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EXHIBIT 99.32
THE DETROIT EDISON COMPANY
IRREVOCABLE GRANTOR TRUST
EFFECTIVE JULY 17, 1995
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THE DETROIT EDISON COMPANY
IRREVOCABLE GRANTOR TRUST
TABLE OF CONTENTS
I. DEFINITIONS.............................................. 2
1.1 Beneficiary ................................................... 2
1.2 Board of Directors............................................. 2
1.3 Change of Control.............................................. 2
1.4 Company ....................................................... 4
1.5 Effective Date................................................. 4
1.6 Reserved ...................................................... 4
1.7 Excess Assets ................................................. 4
1.8 Funding Amount................................................. 4
1.9 General Creditors.............................................. 4
1.10 Reserved ...................................................... 4
1.11 Insolvent ..................................................... 4
1.12 Investment Manager............................................. 4
1.13 IRC............................................................ 4
1.14 Participant ................................................... 5
1.15 Reserved ...................................................... 5
1.16 Plan Administrator............................................. 5
1.17 Potential Change of Control.................................... 5
1.18 Potential Change of Control Period............................. 6
1.19 Reserved ...................................................... 6
1.20 Trust.......................................................... 6
1.21 Trust Fund .................................................... 6
1.22 Trustee........................................................ 7
1.23 Valuation Date................................................. 7
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II. ESTABLISHMENT OF THE TRUST............................... 7
2.1 Trust.......................................................... 7
2.2 Description of Trust........................................... 7
2.3 Irrevocability................................................. 9
2.4 Acceptance by the Trustee...................................... 9
III. CONTRIBUTIONS............................................ 9
3.1 Calculations of Funding Amount................................. 9
3.2 Contributions as of Each Valuation Date........................ 9
3.3 Reserved....................................................... 9
3.4 No Dilution of Trust........................................... 10
3.5 Collection..................................................... 10
IV. ACCOUNTING AND ADMINISTRATION............................ 11
4.1 Trustee Recordkeeping.......................................... 11
4.2 Company Recordkeeping.......................................... 11
4.3 Periodic Accounting............................................ 11
4.4 Administrative Powers of Trustee............................... 12
V. INVESTMENTS.............................................. 15
5.1 Generally...................................................... 15
5.2 Investment Powers of Trustee................................... 15
5.3 Investment Managers............................................ 19
5.4 Reserved....................................................... 20
5.5 Single Fund.................................................... 20
VI. PAYMENTS FROM THE TRUST.................................. 20
6.1 Obligation of Trustee to Make Payments
to Participants................................................ 20
6.2 Obligation of the Company to Make Payments to Participants..... 20
6.3 Distributions to Participants.................................. 21
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6.4 Reserved....................................................... 21
6.5 Insufficient Trust Fund Assets................................. 21
6.6 Payment of Excess Assets to Company............................ 21
6.7 Company to Pay Withholding and Employment Taxes................ 22
6.8 Payment in Reversion to Company................................ 22
6.9 Reserved....................................................... 23
VII. PAYMENTS ON INSOLVENCY OF THE COMPANY.................... 23
7.1 No Security Interest......................................... 23
7.2 Determination of Insolvency.................................. 23
7.3 Payments When Company Is Insolvent........................... 24
7.4 Resumption of Duties after Insolvency........................ 25
7.5 Reserved..................................................... 25
VIII. RESIGNATION OR REMOVAL OF TRUSTEE........................ 25
8.1 Resignation or Removal of Trustee............................ 25
8.2 Successor Trustee............................................ 25
8.3 Duties of Retiring and Successor Trustees.................... 26
8.4 Reserved..................................................... 26
IX. AMENDMENT AND TERMINATION OF TRUST....................... 27
9.1 Amendment.................................................... 27
9.2 Termination.................................................. 28
9.3 Reserved..................................................... 28
X. GENERAL PROVISIONS....................................... 28
10.1 Coordination with Plan....................................... 28
10.2 Litigation................................................... 28
10.3 Trustee's Action Conclusive.................................. 28
10.4 No Guarantee or Responsibility............................... 29
10.5 Liabilities Mutually Exclusive............................... 29
10.6 Indemnification.............................................. 29
10.7 Expenses and Compensation.................................... 29
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10.8 Reserved..................................................... 30
10.9 Notice....................................................... 30
10.10 Antiassignment Clause........................................ 30
10.11 True and Correct Document.................................... 30
10.12 Waiver of Notice............................................. 30
10.13 Counterparts................................................. 30
10.14 Gender and Number............................................ 31
10.15 Successors................................................... 31
10.16 Severability................................................. 31
10.17 Applicable Law............................................... 31
EXHIBIT A The Detroit Edison Company
IRREVOCABLE GRANTOR TRUST
FOR THE MANAGEMENT SUPPLEMENTAL BENEFIT PLAN
EXHIBIT B The Detroit Edison Company
IRREVOCABLE GRANTOR TRUST
PARTICIPANTS (as defined in the Trust)
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THE DETROIT EDISON COMPANY
IRREVOCABLE GRANTOR TRUST
THIS TRUST AGREEMENT is made this 17th day of July, 1995 by and between
The Detroit Edison Company, a Michigan corporation, and The Northern Trust
Company, an Illinois corporation, of Chicago, Illinois ("Trustee"), and any
successor provided for in the Trust hereby evidenced, as Trustee.
WITNESSETH THAT:
WHEREAS, the Company has established and maintains the Management
Supplemental Benefit Plan ("Plan"), an unfunded benefit plan, a copy of which is
attached hereto as Exhibit A, for the benefit of certain Company Executives
listed on Exhibit B hereto, which Exhibits may be amended from time to time by
the Company prior to a potential Change of Control and/or Change of Control, and
without the Trustee's consent; and
WHEREAS, the Company has incurred and expects to continue to incur
liabilities pursuant to the terms of the Plan, and wishes to establish an
irrevocable trust by placing assets in trust, subject to the claims of the
Company's creditors in the event the Company becomes Insolvent, to pay benefits
under the Plan or to be applied as otherwise provided for herein; and
WHEREAS, it is the intention of the Company that amounts transferred to
the Trust and the earnings thereon shall be used by the Trustee, subject to the
claims of the Company's creditors in the event the Company becomes Insolvent, to
satisfy the liabilities of the Company in accordance with the provisions hereof;
and, upon satisfaction of all liabilities of the Company with respect to all
Participants (and their Beneficiaries, if applicable), the assets, if any,
remaining in the Trust shall revert to the Company; and
WHEREAS, the Company intends that the existence of the Trust shall not
alter the characteristics of the Plan as an unfunded plan maintained primarily
for the purpose of providing deferred compensation for a select group of
management and/or highly-compensated employes, and shall not be construed to
provide income
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for federal income tax purposes to a Participant (or his or her Beneficiary)
prior to the actual payment of benefits under the Plans; and
WHEREAS, the Trustee has agreed to serve as trustee of such trust;
NOW, THEREFORE, in consideration of the mutual undertakings of the Company and
the Trustee, the parties do hereby establish the Trust, and agree that the Trust
shall be comprised, held, and disposed of as follows:
I. DEFINITIONS Unless the context requires otherwise, definitions as used
herein shall have the same meaning as in the Plan when applied to said Plan.
1.1 "Beneficiary" means the beneficiary designated as provided in the Plan
as set forth in Exhibit A.
1.2 "Board of Directors" means the Company's Board of Directors, as
constituted from time to time.
