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EXHIBIT 10(cxxxviii)
MASTER TRUST AGREEMENT
Between
NACCO INDUSTRIES, INC.
and
STATE STREET BANK AND TRUST COMPANY
FOR
DEFINED BENEFIT PENSION PLANS
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NACCO INDUSTRIES, INC.
MASTER TRUST AGREEMENT
Agreement made as of January 1, 1994, by and between NACCO INDUSTRIES,
INC. a corporation organized under the laws of the State of Delaware
(hereinafter referred to as the "Company") and STATE STREET BANK AND TRUST
COMPANY, a trust company organized under the laws of the Commonwealth of
Massachusetts (hereinafter referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company maintains a tax-qualified employee benefit plan
for the exclusive benefit of certain of its employees and the employees of
certain of its wholly owned subsidiaries;
WHEREAS, certain wholly owned subsidiaries of the Company (the
"Subsidiaries") maintain separate tax-qualified employee benefit plans for
certain of their employees and may adopt this trust and Trust Agreement to
serve as a funding vehicle for such plans;
WHEREAS, the tax-qualified plans of the Company and the Subsidiaries
identified on Schedule A hereto are referred to herein individually as a "Plan"
and collectively as the "Plans";
WHEREAS, the authority to conduct the general operation and
administration of each of the Plans is vested in the Administrative Committee
appointed under each such Plan, who shall have the authorities and shall be
subject to the duties with respect to the trust specified in the applicable
Plan and in this Trust Agreement;
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WHEREAS, each such Administrative Committee (collectively, the
"Administrators") shall only have authority with respect to the Plan under
which it has been appointed;
WHEREAS, the Company and the Subsidiaries have established several
trust agreements to serve as the funding vehicles for the Plans; and
WHEREAS, effective January 1, 1994, the Company and the Subsidiaries
have appointed the Trustee as successor trustee to the trustees under such
trust agreements and the Company and the Subsidiaries and the Trustee desire to
amend and restate such trust agreements in their entirety.
NOW, THEREFORE, the Company and the Trustee do hereby adopt this Trust
Agreement as the funding vehicle for the Plans, upon the terms and conditions
hereinafter set forth:
1. TRUST FUND
1.1 RECEIPT OF ASSETS. The Trustee shall receive and accept for
the purposes hereof all sums of money and other property paid to it by or at
the direction of the Company or any Employer, and pursuant to the terms of this
Trust Agreement shall hold, invest, reinvest, manage, administer and distribute
such monies and other property and the increments, proceeds, earnings and
income thereof for the exclusive benefit of participants in the Plans and their
beneficiaries. The Trustee need not inquire into the source of any money or
property transferred to it nor into the authority or right of the transferor of
such money or property to transfer such money or property to the Trustee. All
assets held by the Trustee in the trust pursuant to the provisions of this
Trust Agreement
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(which may be all or part of the assets of a particular Plan) at the time of
reference are referred to herein as the "Trust Fund".
1.2 EMPLOYERS. For purposes of this Trust Agreement the term
"Employer" means any corporation which is a member of a controlled group of
corporations of which the Company is a member as determined under Section
1563(a) of the Internal Revenue Code of 1986, as amended without regard to
Section 1563(a)(4) and Section 1563(e)(3)(C) of such Code, and which
corporation has adopted this Trust Agreement in accordance with the provisions
of Section 15.1.
1.3 PLANS. References in this Trust Agreement to the "Plan" or
the "Plans" shall, unless the context indicates to the contrary, mean the Plans
identified on Schedule A which have adopted this trust as the funding vehicle
for such Plan or Plans as the case may be.
The Company shall be responsible for verifying that while any assets
of a particular Plan are held in the Trust Fund, that Plan (i) is "qualified"
within the meaning of Section 401(a) of the Code; (ii) is permitted by existing
or future rulings of the United States Treasury Department to pool its funds in
a group trust; and (iii) permits its assets to be commingled for investment
purposes with the assets of other such Plans by investing such assets in this
Trust Fund whether or not its assets will in fact be held in a separate
Investment Fund.
1.4 ACCOUNTING FOR A PLAN'S UNDIVIDED INTEREST IN THE TRUST FUND.
All transfers to, withdrawals from, and other transactions regarding the Trust
Fund shall be conducted in such a way that the
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proportionate interest in the Trust Fund of each Plan and the fair market value
of that interest may be determined at any time. Whenever the assets of more
than one Plan are commingled in the Trust Fund or in any Investment Fund, the
undivided interest therein of that Plan shall be debited or credited (as the
case may be) (i) for the entire amount of every contribution received on behalf
of that Plan, every benefit payment, or other expense attributable solely to
that Plan, and every other transaction relating only to that Plan; and (ii) for
its proportionate share of every item of collected or accrued income, gain or
loss, and general expense; and other transactions attributable to the Trust
Fund or that Investment Fund as a whole. As of each date when the fair market
value of the investments held in the Trust Fund or an Investment Fund are
determined as provided for in Article 10, the Trustee shall adjust the value of
each Plan's interest therein to reflect the net increase or decrease in such
values since the last such date. For all of the foregoing purposes, fractions
of a cent may be disregarded.
1.5 NO TRUSTEE DUTY REGARDING CONTRIBUTIONS. The Trustee shall
not be under any duty to require payment of any contributions to the Trust
Fund, or to see that any payment made to it is computed in accordance with the
provisions of the Plans, or otherwise be responsible for the adequacy of the
Trust Fund to meet and discharge any liabilities under the Plans.
2. DISBURSEMENTS FROM THE TRUST FUND.
The Trustee shall from time to time on the directions of the
Administrators make payments out of the Trust Fund to such
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persons, including the Administrators, in such manner, in such amounts and for
such purposes as may be specified in the directions of the Administrators.
