EX-99.f
INTERSTATE POWER COMPANY
IRREVOCABLE TRUST AGREEMENT 1990
THIS TRUST AGREEMENT is effective April 30, 1990, by and between
Interstate Power Company, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), and American Trust and
Savings Bank (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company, by resolution of its Board of Directors, has
adopted the Interstate Power Company General Creditor
Supplemental Retirement Plan (the "Plan", which Plan and all the terms
defined therein are hereby incorporated by reference) for the benefit of
Participants under the Plan and, in order to aid in the proper
execution of the Plan, has authorized the simultaneous adoption of this
Trust Agreement; and
WHEREAS, the Trustee has agreed and does agree to the terms and
conditions of this Trust Agreement;
NOW, THEREFORE, the premises considered, it is agreed by and
between the Company and the Trustee, as follows:
ARTICLE I
Trust and Definitions
1.1 Trust. The Company hereby establishes with the Trustee a trust
(the "Trust") for the benefit of Participants under the Plan, to be
known as the Interstate Power Company Irrevocable Trust
Agreement, consisting of (i) such contributions as have been or
shall be received by the Trustee from the Company, or any successor
to the Company, or any affiliate or subsidiary of the Company that
has adopted the Plan and that adopts the Trust (separately or
jointly known as the "Company"), in accordance with the
provisions of the Plan, and (ii) any net income on such
contributions. The Trust is intended to be a grantor trust as
contemplated under Section 671 of the Internal Revenue Code of
1986, and the Trust Agreement shall be construed accordingly. The
Trustee shall receive such contributions in trust and shall hold
such contributions and the income thereon separate and apart from
other funds of the Company to be used exclusively for the purposes
herein set forth, shall hold and administer the same as a single
Trust Fund, shall invest and reinvest the same without
distinction between principal and income, and shall pay over and
distribute the same in accordance with the provisions of the Trust
Agreement and the Plan.
1.2 Effective Date. The effective date of the Trust is April 30,
1990.
ARTICLE II
Payments to the Trust
Receipt of Payments. The Company may from time to time remit
contributions in cash or annuity or insurance contracts in trust to the
Trustee. Premium payments made by the Company to annuity or insurance
contracts registered in the name of the Trustee shall be considered
cash remitted to the Trustee. Such contributions, together with any
income thereon, shall be held in trust on behalf of Participants under
the Plan. The Trustee shall be accountable therefore to the Company,
but shall have no right or duty to enforce collection of any
contribution from the Company.
ARTICLE III
Powers and Duties of the Trustee
3.1 General. The Trustee shall hold the Trust Fund subject to the
terms and purposes of the Plan and the Trust.
3.2 Standard. 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.
3.3 Liability. The Trustee shall incur no liability to anyone for any
action taken pursuant to a direction, request or approval by the
Company that is contemplated by and in compliance with the terms of
the Trust Agreement, or for any action or omission of the Company
with respect to the performance of its duties and obligations under
the Plan. The Trustee shall not be required to undertake or defend
any litigation arising in connection with this Trust Agreement,
unless the Trustee be first indemnified by the Company against its
prospective costs, expenses and liabilities, and the Company
hereby agrees to indemnify the Trustee for such costs, expenses and
liabilities. The Trustee shall be indemnified and held harmless by
the Company against liability or losses occurring by reason of any
act or omission of the Trustee under this Trust Agreement, unless
such act or omission is due to the Trustee's own gross
negligence or willful nonfeasance, malfeasance, or misfeasance.
3.4 Taxes and Expenses.
(a) Any federal, state or local taxes which may be imposed upon
the trust fund, or any part thereof, or upon the income
thereon, shall be paid by the Company.
(b) The Company shall pay to the Trustee all reasonable expenses
properly and actually incurred by the Trustee in the
administration of this Trust, including but not limited
to accounting, insurance (including fiduciary insurance
that provides for recourse against the fiduciary),
consulting and legal expenses, and reasonable
compensation for services performed by the Trustee as the
Trustee hereunder as shall be agreed upon from time to time by
the Company and Trustee in writing.