1.3 "Change of Control" means the occurrence of any of the following events:
(a) a change of control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A under the Securities
Act of 1934, as amended (the "Exchange Act"), or any successor provisions,
whether or not the Company is then subject to such reporting requirement; or
(b) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Company or an employe benefit plan maintained
by the Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of the
Company's then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote at elections
of the Board of Directors (the "Base Capital Stock"); provided, however,
that any change in the relative beneficial ownership of securities of any
person resulting solely from a reduction in the aggregate number of
outstanding shares of Base Capital Stock, and any decrease thereafter in
such person's
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ownership of securities, shall be disregarded until such person increases in
any manner, directly or indirectly, such person's beneficial ownership of
any securities of the Company; or
(c) a change in the composition of the Company's Board of Directors, as a
result of which fewer than two-thirds of the incumbent directors are
directors who either
(1) had been directors of the Company 24 months prior to such change,
or
(2) were elected, or nominated for election, to the Company's Board of
Directors with the affirmative votes of at least a majority of the
directors who had been directors of the Company 24 months prior to
such change and who were still in office at the time of the
election or nomination; or
(d) there shall be consummated
(1) any consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which
shares of the Company's common stock would be converted into cash,
securities, or other property, other than a merger of the Company
in which the holders of the Company's common stock immediately
prior to the merger have the same proportionate ownership of
common stock of the surviving corporation immediately after the
merger, or
(2) any sale, lease, exchange, or other transfer (in one transaction
or a series of related transactions) of all, or substantially all,
of the assets of the Company, or
(3) the stockholders of the Company approve a plan or proposal for the
liquidation or dissolution of the Company.
Notwithstanding the foregoing provisions of this Section 1.3 a "Change of
Control" shall not be deemed to have occurred by reason of the corporate
reorganization (the "Reorganization") of the Company implemented pursuant to the
resolution adopted
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by the Board of Directors of the Company on December 5, 1994 (as such resolution
may be amended or supplemented from time to time), whereby it is proposed that a
corporation will become the parent holding company of the Company.
The Company shall promptly notify the Trustee of a Change of Control and the
Trustee may conclusively rely upon such notice and shall have no duty to
independently determine whether a Change of Control has occurred.
1.4 "Company" means The Detroit Edison Company, a Michigan corporation, its
successors and assigns.
1.5 "Effective Date" means July 17, 1995.
1.6 Reserved.
1.7 "Excess Assets" means assets of the Trust in excess of one hundred and
twenty-five per cent (125%) of the Funding Amount.
1.8 "Funding Amount" means the actual benefit obligation on the books of the
Company as of the most recent Valuation Date, certified by the Company to the
Trustee. Upon any Potential Change of Control and during any Potential Change of
Control Period, "Funding Amount" means one hundred and twenty per cent (120%) of
the actual benefit obligation on the books of the Company as of the most recent
Valuation Date, as certified by the Company to the Trustee.
1.9 "General Creditors" means the unsecured general creditors of the
Company, including the Participants.
1.10 Reserved.
1.11 "Insolvent" and "Insolvency" mean that the Company
(a) is unable to pay its debts as they become due; or
(b) is subject to a pending proceeding as a debtor under the
Bankruptcy Code.
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1.12 "Investment Manager" means the investment manager(s) appointed by the
Company in the manner provided in Section 5.3 to direct the investment of any
part or all of the assets of the Trust Fund in accordance with Article V.
1.13 "IRC" means the Internal Revenue Code of 1986, as amended.
1.14 "Participant" means a Participant in the Plan and includes an
individual who is otherwise eligible to participate in the Plan but cannot due
to age, years of service or active employment. The Company agrees to list all
Participants on Exhibit B attached hereto. Except after a Change of Control as
provided in Section 3.4, the Company may add or delete Participants by
delivering a new Exhibit B to the Trustee.
1.15 Reserved.
1.16 "Plan Administrator" means the party designated under the Plan as
responsible for the management, operation, and administration of the Plan.
1.17 "Potential Change of Control" means the date of the earliest occurrence
of any of the following events:
(a) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change of Control of the Company; or
(b) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Company or an employee benefit plan
maintained by the Company, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company representing 9.5% or more of the combined voting power of the
Company's then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote at elections
of the Board of Directors (the "Base Capital Stock"); provided, however,
that any change in the relative beneficial ownership of securities of any
person resulting solely from a reduction in the aggregate number of
outstanding shares of Base Capital Stock, and any decrease thereafter in
such person's ownership of securities, shall be disregarded until such
person increases in
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any manner, directly or indirectly, such person's beneficial ownership of
any securities of the Company; or
(c) the public announcement by any individual or entity, other than the
Company, that such individual or entity intends to take or to consider
taking actions which, if consummated, would constitute a Change of Control
of the Company; or
(d) the public announcement of any merger, acquisition, consolidation,
or reorganization of the Company in which the Company is not the continuing
or surviving corporation, or pursuant to which shares of the Company's
common stock would be converted into cash, securities, or other property,
other than a transaction in which the holders of the Company's common stock
immediately prior to the merger, acquisition, consolidation, or
reorganization have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, acquisition,
consolidation, or reorganization, including, but not limited to, the
creation of a parent entity to oversee the Company; or
(e) the public announcement of the sale or other transfer of
substantially all of the assets of the Company to any third party; or
(f) the Board of Directors of the Company adopts a resolution to the
effect that a Potential Change of Control of the Company has occurred for
purposes of this Trust.
Notwithstanding the foregoing provisions of this Section 1.17, a "Potential
Change of Control" shall not be deemed to have occurred by reason of the
Reorganization (as defined in Section 1.3).
1.18 "Potential Change of Control Period" means the one (1) year period
immediately following the date of a Potential Change of Control. If a subsequent
Potential Change of Control occurs during any Potential Change of Control
Period, the Potential Change of Control Period shall end one (1) year following
the date of the most recent Potential Change of Control.
The Company shall promptly notify the Trustee of a Potential Change of
Control and the Trustee may conclusively rely upon such notice and shall have
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no duty to independently determine whether a Potential Change of Control has
occurred.
1.19 Reserved.
1.20 "Trust" means the irrevocable trust established pursuant to this Trust
Agreement and all of the terms and conditions of this Trust Agreement, which is
intended to constitute a grantor trust under IRC ss. ss. 671 et seq.
1.21 "Trust Fund" means all moneys, securities, and other property held by
the Trustee, any custodian, or any insurance company under this Trust.
1.22 "Trustee" shall mean the trustee named herein, and any successor
trustee appointed pursuant to Article VIII.
1.23 "Valuation Date" means the day in each calendar year which is the last
day of the Company's fiscal year in each year, and such other times as the
Company may determine. Each of (a) any date of a Potential Change of Control,
(b) the date of a Change of Control, (c) the effective date of a Trustee's
resignation or removal, and (d) the date of termination of the Trust shall also
be a Valuation Date if any such date occurs other than on the last business day
of the Company's fiscal Year. The first Valuation Date shall be December 31,
1994.
II. ESTABLISHMENT OF THE TRUST
2.1 Trust. The Company hereby establishes the Trust with the Trustee, which
Trust shall consist of such sums of money and other property acceptable to the
Trustee as from time to time have been and shall be paid or delivered by the
Company to the Trustee as provided herein. All such money and other property,
all investments and reinvestments made therewith, or the proceeds thereof, and
all investment earnings and profits thereon, less all payments and charges as
authorized herein, shall constitute the Trust Fund. The Trust Fund shall be held
in trust by the Trustee, and shall be dealt with in accordance with the
provisions of this Trust.
2.2 Description of Trust. The Company represents and agrees that:
(a) the Trust is intended to be a grantor trust under IRC ss. ss.
