WICOR, INC.
MASTER SAVINGS TRUST
AGREEMENT
This agreement made as of October 1, 1996, between WICOR, Inc. a
corporation (hereinafter referred to as the "Company") and MARSHALL &
ILSLEY TRUST COMPANY, a Wisconsin banking corporation (hereinafter
referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company and certain of its affiliated subsidiary
corporations (listed in Appendix A attached hereto and hereinafter
collectively referred to as the "Corporation" or "Corporations"), have
established certain pension, retirement and other employee benefit plans
(the "Separate Plans," also listed in Appendix A) for the exclusive
benefit of their respective eligible employees and their beneficiaries,
such of which of the Separate Plans constitute a qualified and tax exempt
pension plan within the meaning of Sections 401(a) and 501(a) of the
Internal Revenue Code, as amended; and
WHEREAS, pursuant to the terms of each of the Separate Plans, the
Company and the Corporations have made provisions to enter into agreements
establishing certain separate trusts, and now desire to form a master
trust to encompass all the Separate Plans by amending and restating the
present Wisconsin Gas Company Employee Savings Master Trust Agreement made
on August 1, 1995 between said Wisconsin Gas Company (one of the
corporations) and the Trustee; and
WHEREAS, said Master Trust, as restated, is intended to be exempt
from tax under Section 501(a) of the Internal Revenue Code, as amended, by
reason of its forming a part of plans qualified under Section 401(a) of
the Internal Revenue Code, as amended;
NOW THEREFORE, is consideration of the premises and of the
mutual covenants herein contained, the Company and the Trustee do hereby
convenant and agree to the amendment restatement of this Master Trust
Agreement in its entirety to read and continue as follows:
ARTICLE ONE
1.01 The Company hereby establishes with the Trustee a Master Trust
consisting of such sums of money and such property acceptable to the
Trustee as shall from time to time be paid or delivered to the Trustee and
the earnings and profits thereon. All such money and property, all
investments made therewith and proceeds thereof and all earnings and
profit thereon, less the payments or other distributions which, at the
time of reference, shall have been made by the Trustee, as authorized
herein, and referred to herein as the "Master Fund," or the "Fund," and
shall be held by the Trustee, in trust, and dealt with in accordance with
the provision of the Agreement.
1.02 When the assets of each Separate Trust are transferred to the
Trustee, the Separate Trusts shall cease to exist as separate trusts and
shall be considered to continue hereafter as a single trust hereunder.
ARTICLE TWO
2.01 Each of the Separate Plans shall be a Participating Plan
hereunder.
2.02 Any other Plan may be funded in whole or in part through the
Master Trust and become a Participating Plan thereby only if all of the
following conditions have been met:
a. The Company, or a Corporation has established the Plan;
b. The Plan is qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended;
c. The Master Trust is exempt from taxation under Section
501(a) of the Internal Revenue Code of 1986, as amended;
d. The Master Trust (as then in effect and as the same may be
amended from time to time) has been duly adopted as a trust under the
Plan and in the case of a Corporation, the Company has consented
thereto;
e. The Master Trust is maintained at all times as a domestic
trust in the United States; and
f. The Company is duly authorized under the Plan to exercise
on behalf of such Plan all of the authority vested in it by the terms
of this Master Trust.
2.03 When the Master Trust is adopted as a trust under the Plan of
any Corporation, such Corporation shall be bound by the decisions,
instructions, actions and directions of the Company under this Agreement
and the Trustee shall be fully protected by the Company and such
Corporation in relying upon such decisions, instructions, actions and
directions of the Company. The Trustee shall not be required to give
notice to or obtain the consent of any such Corporation with respect to
any action which is taken by the Trustee pursuant to this Agreement, and
the Company shall have the sole authority to enforce this Agreement on
behalf of any such Corporation.
