Exhibit 10(u)
CLARK EQUIPMENT COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT TRUST
12.27.94
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CLARK EQUIPMENT COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT TRUST
THIS AGREEMENT, is made this 28th day of December, 1994 by and
between CLARK EQUIPMENT COMPANY, a Delaware corporation (sometimes referred
to as the "company"), and such subsidiaries of the company as become
parties to this agreement with its consent (the company and such
subsidiaries are referred to collectively as the "employers" and sometimes
individually as an "employer"), and WACHOVIA BANK OF NORTH CAROLINA, N.A.,
and its successor or successors and assigns in the trust hereby evidenced,
as trustee (the "trustee"),
WITNESSETH THAT:
WHEREAS, the employers maintain the Clark Equipment Company
Supplemental Executive Retirement Plan (the "plan"), a copy of which is
attached hereto as Exhibit I, on an unfunded basis for the benefit of
certain current, future and former employees of the employers; and
WHEREAS, the company considers it desirable to establish a trust
for the purpose of providing a method for the orderly accumulation of
assets to be used to make certain payments payable under the plan except as
such assets are required to be used to satisfy the claims of the employers'
creditors; and
WHEREAS, the purpose of this agreement is to establish such a
trust (the "trust");
NOW, THEREFORE, in consideration of the mutual undertakings of
the parties hereto, IT IS AGREED by the company and the trustee, as
follows:
ARTICLE I
Introduction
1.1. The Trust, the Plan, Participants. This agreement and the
trust hereby evidenced shall be known as the "Clark Equipment Company
Supplemental Executive Retirement Trust." The trust is established for the
benefit of current, future and former employees of the employers who are or
become covered under the plan and their beneficiaries, as determined in
accordance with the provisions of the plan, which employees and bene-
ficiaries are referred to as "participants." However, the participants
shall not have any right or security interest in any specific asset of the
trust or beneficial ownership in or preferred claim on the assets of the
trust, it being understood that the assets of the trust shall be available
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for the claims of the employers' creditors as provided in Article V and all
rights created under the plan or the trust shall be unsecured contractual
rights against the employers. The provisions of the plan as they may be
amended from time to time are incorporated into and form a part of this
agreement and trust; provided, however, that the trustee's duties shall be
limited to those duties expressly provided for herein without regard to the
provisions of the plan.
1.2. Status of Trust. The trust shall be irrevocable. The
trust is intended to constitute a grantor trust under Sections 671-678 of
the Internal Revenue Code of 1986, as amended (the "Code"), and shall be
construed accordingly. The assets held in the trust for the benefit of an
employer shall constitute a separate trust under Sections 671-678 of the
Code for that employer.
1.3. Employer Deposits. The company and each other employer
will make contributions of cash or company owned life insurance policies
(collectively "approved assets") to the trust at such times and in such
amounts as such contributions are required by the terms of the plan. Such
amounts of approved assets shall be held, invested and distributed by the
trustee in accordance with the provisions of this agreement.
1.4. Acceptance. The trustee accepts the duties and obligations
of the "trustee" hereunder, agrees to accept delivery of funds delivered to
it by the employers pursuant to Section 1.3, and agrees to hold such funds
(and any proceeds from the investment of such funds) in trust in accordance
with this agreement.
1.5. The Committee. The Clark Equipment Company Employee
Retirement Income Security Act Committee, or such other committee as is
appointed by the Chief Executive Officer of the company, shall be the
committee that is responsible for the administration of the trust (the
committee"). The powers, rights and duties of the committee under this
agreement are described below. The Secretary of the company will certify
to the trustee from time to time the persons who are acting as the com-
mittee. The trustee may rely on the latest certificate received without
further inquiry or verification.
ARTICLE II
Management of the Trust Fund
2.1. The Trust Fund. Unless the context clearly implies or
indicates otherwise, the term "trust fund" as of any date means all
property of every kind then held under this agreement by the trustee or any
custodian.