671-678, and shall be construed accordingly. The Company intends and agrees
that it is
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the "owner" or grantor of the Trust in its entirety, as that term is defined
in subpart E, part I, subchapter J, chapter 1, subtitle A of the IRC and
that, for income tax purposes, all income, deductions, and credits of the
Trust Fund belong to it as owner, and will be included on its income tax or
other required tax returns, and any income tax determined to be payable as a
result thereof will be the sole obligation of, and will be paid by, the
Company;
(b) a true and correct copy of the Plan, as in effect on the Effective
Date hereof, is attached hereto as Exhibit A. The Company shall file with
the Trustee, promptly upon its adoption, a true and correct copy of each
amendment to the Plan;
(c) the Trust Fund is to be used to satisfy the legal obligations of
the Company to Participants under the Plan as provided herein, subject to
the claims of General Creditors in the event of Insolvency, and the balance
of the Trust Fund, if any, remaining after payment of the Company's
obligation to Participants under the Plan will revert to the Company in
accordance with the Trust;
(d) contributions by the Company to the Trust which are made coincident
with and subsequent to the Effective Date shall be in amounts determined
under Article III hereof. The Company agrees to fund the Trust as provided
therein;
(e) the principal of the Trust, and any earnings thereon shall be held
by the Trustee separate and apart from other funds of Company, and shall be
used exclusively for the uses and purposes as herein set forth;
(f) the Trust established under this agreement does not fund and is not
intended to fund the Plan, or any other employe benefit plan or program of
the Company. Neither the establishment of the Trust, nor the payment or
delivery of assets to the Trustee shall vest any Participant in any right,
title, or interest in or to any assets of the Trust Fund;
(g) participants shall have no preferred claim on, or any beneficial
ownership interest in, assets of the Trust. To the extent that any
Participant acquires the right to receive payment(s) under the Plan, any
such right shall be mere unsecured contractual rights of Participants
against the Company,
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and such Participants (or their Beneficiary(ies)) shall have only the
unsecured promise of the Company that such payment(s) will be made. Any
assets held by the Trust will be subject to the claims of General Creditors
under federal and state law in the event of Insolvency, as defined herein,
with no preference whatsoever given to claims of employes over claims of
other unsecured creditors of the Company; and
(h) to the extent the Plan is covered by ERISA, the Plan is a plan for
a select group of management or highly compensated employes, and as such are
exempt from the application of ERISA except for the disclosure requirements
applicable to such plan, for which the Company bears full responsibility as
to compliance. The Company further represents that the Plan is not qualified
under IRC ss. 401 and therefore, is not subject to any IRC requirements
applicable to tax-qualified plans.
2.3 Irrevocability. Except as provided in Article 9 and this Section 2.3,
the Trust shall be irrevocable from the effective date, and the assets of the
Trust Fund shall be held in accordance with the provisions hereof for the
exclusive purpose of providing for the payment of the Company's obligations to
pay benefits to Participants under the Plan and to satisfy the claims of General
Creditors in the event of Insolvency, and defraying the expenses of the Trust.
Except as provided in Section 6.6 and Section 6.8 and in the event of
Insolvency, no part of the income or corpus of the Trust Fund shall be
recoverable by or for the benefit of the Company.
2.4 Acceptance by the Trustee. The Trustee accepts the Trust established
under this Trust Agreement on the terms and subject to the provisions set forth
herein, and agrees to discharge and perform fully and faithfully all of the
duties and obligations imposed upon it under this Trust.
III. CONTRIBUTIONS
3.1 Calculations of Funding Amount. By September 30, 1995, the Company shall
contribute to the Trust the Funding Amount as determined on the first Valuation
Date. As of each Valuation Date, and until the entire Trust Fund has been
distributed, the Company (or, after a Change of Control, the Company's
independent public accountants) shall recalculate the Funding Amounts.
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3.2 Contributions as of Each Valuation Date. During the life of the Trust
but no later than September 30 of each year, commencing no later than September
30, 1996, the Company shall contribute to the Trust such amount as is necessary
to make trust assets equal the Funding Amount as of the previous Valuation Date.
The Plan Administrator or its delegate (or, after a Change of Control, the
Company's independent public accountants) shall provide the Trustee with written
notice of the amount of the necessary contribution on or before the date such
contribution is due to the Trust. Any such payments to the Trustee do not
discharge or release the Company of its obligation under the Plan or Section 6.2
to pay benefits to Participants under the Plan, and shall at all times be
subject to the provisions of Article VII.
3.3 Reserved.
3.4 No Dilution of Trust. After a Change of Control, the Exhibit B in effect
on the date of a Change of Control shall not be amended to include a Participant
not named in the Exhibit B in effect on the date of a Change of Control, unless
pursuant to the requirements of this Section 3.4, at the time of delivery to the
Trustee of a proposed amended Exhibit B (the "Delivery Date"), the Company shall
deliver to the Trustee a determination by the Company's independent public
accountants as of the Delivery Date of the proposed amended Exhibit B of the
Funding Amount calculated based on the Participants named in the Exhibit B in
effect on the Date of the Change of Control and any new or additional
Participants named in the proposed amended Exhibit B (the "New Funding Amount")
and (b), assets in an amount necessary to make the trust assets equal the New
Funding Amount. If the Trustee determines that assets of the Trust Fund,
including such assets as are delivered by the Company on the Delivery Date,
equal or exceed the New Funding Amount, the Trustee shall accept the amended
Exhibit B. Any amended Exhibit B so accepted shall be deemed incorporated with
the same effect as if otherwise included herein. Unless an Exhibit B amended
after a Change of Control is accepted by the Trustee as provided in this
Section, the Trustee shall have no liability, responsibility, or obligation with
respect to a Participant named in any amended Exhibit B unless such Participant
is named in the Exhibit B then in effect on the date of a Change of Control.
3.5 Collection. In the event the Company fails to pay over to the Trustee
within one hundred and twenty (120) days of notice and demand from the Trustee
(or, upon the occurrence of a Potential Change of Control or a Change of
Control,
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within seven (7) days of notice and demand from the Trustee), any amount
determined to be payable by the Company to the Trustee under Sections 3.2, 6.5
or 7.4(a) of the Trust, the Trustee may commence legal action, (which is
expressly deemed to include without limitation an alternate dispute resolution
proceeding), to compel the Company to pay to the Trustee any amount determined
to be payable to it under the Trust. The Trustee may bring such action against
the Company in any court of competent jurisdiction, and shall be entitled to
recover for the benefit of the Trust from the Company such amount, plus interest
for each day at the rate of interest per annum of five (5) percentage points in
excess of the prime lending rate as announced by NBD Bank, from the due date
specified in the Trustee's notice and demand (or the date(s) from which pro rata
payments were made, if such action is brought by the Trustee pursuant to Section
6.5 hereof) to the date of payment, plus all costs of collection, including
reasonable attorneys fees and costs of litigation. The Trustee is authorized to
bring action to compel payment by the Company, and, in connection with
reasonable claims for delinquent contributions by the Company, to retain, at the
expense of the Company, counsel and other appropriate experts, including
actuaries and accountants, to aid it in pursuing litigation for collection
against the Company. The Trustee's anticipated reasonable costs and expenses
incurred pursuant to this Section 3.5 are payable by the Company in advance; and
should the Company not make timely payment, the Trustee may charge the Trust
Fund for such reasonably anticipated costs and expenses. The Trustee shall in no
event be required to advance or expend its own funds in order to comply with the
provisions of this Section 3.5.