The Administrators shall be responsible for insuring that any payment
directed under this Article conforms to the provisions of the Plans, this Trust
Agreement, and the provisions of the Employee Retirement Income Security Act of
1974, as amended (referred to herein as "ERISA"). Each direction of an
Administrator shall be in writing and shall be deemed to include a
certification that any payment or other distribution directed thereby is one
which such Administrator is authorized to direct, and the Trustee may
conclusively rely on such certification without further investigation. Payments
by the Trustee may be made by its check to the order of the payee. Payments or
other distributions hereunder may be mailed to the payee at the address last
furnished to the Trustee by the Administrator or if no such address has been so
furnished, to the payee in care of the Administrator. The Trustee shall not
incur any liability or other damage on account of any payments or other
distributions made by it in accordance with the written directions of an
Administrator.
3. RESPONSIBILITIES RELATING TO INVESTMENT FUNDS AND INVESTMENT ACCOUNTS.
3.1 INVESTMENT FUNDS. The Investment Committee appointed by the
Company, from time to time and in accordance with provisions of the Plans, may
direct the Trustee to establish one or more separate investment accounts within
the Trust Fund, each separate
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account being hereinafter referred to as an "Investment Fund". In the absence
of the existence of an Investment Committee, the Investment Committee actions
shall be taken by the Company. The Trustee shall transfer to each such
Investment Fund such portion of the assets of the Trust Fund as the Investment
Committee directs. The Trustee shall be under no duty to question, and shall
not incur any liability on account of following, any direction of the
Investment Committee or an Administrator. The Trustee shall be under no duty
to review the investment guidelines, objectives and restrictions established,
or the specific investment directions given, by the Investment Committee for
any Investment Fund, or to make suggestions to the Investment Committee in
connection therewith.
All interest, dividends and other income received with respect to, and
any proceeds received from the sale or other disposition of, securities or
other property held in an Investment Fund shall be credited to and reinvested
in such Investment Fund. All expenses of the Trust Fund which are allocable to
a particular Investment Fund shall be so allocated and charged. Subject to the
provisions of the Plans, the Investment Committee may direct the Trustee to
eliminate an Investment Fund or Funds, and the Trustee shall thereupon dispose
of the assets of such Investment Fund and reinvest the proceeds thereof in
accordance with the directions of the Investment Committee.
If, and to the extent specifically authorized by the Plans, the
Investment Committee may direct the Trustee to establish one
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or more Investment Funds all of the assets of which shall be invested in
securities which constitute "qualifying employer securities" or "qualifying
employer real property" within the meaning of Section 407 of ERISA. It shall be
the duty of the Investment Committee to determine that such investment is not
prohibited by Sections 406 or 407 of ERISA.
3.2 INVESTMENT MANAGER APPOINTMENT. The Investment Committee,
from time to time and in accordance with the provisions of the Plans, may
appoint one or more independent Investment Managers, pursuant to a written
investment management agreement describing the powers and duties of the
Investment Manager, to direct the investment and reinvestment of all or a
portion of the Trust Fund or an Investment Fund (hereinafter referred to as an
"Investment Account").
The Investment Committee shall be responsible for ascertaining that
while each Investment Manager is acting in that capacity hereunder, the
following requirements are satisfied:
(a) The Investment Manager is either (i) registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, (ii) a
bank as defined in that Act or (iii) an insurance company qualified to
perform the services described in (b) below under the laws of more
than one state.
(b) The Investment Manager has the power to manage, acquire or
dispose of any assets of the Plans for which it is responsible
hereunder.
(c) The Investment Manager has acknowledged in writing to the
Investment Committee, the Administrator and the Trustee that he or it
is a fiduciary with respect to the Plans within the meaning of Section
3(21)(A) of ERISA.
The Investment Committee shall furnish the Trustee with written notice
of the appointment of each Investment Manager hereunder, and of the termination
of any such appointment. Such
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notice shall specify the assets which shall constitute the Investment Account.
The Trustee shall be fully protected in relying upon the effectiveness of such
appointment and the Investment Manager's continuing satisfaction of the
requirements set forth above until it receives written notice from the
Investment Committee to the contrary.
The Trustee shall conclusively presume that each Investment Manager,
under its investment management agreement, is entitled to act, in directing the
investment and reinvestment of the Investment Account for which it is
responsible, in its sole and independent discretion and without limitation,
except for any limitations which from time to time the Investment Committee and
the Trustee agree (in writing) shall modify the scope of such authority.
The Trustee shall have no liability (i) for the acts or omissions of
any Investment Manager; (ii) for following directions, including investment
directions of an Investment Manager, an Administrator or the Investment
Committee, which are given in accordance with this Trust Agreement; or (iii)
for any loss of any kind which may result by reason of the manner of division
of the Trust Fund or Investment Fund into Investment Accounts.
An Investment Manager shall certify, at the request of the Trustee,
the value of any securities or other property held in any Investment Account
managed by such Investment Manager, and such certification shall be regarded as
a direction with regard to such
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valuation. The Trustee shall be entitled to conclusively rely upon such
valuation for all purposes under this Trust Agreement.
3.3 DIRECTED INVESTMENT ACCOUNTS. The Trustee shall, if so
directed in writing by the Investment Committee, segregate all or a portion of
the Trust Fund held by it into one or more separate investment accounts to be
known as Directed Accounts, with respect to which the Investment Committee
shall have the powers and duties granted to an Investment Manager under this
Agreement. The Investment Committee, by written notice to the Trustee, may at
any time relinquish its powers under this Section 3.3 and direct that a
Directed Account shall no longer be maintained. In addition, during any time
when there is no Investment Manager with respect to an Investment Account (such
as before an investment management agreement takes effect or after it
terminates), the Investment Committee shall direct the investment and
reinvestment of such Investment Account. The Investment Committee may direct
that the investment in a particular Directed Account be allocated only to a
particular Plan or Plans. Whenever the Investment Committee is directing the
investment and reinvestment of an Investment Account or a Directed Account, the
Investment Committee shall have the powers and duties which an Investment
Manager would have under this Trust Agreement if an Investment Manager were
then serving and the Trustee shall be protected in relying on the Investment
Committee's directions without reviewing investments or making suggestions to
the same extent as it would be protected under this Trust Agreement if it had
relied on the directions of an Investment Manager.