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2.2. Trustee's General Powers, Rights and Duties. With respect
to the trust fund and subject only to the limitations expressly provided in
this agreement (including the powers reserved to the committee, investment
managers and custodians) or imposed by applicable law, the trustee shall
have the following powers, rights and duties in addition to those vested in
it elsewhere in this agreement or by law:
(a) To invest and reinvest part or all of the trust fund in any
real or personal property (including investments in any
stocks, bonds, debentures, mutual fund shares, notes,
commercial paper, treasury bills, options, commodities,
futures contracts, insurance policies, partnership
interests, venture capital investments, any common, com-
mingled or collective trust funds or pooled investment funds
described in Section 2.3, any interest bearing deposits held
by any bank or similar financial institution, and any other
real or personal property) and to diversify such investments
so as to minimize the risk of large losses unless under the
circumstances it is clearly prudent not to do so; except
that the trustee shall not directly invest in any stock,
bonds, debentures or other assets of the company or any of
its subsidiaries (other than company owned life insurance
policies).
(b) When directed by the committee, to apply for, pay premiums
on, maintain in force on the lives of participants, or any
other person, and dispose of individual ordinary or
individual or group term or universal life insurance
policies ("policies") for the benefit of the participants
and containing such provisions as the committee may approve
or direct; to acquire such a policy from an employer or from
the person on whose life the policy is issued, but only if
the trustee pays, transfers or otherwise exchanges for the
policy no more than the cash surrender value of the policy
and the policy is not subject to a mortgage or similar lien
which the trustee would be required to assume; to exchange
such a policy for cash from an employer but only if the cash
provided by the employer is equal to or greater than the
cash surrender value of the policy and to have with respect
to such policies all of the rights, powers, options,
privileges and benefits usually comprised in the term
"incidents of ownership" and normally vested in an insured
or owner of such policies.
(c) To retain in cash such amounts as the trustee considers
advisable and as are permitted by applicable law and to
deposit any cash so retained in any depository (including
any bank acting as trustee) which the trustee may select;
provided that such amounts shall at all times be held in one
or more interest-bearing accounts.
(d) To manage, sell, insure and otherwise deal with all real and
personal property held by the trustee on such terms and
conditions as the trustee shall decide.
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(e) To vote stock and other voting securities personally or by
proxy (and to delegate the trustee's powers and discretions
with respect to such stock or other voting securities to
such proxy), to exercise subscription, conversion and other
rights and options (and make payments from the trust fund in
connection therewith), to take any action and to abstain
from taking any action with respect to any reorganization,
consolidation, merger, dissolution, recapitalization,
refinancing and any other program or change affecting any
property constituting a part of the trust fund (and in
connection therewith to delegate the trustee's discretionary
powers and to pay assessments, subscriptions and other
charges from the trust fund), to hold or register any
property from time to time in the trustee's name or in the
name of a nominee or to hold it unregistered or in such form
that title shall pass by delivery and to borrow from anyone,
including any bank acting as trustee, to the extent per-
mitted by law, such amounts from time to time as the trustee
considers desirable to carry out this trust (and to mortgage
or pledge all or part of the trust fund as security).
(f) When directed by an investment manager to acquire, retain or
dispose of such investments as the investment manager
directs in accordance with this agreement.
(g) To make payments from the trust fund to provide benefits
that have become payable under the plan pursuant to Section
4.5 or that are required to be made to the creditors of an
employer pursuant to Section 5.2.
(h) To maintain in the trustee's discretion any litigation the
trustee considers necessary in connection with the trust
fund.
(i) To withhold, if the trustee considers it advisable, all or
any part of any payment required to be made hereunder as may
be necessary and proper to protect the trustee or the trust
fund against any liability or claim on account of any
estate, inheritance, income or other tax or assessment
attributable to any amount payable hereunder, and to
discharge any such liability with any part or all of such
payment so withheld, provided that at least ten days prior
to discharging any such liability with any amount so with-
held the trustee shall notify the committee in writing of
the trustee's intent to do so, and the trustee shall
continue to withhold such payment if so directed by the
committee in writing before such liability is discharged.
(j) To maintain records reflecting all receipts and payments
under this agreement and such other records as the committee
specifies and the trustee agrees to, which records may be
audited from time to time by the committee or anyone named
by the committee.
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(k) To report to the committee as of each valuation date (as
defined in Section 2.4), and at such other times as the
committee may request, the then net worth of the trust fund
(that is, the fair market value of all assets of each of the
investment funds and of any other assets of the trust, less
liabilities known to the trustee, other than liabilities to
participants and amounts payable from the trust fund to
creditors who are not entitled to benefits under the plan),
on the basis of such data and information as the trustee
considers reliable.
(l) To furnish periodic accounts to the committee for such
periods as the committee may specify, showing all
investments, receipts, disbursements and other transactions
involving the trust during the applicable period and the
assets of each investment fund and any other assets of the
trust fund held at the end of that period.