IV. ACCOUNTING AND ADMINISTRATION
4.1 Trustee Recordkeeping. The Trustee shall keep or cause to be kept
accurate and detailed records of any investments, receipts, disbursements, and
all other transactions required to be made by the Trustee hereunder, in
accordance with such rules as may be established by the Company, including such
specific records as shall be agreed upon in writing between the Company and the
Trustee. All accounts, books, and records relating thereto shall be open to
inspection and audit at all reasonable times by any person designated by the
Company. All such accounts, books, and records shall be preserved (in original
form, or on microfilm, magnetic tape, or any other similar process) for such
period as the Company may determine, and the Trustee may only destroy such
accounts, books, and records after first notifying the Company in writing of its
intention to so, and transferring to the Company any of such accounts, books,
and records requested by the Company.
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4.2 Company Recordkeeping. The Company shall keep full, accurate, and
detailed books and records with respect to the Participants and benefits paid
and payable under the Plan, which records shall be made available to the Trustee
at its request.
4.3 Periodic Accounting. Within sixty (60) days following a Valuation Date,
the Trustee shall deliver to Company a written accounting, dated as of the
Valuation Date, of its administration of the Trust Fund during such year or
during the period from the most recent Valuation Date to the date of such
current Valuation Date, which accounting shall be in accordance with the
following provisions:
(a) Such accounting shall set forth all investments, receipts,
disbursements, and other transactions effected the by Trust Fund during the
preceding year, or during the period from the most recent Valuation Date to
the date of such current Valuation Date, including a description of all
securities and investments purchased and sold, with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities or other property held in the
Trust Fund, less liabilities known to the Trustee (other than liabilities to
Participants entitled to benefits under the Plans) at the end of such year
or other period, as the case may be. In making a valuation, all cash,
securities or other property held in the Trust Fund shall be valued at their
then fair market value, and shall be in a format as may be established by
the Company. A copy of each accounting so delivered to the Company shall be
open to inspection at the office of the Trustee during normal business
hours.
(b) If within ninety (90) days after the filing of such written
accounting, the Company has not delivered to the Trustee notice of any
objection to any act or transaction of the Trustee, the initial accounting
shall become an account stated as between the Trustee and the Company. If
any objection has been delivered to the Trustee by the Company, and if the
Company is satisfied that it should be withdrawn, the Company shall signify
its approval of the accounting in writing filed with the Trustee, and the
accounting shall become an account stated as between the Trustee and the
Company. If the accounting is adjusted following an objection thereto, the
Trustee shall file and deliver the adjusted accounting to the Company. If
within fifteen (15) days after such filing of an adjusted accounting, the
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Company has not delivered to the Trustee notice of any objection to the
transactions as so adjusted, the adjusted accounting shall become an account
stated as between the Trustee and the Company.
(c) Unless an accounting is fraudulent, when it becomes an account
stated, it shall be finally settled, and the Trustee shall, to the extent
permitted by applicable law, be forever released and discharged from all
liability and accountability with respect to the propriety of its acts and
transactions shown in such accounting.
4.4 Administrative Powers of Trustee. Except to the extent that authority
with respect to the administration of the Trust has been allocated to
others in accordance with this Trust, and subject to Article V, the Trustee
shall have exclusive authority and discretion to manage and administer the
Trust. The Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims, provided, however, that Trustee shall incur no
liability to any person for any action taken pursuant to a direction, request or
approval given by Company which is contemplated by, and in conformity with, the
terms of the Trustee's responsibilities under this Trust, and is given in
writing by Company. The responsibility for maintenance of individual benefit
records shall be retained by the Company, and may be delegated to such person or
entity as the Company may employ from time to time. Except as otherwise provided
herein, the Trustee shall have, without exclusion, all powers conferred on
trustees by law and, without limiting the foregoing, shall have the following
administrative powers, rights, and duties in addition to those provided
elsewhere in this Trust:
(a) to manage, sell, insure, and otherwise deal with all assets held by
the Trustee on such terms and conditions as the Trustee shall decide;
provided however, that if the Company delivers written instructions to the
Trustee, the Trustee shall follow such instructions;
(b) when directed by the Company or requested by a Participant pursuant
to Article VI, to make payments from the Trust Fund to Participants and,
when required by Article VII, to make payments from the Trust Fund to
General Creditors entitled to payments thereunder;
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(c) except as provided in Article VI and Article VII, to waive, modify,
reduce, compromise, release, contest, submit to arbitration, or settle or
extend the time of payment of any claims, debts, damages, or demands of any
nature in favor of or against the Trustee or all or any part of the Trust
Fund;
(d) to retain any disputed property until an appropriate final
adjudication or release is obtained, and to represent the Trust in, or
commence or defend, any litigation the Trustee considers in its discretion
necessary in connection with the Trust Fund;
(e) to withhold, if the Company so directs, 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 in accordance
with Section 6.7;
(f) to maintain records reflecting all receipts and payments under this
Trust and such other records as the Company may specify and to which the
Trustee agrees, which records may be audited from time to time by the
Company or anyone named by the Company; and to furnish a written accounting
to the Company as of each Valuation Date, as provided in Section 4.3;
(g) if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy from
a different form) other than to a successor Trustee, or to loan to any
person the proceeds of any borrowing against such policy. Notwithstanding
the preceding sentence, the Trustee may loan to the Company the proceeds of
any borrowing against an insurance policy held as an asset of the Trust;
(h) to furnish the Company with such information for tax or other
purposes which the Company may reasonably request and which the Trustee may
not unreasonably withhold;
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(i) to employ accountants, advisors, agents, legal counsel (who, except
following a Change of Control, may be legal counsel to the Company and who
are not in the Company's reasonable judgment deemed to have a conflict of
interest), consultants, custodians, depositories, experts and other
providers of services, to consult with them with respect to the
implementation and construction of this Trust, the duties of the Trustee
hereunder, the transactions contemplated by this Trust, or any act which the
Trustee proposes to take or omit, and to rely upon the advice of and
services performed by such persons; 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;
(j) to determine whether the Company is Insolvent, and to hold assets
of the Trust Fund for the benefit of General Creditors in the event of
Insolvency, as provided in Article VII hereof;
(k) to make payments to Participants, including after a Change of
Control, as provided in Article VI hereof;
(l) to perform all other acts which in the Trustee's judgment are
appropriate for the proper protection, management, investment, and
distribution of the Trust Fund, and to carry out the purposes of the Trust.
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V. INVESTMENTS
5.1 Generally. With respect to assets for which the Trustee has investment
responsibility, the Trustee shall invest and reinvest the principal and income
of the Trust Fund and keep the Trust Fund invested, without distinction between
principal and income, in accordance with the written investment guidelines
established by the Company and provided to the Trustee by the Company. If no
such written investment guidelines are received by the Trustee, the assets of
the Trust Fund shall be invested in such investments as determined by the
Trustee in accordance with the powers contained herein.
5.2 Investment Powers of Trustee. Except to the extent that authority with
respect to the management of all or a portion of the Trust Fund has been
allocated to others in accordance with this Trust, the Trustee shall have
exclusive authority and discretion to manage and control the Trust Fund, subject
only to broad investment guidelines the Company may establish from time to time.
The authority to assume responsibility for investment of assets of the Trust
Fund has been retained by the Company, and the authority to hold assets of the
Trust Fund may be allocated to one or more custodians or insurance companies.