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3.4 TRUSTEE DIRECTED INVESTMENT ACCOUNTS. The Trustee shall have
no duty or responsibility to direct the investment and reinvestment of the
Trust Fund, any Investment Fund or any Investment Account unless expressly
agreed to in writing between the Trustee and the Investment Committee. In the
event that the Trustee enters into such an agreement, it shall have the powers
and duties of an Investment Manager under this Trust Agreement with regard to
such Investment Account.
4. POWERS OF THE TRUSTEE.
4.1 INVESTMENT POWERS OF THE TRUSTEE. The Trustee shall have and
exercise the following powers and authority (i) over Investment Accounts where
it has express investment management discretion as provided in Section 3.4 or
(ii) upon direction of the Investment Manager of an Investment Account or (iii)
upon direction of the Investment Committee for a Directed Account, for voting
and tendering of qualifying employer securities, and for lending to
participants in the Plans:
(a) To purchase, receive, or subscribe for any securities or other
property and to retain in trust such securities or other property.
(b) To acquire and hold qualifying employer securities and qualifying
employer real property, as such investments are defined in Section
407(d) of ERISA.
(c) To sell for cash or on credit, to grant options, convert, redeem,
exchange for other securities or other property, to enter into standby
agreements for future investment, either with or without a standby
fee, or otherwise to dispose of any securities or other property at
any time held by it.
(d) To settle, compromise or submit to arbitration any claims, debts,
or damages, due or owing to or from the trust, to commence or defend
suits or legal proceedings and to
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represent the trust in all suits or legal proceedings in any court of
law or before any other body or tribunal.
(e) To trade in financial options and futures, including index
options and options on futures and to execute in connection therewith
such account agreements and other agreements in such form and upon
such terms as the Investment Manager or the Investment Committee shall
direct.
(f) To exercise all voting rights, tender or exchange rights, any
conversion privileges, subscription rights and other rights and powers
available in connection with any securities or other property at
anytime held by it; to oppose or to consent to the reorganization,
consolidation, merger, or readjustment of the finances of any
corporation, company or association, or to the sale, mortgage, pledge
or lease of the property of any corporation, company or association
any of the securities which may at any time be held by it and to do
any act with reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payment of expenses,
assessments or subscriptions, which may be deemed necessary or
advisable by the Investment Manager or Investment Committee in
connection therewith, and to hold and retain any securities or other
property which it may so acquire; and to deposit any property with any
protective, reorganization or similar committee, and to pay and agree
to pay part of the expenses and compensation of any such committee and
any assessments levied with respect to property so deposited.
(g) To exercise all voting or tender offer rights with respect to all
qualifying employer securities held by it except that portion, if any,
for which it has received voting or tender offer instructions from
participants in the Plans as provided in this paragraph. The
Administrator shall inform the Trustee of the voting and tender offer
provisions of each Plan. Each participant entitled to do so may direct
the Trustee, confidentially, how to vote or whether or not to tender
the qualifying employer securities representing his proportionate
interest in the assets of the Plans. The Administrator shall furnish
the Trustee with the name of each participant and the number of shares
held for the participant's account as near as practicable to the
record date fixed for the determination of shareholders entitled to
vote and shall provide the Trustee with all other information and
assistance which the Trustee may reasonably request. Shares for which
the Trustee has not received timely voting or tender instructions
shall be voted or tendered by the Trustee to the extent permitted by
the Plans or required by law in its uncontrolled discretion.
(h) To lend to participants in the Plans such amounts and upon such
terms and conditions as the Administrator may direct. Any such
direction shall be deemed to include a
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certification by the Administrator that such lending is in accordance
with the provisions of ERISA and the Plans.
(i) To borrow money in such amounts and upon such terms and
conditions as shall be deemed advisable or proper by the Administrator
or Investment Manager or Investment Committee to carry out the
purposes of the trust and to pledge any securities or other property
for the repayment of any such loan.
(j) To invest all or a portion of the Trust Fund in contracts issued
by insurance companies, including contracts under which the insurance
company holds Plan assets in a separate account or commingled separate
account managed by the insurance company. The Trustee shall be
entitled to rely upon any written directions of the Administrator or
the Investment Manager or the Investment Committee under this Section
4.1, and the Trustee shall not be responsible for the terms of any
insurance contract that it i& directed to purchase and hold or for the
selection of the issuer thereof or for performing any functions under
such contract (other than the execution of any documents incidental
thereto on the instructions of the Administrator or the Investment
Manager) or the Investment Committee.
(k) To manage, administer, operate, lease for any number of years,
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein at any time held by it, and to hold any such real
property in its own name or in the name of a nominee, with or without
the addition of words indicating that such property is held in a
fiduciary capacity, all upon such terms and conditions as may be
deemed advisable by the Investment Manager, the Administrator or the
Investment Committee.
(l) To renew, extend or participate in the renewal or extension of
any mortgage, upon such terms as may be deemed advisable by the
Investment Manager or Administrator or the Investment Committee, and
to agree to a reduction in the rate of interest on any mortgage or of
any guarantee pertaining thereto in any manner and to any extent that
may be deemed advisable by the Investment Manager or Administrator or
the Investment Committee for the protection of the Trust Fund or the
preservation of the value of the investment; to waive any default,
whether in the performance of any covenant or condition of any
mortgage or in the performance of any guarantee, or to enforce any
such default in such manner and to such extent as may be deemed
advisable by the Investment Manager or Administrator or the Investment
Committee; to exercise and enforce any and all rights of foreclosure,
to bid on property on foreclosure, to take a deed in lieu of
foreclosure with or without paying consideration therefor, and in
connection therewith to release the obligation on the
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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 to any such mortgage or guarantee.