(m) To furnish the employers with such information in the
trustee's possession as the employers may need or desire for
tax or other purposes.
(n) To employ agents, attorneys, accountants, investment
advisors or managers and other persons (who also may be
employed by the employers, the committee or others), to
delegate discretionary powers to such persons and to
reasonably rely upon information and advice furnished by
such persons; provided that each such delegation and the ac-
ceptance thereof by each such person shall be in writing;
and provided further that the trustee may not delegate its
responsibilities as to the management or control of the
assets of the trust fund.
(o) To perform all other acts which in the trustee's judgment
are appropriate for the proper management, investment and
distribution of the trust fund to the extent such duties
have not been assigned to others as provided herein.
Notwithstanding any powers granted to the trustee pursuant to this Section
2.2 or pursuant to applicable law, the 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
Code.
2.3. Collective Investment Trusts. The trustee or any
investment manager may invest any part or all of the trust assets for which
it has investment responsibility in any common, collective or commingled
trust fund or pooled investment fund that is maintained by a bank or trust
company (including a bank or trust company acting as trustee) provided such
investments are consistent with applicable investment requirements and
guidelines. To the extent that any trust assets are invested in any such
fund, the provisions of the documents under which such common, collective
or commingled trust fund or pooled investment fund are maintained shall
govern any investments therein.
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2.4. Accounting. The committee shall maintain a bookkeeping
account in the name of each employer which, pursuant to rules established
by the committee, will reflect:
(I) deposits made by that employer to the trust
fund pursuant to Section 1.3;
(ii) Income, losses, and appreciation or
depreciation in the value of trust assets
resulting from investment of the trust fund to
the extent such items are attributable to such
employer's deposits;
(iii) payments made from the trust fund to
participants employed or formerly employed by
that employer (or to their beneficiaries) in
the form of benefits payable to them under the
plan, or to such employer's creditors; and
(iv) any other amounts charged to that employer's
account, including its share of compensation
and expenses described in Section 4.9.
In addition, the committee shall maintain within each employer's
bookkeeping account a subaccount ("plan subaccount") in the name of each
participant to reflect that portion of the employer's account attributable
to such participant. As of each valuation date such accounts and plan
subaccounts shall be appropriately adjusted in accordance with such rules
to reflect the then net worth of the trust fund, as determined as of that
valuation date by the trustee and reported to the committee pursuant to
Section 2.2(k). A "valuation date" is each December 31 and such other date
or dates as the committee shall specify.
2.5. Common Fund. The trustee shall not be required to make any
separate investment of the trust fund for the account of the plan as
applied to the several employers and their respective employees in the
absence of direction by the committee and may administer and invest the
deposits made to the trust by all employers as one trust fund. If, for any
purpose, it becomes necessary to determine as of any date the portion of
the trust fund allocable to one of the employers, the committee shall
specify such date as a special valuation date and, after all adjustments
required as of that date have been made, such portion of the trust fund
shall be an amount equal to the employer's proportionate interest in the
trust fund, determined in accordance with Section 2.4 above and any such
determination by the committee shall be binding on all of the employers,
participants and all other persons. The trustee also shall not be required
to make any separate investment of the trust fund for the account of any
creditor of any employer prior to receipt of directions to make payments to
such creditor in accordance with Section 5.2.
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ARTICLE III
Investment Funds, Investment Managers and Custodians
3.1. Investment Funds. From time to time the committee may
direct the trustee to establish one or more investment funds (the
"investment funds") for the purpose of reflecting the separate investment
and reinvestment of the trust fund. The trustee shall have responsibility
for the investment of the assets of an investment fund unless an investment
manager has been appointed with respect to that fund. All income, losses,
appreciation and depreciation attributable to the assets of an investment
fund shall be credited to that fund. Investments of each investment fund
shall be made in accordance with investment guidelines established by the
committee for that investment fund. The committee shall provide each
investment manager appointed with respect to an investment fund with the
investment guidelines for that fund and with any modifications in such
investment guidelines made from time to time by the committee. Notwith-
standing the fact that an investment manager may be appointed with
responsibility for the management of an investment fund, the trustee shall
have the responsibility for the investment of cash balances held by it from
time to time as a part of such investment fund in short term cash
equivalents (such as short term commercial paper, treasury bills and
similar securities, and for this purpose the trustee may invest in any
appropriate common, commingled or collective short term investment fund).