Except as otherwise provided herein, the Trustee shall have, without exclusion,
all powers conferred on trustees by applicable law and, without limiting the
foregoing, shall have the following powers, rights, and duties in addition to
those provided elsewhere in this Trust:
(a) to invest and reinvest in any property wherever situated, whether
real, personal, mixed, foreign or domestic, including common and preferred
stocks, bonds, notes, and debentures (including convertible stocks and
securities, but not including any stock, securities, or debt instruments of
the Company [unless held in a collective or commingled fund and such Company
securities comprise 5% or less of the assets of such fund]), leaseholds,
mortgages (including, without limitation, any collective or part interest in
any bond and mortgage or note and mortgage), certificates of deposit, life
insurance contracts, guaranteed investment contracts, and guaranteed annuity
contract, all regardless of diversification and without being limited to
investments authorized by law for the investment of trust funds;
(b) to invest and reinvest, without distinction between principal and
income, in contracts for future delivery of United States Treasury Bills,
other financial instruments, or indices based on any group of securities,
and in
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options to buy or sell indices based on any group of securities or any kind
of evidences of ownership or indebtedness, including financial instruments
or futures contracts relating thereto;
(c) to invest and reinvest part or all of the Trust Fund in any deposit
accounts, deposit administration fund maintained by a legal reserve life
insurance company in accordance with an agreement between the Trustee and
such insurance company, a group annuity contract or life insurance policies
issued by such insurance company to the Trustee as contract holder, any
interest bearing deposits held by any financial institution having total
capital and surplus of at least Fifty Million Dollars ($50,000,000),
investments in any stocks, bonds, debentures, mutual fund shares, notes,
commercial paper, treasury bills, and any mutual, common, commingled or
collective trust funds or pooled investment funds, and to diversify such
investments so as to minimize the risk of losses;
(d) to commingle assets of the Trust Fund, for investment purposes
only, with assets of any common, collective, or commingled trust fund which
has been or may hereafter be established and maintained by the Trustee, or
by any other financial institution; provided that to the extent that any
part or all of the assets of the Trust Fund for which the Trustee has
investment responsibility are invested in any such common, collective or
commingled trust fund or pooled investment fund which is maintained by a
bank or trust company (including a bank or trust company acting as Trustee),
the provisions of the documents under which such common, collective or
commingled trust fund or pooled investment fund are maintained shall govern
any investment therein and provided further that prior to investing any
portion of the Trust Fund for the first time in any such common, collective,
or commingled trust fund, the Trustee shall advise the Company of its intent
to make such an investment, and furnish to the Company any information it
may reasonably request with respect to such common, collective, or
commingled trust fund (other than a trust fund established by the Company),
and provided further that the Trustee shall maintain separate records with
respect to each other trust of the Trust Fund;
(e) to vote stock and other voting securities personally or by proxy
(and to delegate the Trustee's powers and discretion with respect to such
stock or other voting securities to such proxy), to exercise subscription,
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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 plan or change
affecting any property constituting a part of the Trust Fund (and in
connection therewith to delegate the Trustee's discretionary powers and 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 itself (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); to participate in any plan or
reorganization, consolidation, merger, combination, liquidation, or other
similar plan relating to any such property, and to consent to or oppose any
such plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale, or other action by any corporation or other entity any of
the securities of which may at any time be held in the Trust Fund, and to do
any act with reference thereto;
(f) 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 such depository must have total capital and surplus of
at least Fifty Million Dollars ($50,000,000);
(g) when directed by the Company, and subject to Section 4.4(g), to
apply for, pay premiums on, and maintain in force individual, ordinary or
universal life insurance policies on the lives of Participants, which
policies may contain provisions which the Company may approve or direct; to
receive or acquire such policy or policies from the Company, but the Trustee
may purchase a life insurance policy from a person other than the insurer
which issues a policy only if the Trustee pays, transfers, or otherwise
exchanges an amount no more than the cash surrender value of the policy or
policies, and the policy or policies is (are) not subject to a mortgage or
similar lien which the Trustee would be required to assume; to have with
respect to such policy or policies any rights, powers, options, privileges,
and benefits usually comprised in the term "incidents of ownership", and
normally vested in an
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owner of such policy or policies to be exercised only pursuant to Company
direction;
(h) to retain any property at any time received by it;
(i) to sell, to exchange, to convey, to transfer, or to dispose of, and
to grant options for the purchase or exchange with respect to it, any
property at any time held by it, by public or private sale, for cash or on
credit, or partly for cash and partly for credit;
(j) to deposit any such property with any protective, reorganization,
or similar committee; to delegate discretionary power to any such committee;
and to pay part of the expenses and compensation of any such committee and
any assessments levied with respect to any property so deposited;
(k) to exercise any conversion privilege or subscription right
available in connection with any such property, and to do any act with
reference thereto, including the exercise of options, the making of
agreements or subscription, and the payment of expenses, assessment or
subscription, which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property which it
may so acquire;
(l) to extend the time of payment of any obligation held in the Trust
Fund;
(m) to enter into standby agreements for future investment, either with
or without a standby fee;
(n) to acquire, renew, or extend, or participate in the renewal or
extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification or
change in the terms of any indebtedness or mortgage, or of any guarantee
pertaining thereto, in any manner and to any extent that may be deemed
advisable for the protection of the Trust Fund or the preservation of any
covenant or condition of any indebtedness or mortgage or in the performance
of any guarantee, or to enforce any default in such manner and to such
extent as may be deemed advisable; and to exercise and enforce any and all
rights of foreclosure, to bid on any property in foreclosure, to take a deed
in lieu of foreclosure with or
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without paying a consideration therefor, and in connection therewith to
release the obligation on the bond secured by such mortgage; and to exercise
and enforce in any action, suit or proceeding at law or in equity any rights
or remedies in respect of any such indebtedness or mortgage or guarantee;
(o) to make, execute, and deliver, as Trustee, any and all deeds,
leases, notes, bonds, guarantees, mortgage, conveyance, contracts, waivers,
releases, or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers;
(p) to organize under the laws of any state one or more corporations,
partnerships, or trusts for the purpose of acquiring and holding title to
any property that it is authorized to acquire under this Trust, and to
exercise with respect thereto any or all of the powers set forth in this
Trust;
(q) notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or 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 under the IRC; and
(r) generally to do all acts, whether or not expressly authorized, that
the Trustee deems necessary or desirable for the protection of the Trust
Fund, and to carry out the purposes of the Trust.
5.3 Investment Managers. The Company may appoint one or more Investment
Managers to direct the investment of any part or all of the assets of the Trust
Fund by the Trustee. Appointment of an Investment Manager shall be made by
written notice to the Investment Manager(s) and to the Trustee, which notice
shall specify those powers, rights, and duties of the Trustee under this Trust
that are allocated to the Investment Manager(s) and the portion of the assets of
the Trust Fund subject to the Investment Manager(s). After it receives written
notice of such appointment, the Trustee shall have no obligation or
responsibility for those investment duties which are allocated to an Investment
Manager. An Investment Manager so appointed pursuant to this paragraph shall be
either a registered investment adviser under the Investment Advisers Act of
1940, a bank, as defined in said Act, or an insurance company qualified to
manage, acquire and dispose of the
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assets of the Plans under the laws of more than one state of the United States.
Any such Investment Manager shall acknowledge to the Company in writing that is
accepts such appointment. The Trustee shall not be liable for any loss or
diminution of any assets managed by an Investment Manager, including without
limitation, any loss or diminution caused by any action or inaction taken or
omitted by it at the direction of an Investment Manager. In addition, the
Trustee shall not be liable for the diversification of any assets managed by
Investment Managers of the Company, each of which shall be solely the
responsibility of the Company. An Investment Manager may resign at any time upon
written notice to the Trustee and the Company. The Company may remove an
Investment Manager at any time by written notice to the Investment Manager and
the Trustee.
