Exhibit 4.18
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
DEFERRED COMPENSATION TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLE I - General Trust Provisions...................................... 2
1.1 Establishment of Trust.......................................... 2
1.2 Separate Sub-Trusts............................................. 2
1.3 Trust Irrevocable............................................... 2
1.4 Non-Alienation.................................................. 2
1.5 Acceptance by Trustee........................................... 2
ARTICLE II - General Duties of the Parties................................ 3
2.1 General Duties of the Employer and the Trustee.................. 3
2.2 Additional General Duties of Trustee............................ 4
ARTICLE III - Investment, Administration and Disbursement of
Trust Fund........................................................... 4
3.1 Investment of Trust Fund........................................ 4
3.2 Valuation of Trust Fund......................................... 5
3.3 Additional Investment Powers of Trustee......................... 5
3.4 Administrative Powers of Trustee................................ 6
3.5 Dealings with Trustee........................................... 6
3.6 Distributions from Trust Fund................................... 7
ARTICLE IV - Settlement of Accounts....................................... 9
ARTICLE V - Taxes, Expenses and Compensation of Trustee................... 9
5.1 Taxes........................................................... 9
5.2 Expenses and Compensation....................................... 10
ARTICLE VI - For Protection of Trustee.................................... 10
6.1 Communications with the Employer, the Administrator and
the Participants............................................. 10
6.2 Advice of Counsel............................................... 11
6.3 Fiduciary Responsibility........................................ 11
ARTICLE VII - Indemnity of Trustee........................................ 11
ARTICLE VIII - Resignation and Removal of Trustee......................... 12
8.1 Resignation of Trustee.......................................... 12
8.2 Removal of Trustee.............................................. 13
8.3 Successor Trustee............................................... 13
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8.4 Transfer of Trust Fund to Successor............................. 13
ARTICLE IX - Duration and Termination of Trust and Amendment.............. 13
9.1 Duration and Termination........................................ 13
9.2 Distribution upon Termination................................... 14
9.3 Amendment....................................................... 14
ARTICLE X - Claims of Employer's Creditors................................ 14
10.1 Insolvency of Employer.......................................... 14
10.2 Trustee's Responsibilities if Employer may be Insolvent......... 15
10.3 Trust Recovery of Payments to Creditors......................... 15
ARTICLE XI - Adopting Entities............................................ 16
ARTICLE XII - Miscellaneous............................................... 16
12.1 Laws of the State of Texas to Govern............................ 16
12.2 Titles and Headings not to Control.............................. 16
12.3 Change of Control............................................... 16
12.4 Successors and Assigns.......................................... 17
12.5 Controlling Document............................................ 17
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
DEFERRED COMPENSATION TRUST AGREEMENT
THIS AGREEMENT AND DECLARATION OF TRUST, made this 1st day of July, 1999,
by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION and WACHOVIA BANK, N.A.. (hereinafter
referred to as the "Trustee").
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION has established the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION SUPPLEMENTAL EXCESS DEFINED CONTRIBUTION PLAN, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION COMPENSATION DEFERRAL PLAN (hereinafter referred to as the "Plans,"
jointly and severally) for the benefit of certain individuals who are eligible
for benefits under the terms of the Plans (such individuals being referred to
herein as the "Participants"), which Plans provide for the payment of certain
deferred compensation benefits (the "Benefits") to the Participants and the
beneficiaries of the respective Participants who may become entitled to any
payments under the terms of the Plans in the event of the Participant's death
("Beneficiaries"); and
WHEREAS, other adopting entities may adopt the Plans (such other adopting
entities, if any, along with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION hereinafter referred to
as the "Employer," jointly and severally); and
WHEREAS, the Plans contemplate that the Employer will pay the entire cost
of the Benefits from its general assets; and
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION desires to establish the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION DEFERRED COMPENSATION TRUST AGREEMENT (the "Trust") to aid the
Employer in meeting the obligations under the Plans; and
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus and
income of the Trust treated as assets and income of the Employer for federal
income tax purposes; and
WHEREAS, the Employer intends that the assets of the Trust shall at all
times be subject to the claims of general creditors of the Employer as provided
in Article X; and
WHEREAS, the Employer intends that the existence of the Trust shall not
alter the characterization of the Plans as "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and shall
not be construed to provide income to any Participant prior to actual payment of
Benefits under the Plans; and
WHEREAS, under the Trust, the Trustee covenants that it will hold all
property which it may receive hereunder, IN TRUST, for the uses and purposes and
upon the terms and conditions hereinafter stated;
NOW, THEREFORE, the parties hereto adopt this Trust Agreement, effective
, 199 , and agree, as follows:
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ARTICLE I
General Trust Provisions
1.1 Establishment of Trust. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation hereby adopts the
Trust Agreement, establishing the Trust with the Trustee, consisting of such
sums of money and other property acceptable to the Trustee as from time to time
shall be paid or delivered to the Trustee by the Employer. All such money and
other property, all investments and reinvestments made therewith or proceeds
thereof and all earnings and profits thereon, less all payments and charges as
authorized herein, shall constitute the "Trust Fund." The Trust Fund shall at
all times be subject to the claims of general creditors of the Employer as
provided in Article X. No Participant or Beneficiary shall have any preferred
claim to, or any beneficial ownership interest in, any assets of the Trust Fund
prior to the time such assets are paid to such Participant or Beneficiary as
Benefits.
1.2 Separate Sub-Trusts. Contrary provisions of the Trust notwithstanding,
except as provided in Article XI, the provisions of the Trust shall apply
separately and equally to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation and to each adopting entity
that has entered into this Trust Agreement pursuant to Article XI. Each Employer
shall bear the cost of providing Benefits for its own Participants and their
Beneficiaries, and the portion of the Trust Fund attributable to the
contributions of each Employer shall be available only to provide benefits to
such Employer's Participants and their Beneficiaries or to satisfy claims of
such Employer's Bankruptcy Creditors in the event such Employer becomes
Insolvent (as such terms are defined in Section 10.1).
