Exhibit 10(q)
CLARK EQUIPMENT COMPANY DEFERRED BENEFIT TRUST
12.27.94
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CLARK EQUIPMENT COMPANY DEFERRED BENEFIT 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 have certain benefit obligations pursuant
to certain employment agreements which are provided for through the Clark
Equipment Company Supplemental Retirement Income Plan for Certain
Executives as set forth in Exhibit I to this agreement (the "plan") which
are provided on an unfunded basis for the benefit of certain 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:
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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
Deferred Benefit Trust." The trust is established for the benefit of those
current and former employees of the employers whose employment agreements
are listed in Schedule A to Exhibit I hereof and their beneficiaries, which
employees and beneficiaries 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 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 provis-
ions 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
committee. The trustee may rely on the latest certificate received without
further inquiry or verification.
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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.
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,
commingled 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.
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(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.
(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, consoli-
dation, 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 permitted 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 withheld the trustee shall notify
the committee in writing of the trustee's intent to do so, and
the trustee shall
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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.
(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 con-
siders 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 acceptance 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.
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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 invest-
ments 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 invest-
ments therein.
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 with each employer's bookkeeping
account a subaccount ("plan subaccount") for each participant employed by the
employer to reflect that portion of the employer's account attributable to
the obligations 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
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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.
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. Notwithstand-
ing 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 commit-
tee and the trustee. The
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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.
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 appro-
priate 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 indemnification 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.
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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.
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 as set forth in Exhibit I to this agreement. 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
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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 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 adminis-
tration 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 indemnified or saved harmless under any
liability insurance or other indemnification 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 direc-
tion from an investment manager in
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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 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 connection 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.
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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.
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 determination, 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
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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 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 a 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.
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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.
(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 proportion 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 employers
who becomes a participant in the plan and who is alive on the day and year
first above written.
* * *
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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
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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