2.04 Responsibility for the management and control of the assets of
Plans utilizing the Master Trust as a funding medium (including the power
to acquire or dispose of such assets) may be vested at the discretion of
the Company in the Trustee and/or in one or more Investment Managers
appointed by the Company. That portion of the fund for which the Trustee
shall have such responsibility is hereinafter referred to as the
"Discretionary Fund." Any portion of the Master Fund over which an
Investment Manager shall have such responsibility is hereinafter referred
to as a "Directed Fund." Allocation of assets of the Fund between or
among any Discretionary or Directed Funds shall be determined by the
Company. Further, the Company, being a named fiduciary for this purpose,
reserves the right to itself to direct the Trustee respecting the
management and control of certain assets of specified Plans (including the
power to acquire or dispose of such assets) and such portion of the Master
Fund over which the Company shall have such responsibility is hereinafter
referred to as the "Company Directed Fund." The Company may direct the
Trustee to hold all or any part of the assets from time to time
constituting the Company Directed Fund separate and apart from the assets
of the Master Fund. For efficiency or convenience of investment or
administration, the Master Fund or the Discretionary, Directed or Company
Directed Fund may be divided into such one or more sub-funds as the
Company or the Trustee may deem advisable.
For the purpose of this Agreement, "Investment Manager" shall mean an
investment adviser registered under the Investment Advisers Act of 1940, a
bank (other than the Trustee) as defined in the Act, or an insurance
company qualified to perform investment management services under the laws
of more than one State, which shall have acknowledged in writing to the
Company that it is a fiduciary with respect to all Participating Plans,
and which shall have the power to manage, acquire and dispose of Plan
assets.
2.05 The Trustee shall maintain a separate account reflecting the
equitable share in the Master Fund of each Participating Plan. The
equitable shares in the Master Fund of the respective present
Participating Plans as of December 31, 1995 shall be proportionate to the
fair market values of the assets allocable to such Plans under the
Separate Trusts, as certified by the Company to the Trustee. Thereafter,
for the purpose of determining the equitable shares of Participating
Plans, the Trustee shall determine the value of the assets of the Master
Fund as of the last day of each month and as of such other dates as the
Trustee may deem appropriate or the Company may direct. In addition, for
the convenience of the company, the Company may request the Trustee to
include in such account assets which do not constitute part of the Master
Fund or are held by the Trustee in a segregated Company Directed Fund, for
the purposes of determining the value of all of the assets of such
Participating Plans. Assets shall be valued at their market values at the
close of business on the date of valuation, or, in the absence of readily
ascertainable market values, at such values as the Trustee shall determine
in accordance with methods consistently followed and uniformly applied.
Anything herein to the contrary notwithstanding, with respect to assets
constituting part of a Directed Fund hereunder or in the event that assets
which do not constitute part of the Master Fund or which are held by the
Trustee in a segregated Company Directed Fund are included in such
valuation or account at the request of the Company, the Trustee may rely
for all purposes of this Agreement, including for the purpose of
determining the value of such assets as of any monthly or other valuation
date, on any certified appraisal or other form of valuation submitted to
it by the Investment Manager, the Company, or by the person or persons
controlling such assets.
2.06 Except as provided in Section 3.01(c), the Trustee shall not be
required to maintain any separate records or accounts with respect to any
participant in (or beneficiary of) any Participating Plan which is of the
defined benefit type, and any such records or accounts required to be
maintained pursuant to the terms of any such Plan shall be maintained by
the Company or by the appropriate committee, entity or person(s) directly
charged with such responsibility under the individual Participating Plan.
2.07 By entering into this Agreement, the Trustee does not assume any
responsibility or undertake any duty to enforce payment of any
contribution to any Participating Plan, any responsibility for the
adequacy of the Fund or the funding standards adopted by the sponsor of
any Participating Plan to meet or discharge any pension or other
liabilities under such Plan, or (except as otherwise required by law) any
responsibility under the terms of this Agreement for the management or
control of any Directed Funds or Company Directed Funds. No duties or
obligations shall be imposed upon the Trustee unless they have been
specifically undertaken by the express terms of this Agreement.
2.08 Except as may otherwise be permitted by law, at no time prior to
the satisfaction of all liabilities with respect to participants and their
beneficiaries under any Participating Plan shall any part of the equitable
share of such Participating Plan in the Master Fund be used for, or
diverted to, any purposes other than for the exclusive benefit of such
participants and their beneficiaries, and for defraying reasonable
expenses of administering such Plans.