3.5 Tenure in Office. Any Trustee may resign upon giving thirty (30)
days written notice to the Company. Upon thirty (30) days written
notice, unless a shorter period is agreed to, the Company shall
have the power to remove any Trustee for any reason.
3.6 Successor Trustee. The Company shall have the power to appoint
a successor Trustee. The appointment of a successor Trustee
shall become effective upon acceptance in writing of such
appointment by the successor Trustee. The successor Trustee shall
be a corporate Trustee and shall have no liability for events
occurring prior to the time the successor Trustee assumed its
Trustee duties hereunder. Every successor Trustee appointed to
and accepting a trusteeship hereunder shall have all the
rights, title, power, duties, exemptions and limitations of
the original Trustee.
ARTICLE IV
Investment Powers
4.1 Investments. The Trustee shall, as directed by the Company,
invest and reinvest the principal and income of the Trust Fund and
keep the Trust Fund invested, without distinction between principal
and income, in the following:
(a) annuity or insurance contracts applied for by either the
Company or the Trustee, registered in the name of the Trustee
and issued by an insurance and annuity company organized under
the laws of any state, district or commonwealth of the United
States of America.
(b) insured trust money market accounts.
4.2 Additional Powers. The Trustee, when specifically directed by
the Company, shall have the following additional powers and
authority with respect to property constituting a part of the Trust
Fund:
(a) To invest in bonds, notes, bills, or other obligations insured
or guaranteed as to principal and interest by the United
States of America or any agency thereof.
(b) To invest in collective investment funds maintained by the
Trustee .
(c) To sell, exchange or transfer any such property at public or
private sale for cash or on credit.
(d) To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to
settle, compromise or submit to arbitration, any claims, debts
or damages due or owing to or from the Trust.
(e) To exercise, personally or by general or by limited power of
attorney, any right, including the right to vote, appurtenant
to any securities or other property held by it any time.
(f) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation.
(g) To transfer, convert, terminate, exchange or cash in any
insurance contract or annuity contract.
(h) To exercise, generally, any of the powers which an individual
owner might exercise in connection with property held by the
Trust Fund, and to do all other acts that the Trustee may deem
necessary or proper to carry out any of the powers set forth
herein or otherwise in the best interests of the Trust Fund.
4.3 The Company plans on acquiring an annuity contract for each
participant who is entitled to benefits under the Plan at the time
of the participant's retirement. The size of the annuity contract
will be sufficient to pay the monthly benefit due to the
participant under the Plan. Company will acquire an annuity
contract either directly and then transfer the annuity contract to
the Trustee or transfer sufficient cash to the Trustee so that the
Trustee can acquire the annuity contract or instruct Trustee to use
the cash value of any life insurance contract on participant to
acquire the annuity contract.
ARTICLE V
Accounts and Records
5.1 Records. The Trustee shall keep accurate and detailed records of
all investments, receipts, disbursements, and all other
transactions required with regard to the general account, including
such specific records as shall be agreed upon in writing between
the Company and the Trustee. All such accounts, books and records
shall be open to inspection and audit at all reasonable times by
the Company and by Participants.
5.2 Reports.
(a) Within sixty (60) days after the end of each plan year and
within sixty (60) days after the removal or resignation of the
Trustee, the Trustee shall render a written report to the
Chairman of the Board of Directors of Company containing a
complete accounting showing the total assets in the Trust as
of the latest Valuation Date and the fair market value placed
on each asset as of that date, as well as a statement of
purchases, sales and any investment charges and all income,
expenses, and disbursements since the last such report. Such
report shall be in such form and contain such other
information as shall be required in writing by the Chairman of
the Board of Directors of Company.
(b) The approval of the Chairman of the Board of Directors of the
Company or the lack of written objection within ninety (90)
days after submission of any report or accounting by the
Trustee shall be a complete release and discharge of the
Trustee as to the information contained therein, unless the
Trustee has breached its fiduciary duty in the preparation of
such report or accounting.