1.3 Trust Irrevocable. The Trust shall be irrevocable and shall be held for
the exclusive purpose of providing benefits under the Plans to Participants and
their Beneficiaries and defraying expenses of the Trust in accordance with the
provisions of this Trust Agreement. Except as provided in Sections 3.6(c) and
3.6(d) and Articles IX and X hereof, no part of the income or corpus of the
Trust Fund shall be recoverable by or for the Employer.
1.4 Non-Alienation. No right or interest to receive benefits from the Trust
may be assigned, sold, anticipated, alienated or otherwise transferred by any
Participant or Beneficiary.
1.5 Acceptance by Trustee. The Trustee accepts the Trust established under
this Trust Agreement on the terms and subject to the provisions set forth
herein, and it agrees to discharge and perform fully and faithfully all of the
duties and obligations imposed upon it under this Trust Agreement.
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ARTICLE II
General Duties of the Parties
2.1 General Duties of the Employer and the Trustee.
(a) The Employer has provided or will provide the Trustee with a copy
of the Plans and shall provide the Trustee with a copy of any amendment to the
Plans promptly upon its adoption. The Plans, as of the date of execution of this
Trust Agreement, are hereby incorporated by reference into and shall form a part
of this Trust Agreement as fully as if set forth herein verbatim. Any amendment
to the Plans shall also be incorporated by reference into and form a part of
this Trust Agreement, effective as of the effective date of such amendment.
Schedule A to this Trust Agreement sets forth the name and mailing address of
each Participant entitled to receive Benefits, the Beneficiaries, if any,
designated by each Participant, and each Participant's aggregate balance
("Account Balance") in the accounts maintained under each of the Plans on his or
her behalf. Such Schedule (as amended from time to time as provided herein) is
hereinafter referred to as the "Benefit Schedule." The Employer shall be
responsible for notifying the Trustee of any changes in the information set
forth on the Benefit Schedule, including, but not limited to, the addition of
new Participants and a change in the mailing address of a Participant.
(b) Subject to the provisions of Section 2.1(c), the Trustee shall be
charged with keeping the Benefit Schedule accurate and current, including but
not limited to, preparing by March31 of each year a completely updated Benefit
Schedule as of December31 of the immediately preceding year with such assistance
from the Employer and independent third parties as may be necessary in order to
permit distributions from the Trust Fund to be made in accordance with the
provisions of Section 3.6. The Employer shall keep accurate books and records
with respect to the eligibility of individuals to participate in the Plans and
the Benefits payable under the Plans, and shall provide such information to the
Trustee and any independent third party referred to in the immediately preceding
sentence and shall also provide access to such books and records at such time or
times as the Trustee shall reasonably request.
(c) If, at any time, the Employer fails or refuses to give the Trustee
Participant data or access to such books and records in accordance with Section
2.1(b), the Trustee shall deliver a written request to the Employer to provide
access to books and records of the Employer and to provide such data as required
in accordance with Section 2.1(b) for the Trustee to keep the Benefit Schedule
accurate and current. If the Employer fails or refuses to comply with the
Trustee's written request pursuant to the preceding sentence prior to the
expiration of thirty days from the date of delivery thereof by the Trustee, the
Trustee shall, after ten days written notice to the Employer, immediately pay to
each Participant an amount equal to such Participant's Account Balance as set
forth on the most recent Benefit Schedule, reduced by any taxes to be withheld
pursuant to Section 3.6. Such payment shall be made in accordance with the
provisions of Section 3.6. For this purpose, the Employer shall be deemed to
have complied with the Trustee's written request if, in the Trustee's judgment,
it shall have substantially complied at the end of the thirty-day period and is
endeavoring in good faith to complete compliance without delay.
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(d) The Trustee shall notify each Participant and Beneficiary of a
then deceased Participant in writing of any changes in the Benefit Schedule with
respect to such Participant or Beneficiary and shall notify all Participants and
such Beneficiaries of any failure of the Employer to provide information
required in this Section 2.1.
(e) It is intended that Benefits payable to Participants shall be
determined under the provisions of the Plans and shall be calculated under the
provisions of the Plans as of the date of payment. Payment of Benefits shall be
based upon the amounts set forth on the Benefit Schedule only under the
circumstances set forth in Section 2.1(c). If the actual Benefits payable to a
Participant under the provisions of the Plans exceeds the amount set forth on
the Benefit Schedule which is paid pursuant to Section 2.1(c), the Employer
shall be liable for payment of the remaining portion of such Benefits.
2.2 Additional General Duties of Trustee. The Trustee shall manage, invest
and reinvest the Trust Fund as the Trustee may determine in the exercise of its
fiduciary duties hereunder, consistent with the provisions of Article III. The
Trustee shall collect the income on the Trust Fund, and make distributions
therefrom, all as hereinafter provided.
