EXHIBIT 10.5
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TRUST AGREEMENT
Between
GREYHOUND LINES, INC.
and
LASALLE NATIONAL BANK
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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
"▇▇▇▇▇▇▇" 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 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) ▇▇▇▇▇▇▇ (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 ▇▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇,
Inc., a Canadian corporation ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ Transit Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of ▇▇▇▇▇▇▇, and the Company,
pursuant to which ▇▇▇▇▇▇▇ Transit Acquisition Corp. will be merged with and into
the Company, with the Company as the surviving entity.
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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 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.
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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 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.
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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.
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
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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
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
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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) 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
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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.
(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.
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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).
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
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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.
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
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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 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.
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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
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.
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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 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.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee, to: LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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: ________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: __________________________ Its: Senior Vice President
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Exhibit A
Employee Address Soc. Sec. No.
-------- ------- -------------
A-1
Exhibit B
B-1
Exhibit C
Fiduciary Services Agreement
C-1
