THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
TRUST AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I TRUSTEES AND TRUST FUND.......................................1
1.1. NAME OF TRUST.....................................................1
ARTICLE II PLAN..........................................................2
2.1. DELIVERY OF PLAN TO TRUSTEE.......................................2
ARTICLE III ADMINISTRATOR.................................................2
3.1. NOTIFICATION OF NAME OF ADMINISTRATOR.............................2
ARTICLE IV CONTRIBUTIONS.................................................3
4.1. RECEIPT OF CONTRIBUTION...........................................3
ARTICLE V TRUSTEE.......................................................3
5.1. BASIC RESPONSIBILITIES OF THE TRUSTEE.............................3
5.2. INVESTMENT POWERS AND DUTIES OF THE TRUSTEE.......................4
5.3. OTHER POWERS OF THE TRUSTEE.......................................5
5.4. DUTIES OF THE TRUSTEE REGARDING PAYMENTS..........................8
5.5. TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES.....................8
5.6. ANNUAL REPORT OF THE TRUSTEE......................................8
5.7. AUDIT.............................................................9
5.8. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE....................9
5.9. TRANSFER OF INTEREST.............................................10
5.10. DIRECT ROLLOVER.................................................11
5.11. EMPLOYER SECURITIES AND REAL PROPERTY...........................12
ARTICLE VI AMENDMENT, TERMINATION AND MERGERS...........................12
6.1. AMENDMENT........................................................12
6.2. TERMINATION......................................................13
6.3. MERGER OR CONSOLIDATION..........................................13
ARTICLE VII MISCELLANEOUS................................................13
7.1. QUALIFIED TRUST..................................................13
7.2. CONSTRUCTION OF AGREEMENT........................................13
7.3. GENDER AND NUMBER................................................13
7.4. LEGAL ACTION.....................................................14
7.5. BONDING..........................................................14
7.6. HEADINGS.........................................................14
7.7. IRREVOCABILITY OF TRUST..........................................14
THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
TRUST AGREEMENT
THIS AGREEMENT, hereby made and entered into this 1st day of
June, 1998, by and between CSX Hotels, Inc. dba The Greenbrier (herein referred
to as the "Employer") and Smith Barney Corporate Trust Company (herein referred
to as the "Trustee").
WITNESSETH:
WHEREAS, the Employer has concurrently herewith adopted a Profit
Sharing Plan known as the The Greenbrier Savings and Investment Plan and Trust
(herein referred to as the Plan); and
WHEREAS, under the terms of the Plan, funds will from time to
time be contributed to the Trustees (herein referred to as the "Trustee"), which
funds as and when received by the Trustee, will constitute a trust fund to be
held by said Trustee under the Plan for the benefit of the Participants or their
Beneficiaries; and
WHEREAS, the Employer desires the Trustee to hold and administer
such funds and the Trustee is willing to hold and administer such funds pursuant
to the terms of this Agreement;
NOW, THEREFORE, for and in consideration of the premises and of
the mutual covenants herein contained, the Employer and the Trustee do hereby
covenant and agree as follows:
ARTICLE I
TRUSTEES AND TRUST FUND
1.1. NAME OF TRUST
(a) This Trust shall be entitled the "The Greenbrier Savings
and Investment Plan and Trust, Trust Agreement"
(hereinafter referred to as the "Trust"), and shall carry
into effect the provisions of the Plan created
concurrently herewith and forming a part hereof. All of
the definitions in such Plan are hereby incorporated
herein by reference. The Trustee hereby agrees to act as
Trustee of the Trust, and to take, hold, invest,
administer and distribute in accordance with the following
provisions, any and all contributions and assets paid or
delivered to the Trustee pursuant to the Plan.
(b) All of the assets at any time held hereunder by the
Trustee are hereinafter referred to collectively as the
"Trust Fund." All right, title and interest in and to the
assets of the Trust Fund shall be at all times, vested
exclusively in the Trustee.
1
(c) The Trustee shall receive, take and hold any contributions
paid to the Trustee by the Employer in cash or in other
property acceptable to the Trustee. All contributions so
received together with the income therefrom and any other
increment thereon shall be held managed and administered
by the Trustee pursuant to the terms of this Agreement
without distinction between principal and income and
without liability for the payment of interest thereon. The
Trustee shall not be responsible for the collection of any
contributions to the Plan.