ARTICLE III
Investment, Administration and Disbursement of Trust Fund
3.1 Investment of Trust Fund. The following provisions shall apply with
respect to investment of the Trust Fund:
(a) At any time prior to the occurrence of a Change of Control (as
such term is defined in Section 12.3), the Trustee shall invest and
reinvest the assets of the Trust Fund in accordance with the written
directions received from time to time by the Trustee from the administrator
established pursuant to the Plans (the "Administrator");
(b) To the extent that the Trustee is directed by the Administrator,
the Trustee may establish one or more separate investment accounts within
the Trust Fund, each separate account being hereinafter referred to as an
Investment Fund. Except as otherwise provided, the Trustee shall transfer
to each such Investment Fund such portion of the assets of the Trust Fund
as the Administrator directs. The Trustee shall be under no duty to
question, and shall not incur any liability on account of following, any
direction of the 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 Administrator for any
Investment Fund, or to make suggestions to the Administrator 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. The Administrator may direct the Trustee to eliminate an
Investment Fund or Funds, and the Trustee shall
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thereupon dispose of the assets of such Investment Fund and reinvest the
proceeds thereof in accordance with the directions of the Administrator;
and
(c) From and after the occurrence of a Change of Control, or if the
Administrator fails to provide the Trustee with such written directions,
the Trustee shall have, with respect to the Trust Fund, power in its
discretion to invest and reinvest such assets in (i) bonds, notes and
debentures (but not including any debt instruments of the Employer, the
Trustee or their affiliates) which are readily marketable and listed on a
United States national securities exchange or the NASDAQ national market,
(ii) interest-bearing deposit accounts or certificates of deposit maturing
within one year after acquisition thereof, entered into or issued by a
United States national or state bank or trust company having capital,
surplus and undivided profits, at the holding company level, of at least
$75 million, (iii) direct obligations of, and obligations fully guaranteed
by, the United States of America or any agency of the United States of
America which is backed by the full faith and credit of the United States
of America (so long as such obligations shall mature within one year after
acquisition thereof), (iv) any common, collective or commingled fund,
including a fund maintained by the Trustee, established and maintained
primarily for the purpose of investing and reinvesting in assets of the
type described in (i), (ii) and (iii) above, and (v) insurance contracts
issued by one or more insurance companies. Further, notwithstanding the
provisions of the preceding sentence, after the occurrence of a Change of
Control or in the event the Administrator fails to provide the Trustee with
written directions pursuant to the first sentence of this Section, the
Trustee shall have the power in its discretion to retain, maintain,
continue, sell, or take any other actions relative to any assets then held
in the Trust Fund.
3.2 Valuation of Trust Fund. As soon as practicable after December 31 of
each year and as of such other dates as may be specified by the Employer or the
Administrator, the Trustee shall report to the Employer and the Administrator
the assets held in the Trust Fund as of such day and shall determine and include
in such report the fair market value as of such day of each such asset. In
determining such fair market values, the Trustee shall use such market
quotations and other information as are available to it and may in its
discretion be appropriate. The report of any such valuation shall not constitute
a representation by the Trustee that the amounts reported as fair market values
would actually be realized upon the liquidation of the Trust Fund. The Trustee
shall not be accountable to the Employer or to any other person on the basis of
any such valuation, but its accountability shall be in accordance with the
provisions of Article IV hereof.
3.3 Additional Investment Powers of Trustee. Subject to the provisions of
Sections 3.1, 3.6 and 9.2 hereof, the Trustee shall have, with respect to the
Trust Fund, the power in its discretion:
(a) To retain any property at any time received by it;
(b) To sell, exchange, convey, transfer or dispose of, and to grant
options for the purchase or exchange with respect to, any property at any
time held by it; and
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(c) To register and carry any securities or any other property in the
name of the Trustee, or in the name of the nominee of the Trustee (or to
hold any such property unregistered) without increasing or decreasing the
fiduciary liability of the Trustee, and to exercise any option, right or
privilege to convert any convertible securities, including shares or
fractional shares of the Trustee so long as the conversion privilege is
offered pro rata to all shareholders.
3.4 Administrative Powers of Trustee. The Trustee shall have the power in
its discretion:
(a) To exercise all voting rights with respect to the shares of stock
held in the Trust Fund and to grant proxies, discretionary or otherwise;
(b) To cause any shares of stock to be registered and held in the name
of one or more of its nominees, or one or more nominees of any system for
the central handling of securities, without increase or decrease of
liability;
(c) To collect and receive any and all money and other property due to
the Trust Fund and to give full discharge therefor;
(d) Subject to the provisions of Section 3.6 hereof: to settle,
compromise or submit to arbitration any claims, debts or damages due or
owing to or from the Trustee; to commence or defend suits or legal
proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other
body or tribunal;
(e) To organize under the laws of any state a corporation or limited
liability company for the purpose of acquiring and holding title to any
property which it is authorized to acquire under this Trust Agreement and
to exercise with respect thereto any or all of the powers set forth in this
Trust Agreement;
(f) To determine how all receipts and disbursements shall be credited,
charged or apportioned as between income and principal;
(g) To determine the amount and time of Benefit payments in accordance
with Section 3.6; and
(h) Generally to do all acts, whether or not expressly authorized,
which the Trustee may deem necessary or desirable for the protection of the
Trust Fund.
3.5 Dealings with Trustee. Persons dealing with the Trustee shall be under
no obligation to see to the proper application of any money paid or property
delivered to the Trustee or to inquire into the Trustee's authority as to any
transaction.
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3.6 Distributions from Trust Fund.
(a) Except as set forth in Section 3.6(c), Section 3.6(d), Section 9.2
and Article X hereof, distributions from the Trust Fund shall be made by the
Trustee to the Participants and Beneficiaries at the times and in the amounts
set forth in the Plans and, to the maximum extent permitted by applicable law,
the Trustee shall be fully protected in so doing. Any amounts so paid shall be
reduced by the amount of any federal, state, or local income or other taxes that
may be required by law to be withheld or paid by the Trustee and the Trustee
shall pay such amounts to the appropriate governmental authorities; provided,
however, that the Employer, the Administrator, the Participants, and the
Beneficiaries shall provide the Trustee with all of the information necessary
for the Trustee to determine the amount of such taxes required to be withheld or
paid by the Trustee and the Trustee shall be fully protected in relying upon
such information. Notwithstanding any provision of this Trust Agreement to the
contrary, the Employer shall be obligated to pay the Benefits. To the extent
that the Trust Fund is not sufficient to pay any Benefit when due, the Employer
shall pay such Benefit directly. In the event Benefits are due to more than one
Participant or Beneficiary on the same date and the Trust Fund is not sufficient
to pay all such Benefits, the Trust Fund shall be applied pro rata among such
Participants and Beneficiaries on the basis of the Benefits due to be paid such
individuals on such date. Nothing in this Trust Agreement shall relieve the
Employer of its liabilities to pay Benefits except to the extent such
liabilities are met by application of Trust Fund assets.
