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EXHIBIT 10.37
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TRUST AGREEMENT
Between
GREYHOUND LINES, INC.
and
LASALLE NATIONAL BANK
March 12, 1999
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TABLE OF CONTENTS
(Not a part of the Agreement)
Page
I. TRUST FUND........................................................................... 1
II. PAYMENTS TO TRUST BENEFICIARIES...................................................... 4
III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO
TRUST BENEFICIARIES WHEN THE COMPANY IS INSOLVENT ................................... 5
IV. PAYMENTS TO COMPANY.................................................................. 6
V. INVESTMENT OF TRUST FUND............................................................. 6
VI. INCOME OF THE TRUST.................................................................. 6
VII. ACCOUNTING BY TRUSTEE................................................................ 6
VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE........................................ 7
IX. AMENDMENTS, ETC., TO PLAN AND EXHIBITS............................................... 10
X. REPLACEMENT OF TRUSTEE............................................................... 10
XI. AMENDMENT OR TERMINATION OF AGREEMENT................................................ 11
XII. SPECIAL DISTRIBUTIONS................................................................ 12
XIII. GENERAL PROVISIONS................................................................... 13
XIV. NOTICES.............................................................................. 14
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TABLE OF DEFINITIONS
(Not a part of the Agreement)
Section
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"Agreement" Introduction
"Bank" 1.4(d)
"Board" 3.1
"CEO" 3.1
"Change in Control" 1.7
"Code" 1.6
"Company" Introduction
"ERISA" 1.6
"Exhibit A" Recitals
"Exhibit B" 1.5
"Exhibit C" 8.11
"Fiduciary" 8.11
"Insolvent" Recitals
"Laidlaw" 1.7
"Letter of Credit" 1.4(d)
"Participants" Recitals
"Plan" Recitals
"Plan Year" 1.4(c)
"President" 3.1
"Secured Amount" 1.4(b)
"Successor" 9.2.1
"Supplemental Benefits" Recitals
"Trust Beneficiaries" Recitals
"Trust" Recitals
"Trustee" Introduction
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TRUST AGREEMENT
This trust agreement ("Agreement") made as of this 12th day of March,
1999 by and between Greyhound Lines, Inc., a Delaware corporation (the
"Company"), and LaSalle National Bank, a national bank (the "Trustee").
WITNESSETH:
WHEREAS, the employees of the Company listed on an exhibit ("Exhibit
A") to this Agreement (the "Participants") and their beneficiaries are, or may
become, entitled to benefits under the provisions of the Greyhound Lines, Inc.
Supplemental Executive Retirement Plan, as the same may hereafter be amended or
restated, or any successor thereto (the "Plan");
WHEREAS, the Plan provides for certain benefits, and the Company
wishes specifically to assure the payment to the Participants and their
beneficiaries (the Participants and their respective beneficiaries being
collectively referred to herein as the "Trust Beneficiaries") of amounts due
thereunder (the amounts so payable being collectively referred to herein as the
"Supplemental Benefits");
WHEREAS, the Company wishes to establish a trust (the "Trust") and to
transfer to the Trust assets and rights which shall be held subject to the
claims of the creditors of the Company to the extent set forth in Article III
until (i) paid in full to all Trust Beneficiaries as Supplemental Benefits in
such manner and as specified in this Agreement unless the Company is Insolvent
(as that term is defined below) at the time that such Supplemental Benefits
become payable or (ii) otherwise disposed of pursuant to the terms of this
Agreement; and
WHEREAS, the Company shall be considered "Insolvent" for purposes of
this Agreement at such time as the Company (i) is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, as heretofore
or hereafter amended, or (ii) is unable to pay its debts as they become due;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
I. TRUST FUND
1.1 Subject to the claims of creditors to the extent set forth in Article III,
the Company shall deposit with the Trustee in trust One Hundred Dollars
($100.00), which shall become the principal of this Trust, to be held,
administered and disposed of by the Trustee as provided in this Agreement.
1.2 The Trust hereby established shall be revocable by the Company at any time
prior to the date on which occurs a Change in Control (as that term is defined
in Section 1.7); on or after such date, this Trust shall be irrevocable. In the
event that a Change in Control has occurred, the Chief Executive Officer,
President, Chief Financial Officer or Treasurer of the Company shall so notify
the Trustee promptly. The Trustee shall be entitled to rely upon such
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notice as to whether and when a Change in Control has occurred and shall not be
required to make any independent verification of a Change in Control.
