(d) Trustee, or Trustee's designee, is authorized and empowered:
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(1) To invest and reinvest Trust assets, together with the
income therefrom, in common stock, preferred stock, convertible preferred stock,
bonds, debentures, convertible debentures and bonds, mortgages, notes,
commercial paper and other evidences of indebtedness (including those issued by
Trustee), shares of mutual funds (which funds may be sponsored, managed or
offered by an affiliate of Trustee), guaranteed investment contracts, bank
investment contracts, other securities, policies of life insurance, annuity
contracts, options, options to buy or sell securities or other assets, and all
other property of any type;
(2) To invest in shares of the American Performance Funds, a
family of registered investment companies (mutual funds), or any other open-end
or closed-end investment management trust or company registered under the
Investment Company Act of 1940, as amended from time to time, to the maximum
extent permitted by the laws of the State of Oklahoma; such securities include
but are not limited to securities for which the Trustee or any of its
subsidiaries or affiliated companies serves as an investment advisor, sponsor,
distributor, custodian, transfer agent, administrator, registrar, or otherwise.
(3) To deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or other deposits in a bank
or saving and loan association or other depository institution, including
Trustee or any of its affiliates, provided with respect to such deposits with
Trustee or an affiliate the deposits bear a reasonable interest rate;
(4) To hold in cash, without liability for interest, such
portion of the Trust as is pending investments, or payment of expenses, or the
distribution of Benefits;
(5) To settle, compromise or abandon all claims and demands in
favor of or against the Trust;
(6) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally under the laws
of the state in which Trustee is incorporated as set forth above, so that the
powers conferred upon Trustee herein shall not be in limitation of any authority
conferred by law, but shall be in addition thereto;
(7) To maintain accounts at, execute transactions through, and
lend on an adequately secured basis stocks, bonds or other securities to, any
brokerage or other firm, including any firm which is an affiliate of Trustee.
(e) To the extent necessary or which it deems appropriate to implement
its powers under this Section 5 or otherwise to fulfill any of its duties and
responsibilities as trustee of the Trust, Trustee shall have the following
additional powers and authority:
(1) to register securities, or any other property, in its name
or in the name of any nominee, including the name of any affiliate or the
nominee name designated by any affiliate, with or without indication of the
capacity in which property shall be held, or to hold securities in bearer form
and to deposit any securities or other property in a depository or clearing
corporation;
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(2) to designate and engage the services of, and to delegate
powers and responsibilities to, such agents, representatives, advisers, counsel
and accountants as Trustee considers necessary or appropriate, any of whom may
be an affiliate of Trustee or a person who renders services to such an
affiliate, and, as a part of its expenses under this Trust Agreement, to pay
their reasonable expenses and compensation;
(3) generally to do all other acts which Trustee deems
necessary or appropriate for the protection of the Trust, including but not
limited to, those acts as permitted under applicable trust law.
(f) Trustee may be required, as indicated in the Plan, to consider
investment recommendations made by the Company and/or the Participant, but
Trustee shall make all investment decisions.
SECTION 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, if any, shall be accumulated and reinvested.
SECTION 7. ACCOUNTING BY TRUSTEE.
(a) Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 90 days following the close of each calendar year
and within 90 days after removal or resignation of Trustee, Trustee shall
deliver to each individual Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
Consistent with Section 9.8 of the Plan, the Trustee shall
keep separate accounts for each Company which is a party to this Trust and
shall, furthermore, keep a separate Account for each Participant in the Plan. If
any Participant transfers employment to another Affiliate, such Participant's
Account hereunder shall be transferred and become an Account for the Participant
under the Plan of the Affiliate then employing the Participant.
SECTION 8. RESPONSIBILITY AND INDEMNITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by Company which is contemplated by and
in conformity with, the terms of the Plan and this Trust and is given in writing
by a Company. In the event of a dispute between Company and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
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(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments but only if it is ultimately determined that the Trustee acted in
accordance with the provisions under Section 8(a) hereunder. Such
indemnification shall continue during the term of this Trust and for a period of
ten years thereafter. If a Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
the Company generally) with respect to any of its duties or obligations
hereunder and shall have full and complete authorization and protection for any
action taken by it in good faith and in accordance with the opinion of such
legal counsel.
(d) Trustee shall have, without exclusion, all powers conferred on
Trustee by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to: (i) name a beneficiary of the policy other than the
Trust; (ii) assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee; or (iii) loan to any person
the proceeds of any borrowing against such policy.
(e) However, notwithstanding the provisions of Section 8(d) above,
Trustee may loan to Company the proceeds of any borrowing against an insurance
policy held as an asset of the Trust.
(f) Notwithstanding any powers 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.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
Each Company shall pay all administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign as to any individual Company at any time by
written notice to such Company, which shall be effective 30 days after receipt
of such notice unless the Company and Trustee agree otherwise.
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(b) Trustee may be removed by any individual Company on 30 days notice
or upon shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets of the Plan of the individual Company shall
subsequently be transferred to the successor Trustee. The transfer shall be
completed within 60 days after receipt of notice of resignation, removal or
transfer, unless Company extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof by the effective date of resignation or
removal under paragraph(s) (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed in accordance with Section 10(a)
or (b) hereof, the affected Company may appoint any third party, such as a bank
trust department or other party that may be granted corporate trustee powers
under state law, as a successor to replace Trustee upon resignation or removal.
The appointment shall be effective when accepted in writing by the new Trustee,
who shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and act of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and any individual Company but no such amendment shall
impair the Benefits of a Participant. Furthermore, no such amendment shall
conflict with the terms of the Plan or shall make the Trust revocable after it
has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
Participants are no longer entitled to Benefits pursuant to the terms of the
Plan. Upon termination of the Trust any assets allocable to a specific Company
remaining in the Trust shall be returned to the specific Company, or to a
successor trustee as may be designated by the specific Company.
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(c) Upon written approval of Participants entitled to payment of
Benefits pursuant to the terms of the Plan, any Company may terminate this Trust
prior to the time all Benefit payments under the Plan have been made. All assets
in the Trust at termination shall be returned to such Company.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan Participants under this Trust Agreement
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.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the state of Oklahoma.
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be December 5, 1998.
IN WITNESS WHEREOF, Company and the Trustee have executed this Trust
Agreement each by action of a duly authorized person.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
BY: _______________________________
(Signature)
ATTEST: Name/Title: _______________________
___________________________
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THRIFTY RENT-A-CAR SYSTEM, INC.
BY: _______________________________
(Signature)
ATTEST: Name/Title: _______________________
___________________________
DOLLAR RENT A CAR SYSTEMS, INC.
BY: _______________________________
(Signature)
ATTEST: Name/Title: _______________________
___________________________
BANK OF OKLAHOMA, N.A. (TRUSTEE)
BY: _______________________________
(Signature)
ATTEST: Name/Title: _______________________
___________________________