(b) Prior to the occurrence of a Change of Control, the Administrator
shall direct the Trustee in writing as to the time and amount of Benefits to be
distributed to the Participants and Beneficiaries. From and after the occurrence
of a Change of Control, a Participant or Beneficiary who believes that he or she
is entitled to Benefits may apply in writing directly to the Trustee for payment
of such Benefits. Such application shall advise the Trustee of the circumstances
which entitle such Participant or Beneficiary to payment of such Benefits. The
Trustee shall, in such case, reach its own independent determination as to the
Participant's or Beneficiary's entitlement to Benefits, even though the Trustee
may be informed from another source (including the Employer or the
Administrator) that payments are not due under the Plans. If the Trustee so
desires, it may, in its sole discretion, make such additional inquiries and/or
take such additional measures as it deems necessary in order to enable it to
determine whether Benefits are due and payable, including, but not limited to,
interviewing appropriate persons, requesting affidavits, soliciting oral or
written testimony under oath, or holding a hearing or other proceeding. After
the occurrence of a Change of Control, the Trustee shall determine whether
Benefits are payable as promptly as possible.
(c) At any time and from time to time, the Administrator may direct
the Trustee in writing to distribute to the Employer cash held by the Trustee as
part of the Trust Fund in an amount equal to the Benefits accrued under the
Plans that have been forfeited under the terms of the Plans. As soon as
practicable after receipt of such a direction and, if such direction is received
by the Trustee after the occurrence of a Change of Control, the Trustee's
independent determination that such benefits have, in fact, been forfeited in
accordance with the terms of the Plans, the Trustee shall distribute such amount
to the Employer.
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(d) At any time and from time to time prior to the occurrence of a
Change of Control, the Employer may apply in writing to the Trustee for a
distribution by the Trustee to the Employer of assets held by the Trustee as
part of the Trust Fund ("Trust Assets") in an amount (the "Refund Amount") equal
to or less than the difference, if any, between (i) the Net Fair Market Value of
the Trust Assets (as such term is hereinafter defined) as of the last day of the
month coincident with or immediately preceding the date of such application, and
(ii) the aggregate Account Balances for all Participants and Beneficiaries as of
such date. Such application shall advise the Trustee of the manner in which the
Refund Amount was calculated. Upon the receipt of such an application from the
Employer, the Trustee shall reach its own independent determination as to the
Employer's entitlement to the Refund Amount, even though the Trustee may be
informed from another source (including a Participant) that the Employer is not
entitled to the Refund Amount. If the Trustee so desires, it may, in its sole
discretion, make such additional inquiries and/or take such additional measures
as it deems necessary in order to enable it to determine whether the Employer is
entitled to the Refund Amount, including, but not limited to, interviewing
appropriate persons, requesting affidavits, soliciting oral or written testimony
under oath, or engaging such independent third parties as the Trustee may deem
necessary to assist in making such determination. The Trustee shall determine
whether the Employer is entitled to all or any portion of the Refund Amount as
promptly as possible. If the Trustee determines that the Employer is entitled to
all or any portion of the Refund Amount, then the Trustee shall distribute such
amount to the Employer in cash or in kind as determined by the Trustee in its
sole discretion. As used herein, the term "Net Fair Market Value of the Trust
Assets" shall mean the fair market value of the Trust Assets, as determined by
the Trustee in its sole discretion, reduced by all liabilities of the Trust,
whether or not such liabilities are secured by any or all of the Trust Assets,
other than liabilities to Participants or Beneficiaries under the Plans. In
determining such fair market value, the Trustee shall use such market quotations
and other information as are available to it and may in its discretion be
appropriate. The determination of the Net Fair Market Value of the Trust Assets
by the Trustee shall not constitute a representation by the Trustee that the
amounts reported as fair market values would actually be realized upon the
liquidation of the Trust Assets. The Trustee shall not be accountable to the
Employer or to any other person, including the Participants or Beneficiaries, on
the basis of any such valuation except as otherwise provided in this Trust
Agreement.
(e) The Trustee may engage its own counsel or other experts to assist
it in making its determination under Section 3.6(a), (b), (c) or (d) hereof. The
cost of such counsel or other expert assistance, and any other costs reasonably
incurred by the Trustee in making such determination, shall be borne by the
Employer. If the Employer fails to pay any such costs when due, the Trustee may
use the assets of the Trust Fund to pay them as provided in Section 5.2.
(f) The Trustee shall not itself commence any legal action, whether in
the nature of an interpleader action, request for declaratory judgment or
otherwise, requesting a court to make a determination under Section 3.6(a), (b),
(c) or (d) hereof in the Trustee's stead without first using its best efforts to
make such determination.
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(g) Notwithstanding any other provision of this Trust Agreement, if
any amounts held in the Trust are found in a "determination" (within the meaning
of Section 1313(a) of the Internal Revenue Code of 1986) to have been includible
in gross income of a Participant or Beneficiary prior to payment of such amounts
from the Trust, the Trustee shall, as soon as practicable, pay such amounts to
such Participant or Beneficiary, as applicable, (but not in excess of such
Participant's or Beneficiary's Account Balance at the time of such payment). For
purposes of this Section 3.6, the Trustee shall be entitled to rely on an
affidavit by a Participant or Beneficiary, as applicable, and a copy of the
determination to the effect that a determination described in the preceding
sentence has occurred.