1.3 The principal of the Trust and any earnings shall be held in trust separate
and apart from other funds of the Company and shall be used exclusively for the
uses and purposes set forth in this Agreement. No Trust Beneficiary shall have
any preferred claim on, or any beneficial ownership interest in, any assets of
the Trust prior to the time that such assets are paid to a Trust Beneficiary as
Supplemental Benefits. Any rights created under the Plan and this Agreement
shall be mere unsecured contractual rights of Trust Beneficiaries with respect
to the Company. The obligation of the Trustee to pay Supplemental Benefits
pursuant to this Agreement constitutes merely an unfunded and unsecured promise
to pay such Benefits.
1.4 (a) The Company may at any time or from time to time make additional
deposits of cash or other property as may be acceptable to the Trustee in the
Trust, make provision for cash or other property as may be acceptable to the
Trustee to be transferred to the Trust or arrange for the issuance of a letter
of credit, to augment the principal to be held, administered and disposed of by
the Trustee as herein provided, but no payment of all or any portion of the
principal of the Trust or earnings thereon shall be made to the Company or any
other person or entity on behalf of the Company except as herein expressly
provided.
(b) Prior to the first event constituting a Change in Control, the Company
shall make a contribution to the Trust that is sufficient as of such date,
taking into account the assets of the Trust prior to such contribution, to
provide for the payment of all Supplemental Benefits and any other amounts
payable or reimbursable pursuant to the terms of this Agreement including,
without limitation, the fees of the Trustee and the Fiduciary (as that term is
defined in Section 8.11) and other expenses of the Trust for a period of at
least two years (collectively, the "Secured Amount").
(c) Within 30 days after the end of any Plan Year (as that term is defined
in the Plan) (a "Plan Year") ending after a Change in Control, the Company
shall make a contribution to the Trust that is sufficient as of such date,
taking into account the assets of the Trust prior to such contribution, to
provide for the payment of the Secured Amount.
(d) Laidlaw (as that term is defined in Section 1.7) or the Company may at
any time cause to be issued to the Trust an irrevocable clean letter of credit
(the "Letter of Credit") in an initial aggregate amount of not less than
$2,500,000 for the benefit of the Trustee by a bank having combined capital and
surplus in excess of $500,000,000 (the "Bank"). The Letter of Credit shall
provide that Laidlaw must pay all fees associated therewith, and that the
amounts of the Supplemental Benefits and the Trust and Fiduciary expenses,
including the fees of the Trustee and the Fiduciary, shall be paid to the
Trustee on a regular, periodic basis upon presentation by the Trustee to the
Bank of a statement or statements satisfactory to the Bank and prepared by the
Trustee (the "Draw Documents"). Upon a Change in Control, or if later, the
issuance of the Letter of Credit to the Trust, to the extent that the assets of
the Trust, including the initial aggregate amount of the Letter of Credit, then
exceed the Secured Amount, such excess shall be paid to the Company by the
Trustee from the assets of the Trust. Before the twentieth day prior to the
stated expiration date of the Letter of Credit, the Company and/or
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Laidlaw shall take any actions it or they deem appropriate to renew or replace
the Letter of Credit and/or to contribute additional assets to the Trust. On or
after the twentieth day prior to the stated expiration date of the Letter of
Credit, the Trustee is authorized, empowered and directed to sign and present
the Draw Documents for an amount of the Letter of Credit (and to hold and
disburse the funds received thereby pursuant to the terms of this Agreement)
equal to the excess, if any, of (i) the then applicable Secured Amount, over
(ii) the sum of (a) the assets of the Trust (excluding any Letter of Credit)
and (b) the initial aggregate amount of any renewal or replacement irrevocable
clean letter of credit drawn upon a commercial bank selected by Laidlaw or the
Company, as the case may be, and approved by the Fiduciary, in either case,
upon substantially the same terms and conditions as contained in the Letter of
Credit that is due to expire. A letter of credit that is renewed or provided in
accordance with this Section 1.4(d) shall thereafter be referred to as the
"Letter of Credit."
1.5 Within five business days after the date on which the Trust has become
irrevocable and within 30 days after the first day of each Plan Year
thereafter, the Company shall (a) specify the nature, amounts and timing of the
Supplemental Benefits to which each Trust Beneficiary may become entitled,
subject to Article IX hereof, in an exhibit ("Exhibit B") which shall become a
part of this Agreement and be incorporated herein by this reference, (b)
provide any corresponding revisions to Exhibit A that may be required and (c)
provide the Fiduciary with copies of the Plan and any amendments thereto.
1.6 The Trust is intended to be a grantor trust, within the meaning of
section 671 of the Internal Revenue Code of 1986, as amended (the "Code") and
shall be construed accordingly. The purpose of the Trust is to assure that the
Company's obligations to the Participants pursuant to the Plan are fulfilled.
The Trust is neither intended nor designed to qualify under section 401(a) of
the Code or to be subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The Trust established under this
Agreement does not fund and is not intended to fund the Plan or any other
employee benefit plan or program of the Company. Such Trust is and is intended
to be a depository arrangement with the Trustee for the setting aside of cash
and other assets of the Company for the meeting of part or all of its future
obligations with respect to Supplemental Benefits to some or all of the Trust
Beneficiaries under the Plan.