ARTICLE THREE
3.01 The Trustee shall:
a. hold, invest and reinvest the Discretionary Fund as
provided in Article Four in accordance with the powers and discretion
contained in or referred to in Article Seven;
b. settle purchases and sales for any Directed Fund upon the
instructions of the Investment Manager as provided in Article Five or
in the case of a Company Directed Fund, upon the instructions of the
Company;
c. pay moneys on the order of the Company, including when the
Company shall so order, payments directly to or for the benefit of
the participants and their beneficiaries, or to an insurance company
to provide, by the purchase of an annuity contract, or otherwise, for
the payment of benefits and the Trustee shall keep records of any and
all such payments so directed and provide such tax advices or
governmental forms and reports as shall from time to time be agreed
upon between the Company and the Trustee; and
d. transfer any portion of the Master Fund on the order of the
Company to any insurance company or other trustee to provide an
alternative or additional funding medium or investment vehicle for
the management and/or control of Participating Plan assets.
3.02 Any orders pursuant to subparagraphs (c) and (d) of Section 3.01
may, but need not specify the application to be made of moneys so ordered,
and the Trustee may charge such distribution against any portion of the
Master Fund, as the Company may direct. The Trustee may assume that any
such orders are not contrary to any applicable law. The Trustee shall not
be responsible in any way respecting the determination, computation,
payment or application of any benefit or payment which it is ordered to
make, or for the form, terms or issuer of any insurance contract which it
is directed to purchase with assets of the Fund (whether or not such
contract is purchased to provide primarily for the payment of benefits
under any Participating Plan or primary as an investment vehicle or
funding medium), for performing any functions under any insurance contract
which it may be directed to purchase and hold as Contract Holder
thereunder (other than the execution of any documents incidental thereto
on the instruction of the Company), or for the terms of any trust
agreement under which any trustee to which it shall deliver any assets of
the Fund on the order of the Company is acting, or for any other matter
affecting the administration of a Plan by the Company, or any other person
or persons to whom responsibility for Plan administration is allocated or
delegated pursuant to the terms of a Participating Plan.
3.03 Any power or duty of the Company hereunder shall be exercised by
the Board of Directors of the Company or by such other person or persons
as are authorized to exercise such powers or duties as certified by the
Company in writing to the Trustee. The Trustee shall be entitled to rely
upon any such certification by the Company. The Trustee shall be fully
protected in continuing to rely on such certification until a subsequent
certification is filed with the Trustee.
ARTICLE FOUR
4.01 The Trustee shall invest and reinvest the Discretionary Fund as
a single fund without distinction between principal and income in such
investments and at such time or times and in such shares and proportions
as it, in its absolute discretion, shall deem advisable; except that, the
Trustee is authorized to hold in the Discretionary Fund uninvested cash
awaiting investment and such additional cash balances as it shall deem
reasonable or necessary to meet anticipated distributions from or
administrative costs of any Participating Plan or the Fund, without
incurring any liability for the payment of interest on such cash,
notwithstanding that the Trustee or an affiliate thereof may accrue
interest on such cash balances.
The Trustee shall discharge the foregoing powers and discretion
in accordance with the funding policy and guidelines established by the
Company from time to time and communicated in writing to the Trustee. The
Trustee shall have no responsibility with respect to the formulation of
any funding, investment or diversification policy embodied in any such
direction.
If the Company has exercised its discretion to vest
responsibility for the management and control of any portion of the Master
Fund in one or more Investment Managers or in itself as to a Company
Directed Fund, or if the Master Fund is not the only funding medium under
a Participating Plan, any trustee (including the Trustee), Investment
Manager or other person in whom fiduciary responsibility is vested for the
management and control of any Plan assets shall exercise its fiduciary
responsibilities with respect to such Plan assets, including without
limitation any responsibility of diversification imposed by Section
404(a)(1)(c) of the Employee Retirement Income Security Act of 1974
("ERISA"), as if the assets allocated to it constituted the entirety of
the Plan assets. The Company or some other fiduciary named by it shall be
responsible for the overall diversification of the entire Master Fund.
4.02 The Trustee may in its discretion invest and reinvest in either
(i) any fund created and administered by it, as the trustee thereof, for
the collective investment of the assets of employee benefit trusts or
otherwise, as long as such collective investment fund is a qualified trust
under the applicable provisions of the Internal Revenue Code (and while
any portion of the Fund is so invested such collective investment fund
shall constitute part of the Participating Plans, and the instrument
creating such fund shall constitute part of this Master Trust Agreement)
or (ii) the shares of any mutual fund including any such fund from which
the Trustee or any affiliate thereof receives an investment management fee
or any other fee.
ARTICLE FIVE
5.01 The investment and reinvestment of any Directed Fund established
under this Agreement shall be under the exclusive management and control
of the Investment Manager appointed by the Company. The Trustee shall not
be a party to any agreement with the Investment Manager, and the terms and
conditions of appointment, authority and retention of the Investment
Manager shall be the sole responsibility of the Company.