ARTICLE II
PLAN
2.1. DELIVERY OF PLAN TO TRUSTEE
The Employer shall deliver to the Trustee a copy of the Plan and
of any amendment thereto for convenience of reference, but rights, powers,
titles, duties, discretions and immunities of the Trustee shall be governed
solely by this instrument without reference to the Plan.
ARTICLE III
ADMINISTRATOR
3.1. NOTIFICATION OF NAME OF ADMINISTRATOR
(a) The Plan provides for the appointment of an Administrator
or Administrators (herein referred to as the
"Administrator"), to administer the Plan. The Employer
shall notify the Trustee in writing of the name of the
Administrator, and of any change in the identity of such
Administrator. Until notified of the change, the Trustee
shall be fully protected in acting upon the assumption
that the identity of the Administrator has not been
changed.
(b) All directions by the Administrator to the Trustee shall
be in writing signed by such Administrator.
(c) The Employer shall furnish to the Trustee a specimen
signature of the Administrator or Administrators at the
time he or they are appointed.
(d) The Administrator shall have sole responsibility for
determining the existence, non-existence, nature and
amount of the rights and interests of all persons in the
Trust Fund.
2
ARTICLE IV
CONTRIBUTIONS
4.1. RECEIPT OF CONTRIBUTION.
The Trustee shall receive all contributions paid in cash or other
property acceptable to the Trustee, and all contributions so received together
with the income therefrom and any increment thereon shall be held, managed and
administered by the Trustee pursuant to this Agreement without distinction
between principal and income. The Trustee shall have no duty to require any
contributions to be made to the Trustee by the Employer or to determine that the
amounts received comply with the Plan, or to determine that the Trust Fund is
adequate to provide the benefits payable pursuant to the Plan.
ARTICLE V
TRUSTEE
5.1. BASIC RESPONSIBILITIES OF THE TRUSTEE
(a) The Trustee shall have the following categories of
responsibilities:
(1) Consistent with the "funding policy and method"
determined by the Employer, to invest, manage, and
control the Plan assets subject, however, to the
direction of a Participant with respect to his
Participant Directed Accounts, the Employer or an
Investment Manager appointed by the Employer or any
agent of the Employer;
(2) At the direction of the Administrator, to pay
benefits required under the Plan to be paid
to Participants, or, in the event of their death,
to their Beneficiaries; and
(3) To maintain records of receipts and disbursements
and furnish to the Employer and/or Administrator
for each Plan Year a written annual report per
Section 5.6.
(b) In the event that the Trustee shall be directed by a
Participant (pursuant to the Participant Direction
Procedures), or the Employer, or an Investment Manager or
other agent appointed by the Employer with respect to the
investment of any or all Plan assets, the Trustee shall
have no liability with respect to the investment of such
assets, but shall be responsible only to execute such
investment instructions as so directed.
(1) The Trustee shall be entitled to rely fully on the
written instructions of a Participant (pursuant to
the Participant Direction Procedures), or the
Employer, or any Fiduciary or nonfiduciary agent of
the Employer, in the discharge of such duties, and
shall not be liable for any loss or other
liability, resulting from such
3
direction (or lack of direction) of the investment
of any part of the Plan assets.
(2) The Trustee may delegate the duty to execute such
instructions to any nonfiduciary agent, which may
be an affiliate of the Trustee or any Plan
representative.
(3) The Trustee may refuse to comply with any direction
from the Participant in the event the Trustee, in
its sole and absolute discretion, deems such
directions improper by virtue of applicable law.
The Trustee shall not be responsible or liable for
any loss or expense which may result from the
Trustee's refusal or failure to comply with any
directions from the Participant.
(4) Any costs and expenses related to compliance with
the Participant's directions shall be borne by the
Participant's Directed Account, unless paid by the
Employer.
(c) If there shall be more than one Trustee, they shall act by
a majority of their number, but may authorize one or more
of them to sign papers on their behalf.
5.2. INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust
Fund to keep the Trust Fund invested without
distinction between principal and income and in such
securities or property, real or personal, wherever
situated, as the Trustee shall deem advisable, including,
but not limited to, stocks, common or preferred, bonds
and other evidences of indebtedness or ownership, and
real estate or any interest therein. The Trustee shall
at all times in making investments of the Trust Fund
consider, among other factors, the short and long-term
financial needs of the Plan on the basis of information
furnished by the Employer. In making such
investments, the Trustee shall not be restricted to
securities or other property of the character expressly
authorized by the applicable law for trust
investments; however, the Trustee shall give due
regard to any limitations imposed by the Code or the
Act so that at all times the Plan may qualify as
a qualified Profit Sharing Plan and Trust.