1.7 As used in this Agreement, the term "Change in Control" shall have the
same meaning assigned to that term in the Plan; provided, however, that the
term "Change in Control" shall include the merger to be effected pursuant to
the Amended and Restated Agreement and Plan of Merger dated as of October 16,
1998, and amended and restated as of November 5, 1998, by and among Laidlaw,
Inc., a Canadian corporation ("Laidlaw"), Laidlaw Transit Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Laidlaw, and the Company,
pursuant to which Laidlaw Transit Acquisition Corp. will be merged with and
into the Company, with the Company as the surviving entity.
II. PAYMENTS TO TRUST BENEFICIARIES
2.1 Provided that the Company is not Insolvent and commencing with the
earlier to occur of (a) appropriate notice to the Trustee by the Company, or
(b) the date on which the
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Trustee has been notified in accordance with Section 1.2 that the Trust has
become irrevocable, the Trustee shall make payments of Supplemental Benefits to
each Trust Beneficiary when and as due under the Plan from the assets of the
Trust as it shall be directed in writing by the Fiduciary.
2.2 The Trustee shall continue to pay Supplemental Benefits to the Trust
Beneficiaries when and as due under the Plan until the assets of the Trust are
depleted, subject to Section 11.2. If any current payment by the Trustee under
the terms of this Agreement would deplete the assets of the Trust below the
amount necessary to provide adequately for Supplemental Benefits known to the
Trustee to be due and payable in the future, the Trustee shall nevertheless
make the current payment when due. If, after application of the preceding
sentence, amounts in the Trust are not sufficient to provide for full payment
of the Supplemental Benefits to which any Trust Beneficiary is entitled as
provided in this Agreement, the Company shall make the balance of each such
payment directly to the Trust Beneficiary as it becomes due.
2.3 Notwithstanding Sections 2.1 and 2.2, the Company may make payments of
Supplemental Benefits to each Trust Beneficiary when and as due under the Plan.
The Company shall notify the Trustee in writing of its decision to pay
Supplemental Benefits directly at least 30 days prior to the time amounts are
due to be paid to a Trust Beneficiary and shall provide the Trustee promptly
after the due date of each payment written confirmation as specified by the
Trustee that such payment has been made.
2.4 Nothing in this Agreement shall in any way diminish any rights of any Trust
Beneficiary to pursue such Trust Beneficiary's rights as a general creditor of
the Company with respect to Supplemental Benefits or otherwise, and the rights
of each Trust Beneficiary under the Plan shall in no way be affected or
diminished by any provision of this Agreement or action taken pursuant to this
Agreement, except that any payment actually received by any Trust Beneficiary
hereunder shall reduce dollar-per-dollar amounts otherwise due to such Trust
Beneficiary pursuant to the Plan.
2.5 The Trustee shall withhold from any payment to a Trust Beneficiary the
amount required by law to be so withheld under federal, state and local tax
withholding requirements as it shall be directed in writing by the Fiduciary,
and shall pay over the amounts withheld to the Company to forward to the
appropriate government authority. The Company shall have sole responsibility
for all related reporting requirements.
III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO
TRUST BENEFICIARIES WHEN THE COMPANY IS INSOLVENT
3.1 At all times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of creditors of the Company as
set forth in this Section 3.1. The Board of Directors of the Company (the
"Board"), the Chief Executive Officer of the Company (the "CEO") and the
President of the Company (the "President") shall have the duty to inform the
Trustee in writing if either the Board, the CEO or the President believes that
the Company is Insolvent. If the Trustee receives a notice in writing from the
Board, the CEO or the President stating that the Company is Insolvent or if a
person claiming to be a creditor of the Company
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alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall request that the Company's independent accountants determine
within 30 days after receipt of such notice whether the Company is Insolvent.
The Trustee shall be fully protected under Section 8.7 in relying upon the
opinion and advice of such independent accountants. The Company shall provide
its independent accountants with any information reasonably requested, and
otherwise cooperate with the accountants in making the determination. Pending
such determination, or if the Trustee has actual knowledge that the Company is
Insolvent, the Trustee shall discontinue or refrain from making payments to any
Trust Beneficiary and hold the Trust assets for the benefit of the general
creditors of the Company. The Trustee shall pay any undistributed principal and
income in the Trust to the extent necessary to satisfy the claims of the
creditors of the Company as a court of competent jurisdiction may direct in
writing. If the Trustee has discontinued or refrained from making payments to
any Trust Beneficiary pursuant to this Section 3.1, the Trustee shall pay or
resume payments to such Trust Beneficiary in accordance with this Agreement if
the Company's independent accountants have determined that the Company is not
Insolvent, or is no longer Insolvent (if the Trustee initially determined the
Company to be Insolvent), or pursuant to the order of a court of competent
jurisdiction. Unless the Trustee has actual knowledge of Insolvency, or has
received notice from the Board, the President, the CEO or a person claiming to
be a creditor of the Company alleging that the Company is Insolvent, the
Trustee shall have no duty to inquire as to whether the Company is Insolvent
and may rely on information concerning the Insolvency of the Company that has
been furnished to the Trustee by any creditor of the Company or by any person
(other than an employee or director of the Company) acting with apparent or
actual authority with respect to the Company.