(m) To hold uninvested, without liability for interest thereon, such
part of the Trust Fund as it shall deem necessary or advisable.
(n) To employ suitable agents and counsel and to pay their reasonable
and proper expenses and compensation.
(o) To purchase and sell foreign exchange and contracts for foreign
exchange, including transactions entered into with State Street Bank
and Trust Company, its agents or subcustodians.
(p) To form corporations and to create trusts to hold title to any
securities or other property, all upon such terms and conditions as
may be deemed advisable by the Investment Manager or Administrator or
the Investment Committee.
(q) To register any securities held by it hereunder in its own name
or in the name of a nominee with or without the addition of words
indicating that such securities are held in a fiduciary capacity and
to hold any securities in bearer form and to deposit any securities or
other property in a depository or clearing corporation; provided,
however, that the Trustee shall be responsible for any loss caused by
failure to identify that the securities are held in a fiduciary
capacity.
(r) To make, execute and deliver, as Trustee, any and all deeds,
leases, mortgages, conveyances, waivers, releases, or other
instruments in writing necessary or desirable for the accomplishment
of any of the foregoing powers.
(s) To invest at State Street Bank and Trust Company (i) in any type
of interest bearing investments (including, but not limited to savings
accounts, money market accounts, certificates of deposit and
repurchase agreements) and (ii) in noninterest bearing accounts
(including but not limited to checking accounts).
(t) To invest in collective investment funds maintained by State
Street Bank and Trust Company or by others for the investment of the
assets of employee benefit plans qualified under Section 401 of the
Code, whereupon the instruments establishing such funds, as amended,
shall be deemed a part of each of the Plans and this Trust Agreement
and incorporated by reference. Assets placed in any such collective
investment fund shall be held and administered by the trustee of such
fund strictly in accordance with the terms and under the powers
granted in such instrument. The commingling of the assets of this
Trust Fund with the assets
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of all other qualified participating trusts in such collective
investment funds is specifically authorized.
Except as otherwise provided in this Trust Agreement, the Investment
Manager of an Investment Account or the Investment Committee in the case of a
Directed Account shall have the power and authority, to be exercised in its
sole discretion at any time and from time to time, to issue orders for the
purchase or sale of securities directly to a broker. Written notification of
the issuance of each such order shall be given promptly to the Trustee by the
Investment Manager or the Investment Committee and the confirmation of each
such order shall be confirmed to the Trustee by the broker. Unless otherwise
directed by the Investment Committee or Investment Manager, such notification
shall be authority for the Trustee to pay for securities purchased or to
deliver securities sold as the case may be. Upon the direction of the
Investment Manager or the Investment Committee, the Trustee will execute and
deliver appropriate trading authorizations, but no such authorization shall be
deemed to increase the liability or responsibility of the Trustee under this
Trust Agreement.
The Trustee shall transmit promptly to the Investment Committee or the
Investment Manager, as the case may be, all notices of conversion, redemption,
tender, exchange, subscription, class action, claim in insolvency proceedings
or other rights or powers relating to any of the securities in the Trust Fund,
which notices are received by the Trustee from its agents or custodians, from
issuers of the securities in question and from the party (or its agents)
extending such rights. The Trustee shall have no obligation to determine the
existence of any conversion,
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redemption, tender, exchange, subscription, class action, claim in insolvency
proceedings or other right or power relating to any of the securities in the
Trust Fund of which notice was given prior to the purchase of such securities
by the Trust Fund, and shall have no obligation to exercise any such right or
power unless the Trustee is informed of the existence of the right or power.
The Trustee shall not be liable for any untimely exercise or assertion
of such rights or powers described in the paragraph immediately above in
connection with securities or other property of the Trust Fund at any time held
by it unless (i) it or its agents or custodians are in actual possession of
such securities or property and (ii) it receives directions to exercise any
such rights or powers from the Administrator or the Investment Manager or the
Investment Committee, as the case may be, and both (i) and (ii) occur at least
three business days prior to the date on which such rights or powers are to be
exercised.
If the Trustee is directed by the Investment Committee or an
Investment Manager to purchase securities issued by any foreign government or
agency thereof, or by any corporation or other entity domiciled outside of the
United States, it shall be the responsibility of the Investment Committee or
Investment Manager, as the case may be, to advise the Trustee in writing with
respect to any laws or regulations of any foreign countries or any United
States territory or possession which shall apply in any manner whatsoever to
such securities, including, without limitation, receipt by the Trustee of
dividends, interest or other distributions on such securities.
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4.2 ADMINISTRATIVE POWERS OF THE TRUSTEE. Notwithstanding the
appointment of an Investment Manager, the Trustee shall have the following
powers and authority, to be exercised in its sole discretion, with respect to
the Trust Fund:
(a) To employ suitable agents, custodians and counsel and to pay
their reasonable expenses and compensation.
(b) To appoint ancillary trustees to hold any portion of the assets
of the trust and to pay their reasonable expenses and compensation.
(c) To register any securities held by it hereunder in its own name
or in the name of a nominee with or without the addition of words
indicating that such securities are held in a fiduciary capacity and
to hold any securities in bearer form and to deposit any securities or
other property in a depository or clearing corporation; provided,
however, that the Trustee shall be responsible for any loss caused by
failure to identify that the securities are held in a fiduciary
capacity.
(d) To make, execute and deliver, as Trustee, any and all deeds,
leases, mortgages, conveyances, waivers, releases or other instruments
in writing necessary or desirable for the accomplishment of any of the
foregoing powers.
(e) Generally to do all ministerial acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable in
carrying out its duties under this Trust Agreement.
Notwithstanding anything in the Plans or this Trust Agreement to the
contrary, the Trustee may not independently and shall not be required by the
Company, the Investment Committee or any Investment Manager to engage in any
action, nor make any investment which constitutes a prohibited transaction or
is otherwise contrary to the provisions of ERISA or which is otherwise contrary
to law or to the terms of the Plans or this Trust Agreement.