5.3 Valuation. The Trustee shall value all assets of the Trust Fund
at least annually on the last day of December each year, or on such
other day as is mutually agreed to by the Company and the Trustee
(the "Valuation Date").
ARTICLE VI
Payments From the Trust Fund
6.1 Payments Generally. The Trustee shall make payments out of the
Trust Fund to Participants in such manner and in such amounts as
are required under the Plan or the Trustee can make a revocable
direction to an annuity company to make payments directly to a
Participant. If the Trustee has authorized an annuity company to
make payments directly, Trustee shall have no liability to Company
or Participant for any payments which should have been made by such
annuity company.
6.2 Payments by Company. If the Trust Fund or any annuity contract is
not sufficient to make payments to Participants in accordance with
the Plan, the Company shall make the balance of each such payment
as it falls due.
6.3 Payments Only Under the Plan. Except as provided in Section 8.1 of
the Trust Agreement, the Company shall have no right or power to
direct the Trustee to return any assets of the Trust to the Company
or to divert any assets of the Trust to any purpose other than the
payment of benefits in accordance with the Plan.
ARTICLE VII
Trust Fund Subject to Creditors
7.1 Trust Assets. All assets of the Trust shall be subject to the
respective claims of the general creditors of the Company but only
under circumstances in which the Company has filed for bankruptcy,
has been placed in bankruptcy by the Company's creditors, or is
considered insolvent for purposes of the laws of the State of
Delaware such that the assets of the Company prove insufficient to
meet its current financial obligations as they become due.
7.2 Insolvency of the Company. The Chairman of the Board of Directors
of the Company shall have the duty to notify the Trustee
immediately in the event the Company reaches the point of
insolvency, files for bankruptcy, or is placed in bankruptcy by the
Company's creditors. The Trustee shall have no duty to determine
whether the company is insolvent or bankrupt and shall only follow
the directions of the Chairman of the Board of Directors of the
Company.
7.3 Distribution of Trust Assets to Creditors. Where the Company has
filed for bankruptcy, is placed in bankruptcy by the Company's
creditors, or is considered insolvent, the Trustee shall
discontinue payments of benefits under the Plan and shall notify
annuity companies to do the same and shall hold for the benefit of
the Company's creditors all cash and other assets then held in the
Trust Fund, after deduction of any fees, expenses or taxes properly
due and payable from the Trust Fund. The Trustee shall deliver
assets of the Trust to satisfy claims of the Company's creditors,
as directed by a court of competent jurisdiction. The Trustee
shall resume or cause to be resumed payments of benefits in
accordance with the Plan only after the Trustee has been notified
by the Chairman of the Board of Directors of the Company that the
Company is no longer insolvent or in bankruptcy.
ARTICLE VIII
Amendment and Termination
8.1 Termination. The Trust shall be irrevocable and shall not
terminate until the date on which no Participant is entitled to any
payment under Article VI hereof. Upon such termination of the
Trust, any assets remaining in the Trust shall be returned to the
Company.
8.2 Amendment. The Company hereby expressly waives all rights and
powers to amend this Trust Agreement or alter the Trust hereby
created in whole or in part, except by a written instrument
executed by the Company and Trustee and consented to by the
Participants. Under no circumstances, however, may the Trust or
Trust Agreement be altered or amended to make the Trust revocable.
The annuity or insurance company shall not be required to look into
the terms of this Trust or question any action of the Trustee, nor
shall it be responsible to see that any action of the Trustee is
authorized. The annuity or insurance company shall act only upon
the written direction of the Trustee and shall be fully discharged
from any and all liability for any amount paid to the Trustee or
paid in accordance with the direction of the Trustee or for any
change made or action taken upon such direction; and shall not be
obligated to see that any money paid by it to the Trustee or to any
person shall be properly distributed or applied. Any instrument
executed by the company shall be without liability in taking,
permitting, or omitting any action on the faith of any such
instrument and shall incur no liability or responsibility for doing
so.