3.2 If the Trustee is precluded from paying Supplemental Benefits from the
Trust assets pursuant to Section 3.1 and such prohibition is subsequently
removed, the Trustee shall pay the aggregate amount of all Supplemental
Benefits that would have been paid to the Trust Beneficiaries in accordance
with this Agreement during the period of such prohibition, less the aggregate
amount of Supplemental Benefits otherwise paid to any Trust Beneficiary
directly by the Company during any such period, together with interest on the
delayed amount determined at a rate equal to the rate actually earned
(including, without limitation, market appreciation or depreciation, plus
receipt of interest and dividends) during such period with respect to the
assets of the Trust corresponding to such net amount delayed.
IV. PAYMENTS TO COMPANY
4.1 Except to the extent expressly contemplated by Sections 1.2, 1.4(d) and
2.5 and this Article IV, the Company shall have no right or power to direct the
Trustee to return any of the Trust assets to the Company before all payments of
Supplemental Benefits have been made to all Trust Beneficiaries as provided in
this Agreement. Upon the written request of the Company made prior to the date
on which the Trust becomes irrevocable, the Trustee shall return to the Company
any Trust assets in excess of One Hundred Dollars ($100.00) as may be specified
in such request by the Company.
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V. INVESTMENT OF TRUST FUND
5.1 Prior to the date on which the Trust becomes irrevocable, the Trustee
shall invest and reinvest the assets of the Trust as the Company or its
designee shall prescribe in writing from time to time.
5.2 On or after the date on which the Trust becomes irrevocable, or in the
absence of the instructions from the Company specified in Section 5.1, the
provisions of this Section 5.2 shall apply to the investment of the Trust
assets. The investment objective of the Trustee shall be to preserve the
principal of the Trust while obtaining a reasonable total rate of return,
measurement of which shall include, without limitation, market appreciation or
depreciation plus receipt of interest and dividends. The Trustee shall be
mindful, in the course of its management of the Trust, of the liquidity demands
on the Trust.
5.3 The Trustee shall have the sole power to invest the assets of the
Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee
shall not be liable for any failure to maximize income on such portion of the
Trust assets as may be from time to time invested or reinvested as set forth
above, nor for any loss of principal or income due to the liquidation of any
investment that the Trustee, in its sole discretion, believes necessary to make
payments or to reimburse expenses under the terms of this Agreement. The
Trustee shall have the right to invest assets of the Trust for short-term
investment periods, pending distribution or long-term investment of such
assets, as the Trustee may deem proper in the circumstances.
VI. INCOME OF THE TRUST
6.1 Except as provided in Articles III and IV, during the continuance of
this Trust all net income of the Trust shall be retained in the Trust.
VII. ACCOUNTING BY TRUSTEE
7.1 The Trustee shall maintain such books, records and accounts as may be
necessary for the proper administration of the Trust assets, including such
specific records as shall be agreed upon in writing by the Company and the
Trustee. Within 60 days following the close of each Plan Year that includes or
commences after the date of this Trust until the termination of this Trust or
the removal or resignation of the Trustee (and within 60 days after the date of
such termination, removal or resignation), the Trustee shall render to the
Company an accounting with respect to the Trust assets as of the end of the
then most recent Plan Year (and as of the date of such termination, removal or
resignation, as the case may be). The Trustee shall furnish to the Company on a
quarterly basis and in a timely manner such information regarding the Trust as
the Company shall require for purposes of preparing its statements of financial
condition. Upon the written request of the Company or, on or after the date on
which the Trust has become irrevocable, the Fiduciary, the Trustee shall
deliver to the Fiduciary or the Company, as the case may be, a written report
setting forth the amount held in the Trust and a record of the deposits made
with respect thereto by the Company. Unless the Company or the Fiduciary shall
have filed with the Trustee written exception or objection to the statement and
account furnished by the Trustee within 90 days after receipt thereof, the
Company and the Trust Beneficiaries shall be deemed to have approved such
statement and account, and in such case the Trustee shall be forever released
and discharged with respect to all matters and things reported in such
statement
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and account as though it had been settled by a decree of a court of competent
jurisdiction in an action or proceeding to which the Company and the
Participants were parties.