The Company shall certify in writing to the Trustee:
a. that it has appointed an Investment Manager with respect to
each Participating Plan; and
b. the assets of the fund to be allocated to the Directed Fund
for which such Investment Manager shall have responsibility.
The Company shall also furnish to the Trustee a certification by
such Investment Manager that it is an "Investment Manager" as such term is
defined in Section 2.04 of this Agreement.
The Investment Manager shall furnish the Trustee from time to
time with the names and signatures of those persons authorized to direct
the Trustee on its behalf hereunder. The Trustee shall be fully protected
in continuing on its behalf hereunder. The Trustee shall be fully
protected in continuing to rely on the certification provided by an
Investment Manager as to such authorized persons until a subsequent
certification is filed with the Trustee. The Trustee shall have the right
to request that all directions by an Investment Manager pursuant to this
Agreement be in writing and shall assume no liability hereunder for
failure to act pursuant to such directions unless and until it shall
receive directions in a form satisfactory to it.
5.02 All transactions in or from a Directed Fund related to the
acquisition or disposal of assets, as well as all purchases and sales of
assets, shall be made upon such terms and conditions and from or through
such principals and agents, as the Investment Manager shall direct. No
directed transactions shall be executed through the facilities of the
Trustee except in those instances where the Trustee shall make available
its facilities solely for the purposes of temporary investment of cash
reserves of a Directed Fund. (However, nothing herein shall confer any
authority or obligation upon the Trustee to invest or reinvest the cash
balances of any Directed Fund unless and until it receives directions from
the Investment Manager.)
5.03 Supervision of the Investment Manager shall be the exclusive
responsibility of the Company. Therefore, the Trustee shall have no duty
to review any direction or any securities or other property held in any
Directed Fund or to make suggestions to the Investment Manager or the
Company with respect to the exercise or non-exercise of any power by the
Investment Manager. The Trustee shall be fully protected in acting or
omitting to act in accordance with or in the absence of the written
directions of the Investment Manager or of the Company respecting any
Company Directed Fund and shall be under no liability for any loss of any
kind which may result by reason of any action taken or omitted by it in
good faith in accordance with any such direction or by reason of inaction
in the absence of such written directions.
5.04 The Trustee shall not be deemed to have any responsibility to
manage and control any asset held in a Directed Fund or Company Directed
Fund upon the resignation or removal of an Investment Manager or
withdrawal by the Company of its control as to a Company Directed Fund
unless and until it has been notified in writing by the Company of its
withdrawals of control as to a Company Directed Fund or that the
Investment Manager's authority has terminated and that such Directed Fund
or Company Directed Fund assets are to be integrated with the
Discretionary Fund. Such notice shall not be deemed effective until a
reasonable period after it has been received by the Trustee. In the event
that the assets of a Directed Fund or Company Directed Fund shall become
integrated at any time with the Discretionary Fund, the Trustee shall not
be liable for any losses to the Master Retirement Fund resulting from the
disposition of any investment made by an Investment Manager or the Company
or for the holding for any illiquid or unmarketable securities or the
holding of any other asset acquired by the Investment Manager or the
Company if the Trustee is unable to dispose of such investments because of
any Securities Laws restrictions or if any orderly liquidation of such
investment is impractical under prevailing conditions, or for failure to
comply with any investment or diversification limitations imposed by the
Company pursuant to the power reserved to it under Section 4.01 or for any
other violation of the terms of this Agreement, the Participating Plans or
applicable law or laws as a result of the addition of Directed Fund or
Company Directed Fund assets to the Discretionary Fund.
5.05 The Trustee shall not be liable for the acts or omissions of any
Investment Manager constituting a breach of the latter's duties unless it
shall have been judicially determined that the Trustee knowingly
participated in, or knowingly undertook to conceal, such act or omission,
knowing such act or omission constituted a breach of the Investment
Manager's duties hereunder.