The Company may by written notice to the Trustee assume investment
responsibility for any portion or all of the Trust assets. The Trustee shall
have no responsibility for any investments or review of such investments and
shall act with respect to such assets only as directed by the Company.
5.4 Reserved.
5.5 Single Fund. All assets of the Trust Fund and of each investment fund,
and the income thereon, shall be held and invested as a single fund, and the
Trustee shall not make any separate investment of the Trust Fund, or make any
separate investment fund, for the account of any Participant or other General
Creditors prior to receipt of directions to make payments to such Participant or
other General Creditors in accordance with Article VI or Article VII. All rights
associated with assets of the Trust shall be exercised by Trustee or the person
designated by Trustee, and shall in no event be exercisable by or rest with
Participants.
VI. PAYMENTS FROM THE TRUST
6.1 Obligation of Trustee to Make Payments to Participants. The Trustee's
obligation to distribute to any Participant out of the assets of the Trust Fund
shall be limited to payment at such times and in such amounts as are properly in
conformance with the provisions of Section 6.3. Payments to Participants
pursuant to this Article VI shall be made by the Trustee to the extent that
funds in the Trust Fund are sufficient for such purpose, and shall at all times
be subject to the provisions of Article VII. In the event the Company determines
that it will pay benefits directly to Participants as they become due under the
terms of the Plan, the
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Company shall notify Trustee of its decision prior to the time amounts are
payable to Participants.
6.2 Obligation of the Company to Make Payments to Participants.
Notwithstanding anything in the Trust to the contrary, the Company shall remain
primarily liable to pay benefits under the Plan. Distributions to Participants
from the Trust Fund shall discharge, reduce, and offset the Company's obligation
to pay benefits to or on behalf of the Participant, to the extent of the
distributions, with respect to the Plan. If the Company's obligation to pay a
benefit under the Plan is not fully discharged, reduced, and offset by a
distribution from the Trust, then the Company shall make the balance of each
such benefit payment as it becomes due.
6.3 Distributions to Participants. Distributions which shall be made from
the Trust Fund to pay benefits in accordance with the Plan shall be initiated
by:
(a) written direction to the Trustee from the Plan Administrator, which
direction shall certify that such distribution(s) is(are) in accordance with
the Plan, and specify the timing, form, payee, and amount of such benefit
payments, including any federal, state, or local income taxes to be
withheld, and the Trustee shall make or commence the directed distributions
after receipt of such written direction; or
(b) by the submission to the Trustee by a Participant of a certified
copy of the non-appealable order of an appropriate forum with jurisdiction
to settle a claim for payment(s) under the Plan.
6.4 Reserved.
6.5 Insufficient Trust Fund Assets. If at any time the Trustee determines or
is advised that the Trust Fund does not have sufficient assets to permit the
Trustee to make a payment property directed pursuant to this Trust, including a
payment provided for under Section 10.7 of this Trust, the Trustee shall pay any
benefits due (if otherwise payable hereunder) to Participants on a pro rata
basis as directed by the Plan Administrator, and the Company shall make the
balance of such payments as they become due. If the Plan Administrator
determines that the Trust Fund does not have sufficient funds to provide for the
payment of all amounts otherwise payable to Participants (or their
Beneficiary(ies)) from the Trust under the Plans, it shall notify the Company
and the Trustee of the amount of the deficiency, and, within forty-five
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(45) days of such notice, the Company deposit in trust with the Trustee the
additional amounts needed to make such payments. Upon receipt of such amount by
the Trustee from the Company, proceeds shall first be used by the Trustee to pay
any benefits previously due remaining unpaid, in the order in which they were
due, pursuant to Plan Administrator instructions.
6.6 Payment of Excess Assets to Company. Subject to Article VII, and except
as otherwise provided in this Section and Section 6.8 hereof, the Company shall
have no right or power to direct the Trustee to return to the Company or to
divert to others any of the Trust Fund before payment of all benefits due or to
become due have been made to Participants (or their Beneficiary(ies)) pursuant
to the terms of the Plan. If, as of a Valuation Date, and based on the fair
market value of the Trust Fund as determined by the Trustee in accordance with
Section 4.3 hereof, the Trust Fund holds Excess Assets, then in the event the
Trustee has received within ninety (90) days after the most recent Valuation
Date a written request executed by the Company, the Trustee shall transfer to
the Company, within thirty (30) days after the receipt of the request, and
provided that a Potential Change of Control Period does not exist on the date of
the transfer, such assets of the Trust Fund selected by the Company which have a
fair market value equal to the amount of such Excess Assets, after converting
such assets to cash if requested by the Company. Any payment of Excess Assets to
the Company under this Section shall not discharge or release the Company of its
obligation to make any contribution required under Article III (including the
requirement of a Company contribution to the Trust upon the occurrence of a
Potential Change of Control or a Change of Control), and its obligation to pay
benefits to Participants under the Plan. Any payment of Excess Assets in
accordance with this Section shall be subject to the provisions of Article VII.
6.7 Company to Pay Withholding and Employment Taxes. Any amount paid to a
Participant by the Trustee in accordance with this Article VI shall be reduced
by the amount of taxes required to be withheld pursuant to Plan Administrator
instructions, and the Trustee shall inform the Company of all amounts so
withheld. The Company shall direct that the Trustee shall either
(a) pay to the Company a sum equal to the amount of such taxes as are
required to be withheld, whereupon the Company shall have full
responsibility for the payment of all withholding taxes to the appropriate
taxing authorities, or
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(b) pay such taxes directly to the appropriate taxing authorities for
the benefit of the Company.
The Company shall be solely responsible for the payment of any employment taxes
for which it is directly liable as a result of payments by the Trustee. The
Company shall furnish each Participant with the appropriate tax information form
evidencing payments under the Trust and the amount(s) thereof.
6.8 Payment in Reversion to Company. Subject to Article VII, upon receipt of
written certification from the Company that all obligations of the Company to
Participants with respect to the Plan have been satisfied, and if the Trust Fund
shall have any assets remaining, the Trustee shall distribute such remaining
assets of the Trust Fund to the Company, after converting such assets to cash if
requested by the Company, subject to the Trustee's right to retain such
reasonable amount for compensation and expenses as provided in Section 10.7. The
Trust shall thereafter terminate as provided in Section 9.2.
6.9 Reserved.
VII. PAYMENTS ON INSOLVENCY OF THE COMPANY
7.1 No Security Interest. No Participant shall have any claim on or
beneficial ownership interest in the Trust Fund before such assets are paid to
the Participant, except as an unsecured creditor of the Company. The Company
shall not create a security interest in the Trust Fund in favor of any
Participant or any other General Creditor. At all times during the continuance
of this Trust, as provided in this Article VII hereof, the principal and income
of the Trust Fund shall be subject to the claims of General Creditors under
federal and state law. If at any time the Trustee has received notice as
provided below that Company is Insolvent, Trustee shall discontinue payments to
Participants, and shall hold assets of the Trust Fund for the benefit of the
Company's General Creditors, pursuant to the provisions of Section 7.3, with no
preference whatsoever given claims of employes over claims of other unsecured
creditors of the Company.
7.2 Determination of Insolvency. Notwithstanding any other provisions of
this Trust, the following provisions shall apply:
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(a) The Board of Directors and the Chief Executive Officer of the
Company shall have the fiduciary duty and responsibility on behalf of
General Creditors to notify the Trustee promptly in writing in the event the
Company is Insolvent, and the Trustee shall have the right to rely thereon
to the exclusion of all directions or claims for payment made thereafter by
Participants.