7.2 Nothing in this Article VII shall preclude the commingling of Trust
assets for investment.
VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE
8.1 The duties and responsibilities of the Trustee shall be limited to
those expressly set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
8.2 In addition to and without limiting any other provision of this
Agreement, on or after the date on which the Trust has become irrevocable, the
Trustee shall, based upon the written direction of the Fiduciary and any
payment schedules attached to this Agreement as Exhibits, carry out the duties
allocated to it by this Agreement in accordance with the terms of Section 8.4.
The Company hereby agrees that it will not contest, dispute or otherwise
challenge any decision made by the Trustee pursuant to the terms of this
Agreement.
8.3 If all or any part of the Trust assets are at any time attached,
garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part of such
property, then and in any of such events the Trustee shall rely upon and comply
with any such order, judgment or decree, and it shall not be liable to the
Company or any Trust Beneficiary by reason of such compliance even though such
order, judgment or decree subsequently may be reversed, modified, annulled, set
aside or vacated.
8.4 The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to anyone for any action taken pursuant to a
direction, request, or approval given by the Company, the Fiduciary or any
Trust Beneficiary contemplated by and complying with the terms of this
Agreement. The Trustee shall discharge its responsibility for the investment,
management and control of the Trust assets solely in the interest of the Trust
Beneficiaries and for the exclusive purpose of assuring that, to the extent of
available Trust assets, and in accordance with the terms of this Agreement, all
payments of Supplemental Benefits are made when due to the Trust Beneficiaries.
8.5 The Trustee may consult with legal counsel (who may be counsel for the
Company) to be selected by it, and the Trustee shall not be liable for any
action taken or suffered by it in accordance with the advice of such counsel.
8.6 The Trustee shall be reimbursed by the Company for its reasonable
expenses incurred in connection with the performance of its duties (including,
but not limited to, the fees and expenses of counsel, accountants and others
incurred pursuant to Section 8.5, 8.11 or 12.2)
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and shall be paid reasonable fees for the performance of such duties in the
manner provided by Section 8.7.
8.7 The Company agrees to indemnify and hold harmless the Trustee from and
against any and all damages, losses, claims or expenses as incurred (including
expenses of investigation and fees and disbursements of counsel to the Trustee,
the fees and expenses of the Fiduciary and any taxes imposed on the Trust
assets or income of the Trust) arising out of or in connection with the
performance by the Trustee of its duties, other than such damages, losses,
claims or expenses arising out of the Trustee's gross negligence or willful
misconduct. The Trustee shall not be required to undertake or to defend any
litigation arising in connection with this Agreement unless it be first
indemnified by the Company against its prospective costs, expenses and
liabilities (including, without limitation, attorneys' fees and expenses), and
the Company agrees to indemnify the Trustee and be primarily liable for such
costs, expenses, and liabilities. Any amount payable to the Trustee under
Section 8.6 or this Section 8.7 or payable to the Fiduciary pursuant to Section
8.11 shall be paid by the Company promptly upon demand by the Trustee or, in
the event that the Company fails to make such payment within 30 days of such
demand, from the Trust assets. In the event that payment is made to the Trustee
or the Fiduciary from the Trust assets, the Trustee shall promptly notify the
Company in writing of the amount of such payment. The Company agrees that, upon
receipt of such notice, it will deliver to the Trustee to be held in the Trust
an amount in cash equal to any payments made from the Trust assets to the
Trustee pursuant to Section 8.6, 8.11 or this Section 8.7. The failure of the
Company to transfer any such amount shall not in any way impair the Trustee's
right to indemnification, reimbursement and payment pursuant to Section 8.6 or
this Section 8.7.
8.8 The Trustee may vote any stock or other securities and exercise any
right appurtenant to any stock, other securities or other property held
hereunder, either in person or by general or limited proxy, power of attorney
or other instrument.
8.9 The Trustee may hold securities in bearer form and may register
securities and other property held in the Trust fund in its own name or in the
name of a nominee, combine certificates representing securities with
certificates of the same issue held by the Trustee in other fiduciary
capacities, and deposit, or arrange for deposit of, property with any
depository; provided that the books and records of the Trustee shall at all
times show that all such securities are part of the assets of the Trust.
8.10 The Trustee may exercise all rights appurtenant to any letter of
credit made payable to the Trustee of the Trust for the benefit of the Trust in
accordance with the terms of such letter of credit.
8.11 (a) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals, who may be agents,
accountants, actuaries, investment advisors, financial consultants, or
otherwise act in a professional capacity, as the case may be, for the Company
or with respect to the Plan, to assist the Trustee in performing any of its
duties.