In addition, the trustee shall have the power, right and duty to sell any
such short term investments as may be necessary to carry out the
instructions of the investment manager with respect to the investment of
the investment fund.
3.2. Investment Managers. The committee from time to time may
appoint one or more professional investment advisers other than the trustee
as an "investment manager" of the entire trust fund or any investment fund
maintained as a part of the trust fund. Any such appointment shall be made
by written notice to the investment manager and the trustee and shall
specify the portion of the trust fund to be managed by the investment
manager and the powers, rights and duties of the trustee that are allocated
to the investment manager with respect to such portion of the trust fund.
Upon such notice to the trustee of the appointment of an investment
manager, the investment manager shall be authorized to direct the trustee
regarding the investment and reinvestment of the assets of the portion of
the trust fund subject to management by the investment manager and the
trustee shall receive, hold, vote and transfer assets purchased or sold by
the investment manager in accordance with its directions. The appointment
of an investment manager shall continue in effect until the trustee
receives written notice to the contrary from the committee or the
investment manager. An investment manager may resign at any time upon
thirty days' prior written notice to the committee and the trustee. The
committee may remove an investment manager at any time upon prior written
notice to the investment manager and the trustee. An investment manager
shall have complete investment responsibility for the assets of the trust
fund with respect to which it has been appointed as investment manager
and, except as otherwise provided by law or this agreement, the trustee
shall have no obligation as to the investment of such assets during the
period they are subject to management by an investment manager.
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3.3. Custodians. If a national banking association or a state
bank is appointed by the committee as the investment manager of any
investment fund, the committee also may designate such bank to be employed
by the trustee as "custodian" of the assets from time to time forming part
of that investment fund. In such event, the trustee shall enter into an
appropriate custodial agreement with the bank appointed as investment
manager naming the investment manager as custodian of the investment fund
and delegating the trustee's powers with respect to the management of the
investment fund to the custodian. Upon such an appointment the trustee
shall transfer the assets of the investment fund to the custodian and the
custodian shall have responsibility for the holding and administration of
the assets of the investment fund, as agent of the trustee, until its
employment as custodian is terminated, at which time the custodian shall
return all assets of the investment fund to the trustee. With respect to
the appointment of such custodian, the trustee shall be entitled to indem-
nification under Section 4.8 notwithstanding that it has consented to the
designation of a custodian and notwithstanding any indemnity agreement in a
custodial agreement between the trustee and the custodian. In addition to
its duties as investment manager, each custodian shall maintain the records
and accounts and shall submit to the appropriate persons the periodic
reports otherwise required of the trustee with respect to the portion of
the trust fund held by the custodian.
ARTICLE IV
General Provisions
4.1. Restrictions on Reversion. Except as otherwise provided
herein, none of the employers shall have any right, title or interest in
the assets of the trust fund, nor will any part of the assets of the trust
fund revert or be repaid to any employer until all benefits due under the
plan have been paid pursuant to its terms; provided, however, that the
assets of the trust shall be available for the claims of the employers'
creditors as provided in Section 5.2. The employers may make withdrawals
from the trust only if and to the extent that such withdrawals are
expressly permitted by the terms of the plan. If an employer ceases to
have any benefit obligations under the plan, any balance remaining in such
employer's plan subaccount maintained pursuant to Section 2.4 after all
benefits accrued under the plan have been paid, shall revert to such
employer.
4.2. Nonalienation of Trust Assets. To the extent permitted by
law, the rights or interests of any participants to any benefits or future
payments hereunder shall not be subject to attachment or garnishment or
other legal process by any creditor of any such participant, nor shall any
such participant have any right to alienate, anticipate, commute, pledge,
encumber or assign (either at law or in equity) any of the benefits or
rights which he may expect to receive (contingently or otherwise) under
this agreement, except as may be required by the tax withholding provisions
of the Code or of a state's income tax act.
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4.3. Litigation. Any final judgment that is not appealed or
appealable and which may be entered in any action or proceeding regarding
this trust shall be binding and conclusive on the parties hereto and all
persons having or claiming to have an interest in the trust.