After notice to the Company, the Trustee may consult with
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legal counsel concerning any question which may arise with reference to this
Trust Agreement and its powers and duties hereunder. The written opinion of
such counsel shall be full and complete protection of the Trustee in respect to
any action taken or suffered by the Trustee hereunder in good faith reliance on
said opinion.
5. INDEMNIFICATION.
The Company shall indemnify and save harmless the Trustee for and from
any loss or expense (including reasonable attorneys' fees) arising (a) out of
any matter as to which this Trust Agreement provides that the Trustee is
directed, protected, not liable, or not responsible, or (b) by reason of any
breach of any statutory or other duty owed to the Plans by the Company, any
Employer, the Administrator, the Investment Committee, any Investment Manager
or any delegate of any of them (and for the purposes of this sentence the
Trustee shall not be considered to be such a delegate), whether or not the
Trustee may also be considered liable for that other person's breach under the
provisions of Section 405(a) of ERISA.
6. SECURITIES OR OTHER PROPERTY.
The words "securities or other property", used in this Trust
Agreement, shall be deemed to refer to any property, real or personal, or part
interest therein, wherever situated, including, without limitation,
governmental, corporate or personal obligations, trust and participation
certificates, partnership interests, annuity or investment contracts issued by
an insurance company, leaseholds, fee titles, mortgages and other interests in
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realty, preferred and common stocks, certificates of deposit, financial options
and futures or any other form of option, evidences of indebtedness or ownership
in foreign corporations or other enterprises or indebtedness of foreign
governments, and any other evidences of indebtedness or ownership, including
securities or other property of the Company or the Employers, even though the
same may not be legal investment for trustees under any law other than ERISA.
7. COMPUTERIZED REPORTING SERVICES.
7.1 PROTECTION OF EQUIPMENT, CONFIDENTIAL OR PROPRIETARY PROGRAMS
AND INFORMATION. The Company agrees to use the equipment, computer programs
and other information supplied by the Trustee under this Contract solely for
its own internal use and benefit and not for resale or other transfer or
disposition to, or use by or for the benefit of, any other person or
organization without the prior written approval of the Trustee.
The Company acknowledges that the data bases, computer programs,
screen formats, screen designs, report formats, interactive design techniques,
and other information furnished to the Company by the Trustee constitute
copyrighted trade secrets or proprietary information of substantial value to
the Trustee. Such data bases, programs and other information are collectively
referred to below as "Proprietary Information". The Company agrees that it
shall treat all Proprietary Information as proprietary to the Trustee and that
it shall not divulge any Proprietary Information to any person or organization
except as expressly permitted hereunder. Without limiting the foregoing,
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the Company agrees for itself and its employees and agents:
(a) to use such programs and data bases (i) solely on the Trustee's
computers, (ii) solely from equipment at Company locations agreed to
between the Company and the Trustee and (iii) solely in accordance
with the Trustee's applicable user documentation;
(b) to use equipment supplied by the Trustee solely with programs
supplied by the Trustee and no other programs or software;
(c) to refrain from copying or duplicating in any way. (other than in
the normal course of performing processing on Trustee's computers) any
part of any Proprietary Information;
(d) to refrain from obtaining unauthorized access to any programs,
data or other information not owned by the Company, and if such access
is accidentally obtained, to respect and safeguard the same as
Proprietary Information;
(e) to refrain from causing or allowing information transmitted from
the Trustee's computer to the Company's terminals to be retransmitted
to another computer, terminal or other device;
(f) that the Company shall have access to only those authorized
transactions as agreed to between the Company and the Trustee;
(g) to honor reasonable written requests made by the Trustee to
protect at the Trustee's expense the rights of the Trustee in
Proprietary Information at common law, under the Federal copyright
statutes and under other Federal and state statutes.
7.2 COMPANY ACKNOWLEDGMENT. The Company hereby acknowledges that
the data and information it will be accessing from Trustee via its on-screen
data services is unaudited and may not be accurate due to inaccurate pricing of
securities, delays of a day or more in updating the Account and other causes
for which Trustee will not be liable to the Company.
8. SECURITY CODES.
If the Trustee has issued to the Company, or to any Investment Manager
appointed by the company, security codes or
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passwords in order that the Trustee may verify that certain transmissions of
information, including directions or instructions, have been originated by the
Company or the Investment Manager, as the case may be, the Trustee shall be
kept indemnified by and be without liability to the Company for any action
taken or omitted by it in reliance upon receipt by the Trustee of transmissions
of information with the proper security code or password, including
communications purporting to be directions or instructions, which the Trustee
reasonably believes to be from the Company or Investment Manager.
9. TAXES AND TRUSTEE COMPENSATION.
The Trustee shall pay out of the Trust Fund all real and personal
property taxes, income taxes and other taxes of any and all kinds levied or
assessed under existing or future laws against the Trust Fund. Until advised to
the contrary by the Administrator, the Trustee shall assume that the Trust is
exempt from Federal, State and local income taxes, and shall act in accordance
with that assumption. The Administrator shall timely file all Federal, State
and local tax and information returns relating to the Plans and Trust.
The Trustee shall be paid such reasonable compensation as shall from
time to time be agreed upon by the Company and the Trustee. Such compensation
and all reasonable and proper expenses of administration of the Trust,
including counsel fees, shall be withdrawn by the Trustee out of the Trust Fund
unless paid by the Company or the Employers at the direction of the Company,
but such compensation and expenses shall be paid by the Company and the
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Employers if the same cannot by operation of law be withdrawn from the Trust
Fund.
All payments from the Trust Fund under this Article 9 may be made
without approval or direction of the Administrator.
10. ACCOUNTS OF THE TRUSTEE.
The Trustee shall maintain or cause to be maintained suitable records,
data and information relating to its functions hereunder.