(b) The Trustee may employ a bank or trust company pursuant to
the terms of its usual and customary bank agency
agreement, under which the duties of such bank or trust
company shall be of a custodial, clerical and
record-keeping nature.
(c) The Trustee may from time to time transfer to a common,
collective, pooled trust fund or money market fund
maintained by any corporate
4
Trustee or affiliate thereof
hereunder, all or such part of the Trust Fund as the
Trustee may deem advisable, and such part or all of the
Trust Fund so transferred shall be subject to all the
terms and provisions of the common, collective, pooled
trust fund or money market fund which contemplate the
commingling for investment purposes of such trust assets
with trust assets of other trusts. The Trustee may
transfer any part of the Trust Fund intended for
temporary investment of cash balances to a money market
fund maintained by Smith Barney Corporate Trust
Company or its affiliates. The Trustee may, from time
to time, withdraw from such common, collective, pooled
trust fund or money market fund all or such part of the
Trust Fund as the Trustee may deem advisable.
(d) With respect to any Employer stock which is allocated to a
Participant's Directed Investment Account, the Participant
or Beneficiary shall direct the Trustee with regard to any
voting, tender and similar rights associated with the
ownership of Employer stock, (i.e., the "Stock Right(s)")
as follows:
(1) Each Participant or Beneficiary shall direct the
Trustee to vote or otherwise exercise such Stock
Rights in accordance with the provisions,
conditions and terms of any such Stock Right(s).
(2) Such directions shall be provided to the Trustee by
the Participant or Beneficiary in accordance with
the procedure as established by the Administrator.
The Trustee shall vote or otherwise exercise such
Stock Right(s) with respect to which it has
received directions to do so under this Section.
(3) To the extent to which a Participant or Beneficiary
does not instruct the Trustee or does not issue
valid directions to the Trustee to vote or
otherwise exercise such Stock Right(s), such
Participants or Beneficiaries shall be deemed to
have directed the Trustee that such Stock Rights
remain nonvoted and unexercised.
5.3. OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under
common law, statutory authority, including the Act, and other provisions of the
Plan, shall have the following powers and authorities, to be exercised in the
Trustee's sole discretion:
(a) To purchase, or subscribe for, any securities or
other property and to retain the same. In
conjunction with the purchase of securities, margin
accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to
purchase, or otherwise dispose of any securities or other
property held by the Trustee, by private
5
contract or at
public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money
or to inquire into the validity, expediency, or propriety
of any such sale or other disposition, with or without
advertisement;
(c) To vote upon any stocks, bonds, or other securities; to
give general or special proxies or powers of attorney with
or without power of substitution; to exercise any
conversion privileges, subscription rights or other
options, and to make any payments incidental thereto;
to oppose, or to consent to, or otherwise participate
in, corporate reorganizations or other changes
affecting corporate securities, and to delegate
discretionary powers, and to pay any assessments or
charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to
stocks, bonds, securities, or other property. However,
the Trustee shall not vote proxies relating to securities
for which it has not been assigned full investment
management responsibilities. In those cases where
another party has such investment authority or
discretion, the Trustee will deliver all proxies to
said party who will then have full responsibility for
voting those proxies;
(d) To cause any securities or other property to be registered
in the Trustee's own name or in the name of one or more of
the Trustee's nominees, and to hold any investments in
bearer form, but the books and records of the Trustee
shall at all times show that all such investments are part
of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in
such amount, and upon such terms and conditions, as the
Trustee shall deem advisable; and for any sum so borrowed,
to issue a promissory note as Trustee, and to secure the
repayment thereof by pledging all, or any part, of the
Trust Fund; and no person lending money to the Trustee
shall be bound to see to the application of the money lent
or to inquire into the validity, expediency, or propriety
of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash
balances as the Trustee may, from time to time, deem to be
in the best interests of the Plan, without liability for
interest thereon;
(g) To accept and retain for such time as the Trustee may deem
advisable any securities or other property received or
acquired as Trustee hereunder, whether or not such
securities or other property would normally be purchased
as investments hereunder;
(h) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry
out the powers herein granted;
6
(i) To settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from the
Plan, to commence or defend suits or legal or
administrative proceedings, and to represent the Plan in
all suits and legal and administrative proceedings;
(j) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation, and such agent or
counsel may or may not be agent or counsel for the
Employer;
(k) To apply for and procure from responsible insurance
companies, to be selected by the Administrator, as an
investment of the Trust Fund such annuity, or other
Contracts (on the life of any Participant) as the
Administrator shall deem proper; to exercise, at any time
or from time to time, whatever rights and privileges may