ARTICLE IV
Settlement of Accounts
The Trustee shall keep full accounts of all of its receipts and
disbursements. Its books and records with respect to the Trust Fund shall be
open to inspection by the Employer, any Participant or any Beneficiary of a
deceased Participant or their representatives at all times during business hours
of the Trustee. Within sixty days after December31 of each year, or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to the Employer and the Administrator an account of its acts and
transactions as Trustee hereunder. If, within sixty days after the mailing of
the account or any amended account, the Employer and the Administrator have not
filed with the Trustee notice of any objection to any act or transaction of the
Trustee, the account or amended account shall become an account stated. If any
objection has been filed, and if the objecting party is satisfied that it should
be withdrawn or if the account is adjusted to the objecting party's
satisfaction, the objecting party shall in writing filed with the Trustee
signify its approval of the account and it shall become an account stated. When
an account becomes an account stated, such account shall be finally settled, and
the Trustee shall be completely discharged and released, as if such account had
been settled and allowed by a judgment or decree of a court of competent
jurisdiction in an action or proceeding in which the Trustee, the Employer and
the Administrator were parties. The Trustee, the Employer or the Administrator
shall have the right to apply at any time to a court of competent jurisdiction
for judicial settlement of any account of the Trustee not previously settled as
hereinabove provided. In any such action or proceeding it shall be necessary to
join as parties the Trustee, the Employer and the Administrator and any judgment
or decree entered therein shall be conclusive upon all such parties.
ARTICLE V
Taxes, Expenses and Compensation of Trustee
5.1 Taxes. The Employer agrees that all income, deductions and credits of
the Trust Fund belong to it as owner for income tax purposes and will be
included on the Employer's income tax returns. The Employer shall from time to
time pay taxes (references in this Trust Agreement to the payment of taxes shall
include interest and applicable penalties) of any and all kinds whatsoever which
at any time are lawfully levied or assessed upon or become payable in
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respect of the Trust Fund, the income or any property forming a part thereof, or
any security transaction pertaining thereto. To the extent that any taxes levied
or assessed upon the Trust Fund are not paid by the Employer or contested by the
Employer pursuant to the last sentence of this Section 5.1, the Trustee shall
pay such taxes out of the Trust Fund and the Employer shall upon demand by the
Trustee deposit into the Trust Fund an amount equal to the amount paid from the
Trust Fund to satisfy such tax liability. If requested by the Employer, the
Trustee shall, at Employer expense, contest the validity of such taxes in any
manner deemed appropriate by the Employer or its counsel, but only if it has
received an indemnity bond or other security satisfactory to it to pay any
expenses of such contest. Alternatively, the Employer may itself contest the
validity of any such taxes, but any such contest shall not affect the Employer's
obligation to reimburse the Trust Fund for taxes paid from the Trust Fund.
5.2 Expenses and Compensation. The Trustee shall be paid compensation by
the Employer as the Employer and the Trustee may from time to time agree. The
Trustee shall be reimbursed by the Employer for its reasonable expenses of
management and administration of the Trust, including reasonable compensation of
counsel and any agent engaged by the Trustee to assist it in such management and
administration. In the event that the Employer shall fail or refuse to make such
reimbursement upon demand, the Trustee may satisfy such obligations out of the
assets of the Trust Fund; in that event, the Employer shall immediately upon
demand by the Trustee deposit into the Trust Fund a sum equal to the amount paid
by the Trust Fund for such fees and expenses.
ARTICLE VI
For Protection of Trustee
6.1 Communications with the Employer, the Administrator and the
Participants.
(a) The Employer shall certify to the Trustee the name or names of any
person or persons authorized to act for the Employer. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
shall also certify the name or names of any person or persons authorized to act
for the Administrator. Such certifications shall be signed by the President or a
Vice President and the Secretary or an Assistant Secretary of the Employer.
Until the Employer notifies the Trustee, in a similarly signed notice, that any
such person is no longer authorized to act for the Employer or for the
Administrator, as applicable, the Trustee may continue to rely upon the
authority of such person.
(b) The Trustee may rely upon any certificate, notice or direction of
the Employer or the Administrator which the Trustee reasonably believes to have
been signed by a duly authorized officer or agent of the Employer or the
Administrator, as applicable.
(c) Communications to the Trustee shall be sent in writing to its
principal address, Attention:Legal Department, or to such other address as the
Trustee may specify. No communication shall be binding upon the Trust Fund or
the Trustee until it is received by the Trustee and unless it is in writing and
signed by an authorized person.
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(d) Communications to the Employer shall be sent in writing to the
Employer at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention:General Counsel, or to such other address as the Employer may specify
in writing to the Trustee. Communications to the Administrator shall be sent in
writing to the Employer's address, Attention:Deferred Compensation
Administrator. Communications to a Participant or Beneficiary shall be sent in
writing to the address of such person as stated on the Benefit Schedule, or to
such other address as such person may specify in writing to the Trustee. No
communication shall be binding upon the Employer, the Administrator, or a
Participant or Beneficiary until it is received by such person.
6.2 Advice of Counsel. The Trustee may consult with any legal counsel with
respect to the construction of this Trust Agreement, its duties hereunder or any
act which it proposes to take or omit, and shall not be liable for any action
taken or omitted in good faith pursuant to such advice. Expenses of such counsel
shall be deemed to be expenses of management and administration of the Trust
within the meaning of Section 5.2 hereof.