4.4. Trustee's Actions Conclusive. Except as otherwise provided
by law, the trustee's exercise or non-exercise of its powers and discretion
in good faith shall be conclusive on all persons. No one shall be obliged
to see to the application of any money paid or property delivered to the
trustee, except to the extent such person is acting as an investment
manager as respects such money or property. The certificate of the trustee
that it is acting in accordance with this agreement will fully protect all
persons dealing with the trustee. If there is a disagreement between the
trustee and anyone as to any act or transaction reported in any accounting,
the trustee shall have the right to a settlement of its account by any
proper court.
4.5. Benefit Payments. Notwithstanding any other provisions of
the plan or of this agreement, the only benefits that are payable to
participants from the trust fund are the benefits payable pursuant to the
plan. The committee from time to time shall direct the trustee in writing
as respects the distribution from the trust fund of benefits that have
become payable, but that have not been paid by an employer, under the plan
to a participant (including any legal fees and expenses that are payable
under the plan), including the amount and manner of payment of any such
benefit. If a payment required under the terms of the plan has not been
made to a participant (whether due to the failure of the committee to
notify the trustee as required by this Section 4.5 or otherwise), then the
participant may notify the trustee in writing of the amount (or a
reasonable estimate of the amount) owed to him pursuant to the plan, and
the date or dates such amount was due and payable. The trustee shall
notify the committee and the participant's employer within 15 days of the
receipt of such payment request. If the committee or the employer does not
provide the trustee with a statement from an "independent party" as to the
proper amount due and payable to the participant within 30 days of the date
the trustee notified the committee and the employer of the payment request
or the trustee determines that the party providing the statement is not
"independent", the trustee shall make the payment or payments requested by
the participant from the trust fund and may conclusively rely on such
payment or payments being the appropriate amount. The trustee shall also
notify the committee and employer of any such payments. Payment shall be
made to a participant from the trust fund in accordance with the terms of
the plan until the earlier of: (i) all payments due to the participant
under the plan, as requested by the participant in his notification to the
trustee, have been satisfied; or (ii) the committee or employer provide a
statement as described above. If a statement is so provided, appropriate
adjustment, if any, in the amount paid and to be paid to the participant
shall be made. The trustee shall be fully protected in acting without the
committee's direction under this Section 4.5 and shall be indemnified and
saved harmless as provided in Section 4.8. The trustee shall make such
distributions from the trust fund in accordance with the provisions of this
Section 4.5, subject to the provisions of Article V; provided, however,
that payments to a participant shall be made only from assets of the trust
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that are attributable to the participant's former employer (as reflected in
the account maintained for that employer pursuant to Section 2.4). If such
assets are not sufficient that employer shall make the balance of each such
payment when due.
4.6. Missing Persons. If any payment directed to be made by the
trustee from the trust fund is not claimed by the person entitled thereto,
the trustee shall notify the committee of that fact. None of the
employers, the committee and the trustee shall have any obligation to
search for or ascertain the whereabouts of any payee under this trust.
4.7. Liabilities Mutually Exclusive. To the extent permitted by
law, each employer, the trustee, the committee and each investment manager
shall be responsible only for its or his own acts or omissions.
4.8. Indemnification. To the extent permitted by law, none of
the trustee, any present or former member of the committee, or any person
who is or was a director, officer, or employee of an employer, shall be
personally liable for any act done, or omitted to be done, in good faith in
the administration of this trust. Any person to whom the committee or the
company has delegated any portion of its responsibilities under the trust,
any person who is or was a director, officer or employee of an employer, or
any present or former member of the committee, and each of them, shall, to
the extent permitted by law, be indemnified and saved harmless by the
employers (to the extent not indemnified or saved harmless under any
liability insurance or other indemnification arrangement with respect to
this trust) from and against any and all liability or claim of liability
to which they may be subjected by reason of any act done or omitted to be
done in good faith in connection with the administration of the trust or
the investment of the trust fund, including all expenses reasonably
incurred in their defense if the employers fail to provide such defense
after having been requested to do so in writing. The trustee shall be
indemnified and saved harmless by the employers (to the extent not indemni-
fied or saved harmless under any liability insurance or other indemni-
fication arrangement with respect to this trust) only with respect to
liability or claim of liability to which the trustee shall be subjected by
reason of its good faith compliance with any directions given in accordance
with the provisions of the trust by an investment manager, the committee,
or any person duly authorized by the committee or the company, or by reason
of its failure to take any action with respect to any assets of the trust
fund that are subject to investment direction from an investment manager in
the absence of direction from the investment manager, or by reason of its
good faith compliance with the provisions of Section 4.5, including all
expenses reasonably incurred in the trustee's defense if the employers fail
to provide such defense after having been requested to do so in writing.