be granted under such annuity, or other Contracts; to
collect, receive, and settle for the proceeds of all such
annuity or other Contracts as and when entitled to do so
under the provisions thereof;
(l) To invest funds of the Trust in time deposits or savings
accounts bearing a reasonable rate of interest in the
Trustee's bank;
(m) To invest in Treasury Bills and other forms of United
States government obligations;
(n) To invest in shares of investment companies registered
under the Investment Company Act of 1940, including any
money market fund advised by or offered through Smith
Barney Corporate Trust Company;
(o) To sell, purchase and acquire put or call options if the
options are traded on and purchased through a national
securities exchange registered under the Securities
Exchange Act of 1934, as amended, or, if the options are
not traded on a national securities exchange, are
guaranteed by a member firm of the New York Stock
Exchange;
(p) To deposit monies in federally insured savings accounts
or certificates of deposit in banks or savings and loan
associations;
(q) To pool all or any of the Trust Fund, from time to time,
with assets belonging to any other qualified employee
pension benefit trust created by the Employer or an
affiliated company of the Employer, and to commingle such
assets and make joint or common investments and carry
joint accounts on behalf of this Plan and such other trust
or trusts, allocating undivided shares or interests in
such investments or accounts or any pooled assets of the
two or more trusts in accordance with their respective
interests;
7
(r) To appoint a nonfiduciary agent or agents to assist the
Trustee in carrying out any investment instructions of
Participants and of any Investment Manager or Fiduciary,
and to compensate such agent(s) from the assets of the
Plan, to the extent not paid by the Employer;
(s) To do all such acts and exercise all such rights and
privileges, although not specifically mentioned herein, as
the Trustee may deem necessary to carry out the purposes
of the Plan.
5.4. DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from
time to time, in accordance with the terms of the Plan, make payments out of the
Trust Fund. The Trustee shall not be responsible in any way for the application
of such payments.
5.5. TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon in writing by the Employer and the Trustee. An
individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from the Plan. In addition, the Trustee
shall be reimbursed for any reasonable expenses, including reasonable counsel
fees incurred by it as Trustee. Such compensation and expenses shall be paid
from the Trust Fund unless paid or advanced by the Employer. All taxes of any
kind and all kinds whatsoever that may be levied or assessed under existing or
future laws upon, or in respect of, the Trust Fund or the income thereof, shall
be paid from the Trust Fund.
5.6. ANNUAL REPORT OF THE TRUSTEE
Within a reasonable period of time after the later of the
Anniversary Date or receipt of the Employer contribution for each Plan Year, the
Trustee shall furnish to the Employer and Administrator a written statement of
account with respect to the Plan Year for which such contribution was made
setting forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund upon
sales or other disposition of the assets;
(c) the increase, or decrease, in the value of the Trust Fund;
(d) all payments and distributions made from the Trust Fund;
and
(e) such further information as the Trustee and/or
Administrator deems appropriate. The Employer,
forthwith upon its receipt of each such statement of
account, shall acknowledge receipt thereof in writing
and advise the Trustee and/or Administrator of its
approval or disapproval thereof. Failure by the
Employer to disapprove any such statement of
8
account within thirty (30) days after its receipt thereof
shall be deemed an approval thereof. The approval by the
Employer of any statement of account shall be binding as
to all matters embraced therein as between the
Employer and the Trustee to the same extent as if the
account of the Trustee had been settled by judgment or
decree in an action for a judicial settlement of its
account in a court of competent jurisdiction in which the
Trustee, the Employer and all persons having or
claiming an interest in the Plan were parties; provided,
however, that nothing herein contained shall deprive the
Trustee of its right to have its accounts judicially
settled if the Trustee so desires.
5.7. AUDIT
(a) If an audit of the Plan's records shall be required by the
Act and the regulations thereunder for any Plan Year,
the Administrator shall direct the Trustee to engage
on behalf of all Participants an independent qualified
public accountant for that purpose. Such accountant
shall, after an audit of the books and records of the
Plan in accordance with generally accepted auditing
standards, within a reasonable period after the close of
the Plan Year, furnish to the Administrator and the
Trustee a report of his audit setting forth his opinion
as to whether any statements, schedules or lists that
are required by Act Section 103 or the Secretary of
Labor to be filed with the Plan's annual report, are
presented fairly in conformity with generally accepted
accounting principles applied consistently. All
auditing and accounting fees shall be an expense of and
may, at the election of the Administrator, be paid from
the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply with Act Section 103 is maintained
by a bank, insurance company, or similar institution,
regulated and supervised and subject to periodic
examination by a state or federal agency, it shall
transmit and certify the accuracy of that information to
the Administrator as provided in Act Section 103(b) within
one hundred twenty (120) days after the end of the Plan
Year or by such other date as may be prescribed under
regulations of the Secretary of Labor.