The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements, and other actions hereunder. Its books
and records relating thereto shall be open to inspection and audit at all
reasonable times by the Administrator or its duly authorized representatives,
the Investment Committee and each Investment Manager. The Trustee shall be
entitled to reasonable compensation and reimbursement of its reasonable
expenses incurred in connection with such audits or inspections.
Within sixty days after the close of each fiscal year of the trust and
at more frequent intervals if agreed to by the parties hereto, and within sixty
days after the removal or resignation of the Trustee as provided hereunder, the
Trustee shall render to the Company a written statement and account showing in
reasonable summary the investments, receipts, disbursements, and other
transactions engaged in during the preceding fiscal year or period, and setting
forth the assets and liabilities of the trust. Unless the Company shall have
filed with the Trustee written exceptions or objections to any such statement
and account within sixty days after receipt thereof, the Company shall be
deemed to have approved such statement and account, and in such case or upon
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written approval by the Company of any such statement and account, the Trustee
shall be released and discharged with respect to all matters and things
embraced in such statement and account as though it had been settled by a
decree of a court of competent jurisdiction in an action or proceeding in which
the Company, all other necessary parties and all persons having any beneficial
interest in the Trust Fund were parties, except for any actions resulting from
the Trustee's bad faith, fraud, negligence or willful misconduct.
The Trustee shall determine the fair market value of assets of the
Trust Fund based upon valuations provided by Investment managers, information
and financial publications of general circulation, statistical and valuate on
services, records of security exchanges, appraisals by qualified persons,
transactions and bona fide offers in assets of the type in question and other
information customarily used in the valuation of property.
The Company or its delegate, each Investment Manager, and the Trustee
shall file such descriptions and reports and make such other publications,
disclosures, registrations and other filings as are required of them
respectively by ERISA.
Nothing contained in this Trust Agreement or in the Plans shall
deprive the Trustee of the right to have a judicial settlement of its account.
In any proceeding for a judicial settlement of the Trustee's accounts or for
instructions in connection with the trust, the only necessary party thereto in
addition to the Trustee shall be the Company, and no participant or other
person having or claiming any interest in the Trust Fund
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shall be entitled to any notice or service of process (except as required by
law). Any judgment, decision or award entered in any such proceeding or action
shall be conclusive upon all interested persons.
11. RELIANCE ON COMMUNICATIONS.
The Trustee may rely upon a certification of an Administrator (or any
individual member thereof) of a Plan with respect to any instruction, direction
or approval of such Administrator (or any individual member thereof) with
respect to that Plan and may rely upon a certification of the Company as to the
membership of each Administrator as it then exists, and may continue to rely
upon such certification until a subsequent certification is filed with the
Trustee.
The Trustee shall be fully protected in acting upon any instrument,
certificate, or paper of the Company, its Board of Directors, an Administrator
(or any individual member thereof), believed by it to be genuine and to be
signed or presented by any authorized person, and the Trustee shall be under no
duty to make any investigation or inquiry as to any statement contained in any
such writing but may accept the same as fully authorized by the Company, its
Board of Directors or an Administrator (or any individual member thereof), as
the case may be.
The Trustee shall be further protected in relying upon a certification
from the Investment Committee or any Investment Manager appointed by the
Company as to the person or persons authorized to give instructions or
directions on behalf of such Investment Committee or Investment Manager and may
continue to
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rely upon such certification until a subsequent certification is filed with
Trustee.
12. RESIGNATION AND REMOVAL OF TRUSTEE.
Any Trustee acting hereunder may resign at any time by giving thirty
days' prior written notice to the Company, which notice may be waived by the
Company. The Company may remove the Trustee at any time upon thirty days' prior
written notice to the Trustee, which notice may be waived by the Trustee. In
case of the resignation or removal of the Trustee, the Company shall appoint a
successor trustee. Any successor trustee shall have the same powers and duties
as those conferred upon the Trustee named in this Trust Agreement. The removal
of a Trustee and the appointment of a new Trustee shall be by a written
instrument delivered to the Trustee. Upon the appointment of a successor
trustee and after the final account of the resigning or removed Trustee has
been approved or settled, as provided in Article 10, the resigning or removed
Trustee shall transfer or deliver the Trust Fund to such successor trustee. Any
Trustee so resigning or removed shall make no surrender charge with respect
thereto.
13. AMENDMENT.
This Trust Agreement may be amended by agreement between the Trustee
and the Company at any time or from time to time and in any manner, and the
provisions of any such amendment may be applicable to the Trust Fund as
constituted at the time of the amendment as well as to the part of the Trust
Fund subsequently acquired. Any such amendment shall be expressed in an
instrument executed by the Company and the Trustee and shall become effective
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as of the date designated in such instrument or, if no such date is designated,
upon the date of the execution of such instrument. If the Trustee is unable or
unwilling to execute any such amendment, it may resign or be removed as above
provided.
14. TERMINATION.
This Trust Agreement and the trust created hereby may be terminated at
any time by the Company, and upon such termination or upon the dissolution or
liquidation of the Company, in the event that a successor to the Company by
operation of law or by the acquisition of its business interests shall not
elect to continue the Plans and the trust, the Trust Fund shall be paid out by
the Trustee after the settlement of its final account in accordance with
applicable law pursuant to instructions given by the Administrator.
Notwithstanding the foregoing, the Trustee shall not be required to pay out any
assets of the Trust Fund upon termination of the Trust until the Trustee has
received written certification from the Administrator: (i) that all provisions
of law with respect to such termination have been complied with; and (ii)
(after the Trustee has made a determination of the fair market value of the
Plans' assets) that the Plans' assets are sufficient to discharge when due all
obligations of the Plans required by law. The Trustee shall rely conclusively
on such written certification, and shall be under no obligation to investigate
or otherwise determine its propriety. In the event that the Trust Fund is
terminated, in whole or in part, before the termination of each of the Plans,
the Trustee shall transfer the Trust Fund, or the part thereof to which the
termination applied,
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to another trust or fund for the benefit of some or all of the participants and
beneficiaries of the Plans, as the Company may direct, but subject to the
limitations of Section 16.2 hereof.