(b) If the Trustee has actual knowledge that the Company is Insolvent,
the Trustee shall act in accordance with Section 7.3 hereof.
(c) Unless the Trustee receives written notice from the Board of
Directors or the Chief Executive Officer of the Company that the Company is
Insolvent, or from a person claiming to be a General Creditor and claiming
that the Company is Insolvent, the Trustee shall have no duty to inquire
whether the Company is Insolvent. If the Trustee receives a written
allegation from a person claiming to be a General Creditor that the Company
is Insolvent, the Trustee's only duty of inquiry shall be to request that
the Company's independent public accountants determine whether the Company
is Insolvent, and shall suspend benefit payments pending such determination.
If the Company's independent public accountants advise the Trustee that the
Company is not Insolvent, it shall resume payments in accordance with this
Trust. If the Trustee receives notice of the Company's Insolvency pursuant
to this Section 7.2(c), it shall act in accordance with [this Section and]
Section 7.3 hereof.
7.3 Payments When Company Is Insolvent. Notwithstanding any other provision
of this Trust to the contrary, if the Trustee has actual knowledge as described
in 7.2(b), has been advised pursuant to 7.2(c) or receives actual notice
described in Section 7.2(a) that the Company is Insolvent
(a) by reason of Section 1.11(b), the Trustee shall suspend payments to
Participants and shall notify Participants of the suspension, and shall hold
the Trust Fund for the benefit of the General Creditors, and shall pay and
deliver the entire amount of the Trust Fund only as a court competent
jurisdiction, or duly appointed receiver or other person authorized to act
by such court, may order or direct to make the Trust Fund available to
satisfy the claims of the General Creditors (payments to Participants in
accordance with the terms of the Plan may be resumed only pursuant to
Section 7.4 hereof); or
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(b) by reason of Section 1.11(a), the Trustee shall suspend payments to
Participants and shall notify Participants of the suspension, and shall (i)
hold the Trust Fund for the benefit of General Creditors or (ii) pay over
all or a portion of the Trust Fund to General Creditors if directed by the
Company or an appropriate judicial forum.
Nothing in this Trust Agreement shall in any way diminish any rights of
Participants to pursue their rights as unsecured creditors of Company with
respect to benefits under the Plan, or otherwise.
7.4 Resumption of Duties after Insolvency. In the absence of notice of a
Court order to the contrary, the Trustee shall resume all of its duties and
responsibilities under the Trust, including payments to Participants if
otherwise provided for herein, within thirty (30) days of the Trustee's receipt
of a determination from the Company's independent public accounting firm that
the Company is no longer Insolvent.
(a) Trust Recovery of Payments to Creditors. In the event that amounts
are paid from the Trust Fund to General Creditors of the Company, then as
soon as practicable after the Company is no longer Insolvent, the Company
shall deposit into the Trust Fund a sum to equal to the Funding Amount,
determined as of the date the Company is no longer Insolvent, which date
shall be a Valuation Date. The Company (or, after a Change of Control, the
Company's independent public accountants) shall provide the Trustee with
written certification of such Funding Amount. If the Funding Amount is not
paid by the Company within ninety (90) days of the Trustee's receipt of such
notice, the Trustee shall demand payment and the provisions of Section 3.5
shall apply.
(b) Determination of Payment Amount; Resumption of Payments. Provided
that there are sufficient assets of the Trust Fund, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 7.3 and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants under the terms of the Plan for the period of such
discontinuance, as determined by the Plan Administrator, less the aggregate
amount of any payments made to Participants by the Company in lieu of the
payments
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provided for hereunder during any such period of discontinuance. If the
Trustee suspends a payment to a Participant under this Section, and
subsequently makes such payment, the payment shall include interest at the
rate of interest per annum equal to the prime rate as published by NBD Bank
for each day from the date of suspension to the date of payment, as
calculated by the Plan Administrator.
7.5 Reserved.
VIII. RESIGNATION OR REMOVAL OF TRUSTEE
8.1 Resignation or Removal of Trustee. The Trustee may resign for any reason
or for no reason and at any time by giving thirty (30) days prior written notice
to the Company (or such shorter notice as may be agreed to by the Company and
the Trustee). Subject to Section 8.2(b) hereof, the Company may remove the
Trustee, for any reason and with or without cause, by giving thirty (30) days
prior written notice to the Trustee (or such shorter notice as may be agreed to
by the Company and the Trustee).
8.2 Successor Trustee. In the event of the resignation or removal of a
Trustee, a successor Trustee shall be appointed. Any successor Trustee appointed
pursuant to this Section must be a corporation which is not an affiliate of the
Company and which is authorized under the laws of the United States or of any
state to administer trusts and has at the time of its appointment total capital
and surplus of at least Fifty Million Dollars ($50,000,000). The Company shall
give notice of any such appointment to the retiring Trustee and the successor
Trustee. A successor Trustee shall be appointed in accordance with the following
provisions:
(a) At any time prior to a Change of Control, a successor Trustee shall
be appointed by the Company. If a Trustee should resign or be removed, and
the Company does not notify the Trustee of the appointment of a successor
Trustee within forty-five (45) days of its notice of its resignation or
removal, then the Company shall be deemed to have failed to have appointed a
successor Trustee, and the Trustee shall apply to a court of competent
jurisdiction for appointment of a successor Trustee.
(b) After the occurrence of a Change of Control, the Trustee who is the
Trustee on the date of the Change of Control may be removed by the
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Company for three (3) years from the date of the Change of Control. If a
Trustee resigns or is removed at any time after the date of a Change of
Control, the Trustee shall apply to a court of competent jurisdiction for
appointment of a successor Trustee.
Notwithstanding Section 8.1, no resignation by or removal of the Trustee shall
be effective prior to the effective date of the appointment of a successor
Trustee by the Company or a court of competent jurisdiction.
8.3 Duties of Retiring and Successor Trustees. In the event of the
resignation or removal of a Trustee, the retiring Trustee shall within thirty
(30) days after the effective date of resignation or removal furnish to the
successor Trustee and the Company a final accounting 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 retiring Trustee
shall deliver the property comprising the assets of the Trust Fund (less any
unpaid fees and expenses of the retiring trustee) to the successor Trustee,
together with any instruments of transfer, conveyance, assignment, and further
assurance as the successor Trustee may reasonably require. All of the provisions
of the Trust set forth herein with respect to the Trustee shall relate to each
successor Trustee with the same force and effect as if such successor Trustee
had been originally named as the Trustee hereunder. To the extent permitted by
law, neither the Trustee nor the successor Trustee shall be liable for any act
or failure to act, and shall not be required to examine the accounts, records,
or acts of the other.
8.4 Reserved.
IX. AMENDMENT AND TERMINATION OF TRUST
9.1 Amendment. Except as otherwise provided in Section 2.3 of this Trust,
the Trust may be amended (but may not be not revoked unless all of the Company's
obligations with respect to the Plan have been satisfied) in writing from time
to time by delivery to the Trustee of such amendment executed by the Company,
which amendment shall include the effective date of such amendment. Any
amendment of the Trust may be made:
(a) prior to a Change of Control, without limitation and in any manner
and effective as of any date, including a retroactive effective date, if
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accompanied by the written certification that no Change of Control has
occurred;
(b) after a Change of Control, only if a period of three (3) years has
elapsed since the Change of Control, and either:
(1) such amendment is accompanied by the specific written consent
to the amendment by Participants whose actuarial interests under the
Plan, computed by the Company's independent public accountants as of
the effective date of such amendment, represent at least 51% of the
total of all actuarial interests under the Plan; or
(2) such amendment is accompanied by the opinion of legal counsel
satisfactory to the Trustee that the amendment is necessary for the
purpose of conforming the Trust to any present or future federal or
state law (including revenue laws) relating to trusts of this or
similar nature, as such laws may be amended from time to time, and a
certification that a copy of such notice and opinion of counsel has
been delivered to each Participant.