ARTICLE IX
Miscellaneous
9.1 No Assignment. Except to the extent required by the Plan or by
applicable law, the interest of Participants in the Trust shall not
be subject in any way to alienation, sale, transfer, assignment,
pledge, attachment, garnishment, execution or encumbrance of any
kind, or to garnishment, attachment, levy or execution on any kind
for the debts or defaults of the Trustee or of any person, natural
or legal, having an interest in the Trust; any attempt to
accomplish the same shall be void.
9.2 Governing Law and Severability. The validity and construction of
any provision of this Trust shall be governed by the laws of the
State of Iowa, except as provided in Section 7.1. If any provision
of this Trust Agreement shall be declared invalid or unenforceable
by a court of competent jurisdiction, the remaining provisions
hereof shall remain valid and shall continue in effect.
9.3 Binding Effect on Successor. This Trust Agreement shall be binding
upon and inure to the benefit of any successor to the Company or
its business as the result of merger, consolidation,
reorganization, transfer of assets or otherwise and any subsequent
successor thereto. In no event shall any such merger,
consolidation, reorganization, transfer of assets or other similar
transaction suspend or delay the rights of any Participant to
receive benefits hereunder.
9.4 Participant's Rights. A Participant shall have no right, claim, or
other cause of action against the Trustee or the Trust, except to
the extent necessary to enforce the Participant's rights under the
Plan. All assets held in the Trust shall at all times be subject to
the terms of the Trust, and distribution of assets shall be made
solely pursuant to the terms of the Trust.
9.5 Reversion to the Company. No provision of the Plan nor any
amendment shall cause any of the assets of the Trust to revert to
the Company except as follows:
(a) Trustee can assign to Company any insurance contract on the
life of an individual who is no longer a Participant or for
whom a separate annuity contract has been purchased; or
(b) If a Participant dies, any sum received by Trustee on any
annuity contract or insurance contract acquired on the
Participant who died shall be distributed to Company; or
(c) Any other assets remaining after all liabilities to
Participants have been satisfied, shall be distributed to the
Company.
9.6 Treatment of Payments. Any amount distributed from this Trust or
as directed by Trustee shall not be deemed salary or other
compensation to the Participant for the purpose of computing
benefits to which the Participant may be entitled under any
qualified retirement plan or other arrangement of the Company for
the benefit of employees, except as may be otherwise specified in
such plan or arrangement.
9.7 No Right to Participate. No person shall have any claim or right
to become a Participant under the Plan by reason of this Trust
Agreement.
9.8 General Undertaking. All parties to this Trust and all persons
claiming any interest whatsoever hereunder agree to perform any and
all acts and execute any and all documents and papers which may be
necessary or desirable for the carrying out of the Trust or any of
its provisions .
9.9 Masculine, Feminine, Singular and Plural. The masculine shall be
read in the feminine, the singular in the plural, and vice versa,
wherever the context shall so require.
9.10 Notices. Notices, accounting, and reports required to begiven by
the Trustee or the Company may be given by personal delivery or by
certified mail (return receipt requested) addressed to the party
involved at the last address of such party recorded on the general
address files of the Trustee or the company. If given by mail, the date
of mailing shall be deemed to be the date as of which the same was given
or furnished to the addressee. Any notice required under the Trust may
be waived in writing by the person entitled to such notice.
The foregoing instrument may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together
shall be deemed one instrument.
IN WITNESS WHEREOF, the Company has caused this Trust Agreement to be
executed by its duly authorized officer and the Trustee has caused this
Trust Agreement to be executed and accepted by its duly authorized
officer as of the year and day first above written.
INTERSTATE POWER COMPANY
Attest: Judith A. Palm /s/ By W. H. Stoppelmoor /s/
(SEAL) Title: President
TRUSTEE
Attest: Robert J. Donovan /s/ By: Leo J. Meier /s/
Title: Ex. V. Pres.