5.8. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the
Employer, at least thirty (30) days before its effective
date, a written notice of his resignation.
(b) The Employer may remove the Trustee by mailing by
registered or certified mail, addressed to such Trustee at
his last known address, at least thirty (30) days before
its effective date, a written notice of his removal.
9
(c) Upon the death, resignation, incapacity, or removal of any
Trustee, a successor may be appointed by the Employer; and
such successor, upon accepting such appointment in writing
and delivering same to the Employer, shall, without
further act, become vested with all the estate, rights,
powers, discretions, and duties of his predecessor with
like respect as if he were originally named as a Trustee
herein. Until such a successor is appointed, the remaining
Trustee or Trustees shall have full authority to act under
the terms of the Plan.
(d) The Employer may designate one or more successors prior to
the death, resignation, incapacity, or removal of a
Trustee. In the event a successor is so designated by the
Employer and accepts such designation, the successor
shall, without further act, become vested with all the
estate, rights, powers, discretions, and duties of his
predecessor with the like effect as if he were originally
named as Trustee herein immediately upon the death,
resignation, incapacity, or removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such,
he shall furnish to the Employer and Administrator a
written statement of account with respect to the
portion of the Plan Year during which he served as
Trustee. This statement shall be either (i) included as
part of the annual statement of account for the Plan Year
required under Section 5.6 or (ii) set forth in a special
statement. Any such special statement of account should
be rendered to the Employer no later than the due date of
the annual statement of account for the Plan Year. The
procedures set forth in Section 5.6 for the approval
by the Employer of annual statements of account shall
apply to any special statement of account rendered
hereunder and approval by the Employer of any such special
statement in the manner provided in Section 5.6 shall
have the same effect upon the statement as the Employer's
approval of an annual statement of account. No successor
to the Trustee shall have any duty or responsibility to
investigate the acts or transactions of any predecessor
who has rendered all statements of account required by
Section 5.6 and this subparagraph.
5.9. TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan, the
Trustee at the direction of the Administrator shall transfer the Vested
interest, if any, of such Participant in his account to another trust forming
part of a pension, profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by said employer in writing as
meeting the requirements of Code Section 401(a), provided that the trust to
which such transfers are made permits the transfer to be made.
10
5.10. DIRECT ROLLOVER
(a) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in
the manner prescribed by the Administrator, to have any
portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(b) For purposes of this Section the following definitions
shall apply:
(1) An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the distributee, except that an
eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent
such distribution is required under Code Section
401(a)(9); the portion of any other distribution
that is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer
securities); and any other distribution that is
reasonably expected to total less than $200
during a year.
(2) An eligible retirement plan is an individual
retirement account described in Code Section
408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified
trust described in Code Section 401(a), that
accepts the distributee's eligible rollover
distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an
eligible retirement plan is an individual
retirement account or individual retirement
annuity.
(3) A distributee includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p),
are distributees with regard to the interest of the
spouse or former spouse.
(4) A direct rollover is a payment by the Plan
to the eligible retirement plan specified by
the distributee.
11
5.11. EMPLOYER SECURITIES AND REAL PROPERTY
The Trustee shall be empowered to acquire and hold "qualifying
Employer securities" and "qualifying Employer real property," as those terms are
defined in the Act, provided, however, that the Trustee shall not be permitted
to acquire any qualifying Employer securities or qualifying Employer real
property if, immediately after the acquisition of such securities or property,
the fair market value of all qualifying Employer securities and qualifying
Employer real property held by the Trustee hereunder should amount to more than
100% of the fair market value of all the assets in the Trust Fund.
ARTICLE VI
AMENDMENT, TERMINATION AND MERGERS
6.1. AMENDMENT
(a) The Employer shall have the right at any time to amend
this Agreement. However, any amendment which affects the
rights, duties or responsibilities of the Trustee and
Administrator, other than an amendment to remove the
Trustee or Administrator, may only be made with the
Trustee's and Administrator's written consent. Any such
amendment shall become effective as provided therein upon
its execution. The Trustee shall not be required to
execute any such amendment unless the amendment affects
the duties of the Trustee hereunder.