4.9. Compensation and Expenses. All costs, charges and expenses
incurred by the trustee pursuant to Section 2.2(n) shall be paid from the
trust fund to the extent not paid by the employers, and all other
reasonable compensation, costs, charges and expenses incurred in the
administration of this trust, as agreed upon between the committee and the
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trustee, or between the committee and any investment manager or custodian,
will, to the extent not paid by the employers be paid from the trust fund
as the committee shall direct; provided that expenses incurred in con-
nection with the sale, investment and reinvestment of the trust fund (such
as brokerage, postage, express and insurance charges and transfer taxes)
shall be paid from the trust fund, which shall be reimbursed by the
Company.
4.10. Action by Company. Any action required or permitted to be
taken by the Company under the Trust may be taken by the Chief Executive
Officer of the Company or his designee or as provided in the Company's
Program for Adoption and Administration of Employee Benefit Plans, as
amended from time to time.
4.11. Warranty. The employers warrant that all directions or
authorizations by the committee, whether for the payment of money or
otherwise, will comply with the provisions of the plan and this trust.
4.12. Evidence. Evidence required of anyone under this
agreement shall be signed, made or presented by the proper party or parties
and may be by certificate, affidavit, document or other information which
the person acting on it considers pertinent and reliable.
4.13. Waiver of Notice. Any notice required under this
agreement may be waived by the person entitled to such notice.
4.14. Counterparts. This agreement may be executed in two or
more counterparts, any one of which will be an original without reference
to the others.
4.15. Gender and Number. Where the context admits, words
denoting the masculine gender shall include the feminine and neuter
genders, the singular shall include the plural, and the plural shall
include the singular.
4.16. Scope of this Agreement. The plan and this trust will be
binding on all persons entitled to benefits hereunder and their respective
heirs and legal representatives, and upon the employers, the committee, the
trustee, and any investment managers and custodians, and their successors
and assigns.
4.17. Severability. If any provision of this agreement is held
to be illegal or invalid, such illegality or invalidity shall not affect
the remaining provisions of this agreement, and they shall be construed and
enforced as if such illegal or invalid provision had never been inserted
herein.
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4.18. Statutory References. Any references in this agreement to
a section of the Code shall include any comparable section or sections of
any future legislation that amends, supplements or supersedes that section.
4.19. Applicable Law. The plan and the trust shall be construed
in accordance with the laws of the State of Indiana.
ARTICLE V
Insolvency
5.1. Insolvency. An employer shall be considered "insolvent"
for purposes of this trust if the employer is unable to pay its debts as
they become due or if its affairs become the subject of reorganization or
liquidation proceedings as a debtor under federal bankruptcy laws.
5.2. Payments During Insolvency. At all times during the
existence of this trust assets of the trust attributable to each employer
(as reflected in the account maintained for that employer pursuant to
Section 2.4) shall be subject to the claims of its general creditors in the
event of the insolvency of the employer. Subject to the immediately
following sentence, the trustee shall have no duty to inquire as to whether
or not any employer is insolvent, but if the trustee has knowledge that an
employer is insolvent (as defined in Section 5.1), the trustee shall
discontinue benefit payments that otherwise would be charged to that
employer's account and will deliver or otherwise make available assets of
the trust attributable to that employer to satisfy the claims of that
employer's creditors as directed by a court of competent jurisdiction. If
a person claiming to be a creditor of an employer alleges in writing to the
trustee that said employer has become insolvent, the trustee shall
determine whether said employer is insolvent, and, pending such determi-
nation, the trustee shall discontinue payment of benefits to participants
employed or formerly employed by said employer (or to their beneficiaries);
the trustee may rely on such evidence concerning said employer's insolvency
as may be furnished to the trustee and that provides the trustee with a
reasonable basis for making a determination concerning said employer's
insolvency. If an employer becomes insolvent, the Secretary of the
employer shall have the duty to promptly inform the trustee of the
employer's insolvency. The committee shall have the same duty if and when
it becomes aware that an employer has become insolvent. Participants and
their beneficiaries shall not be granted greater rights to the trust fund
by virtue of their rights under the plan than other general creditors of
the employers, but no provision of the trust shall diminish the rights of a
participant to pursue his rights as a general creditor of an employer with
respect to any benefits he is entitled to under the plan, or otherwise. If
the trustee discontinues payment of benefits pursuant to this Section 5.2,
the trustee shall resume the payment of benefits only after determining
that the employer is not insolvent (or is no longer insolvent); the first
payment following such discontinuance shall include the aggregate amount of
all payments due to participants (or to their beneficiaries) for the period
of such discontinuance less the aggregate amount of any payments received
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by said participants (or to their beneficiaries) during such period
directly from their employer in lieu of payments provided for under this
agreement.