6.3 Fiduciary Responsibility.
(a) The Trustee shall discharge its duties under this Trust Agreement
in effectuating the Plans in a manner consistent with the objectives of this
Trust Agreement and the Plans. The Trustee shall not be liable for any loss
sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment in good faith and in accordance with the provisions
of this Trust Agreement. The Trustee shall have no responsibility or liability
for any failure of the Employer to make contributions to the Trust Fund or for
any insufficiency of assets in the Trust Fund to pay Benefits when due. The
Trustee shall not be liable hereunder for any act taken or omitted to be taken
in good faith, except, prior to a Change of Control (as such term is defined in
Section 12.3), for its own negligence with respect to material matters or
intentional misconduct, or, after a Change of Control, for its own gross
negligence or intentional misconduct.
(b) The Trustee's duties and obligations shall be limited to those
expressly imposed upon it by this Trust Agreement.
(c) The Employer at any time may employ as agent (to perform any act,
keep any records or accounts, or make any computations required of the Employer
or the Administrator by this Trust Agreement or the Plans) the individual,
corporation or association serving as Trustee hereunder. Nothing done by said
individual, corporation or association as such agent shall affect its
responsibilities or liability as Trustee hereunder.
ARTICLE VII
Indemnity of Trustee
The Employer hereby indemnifies and holds the Trustee harmless from
and against any and all losses, damages, costs, expenses or liabilities (herein,
"Liabilities"), including reasonable attorneys' fees and other costs of
litigation, to which the Trustee may become subject pursuant to, arising out of,
occasioned by, incurred in connection with or in any way associated with this
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Trust Agreement, except for any act or omission constituting negligence or
misconduct of the Trustee. If one or more Liabilities shall arise, or if the
Employer fails to indemnify the Trustee as provided herein, or both, then the
Trustee may engage counsel of the Trustee's choice, but at the Employer's
expense, either to conduct the defense against such Liabilities or to conduct
such actions as may be necessary to obtain the indemnity provided for herein, or
to take both such actions. The Trustee shall notify the Employer within fifteen
days after the Trustee has so engaged counsel of the name and address of such
counsel. If the Trustee shall be entitled to indemnification by the Employer
pursuant to this Article VII and the Employer shall not provide such
indemnification upon demand, the Trustee may apply assets of the Trust Fund in
full satisfaction of the obligations for indemnity by the Employer, and any
legal proceeding by the Trustee against the Employer for such indemnification
shall be on behalf of the Trust. Notwithstanding anything contained herein, the
indemnity provided in this Article VII shall survive the term of this Trust
Agreement.
ARTICLE VIII
Resignation and Removal of Trustee
8.1 Resignation of Trustee. The Trustee may resign upon sixty days' prior
written notice to the Board of Directors of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation (the
"Board"), the Administrator, each Participant and each Beneficiary of a deceased
Participant, except that any such resignation shall not be effective until the
Board have appointed in writing a successor trustee, which must be a bank, trust
company, or an individual, and such successor has accepted the appointment in
writing; provided, however, that if such appointment is to become effective at
any time after the occurrence of a Change of Control, then the consent of a
majority of the Participants to the appointment of such successor trustee must
be obtained. For all purposes of this Trust Agreement where the consent of a
majority of the Participants is required, the determination of majority consent
shall be based upon receiving the consent of any combination of Participants
whose sum of Account Balances as of the time of determination is greater than
fifty percent of the sum of Account Balances for all Participants at such time,
rather than upon receiving the consent of a majority of the number of
Participants. For purposes of this determination, Beneficiaries of deceased
Participants shall be considered Participants. The Board shall make a good faith
effort, following receipt of notice of resignation from the Trustee, to find and
appoint a successor Trustee who will adhere to the obligations imposed on such
successor under the terms of this Trust Agreement, and in particular, but
without limitation, the obligation to exercise judgment independent of the
Employer in the circumstances described in Section 3.6 hereof. The appointment
of a successor trustee shall also be conditioned upon obtaining from such
successor a written statement that the successor has read the Trust Agreement
and understands its obligations thereunder. If the consent of a majority of the
Participants is required for the appointment of a successor Trustee, then the
Trustee shall be responsible for securing such Participant consents in a timely
fashion and, unless ordered by a court of competent jurisdiction, shall not
reveal to the Board, the Administrator or any other person any information
concerning such consents, except whether the required majority has been
achieved. Any notice sent to Participants by the Trustee canvassing the
Participants as to their consent to a successor trustee, shall include the name
and address of the proposed successor trustee. Any consent of a Participant
required under this Section 8.1 shall be deemed given if no
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written objection is received by the Trustee from such Participant within
fourteen days after request for such consent is sent postpaid by United States
registered or certified mail with return receipt requested to such Participant.
8.2 Removal of Trustee. The Board may remove the Trustee upon sixty days'
prior written notice to the Trustee, the Administrator, each Participant and
each Beneficiary of a deceased Participant, except that any such removal shall
not be effective until the close of such notice period and (a) delivery by the
Board to the Trustee of an instrument in writing appointing a successor trustee
meeting the requirements of Section 8.1, and (b) an acceptance of such
appointment in writing executed by such successor. Notwithstanding the
provisions of the preceding sentence, if such appointment of a successor trustee
is to become effective at any time after the occurrence of a Change of Control,
then the removal of the Trustee and the appointment of a successor trustee shall
not be effective until the Trustee has received the consent of a majority of the
Participants (as determined in accordance with the provisions of Section 8.1
hereof) to such removal and such appointment. Upon the receipt by the Trustee of
a written notice of removal, the Trustee shall be responsible for securing the
Participant consents (if such consents are required pursuant to the preceding
provisions of this Section 8.2) in a timely fashion and, unless ordered by a
court of competent jurisdiction, shall not reveal to the Board, the
Administrator or any other person any information concerning such consents,
except whether the required majority has been achieved. Any notice sent to
Participants by the Trustee canvassing the Participants as to their consent to
removal of the Trustee and the appointment of a proposed successor trustee,
shall include the name and address of the proposed successor trustee. Any
consent of a Participant required under this Section 8.2 shall be deemed given
if no written objection is received by the Trustee from such Participant within
fourteen days after request for such consent is sent postpaid by United States
registered or certified mail with return receipt requested to such Participant.