(b) No amendment to this Agreement shall be effective if it
authorizes or permits any part of the Trust Fund (other
than such part as is required to pay taxes and
administration expenses) to be used for or diverted to any
purpose other than for the exclusive benefit of the
Participants or their Beneficiaries or estates; or cause
any reduction in the amount credited to the account of any
Participant; or cause or permit any portion of the Trust
Fund to revert to or become property of the Employer.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), no amendment to this Agreement or transaction
having the effect of an amendment to this Agreement
(such as a merger, plan transfer or similar transaction)
shall be effective if it eliminates or reduces any
"Section 411(d)(6) protected benefit" or adds or
modifies conditions relating to "Section 411(d)(6)
protected benefits" the result of which is a further
restriction on such benefit unless such protected
benefits are preserved with respect to benefits accrued
as of the later of the execution date or effective
date of the amendment. "Section 411(d)(6) protected
benefits" are benefits described in Code Section
411(d)(6)(A), early retirement benefits and retirement-
type subsidies, and optional forms of benefit.
12
6.2. TERMINATION
This Agreement and the Trust created hereby will terminate as to
the Employer in the case of complete distribution of the Trust Fund held for the
benefit of the Participants pursuant to the Plan. Such distribution will be at
the time and manner determined by the Administrator pursuant to the requirements
of the Plan with written instructions to the Trustee. Except as permitted by
Regulations, the termination of the Plan shall not result in the reduction of
"Section 41l(d)(6) protected benefits" in accordance with Section 6.l(c).
6.3. MERGER OR CONSOLIDATION
This Trust may be merged or consolidated with, or its assets
and/or liabilities may be transferred to any other trust only if the benefits
which would be received by a Participant of the Employer Plan, in the event of a
termination of the Plan immediately after such transfer, merger or consolidation
are at least equal to the benefits the Participant would have received if the
Plan had terminated immediately before the transfer, merger or consolidation,
and such transfer, merger or consolidation does not otherwise result in the
elimination or reduction of any "Section 411(d)(6) protected benefits" in
accordance with Section 6.1(c).
ARTICLE VII
MISCELLANEOUS
7.1. QUALIFIED TRUST
The Trust is hereby designated as constituting a part of the Plan
which is intended to continue to qualify and to be tax exempt under Section
401(a) and Section 501(a), respectively, of the Code, and of the Act, as amended
from time to time. Until advised otherwise, the Trustee may conclusively presume
that this Trust is qualified under Section 501(a) of the Code as amended from
time to time, and that this Trust is exempt from federal income taxes.
7.2. CONSTRUCTION OF AGREEMENT
This Trust shall be construed and enforced according to the Act
and the laws of the State of West Virginia, other than its laws respecting
choice of law, to the extent not pre-empted by the Act.
7.3. GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
13
7.4. LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding
the Trust and/or Plan established hereunder to which the Trustee, the Employer
or the Administrator may be a party, and such claim, suit, or proceeding is
resolved in favor of the Trustee, the Employer or the Administrator, they shall
be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney's fees, and other expenses pertaining thereto incurred by them for
which they shall have become liable.
7.5. BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the Fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Act Section 412(a)(2)), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may, at the election
of the Administrator, be paid from the Trust Fund or by the Employer.
7.6. HEADINGS
The headings and subheadings of this Plan have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
7.7. IRREVOCABILITY OF TRUST
All contributions made by the Employer shall be irrevocable, and
no part of the corpus of the Trust Fund nor any income therefrom shall revert to
the Employer or be used for or diverted to purposes other than for the exclusive
benefit of the Participants and their Beneficiaries, except as provided by law,
as provided in the Plan.
14
IN WITNESS WHEREOF, this Trust has been executed the day and year
first above written.
Signed, sealed and delivered in the presence of:
CSX Hotels, Inc. dba The Greenbrier
By /s/Ted J. Kleisner
---------------------------
EMPLOYER
/s/Deirdre D .Ford
- ------------------------
WITNESSES AS TO EMPLOYER
The Grand Teton Lodge Company
By /s/Ted J. Kleisner
---------------------------
EMPLOYER
/s/Deirdre D. Ford
- ------------------------
WITNESSES AS TO EMPLOYER
ATTEST /s/Larry C.Mazey
---------------------------
Smith Barney Corporate Trust Company
By /s/David Doyle
---------------------------
TRUSTEE
15