ARTICLE VI
Resignation or Removal of Trustee
6.1. Resignation or Removal of Trustee. The trustee may resign
at any time by giving thirty days' prior written notice to the employers,
the committee, and the investment managers and custodians. The committee
may remove a trustee by giving prior written notice to the trustee, the
employers and the investment managers and custodians provided that such
removal shall not become effective until the time immediately preceding the
appointment of a successor trustee pursuant to Section 6.2.
6.2. Successor Trustees. In the event of the resignation or
removal of the trustee, a successor trustee shall be appointed by the
committee in writing as soon as practicable. Any successor trustee must be
a bank or trust company which is established and operating under the laws
of the United States, or a state within the United States, and which has a
combined capital and surplus of at least $100,000,000. Written notice of
such appointment shall be given by the committee to the employers, the
predecessor trustee, and the investment managers and custodians.
6.3. Duties of Predecessor Trustee and Successor Trustee. A
trustee that resigns or is removed shall promptly furnish to the committee
and the successor trustee a final account of its administration of the
trust. A successor trustee shall succeed to the right and title of the
predecessor trustee in the assets of the trust fund and the predecessor
trustee shall deliver the property comprising the trust fund to the
successor trustee together with any instruments of transfer, conveyance,
assignment and further assurances as the successor trustee may reasonably
require. Each successor trustee shall have all the powers, rights and
duties conferred by this agreement as if named the initial trustee.
Subject to applicable law, no successor trustee shall be personally liable
for any act or failure to act of a predecessor trustee.
ARTICLE VII
Amendment and Termination
7.1. Amendment. This trust may be amended from time to time by
the company, except as follows:
(a) The duties and liabilities of the committee, the trustee and
each investment manager and custodian under this agreement
cannot be changed substantially without their consent.
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(b) Under no condition shall any amendment result in the return
or repayment to any employer or any other corporation or
other legal business entity related to an employer of any
portion of the trust fund or the income therefrom, or result
in the distribution of the trust fund for any purposes other
than payment of obligations of the employers to their
creditors, including participants.
(c) This trust may not be amended so as to cause the reduction
or cessation of any benefits a participant and his
beneficiaries would receive now or in the future under the
current terms of the plan as incorporated into and made a
part of this agreement, nor may the trust be amended to make
the trust revocable.
An insurance company may assume that this agreement has not been amended or
changed unless notice of such amendment is received by the insurance
company at its home office. Notwithstanding the foregoing provisions of
this Article VII, if a participant in the plan so requests and the Chief
Executive Officer of the company approves, a separate plan and trust shall
be established for such participant, with such terms as are agreed to by
such participant and the company, the liabilities of the plan with respect
to such participant shall be transferred to such new plan, and the pro-
portion of the assets held in the trust fund equal to the proportion of the
liabilities so transferred, shall be transferred to the separate trust for
such participant under the new plan.
7.2. Termination. This trust shall not terminate, and all the
rights, titles, powers, duties, discretions and immunities imposed on or
reserved to the trustee, each employer, the committee and any investment
managers and custodians shall continue in effect with respect to the trust,
until all benefits payable to participants under the plan have been paid
and all assets have been distributed by the trustee under the trust and the
plan. Notwithstanding any other provision of this trust, the trust shall
terminate one day prior to the expiration of a period of twenty-one years
after the death of the last to die of any current or future employee of the
employer who becomes a participant in the plan and who is alive on the day
and year first above written.
* * *
IN WITNESS WHEREOF, the company and the trustee have caused this
agreement to be executed on their behalf and their respective seals to be
hereunto affixed and attested by their respective officers thereunto duly
authorized, the day and year first above written.
CLARK EQUIPMENT COMPANY
By /s/ William N. Harper
Its Vice President
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ATTEST:
/s/ John J. Moran, Jr.
Its Assistant Secretary
(Seal)
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ Joe O. Long
Its Senior Vice President
ATTEST:
/s/ John N. Smith, III
Its Assistant Secretary
(Seal)
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