ARTICLE SIX
6.01 Without in any way limiting the powers and discretions conferred
upon the Investment Manager by the other provisions of this Agreement or
by law, any Investment Manager appointed hereunder shall have the
following powers and discretions with respect to the Directed Fund subject
to its management and control, and, upon the directions of such Investment
Manager, the Trustee shall make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to carry out such powers and
discretions:
a. to sell, exchange, convey, transfer or otherwise dispose of
any property constituting the Directed Fund by private contract or at
public auction, and no person dealing with the Investment Managers or
the Trustee shall be bound to see to the application of the purchase
money or to inquire into the validity, expediency or propriety of any
such sale or other disposition;
b. to enter into contracts or to make commitments either alone
or in concert with others to sell at any future date any property
acquired for the Directed Fund or to purchase at any future date any
property which it may be authorized to acquire under this Agreement;
c. to purchase part interests in real property or in mortgages
on real property, wherever such real property may be situated;
d. to lease to others for any term without regard to the
duration of this Trust any real property or part interest in real
property held in the Directed Fund;
e. to delegate to a manager or the holder or holders of a
majority interest in any real property or mortgage on real property
at any time constituting a part of the Directed Fund, the management
and operation of any part interest in such real property or mortgage
and the authority to sell such real property or mortgage or otherwise
carry out the decisions of such manager or holder or holders of such
majority interest;
f. to vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stock, bonds,
securities or other property held in the Directed Fund.
g. to convert, redeem, exchange for other securities or other
property any securities or property held by it, or to write covered
call options against securities held by it or other forms of options
directly related to any such call options outstanding; and
h. to invest, in the case of any Investment Manager which is a
bank or trust company, through the medium of any fund created and
administered by such Investment Manager for the collective investment
of the assets of employee benefit trusts or otherwise, or in the case
of any Investment Manager, to invest through the medium of any
similar collective investment fund created and administered by the
Trustee hereof which serves as a vehicle for the temporary investment
of reserves of participating trusts, so long as in either case such
collective investment fund is a qualified trust under the applicable
provisions of the Internal Revenue Code (and while any portion of the
assets of the Participating Plans is so invested, such collective
investment fund shall constitute part of the Separate Plans, and the
instrument creating such fund shall constitute part of this Master
Trust).
6.02 In the event that any investment is made by an Investment
Manager in real property, then the Trustee shall have the right to request
as a condition precedent to its executing any documents or paying over any
trust assets in connection with such transactions, that it received a
certified appraisal that the property has a value at least equal to the
transaction price and that the property is in the form and condition
described in such documents, and, further, that it receive an opinion of
counsel (who may be counsel to the Investment Manager) that such documents
are in proper form for execution by the Trustee, that such deed or
document has been or will be properly recorded under all applicable
Recording Acts, and that appropriate policies adequately insuring the
trust against loss for any reason (including a defect in title) have been
procured in the name of the Trustee. In addition, the Investment Manager
shall provide the Trustee, upon request, with the current appraisals of
such property which shall be relied upon by the Trustee for all valuation
and accounting purposes under this Agreement.
6.03 The Company, as to any Company Directed Fund, shall be vested
with all of the powers and discretion vested in an Investment Manager by
Section 6.01 and, in addition, may specifically direct the acquisition,
holding or sale of employer securities or employer real property which are
"qualifying" within the meaning of the subject to all the limitations of
ERISA, except that employer securities or employer real property may be
held to the extent permitted under Section 414(c)(2) or any other
transitional rule or applicable exemption under ERISA.
ARTICLE SEVEN
7.01 The Trustee, with respect to the Discretionary Fund, shall be
vested with all of the powers and discretions vested in the Investment
Manager by Section 6.01.
7.02 In addition, the Trustee is hereby authorized respecting the
Master Fund in its discretion:
a. to register any securities held in the Fund in its own name
or in the name of a nominee and to hold any investment in bearer
form, and to combine certificates representing such investments with
certificates of the same issue held by the Trustee in other fiduciary
capacities or to deposit or to arrange for the deposit of such
securities in any qualified central depository or clearing
corporation even though, when so deposited, such securities may be
merged and held in bulk in the name of the nominee of such depository
with other securities deposited therein by any other person, or to
deposit or arrange for the deposit of any securities issued by the
United States Government, or an agency or instrumentality thereof,
with a federal reserve bank, but the books and records of the Trustee
shall at the times show that all such investments are part of the
Master Fund;
b. to employ suitable agents, depositories and counsel,
domestic or foreign, and to charge their reasonable expenses and
compensation against the fund;
c. to borrow money from any source as may be necessary or
advisable to effectuate the purpose of the Master Fund on such terms
and conditions as the Trustee, in its absolute discretion, may deem
advisable;
d. to deposit any funds of the trust in interest bearing
account deposits maintained by or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee;
e. to comprise or otherwise adjust all claims in favor of or
against the Fund subject to Company approval;
f. to organize corporations under the laws of any state for
the purpose of acquiring or holding title to any property for the
fund or to request the Company to appoint another trustee for such
purpose;
g. to make any distribution or transfer of the Discretionary
Fund assets in cash or in kind as the Trustee and, in furtherance
thereof, to value such assets, which valuation shall be subject to
the approval of the Company.