8.3 Successor Trustee. All of the provisions set forth herein with respect
to the Trustee shall relate to each successor with the same force and effect as
if such successor had been originally named as the Trustee hereunder.
8.4 Transfer of Trust Fund to Successor. Upon the resignation or removal
of the Trustee and appointment of a successor, the Trustee shall transfer and
deliver the Trust Fund to such successor. Following the effective date of the
appointment of the successor, the Trustee's responsibility hereunder shall be
limited to managing the assets in its possession and transferring such assets to
the successor, and settling its final account. Neither the Trustee nor the
successor shall be liable for the acts of the other.
ARTICLE IX
Duration and Termination of Trust and Amendment
9.1 Duration and Termination. The Trust is hereby declared to be
irrevocable and shall continue until (a) all payments required by Section 3.6
have been made or (b) until the Trust Fund contains no assets and retains no
claims to recover assets from the Employer or any other person or entity,
whichever shall first occur. Notwithstanding the preceding provisions of this
Section 9.1, unless earlier terminated, the Trust shall terminate twenty-one
(21) years after
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the death of the last to die of all of the Participants and their issue living
on the date of execution of this Trust Agreement; provided, however, that if at
that time the Trust may be continued in force without violating the rule against
perpetuities or any other law of the State of Texas, then the Trust shall remain
in effect until otherwise terminated as provided hereunder.
9.2 Distribution upon Termination. If this Trust terminates under the
provisions of Section 9.1, the Trustee shall liquidate the Trust Fund and, after
its final account has been settled as provided in Article IV, shall distribute
to the Employer the net balance of any assets of the Trust remaining after all
expenses have been paid and all Benefits, whether or not due and payable under
the terms of the Plans on the date of such termination, have been paid to the
Participants and Beneficiaries. Upon making such distribution, the Trustee shall
be relieved from all further liability. The powers of the Trustee hereunder
shall continue so long as any assets of the Trust Fund remain in its hands.
9.3 Amendment. The Board may from time to time amend, in whole or in part,
any or all of the provisions of this Trust Agreement; provided, however, that
(a) no amendment will be made to this Trust Agreement or the Plans which will
cause this Trust Agreement, the Plans or the assets of the Trust Fund to be
governed by or subject to Part 2, 3 or 4 of Title I of ERISA, (b) no such
amendment shall adversely affect any Benefits to the date of such amendment in
respect of any Participant or Beneficiary or the amount of assets of the Trust
Fund available to pay such Benefits, (c) no such amendment shall purport to
alter the irrevocable character of the Trust established under this Trust
Agreement, (d) no such amendment shall increase the duties or responsibilities
of the Trustee unless the Trustee consents thereto in writing, and (e) after the
occurrence of a Change of Control, no amendment will be made to this Trust
Agreement without the consent of a majority of the Participants (as determined
pursuant to the provisions of Section 8.1 hereof). Upon receipt of a request
from the Board for an amendment which requires the consent of a majority of the
Participants, the Trustee shall be responsible for securing Participant consents
in a timely fashion, and unless ordered by a court of competent jurisdiction,
shall not reveal to the Board, the Administrator or any other person any
information concerning such consents, except whether the required majority has
been achieved. Any consent of a Participant required under this Section 9.3
shall be deemed given if no written objection is received by the Trustee from
such Participant within fourteen days after request for such consent is sent
postpaid by United States registered or certified mail with return receipt
requested to such Participant. This Trust Agreement may be amended, to the
extent permitted in this Section 9.3, by an instrument in writing executed on
behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation by its authorized representatives, consents
to which instrument have been obtained from the required majority of
Participants if such consents are required.
ARTICLE X
Claims of Employer's Creditors
10.1 Insolvency of Employer. As used in this Article X, the Employer shall
be deemed to be "Insolvent" if (a) the Employer is unable to pay its debts as
they come due, or (b) the Employer is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code (or any successor federal
statute). In the event that the Employer shall be deemed
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Insolvent, the assets of the Trust Fund shall be held for the benefit of the
general creditors of the Employer (hereinafter referred to as "Bankruptcy
Creditors").
10.2 Trustee's Responsibilities if Employer may be Insolvent.
(a) If at any time the Employer or a person claiming to be a creditor
of the Employer alleges in writing to the Trustee that the Employer has become
Insolvent, the Trustee shall within thirty days independently determine whether
the Employer is Insolvent and, pending such determination, the Trustee shall
discontinue any payment of Benefits under the Plans and this Trust Agreement and
shall hold the Trust Fund for the benefit of Bankruptcy Creditors. As a
condition of being a Participant of the Plans and this Trust Agreement, each
Participant hereby waives his priority credit position, if any, under applicable
state law. The Trustee shall resume payments of Benefits under the Plans and
this Trust Agreement in accordance with Section 3.6 hereof only after the
Trustee has determined that the Employer is not Insolvent (or is no longer
Insolvent, if the Trustee initially determined the Employer to be Insolvent) or
upon receipt of an order of a court of competent jurisdiction requiring such
payments. The Employer, by its chief executive officer and its Board of
Directors, shall further be obligated to give the Trustee prompt notice in
writing in the event that the Employer becomes Insolvent, with the same
consequences as provided in the preceding two sentences. In determining whether
the Employer is Insolvent, the Trustee may rely conclusively upon, and shall be
protected in relying upon, court records showing that the Employer is Insolvent,
or a current report or statement from a nationally recognized credit reporting
agency showing that the Employer is Insolvent. For purposes of this Trust
Agreement, knowledge and information concerning the Employer which is not in the
possession of the Trustee, or its employees, shall not be imputed to the
Trustee. The Trustee shall have no duty or obligation to ascertain whether the
Employer is Insolvent unless and until it receives a writing that the Employer
is Insolvent as described in the first or third sentence of this Section
10.2(a).