No amendment shall conflict with the terms of the Plan subject to amendment, and
no amendment may reduce the "Funding Amount" or the contribution requirements of
Article III to less than 50% of the actual benefit obligation on the books of
the Company; provided such amendment shall be effective prior to a Potential
Change of Control or a Change of Control. No amendment shall operate to change
the duties and liabilities of the Trustee without its consent, or make the Trust
revocable after it has become irrevocable in accordance with Section 2.3 hereof
unless the Company has satisfied all obligations it may have with respect to the
Plan as of the date of such amendment. The Company and the Trustee shall execute
such amendments of the Trust as shall be necessary to give effect to any
amendment made in accordance with this Section.
9.2 Termination. After all assets of the Trust Fund have been distributed by
the Trustee to the Participants or their Beneficiaries in accordance with
Article VI, the Trustee shall render an accounting, which shall be the final
accounting, in the manner provided for in Section 4.3. Upon acceptance of the
accounting by the Company, any assets remaining in the Trust Fund, after
deduction of such reasonable amount for compensation and expenses as provided
for in Section 10.7,
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shall be returned to the Company in the manner provided in Section 6.8, and the
Trust shall terminate thereupon. The Trust and all the rights, titles, powers,
duties, discretions and immunities imposed on or reserved to the Trustee and the
Company, shall continue in effect until all assets of the Trust Fund have been
distributed as provided herein.
9.3 Reserved.
X. GENERAL PROVISIONS
10.1 Coordination with Plan. The responsibilities of the Trustee shall be
governed solely by the terms of this Trust Agreement.
10.2 Litigation. In any action or proceeding regarding the Trust, the
Company, any assets of the Trust Fund, or the administration of the Trust, any
creditors who are not parties to such action or proceedings and any other
persons having or claiming to have a beneficial interest in the Trust shall not
be necessary parties and shall not be entitled to any notice of process. Any
final judgment which is not appealed or appealable and which may be entered in
any such action or proceeding shall be binding and conclusive on the parties
hereto and all persons having or claiming to have a beneficial interest in the
Trust. Acceptance by a creditor of assets of the Trust Fund shall constitute a
release of an equal amount of any obligations of the Company to such creditor.
10.3 Trustee's Action Conclusive. The Trustee's exercise or non-exercise of
its powers and discretion in good faith shall be conclusive on all persons. No
one other than the Company shall be obliged to see to the application of any
money paid or property delivered to the Trustee. The certificate of the Trustee
that it is acting according to this Trust will fully protect all persons dealing
with the Trustee.
10.4 No Guarantee or Responsibility. Notwithstanding any other provision of
this Trust to the contrary, the Trustee does not guarantee payment of any amount
which may become due and payable to a Participant. The Trustee shall have no
responsibility for the disclosure to Participants regarding the terms of the
Plan or of this Trust, or for the validity thereof. The Trustee shall not be
responsible for administrative functions under the Plan and shall have only such
responsibilities under this Trust Agreement as specifically set forth herein.
The Trustee will be under no liability or obligation to anyone with respect to
any failure on the part of
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the Company, the Plan Administrator, the Company's independent public accounting
firm, an Investment Manager, or a Participant to perform any of their respective
obligations under the Plan or this Trust. The Trustee shall be fully protected
in relying upon any notice or direction provided to it from any party in
connection with the Trustee's duties hereunder which the Trustee in good faith
believes to be genuine, and executed and delivered in accordance with this
Trust. Nothing in this Trust shall be construed as requiring the Trustee to make
any payment in excess of the amounts held in the Trust Fund at the time of such
payment or otherwise to risk or expend its own funds.
10.5 Liabilities Mutually Exclusive. Each of the Trustee and the Company
shall be responsible only for its own acts or omissions.
10.6 Indemnification. The Company agrees to indemnify to the extent
permitted by law the Trustee and hold it harmless against Trustee's costs,
expenses and liabilities (including, without limitation, attorneys' fees and
expenses) arising out of or in connection with the performance of the Trustee's
duties arising hereunder (but excluding costs arising as a result of the
Trustee's bad faith or gross negligence in the performance of its
responsibilities hereunder), and to be primarily liable for such payments. If
the Company does not pay such costs, expenses and liabilities in a reasonably
timely manner, Trustee may obtain payment from the Trust. This Section shall
survive the termination of the Trust.
10.7 Expenses and Compensation. The Trustee shall be paid compensation by
the Company in an amount agreed to by the Company and the Trustee. The Trustee
shall be reimbursed by the Company for reasonable expenses incurred by it in the
management and administration of this Trust Agreement, including the reasonable
compensation of the Trustee's counsel and other agents; and if the Trustee is
not timely reimbursed with respect to amounts due pursuant to this Section 10.7
(or in the case of expenses to be incurred pursuant to Section 3.5 hereof), the
Trustee may charge such amounts against the Trust Fund. Any compensation or
expenses so agreed upon or otherwise payable not paid by the Company on a timely
basis may be charged to the Trust Fund no more frequently than quarter-annually
upon notice to the Company.
10.8 Reserved.
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10.9 Notice. Any notice to the Trustee or to the Company required or
permitted under this Trust shall be duly and properly given and delivered if
sent by certified United States mail, return receipt requested, to the Trustee
at:
The Northern Trust Company
Attn: Trust Department
Fifty South LaSalle Street
Chicago, Illinois 60675
and to the Company at:
The Detroit Edison Company
Attn: Vice President and Treasurer
2000 Second Street
Detroit, Michigan 48226
or to such other address as the Trustee or the Company may specify by written
notice to the other.
10.10 Antiassignment Clause. Benefits payable to Participants and their
Beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.
10.11 True and Correct Document. Any persons dealing with the Trustee may
rely upon a copy of this Trust and any amendments thereto certified to be true
and correct by the Trustee.
10.12 Waiver of Notice. Any notice required under this Trust may be waived
by the person entitled to such notice.
10.13 Counterparts. This Trust may be executed in two or more counterparts,
any one of which will be an original without reference to the others.
10.14 Gender and Number. Words denoting the masculine gender shall include
the feminine and neuter genders and the singular shall include the plural and
the plural shall include the singular wherever required by the context.
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10.15 Successors. This Trust shall be binding on all persons entitled to
payments hereunder and their respective heirs and legal representatives, and on
the Company, the Trustee, and their respective successors.
10.16 Severability. If any provision of this Trust is held to be illegal or
invalid, such illegality or invalidity shall not affect the remaining provisions
of this Trust, which shall be construed and enforced as if such illegal or
invalid provisions had never been inserted herein.
10.17 Applicable Law. The Trust shall be governed by and construed in
accordance with the laws of the State of Michigan with respect to the Company's
obligations and in accordance with the laws of the State of Illinois with
respect to the Trustee's obligations and Trust Administration.
IN WITNESS WHEREOF, the Company and the Trustee have caused this trust
agreement to be signed by their duly authorized representatives, and have caused
their respective seals to be hereunto affixed, as of the Effective Date.
THE DETROIT EDISON COMPANY
By
------------------------
Its
-----------------------
THE NORTHERN TRUST COMPANY
as Trustee
By
------------------------
Its
-----------------------
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