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(b) Without limiting the foregoing, the Trustee shall retain an
independent third party (the "Fiduciary") to provide services, as described in
a separate fiduciary services agreement, to the Trustee in connection with the
administration of the Trustee's obligations under this Agreement. The duties,
responsibilities and obligations of the Fiduciary shall be set forth in a
separate fiduciary services agreement between the Fiduciary and the Trustee as
set forth in an exhibit ("Exhibit C") hereto or as subsequently agreed to by
the Fiduciary, the Trustee and the Company. The initial Fiduciary will be CRG
Fiduciary Services, Inc., a California corporation. Any successor Fiduciary
shall be appointed by the Trustee, as directed by a majority of the
Participants. The Fiduciary shall be reimbursed by the Company for its
reasonable expenses incurred in connection with the performance of its services
pursuant to the fiduciary services agreement and shall be paid such fees by the
Company as may be prescribed by such agreement. See Section 13.11, regarding
the effectiveness of the Fiduciary's services.
8.12 The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise in this
Agreement.
8.13 Notwithstanding any other provision of this Agreement, in the event of
the termination of the Trust, or the resignation or discharge of the Trustee,
the Trustee shall have the right to a settlement of its accounts in accordance
with the procedures set forth in Section 7.1, which may be made, at the option
of the Trustee, either (a) by a judicial settlement in a court of competent
jurisdiction, or (b) by agreement of settlement, release and indemnity from the
Company to the Trustee.
8.14 Notwithstanding any powers granted to the Trustee pursuant to this
Agreement or 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 Treasury Regulation ss. 301.7701-2.
IX. AMENDMENTS, ETC., TO PLAN AND EXHIBITS
9.1 The Company shall furnish the Trustee and the Fiduciary with any
amendments, restatements, or other changes in the Plan, and the Company shall
from time to time prescribe or amend, as the case may be, Exhibit B hereto to
reflect any such amendment, restatement, or other change, or any changes in the
compensation of the Participants, or otherwise.
9.2 The Company shall furnish to the Trustee any amendment to Exhibit A and
any corresponding amendment to Exhibit B required as a result of such amendment
to Exhibit A; provided, however, that on or after the date on which the Trust
becomes irrevocable, any amendment to Exhibit A must be (a) approved by the
Fiduciary, and (b) in the case of an amendment that adds a new Participant as a
Trust Beneficiary, accompanied by the deposit into the Trust by the Company, on
or before the effective date on which the new Participant would become a Trust
Beneficiary, an amount sufficient to pay such new Participant's Supplemental
Benefits hereunder (with such sufficiency determined on the same actuarial
basis as that used to determine sufficiency with respect to the Supplemental
Benefits as in effect hereunder immediately prior to the addition of such new
Participant).
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9.3 Notwithstanding the foregoing provisions of this Article IX, any
amendment, restatement, successor or other change in the Plan or the addition
of a new Plan that would materially increase the responsibilities or
liabilities of the Trustee or materially change its duties shall also require
the consent of the Trustee, which consent shall not be unreasonably withheld.
X. REPLACEMENT OF TRUSTEE
10.1 The Trustee may resign and be discharged from its duties hereunder
after providing not less than 90 days' notice in writing to the Company. On or
after the date on which the Trust becomes irrevocable, the Trustee shall also
provide notice of its resignation to the Fiduciary. Prior to the date on which
the Trust becomes irrevocable, the Trustee may be removed at any time upon
notice in writing by the Company. On or after such date, such removal shall
also require the approval of the Fiduciary. Prior to the date on which the
Trust becomes irrevocable, a replacement or successor trustee shall be
appointed by the Company. On or after such date, such appointment shall also
require the approval of the Fiduciary. No such removal or resignation shall
become effective until the effectiveness of the acceptance of the trust by a
successor trustee designated in accordance with this Article X. If the Trustee
should resign, and within 45 days of the notice of such resignation the Company
and, if required, the Fiduciary shall not have notified the Trustee of an
agreement as to a replacement trustee, the Trustee shall petition a court of
competent jurisdiction to appoint a successor trustee. Upon the acceptance of
the trust by a successor trustee, the Trustee shall release all of the moneys
and other property in the Trust to its successor, who shall thereafter for all
purposes of this Agreement be considered to be the "Trustee." In the event of
its removal or resignation, the Trustee shall duly file with the Company and,
after the Trust becomes irrevocable, the Fiduciary, a written statement or
statements of accounts and proceedings as provided in Section 7.1 for the
period since the last previous annual accounting of the Trust, and if written
objection to such account is not filed as provided in Section 7.1, the Trustee
shall to the maximum 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 account. The successor trustee shall
not be responsible for, and the Company shall indemnify and defend the
successor trustee from any claim or liability resulting from any action or
inaction of any prior trustee or from any other past event, or any condition
existing at the time it becomes successor trustee. In the event that no party
is then serving as a Fiduciary, this Section 10.1 shall be applied by
substituting the Participants for the Fiduciary and approval by a majority of
the Participants for approval by the Fiduciary.