(b) If the Trustee determines that the Employer is Insolvent, the
Trustee shall hold the assets of the Trust Fund for the benefit of the
Bankruptcy Creditors, and shall disburse the assets of the Trust Fund to satisfy
such claims as a court of competent jurisdiction shall direct.
(c) If the Trustee discontinues payment of Benefits pursuant to
Section 10.2(a) and subsequently resumes such payments, the first payment to a
Participant or Beneficiary following such discontinuance shall include an
aggregate amount equal to the difference between the payments that would have
been made to such Participant or Beneficiary, as applicable, under this Trust
Agreement but for this Section 10.2 and the aggregate payments actually made to
such Participant or Beneficiary, as applicable, by the Employer pursuant to the
Plans during any such period of discontinuance. In the event that upon
resumption of payments pursuant to the preceding sentence, the assets of the
Trust Fund are insufficient to pay Benefits in full, Benefit payments to the
affected Participants and Beneficiaries shall be prorated so as to equitably
apportion the assets of the Trust Fund among all affected Participants and
Beneficiaries in proportion to their Benefits.
10.3 Trust Recovery of Payments to Creditors. In the event that at any time
an amount is paid from the Trust Fund to Bankruptcy Creditors of the Employer,
the Trustee shall
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demand that the Employer deposit into the Trust Fund a sum equal to the amount
paid by the Trust Fund to such Bankruptcy Creditors and, if such payment is not
made within ninety days of such demand, the Trustee shall take such action as it
deems prudent or advisable to recover payment.
ARTICLE XI
Adopting Entities
It is contemplated that subsidiaries of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation that
have adopted any of the Plans may adopt this Trust Agreement and thereby become
the Employer. Any such entity, whether or not presently existing, may become a
party hereto by appropriate action of its officer without the need for approval
of its board of directors or noncorporate counterpart or of the Board. The
provisions of the Trust Agreement shall apply separately and equally to each
Employer and its Participants and their Beneficiaries in the same manner as is
expressly provided for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation and its Participants and their
Beneficiaries, except that (a) the power to appoint or otherwise affect the
Trustee or the Administrator and the power to amend the Trust Agreement shall be
exercised by the Board alone, and (b) the determination of whether a Change of
Control has occurred shall be based upon ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation alone.
ARTICLE XII
Miscellaneous
12.1 Laws of the State of Texas to Govern. This Trust Agreement and the
Trust hereby created shall be construed and regulated by the laws of the State
of Texas.
12.2 Titles and Headings not to Control. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and, in case of any conflict, the text of this Trust
Agreement, rather than such titles or headings, shall control.
12.3 Change of Control. As used in this Trust Agreement, the term "Change
of Control" shall mean a change of control of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation of a
nature that would be required to be reported (assuming such event has not been
"previously reported") in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934; provided that,
without limitation, a Change of Control shall be deemed to have occurred at such
time as (i) any "person" within the meaning of Section 14(d) of the Securities
Exchange Act of 1934 is or becomes the beneficial owner, directly or indirectly,
of securities of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation representing 20% or more of the
combined voting power of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation's then outstanding
securities, or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation's shareholders, of each new director
was approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation, by its chief executive officer and its Board of Directors, shall be
obligated to give the Trustee prompt notice in writing of the occurrence of a
Change of Control. In the event the Trustee receives such a notice or if at any
time a Participant or a
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Beneficiary of a deceased Participant alleges in writing to the Trustee that a
Change of Control has occurred, the Trustee shall within thirty days
independently determine whether a Change of Control has occurred and, pending
such determination, the Trustee shall assume that a Change of Control has
occurred for all purposes of this Trust Agreement and the Plans. The Trustee
shall have no duty or obligation to ascertain whether a Change of Control has
occurred unless it receives a written notice as described in either of the
preceding two sentences. In determining whether a Change of Control has
occurred, the Trustee may, in its sole discretion, make such additional
inquiries and/or take such additional measures as it deems necessary, including,
but not limited to, interviewing appropriate persons, requesting affidavits,
soliciting oral or written testimony under oath, or engaging such independent
third parties as the Trustee may deem necessary to assist in making such
determination. Notwithstanding the foregoing, if at any time ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation notifies the Trustee in writing that the Trustee should interpret
this Trust Agreement and the Plans as if a Change of Control had occurred, then
for all purposes of this Trust Agreement and the Plans, the Trustee shall so
interpret this Trust Agreement and the Plans. Once the notice described in the
preceding sentence is received by the Trustee, it may not be rescinded by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Corporation
12.4 Successors and Assigns. This Trust Agreement may not be assigned by
either party without the prior written consent of the other, and any purported
assignment without such prior written consent shall be null and void. This Trust
Agreement shall be binding upon the successors and permitted assigns of each
party hereto.
12.5 Controlling Document. Should an inconsistency or conflict exist
between the specific terms of this Trust Agreement and those of the Plans, then
the relevant terms of this Trust Agreement shall govern and control.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be executed as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Sr. Vice President
Wachovia Bank, N.A. , Trustee
By: /s/ ▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: SVP/Group Executive
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BENEFITS SCHEDULE
[TO BE ADDED]
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