15. PARTICIPATION OF OTHER EMPLOYERS.
15.1 ADOPTION BY OTHER EMPLOYERS; WITHDRAWALS. The Trust is
MAINTAINED BY THE COMPANY for use as the funding vehicle for the Plans which it
maintains for various groups of employees and for use as the funding vehicle
for the Plans of any Employer.
(a) Any Employer which has been certified to the Trustee by the
Company as being authorized and as having adopted this Trust with the
consent of the Company as a funding vehicle for its own Plans may, at
any time thereafter, become a party to this Trust Agreement. Such
Employer must file with the Trustee a certified copy of a resolution
of its Board of Directors evidencing its election so to do; and
(b) Any Employer which is a party to this Trust Agreement and which
has been certified to the Trustee by the Company as having adopted one
or more other Plans and as being authorized to adopt this Trust as the
funding medium for such other Plan or Plans may, at any time
thereafter, adopt this Trust for the purposes of such other Plan or
Plans by filing with the Trustee a certified copy of a resolution of
its Board of Directors evidencing its election so to do.
Thereafter, the Trustee shall receive and hold as a part of the Trust
Fund, subject to the provisions of this Trust Agreement, any deposits made to
it under such Plans by or at the direction of such Employer. Should this
paragraph become operative:
(a) In the event of the withdrawal of a Plan from the trust or in the
event of the Company's or an Employer's election to terminate or to
fund separately the benefits provided under any of its Plans, the
Company shall require the Trustee to value the share of the Trust Fund
which is held for the benefit of persons having an interest therein
under such Plans. The Trustee shall thereupon segregate and dispose of
such share in accordance with the written direction of the Company
accompanied by its certification to the Trustee that such segregation
and disposition is in accordance with the terms of the Plans and the
requirements of the law.
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(b) If the Company or any Employer receives notice that one or more
of the Plans is no longer qualified under the provisions of Section
401 of the Code or the corresponding provisions of any future Federal
revenue act, the Company shall immediately require the Trustee to
Value the share of the Trust Fund which is held for the benefit of
such persons having an interest under such disqualified Plan or Plans.
The Trustee shall thereupon segregate, withdraw from the Trust Fund,
and dispose of such share as directed by the Company.
(c) In the event that any group of employees covered by a Plan is
withdrawn from such Plan, the Company shall, if required by the terms
of such Plan, require the Trustee to value the share of the Trust Fund
which is held for the benefit of such group of employees. The Trustee
shall thereupon segregate and dispose of such share in accordance with
the direction of the Company accompanied by its certification to the
Trustee that such segregation and disposition is in accordance with
the terms of such Plan and the requirements of the law.
The Trustee shall have no duty to see that the valuation of any share
in accordance with the provisions of this Section 15.1 is caused to be made by
the Company, nor to segregate and dispose of any such share in the absence of
the written direction of the Company to do so.
15.2 POWERS AND AUTHORITIES OF OTHER EMPLOYERS TO BE EXERCISED
EXCLUSIVELY BY COMPANY. Each Employer, other than the company, which is or
shall become a party to this Trust Agreement, hereby irrevocably gives and
grants to the Company full and exclusive power and authority to exercise all of
the powers conferred upon it by the terms of this Trust Agreement and to take
or refrain from taking any and all action which such Employer might otherwise
take or refrain from taking with respect to this Trust Agreement, including the
sole and exclusive power to exercise, enforce or waive any rights whatsoever
which such Employer might otherwise have with respect to the Trust Fund, and
each such Employer, by becoming a party to this Trust Agreement,
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irrevocably appoints the Company its agent for such purposes. The Trustee shall
have no obligation to account to any such Employer or to follow the
instructions of or otherwise deal with any such Employer, the intention being
that the Trustee shall deal solely with the Company as if the Trustee and the
Company were the only parties in this Trust Agreement.
16. MISCELLANEOUS.
16.1 GOVERNING LAW. To the extent not inconsistent with ERISA, as
heretofore or hereafter amended, the provisions of this Trust Agreement shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
16.2 NO REVERSION TO EMPLOYERS. Except as provided herein, no
portion of the principal or the income of the Trust Fund shall revert to or be
recoverable by the Company or any Employer or ever be used for or diverted to
any purpose other than for the exclusive benefit of participants in the Plans
and persons claiming under or through them pursuant to the Plans, provided,
however, that:
(a) if a contribution is conditioned upon the deductibility of the
contribution under Section 404 of the Code, then, to the extent the
deduction is disallowed, the Trustee shall, upon written request of
the affected Employer or the Company, return such amounts as may be
permitted by law to such Employer or the Company, as appropriate,
within one year after the date the deduction is disallowed; and
(b) if a contribution or any portion thereof is made by the Company
or an Employer by a mistake of fact, the Trustee shall, upon written
request of the Company or such Employer, return such amounts as may be
permitted by law to the Company or such Employer, as appropriate,
within one year after the date of payment to the Trustee; and
(c) if a contribution is conditioned upon the qualification of the
Plans and Trust under Section 401 and 501 of the Code,
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the contributions of the Company or an Employer to the Trust for all
Plans Years, with the gains and losses thereon, shall be returned by
the Trustee to the Company or such Employer, as appropriate, within
one year in the event that the Commissioner of Internal Revenue fails
to rule that the Plans and Trust were as of such date qualified and
tax-exempt (within the meaning of Sections 401 and 501 of the Code);
and
(d) in the event that a Plan whose assets are held in the Trust Fund
is terminated, assets of such Plan may be returned to the Employer if
all liabilities to participants and beneficiaries of such Plan have
been satisfied; and
(e) assets may be returned to the Employer to the extent that the law
permits such transfer.