XI. AMENDMENT OR TERMINATION OF AGREEMENT
11.1 This Agreement may be amended at any time and to any extent by a
written instrument executed by the Trustee and the Company and, after the Trust
has become irrevocable, approved by the Fiduciary; provided, however, that no
amendment shall have the effect of (a) making the Trust revocable after it has
become irrevocable in accordance with Section 1.2 or (b) altering Section 11.2.
Notwithstanding the previous sentence, amendments contemplated by Article IX
shall be made as therein provided.
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11.2 The Trust shall terminate (a) prior to the date on which the Trust has
become irrevocable, upon the written request of the Company, and (b) on or
after such date, upon the earliest to occur of (i) a determination by the
Fiduciary that no Trust Beneficiary is or will be entitled to any further
payment of Supplemental Benefits; (ii) such time as the Trust no longer
contains any assets, or contains assets that, in the sole judgment of the
Trustee, are insubstantial in relation to the actual and potential liabilities
of the Trustee to pay Supplemental Benefits under the terms of this Agreement
and any other amounts to be paid from the assets of the Trust, including,
without limitation, the fees and expenses of the Trustee, the Fiduciary and
counsel; or (iii) notwithstanding anything to the contrary contained in the
Plan, such time as the Trustee shall have received consents from the Fiduciary
and a majority of the Participants to the termination of this Agreement.
Notwithstanding the previous sentence (other than clause (ii) thereof), if
payments under the Plan with respect to a Trust Beneficiary are the subject of
litigation or arbitration, the Trust shall not terminate and the funds held in
the Trust with respect to such Trust Beneficiary shall continue to be held by
the Trustee until the final resolution of such litigation or arbitration. The
Trustee may assume that the Plan is not the subject of such litigation or
arbitration unless the Trustee receives written notice from a Trust Beneficiary
or the Company with respect to such litigation or arbitration. The Trustee may
rely upon written notice from a Trust Beneficiary as to the final resolution of
such litigation or arbitration.
11.3 Upon a termination of the Trust as provided in Section 11.2, any
assets remaining in the Trust, less all payments, expenses, taxes and other
charges under this Agreement as of such date of termination, shall be returned
to the Company in such amounts and in the manner instructed by the Company,
whereupon the Trustee shall be released and discharged from all obligations
under this Agreement. From and after the date of termination, and until final
distribution of the Trust assets, the Trustee shall continue to have all of the
powers provided in this Agreement as are necessary or expedient for the orderly
liquidation and distribution of the Trust.
XII. SPECIAL DISTRIBUTIONS
12.1 It is intended that (a) the creation of, transfer of assets to, and
irrevocability of, the Trust will not cause the Plan to be other than
"unfunded" for purposes of title I of ERISA; (b) transfers of assets to the
Trust or the Trust becoming irrevocable will not be transfers of property for
purposes of section 83 of the Code, or any successor provision thereto, nor
will such transfers or irrevocability cause a currently taxable benefit to be
realized by a Trust Beneficiary pursuant to the "economic benefit" doctrine;
and (c) pursuant to section 451 of the Code, or any successor provision
thereto, amounts will be includible as compensation in the gross income of a
Trust Beneficiary in the taxable year or years in which such amounts are
actually distributed or made available to such Trust Beneficiary by the
Trustee.
12.2 Notwithstanding anything to the contrary contained in the Plan, if the
Trustee obtains an opinion of tax counsel selected by the Trustee to the effect
that based upon any of the following occurring after the date of this
Agreement:
(a) a change in the federal tax or revenue laws, (b) a decision in a
controlling case, (c) a published ruling or similar announcement issued by
the Internal Revenue Service, (d) a
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regulation issued by the Secretary of the Treasury, (e) a decision by a
court of competent jurisdiction involving a Trust Beneficiary, or (f) a
closing agreement made under section 7121 of the Code that is approved by
the Internal Revenue Service and involves a Trust Beneficiary,
it is more likely than not that an amount is includible in the gross income of
a Trust Beneficiary in a taxable year that is prior to the taxable year or
years in which such amount would, but for this Section 12.2, otherwise actually
be distributed or made available to such Trust Beneficiary by the Trustee, then
the Trustee shall promptly distribute to each affected Trust Beneficiary an
amount equal to the amount determined to be includible in gross income in such
prior taxable year. The Trustee shall seek such an opinion of tax counsel if
and only if requested to do so by the Fiduciary.
12.3 Notwithstanding anything to the contrary contained in the Plan, if a
Trust Beneficiary provides evidence satisfactory to the Trustee demonstrating
that, as a result of an assertion by the Internal Revenue Service, a final
nonappealable binding determination has been made with respect to a taxable
year of such Trust Beneficiary that an amount is includible in the gross income
of such Trust Beneficiary in a taxable year that is prior to the taxable year
in which such amount would, but for this Section 12.3, otherwise actually be
distributed or made available to such Trust Beneficiary by the Trustee, then
the Trustee shall promptly distribute to such Trust Beneficiary an amount equal
to such amount determined by the Internal Revenue Service to be includible in
gross income in such prior taxable year.
XIII. GENERAL PROVISIONS
13.1 The Company shall, at any time and from time to time, upon the
reasonable request of the Trustee, provide information, execute and deliver
such further instruments and do such further acts as may be necessary or proper
to effectuate the purposes of this Trust.
13.2 Each Exhibit referred to in this Agreement shall become a part of this
Agreement and is expressly incorporated herein by reference.
13.3 This Agreement sets forth the entire understanding of the parties with
respect to its subject matter and supersedes any and all prior agreements,
arrangements and understandings. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and legal
representatives.
13.4 This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois, other than and without reference to any
provisions of such laws regarding choice of laws or conflict of laws.
13.5 In the event that any provision of this Agreement or the application
of any provision to any person or circumstances shall be determined by a court
of competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or
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unenforceable, shall not be affected, and each provision of this Agreement
shall be valid and enforced to the maximum extent permitted by law.
13.6 (a) The preamble to this Agreement shall be considered a part of the
agreement of the parties as if set forth in a section of this Agreement.
(b) The headings and table of contents contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement.
(c) Unless otherwise noted, all section and article references are to
sections and articles of this Agreement.
(d) Any reference to a provision of a statute, regulation or rule
shall also include any successor to such statute, regulation or rule.
13.7 The right of any Trust Beneficiary to any benefit or to any payment
hereunder may not be anticipated, assigned (either at law or in equity),
alienated or subject to attachment, garnishment, levy, execution or other legal
or equitable process except as required by law. Any attempt by any Trust
Beneficiary to anticipate, alienate, assign, sell, transfer, pledge, encumber
or charge the same shall be void. The Trust assets shall not in any manner be
subject to the debts, contracts, liabilities, engagement or torts of any Trust
Beneficiary and payments hereunder shall not be considered an asset of the
Trust Beneficiary in the event of the insolvency or bankruptcy of such Trust
Beneficiary.
13.8 Each Participant is an intended beneficiary under this Trust, and as
an intended beneficiary shall be entitled to enforce all terms and provisions
with the same force and effect as if such person had been a party to this
Agreement.
13.9 Notwithstanding any other provision, the parties' respective rights
and obligations under Section 13.8 and all releases and indemnities provided in
this Agreement shall survive any termination or expiration of this Agreement.
13.10 This Agreement may be executed in two or more counterparts, each of
which shall be considered an original agreement, but all of which together
shall constitute one agreement.
13.11 The provisions in this Agreement regarding the Fiduciary (including
the last sentence of Section 10.1) shall become effective only as set forth in
the fiduciary services agreement described in Section 8.11(b). In the absence
of such fiduciary services agreement or prior to the effectiveness of the
Fiduciary's services as set forth in such agreement, the Company shall be
treated as the Fiduciary for all purposes of this Agreement.
XIV. NOTICES
14.1 For all purposes of this Agreement, any communication, including
without limitation, any notice, consent, report, demand or waiver required or
permitted to be given
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hereunder shall be in writing and, unless otherwise provided in this Agreement,
shall be deemed to have been duly given when hand delivered or dispatched or
transmitted by electronic facsimile (with receipt thereof orally confirmed), or
five business days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or three business
days after having been dispatched by a nationally recognized overnight courier
service to the appropriate party at the address specified below:
If to the Company, to: Greyhound Lines, Inc.
15110 North Dallas Parkway, Suite 600
Dallas, Texas 75248
Attention: General Counsel
If to the Trustee, to: LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Senior Vice President
Employee Benefits Group
If to a Participant, to: the address of such Participant as
listed next to such Participant's
name on Exhibit A hereto,
provided, however, that if any party or such party's successors shall have
designated a different address by notice to the other parties, then to the last
address so designated.
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IN WITNESS WHEREOF, the Company and the Trustee caused this Agreement to be
executed on its behalf as of the date first above written.
Attested GREYHOUND LINES, INC.
By: By:
------------------------------- ---------------------------------
Its: Its:
--------------------------- -----------------------------
Attested LASALLE NATIONAL BANK
By: By:
------------------------------- ---------------------------------
William Kursar
Its: Its: Senior Vice President
--------------------------- -----------------------------
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Exhibit A
Employee Address Soc. Sec. No.
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20
Exhibit B
21
Exhibit C
Fiduciary Services Agreement