The Trustee shall be under no obligation to return any part of the
Trust Fund as provided in this Section 16.2 until the Trustee has received a
written certification from the Administrator that such return is in compliance
with this Section 16.2, the Plans and the requirements of the law. The Trustee
shall rely conclusively on such written certification and shall be under no
obligation to investigate or otherwise determine its propriety.
16.3 NON-ALIENATION OF BENEFITS. No benefit to which a participant
or his beneficiary is or may become entitled under a Plan shall at any time be
subject in any manner to alienation or encumbrance, nor be resorted to,
appropriated or seized in any proceeding at law, in equity or otherwise. No
participant or other person entitled to receive a benefit under a Plan shall,
except as specifically provided in such Plans, have power in any manner to
transfer, assign, alienate or in any way encumber such benefit under such Plan,
or any part thereof, and any attempt to do so shall be void.
16.4 DURATION OF TRUST. Unless sooner terminated, the trust
created under this Trust Agreement shall continue for the maximum
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period of time which the laws of the Commonwealth of Massachusetts shall
permit.
16.5 NO GUARANTEES. Neither the Company, nor any Employer, nor
the Trustee guarantees the Trust Fund from loss or depreciation, nor the
payment of any amount which may become due to any person under the Plans or
this Trust Agreement.
16.6 DUTY TO FURNISH INFORMATION. Both the Company and the
Trustee shall furnish to the other any documents, reports, returns, statements,
or other information that the other reasonably deems necessary to perform its
duties imposed under the Plans or this Trust Agreement or otherwise imposed by
law.
16.7 WITHHOLDING. The Trustee shall withhold any tax which by any
present or future law is required to be withheld from any payment under the
Plans, provided that the Administrator provides all information reasonably
requested by the Trustee to enable the Trustee to so withhold.
16.8 PARTIES BOUND. This Trust Agreement shall be binding upon
the parties hereto, all participants in the Plans and persons claiming under or
through them pursuant to the Plans, and, as the case may be, the heirs,
executors, administrators, successors, and assigns of each of them. The
provisions of Articles 5, 7 and 8 shall survive termination of the Trust
created under this Trust Agreement or resignation or removal of the Trustee for
any reason.
In the event of the merger or consolidation of the Company or any
Employer or other circumstances whereby a successor person, firm or company
shall continue to carry on all or a substantial part of its business, and such
successor shall elect to carry on
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the provisions of the Plan or Plans applicable to such business, as therein
provided, such successor shall be substituted hereunder for the Company or such
Employer, as the case may be, upon the filing in writing of its election so to
do with the Trustee. The Trustee may, but need not, rely on the certification
of an officer of the Company, and a certified copy of a resolution of the Board
of Directors of such successor, reciting the facts, circumstances and
consummation of such succession and the election of such successor to continue
the said Plan or Plans as conclusive evidence thereof, without requiring any
additional evidence.
16.9 NECESSARY PARTIES TO DISPUTES. Necessary parties to any
accounting, litigation or other proceedings shall include only the Trustee, the
Company and any appropriate Employers and the settlement or judgment in any
such case in which the Company, the appropriate Employers and the Trustee are
duly served or cited shall be binding upon all participants in the Plans and
their beneficiaries and estates, and upon all persons claiming by, through or
under them.
16.10 UNCLAIMED BENEFIT PAYMENTS. If any check or share certificate
in payment of a benefit hereunder which has been mailed by regular US mail to
the last address of the payee furnished the Trustee by the Administrator is
returned unclaimed, the Trustee shall notify the Administrator and shall
discontinue further payments to such payee until it receives the further
instruction of the Company or its Administrator.
16.11 SEVERABILITY. If any provisions of this Trust Agreement shall
be held by a court of competent jurisdiction to be
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invalid or unenforceable, the remaining provisions of this Trust Agreement
shall continue to be fully effective.
16.12 REFERENCES. Unless the context clearly indicates to the
contrary, a reference to a statute, regulation, document or provision shall be
construed as referring to any subsequently enacted, adopted or executed
counterpart.
16.13 HEADINGS. Headings and subheadings in this Trust Agreement are
inserted for convenience of reference only and are not to be considered in the
construction of its provisions.
16.14 NO LIABILITY FOR ACTS OF PREDECESSOR OR SUCCESSOR TRUSTEES AND
CO-TRUSTEES. The Trustee shall have no liability for the acts or omissions of
any predecessors or successors in office. If there are other trusts under any
of the Plans, the Trustee shall have no responsibility or liability for the
acts or omissions of any other trustee with respect to such other trusts.
16.15 COUNTERPARTS. This Trust Agreement may be executed
in one or more counterparts, each of which shall constitute an
original.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers as of the day and year first
above written.
ATTEST: NACCO INDUSTRIES, INC.
/S/ Charles A. Bittenbender By: Robert L. Hilton
- --------------------------- -----------------
TITLE: Vice President and Treasurer
----------------------------
ATTEST: STATE STREET BANK AND TRUST COMPANY
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/S/ Dorothy McNeil By: /S/ Judith Parker
- ------------------ -----------------
Vice President
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Schedule A
1. The Hamilton Beach/Proctor-Silex, Inc. Profit Sharing Retirement Plan.
2. The North American Coal Corporation Salaried Employees Pension Plan
(which includes The NACCO Industries, Inc. Pension Plan for Salaried
Employees which was merged into the Plan on December 31, 1993).
3. The NACCO Materials Handling Group, Inc. Cash Balance Plan for
Salaried Employees.
4. The NACCO Materials Handling Group, Inc. Cash Balance Plan for Berea
Shop Employees.
5. The NACCO Materials Handling Group, Inc. Cash Balance Plan for
Sulligent Shop Employees.
6. The NACCO Materials Handling Group, Inc. Danville Shop Employees
Pension Plan.
7. NACCO Materials Handling Group, Inc. Kewanee Shop Employees Pension
Plan.
8. The NACCO Materials Handling Group, Inc. Portland and Branch Store
Shop Employees Pension Plan.
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