ARTICLE EIGHT
8.01 The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions hereunder for
the Master Fund (including any Directed Fund or Company Directed Fund) and
all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any persons designated by
the Company.
In addition, within ninety (90) days following the close of each
fiscal year, and within ninety (90) days after the removal or resignation
of the Trustee, the Trustee shall file with the Company a written
accounting setting forth all receipts and disbursements of the Fund and
all investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Investment Manager or the
Company as herein provided during such fiscal year or during the period
from the close of the last fiscal year to the date of such removal or
resignation. Within sixty (60) days from the date of filing such annual
or other account, the Trustee, if requested by the Company, will also
serve copies of such account upon any persons designated by the Company as
having administrative responsibility with respect to any Participating
Plan. Upon the expiration of two hundred ten (210) days from the date of
filing such account, the Trustee shall be forever released and discharged
from all liability and accountability to the Company or any person upon
whom the Trustee has served a copy of the account with respect to the
accuracy of such accounting, except with respect to any such acts or
transactions as to which the Company or any person upon whom the account
has been served shall within such two hundred ten (210) day period file
with the Trustee specific written objections.
To the extent, if any, that the Trustee shall be required to
value the assets of any Directed Fund or Company Directed Fund for any
purpose, including any accounting as hereinabove provided, the Trustee may
for all purposes of this Agreement on any certified appraisal or other
form of valuation submitted to it by the party responsible for the
management and control of such Fund.
8.02 Except to the extent that Sections 502 and 504 of ERISA, as the
same may be amended from time to time, may provide otherwise, in order to
protect the Master Trust from the expenses which might otherwise be
incurred, no one other than the Company may require the Trustee to account
or may institute an action or preceding against the Trustee or the Fund.
However, nothing herein shall in any way limit the Trustee's right to
bring any action or proceeding to settle its account or for such other
relief as it may deem appropriate.
8.03 The Trustee may from time to time consult with counsel, who may
be counsel to the Company, with respect to any questions arising as to the
construction of this Agreement or any action to be taken hereunder and the
Trustee shall be fully protected, to the extent permitted by law, in
acting in good faith upon the advice of counsel.
ARTICLE NINE
9.01 Any expenses incurred by the Trustee in connection with its
administration of this Trust, including fees for legal services rendered
to the Trustee, provided the Trustee gives written notice served to the
Company prior to the retaining of such legal service, (whether or not
rendered in connection with a judicial or administrative proceeding and
whether or not incurred while it is acting as Trustee), such compensation
to the Trustee as may be agreed upon from time to time between the Trustee
and the Company, and all other proper charges and disbursements of the
Trustee, shall be paid from the Master Fund unless paid by the Company.
The Company shall reimburse the Trustee for any such expenses if for any
reason such expenses cannot be paid out of the Fund. The Company may
direct the Trustee to pay from the Master Fund the fees of any Investment
Manager appointed pursuant to Section 5.01 and other proper administration
expenses of any Participating Plan, including but not limited to actuarial
fees. All taxes of any and all kinds whatsoever that may be levied or
assessed under existing or future laws upon the Master Fund or the income
thereof shall be paid from the Master Fund. Any amount paid from the
Master Fund which is specifically allocable to a particular Participating
Plan or Plans shall be charged against the equitable shares of such
Participating Plan or Plans; any amount paid from the Fund which is
allocable to all of the Participating Plans shall be charged against the
Fund as a whole.
ARTICLE TEN
10.01 Subject to the provisions of Section 3.03, whenever the
provisions of this Agreement require or permit any action to be taken by
the Company or any Corporation, such action may be taken by the Board of
Directors of the entity taking the same or by any person authorized to act
on behalf of such entity by such Board of Directors. Any resolution
adopted by the Board of Directors of any corporation shall be certified to
the Trustee by the Secretary or an Assistant Secretary of such Corporation
under its corporate seal, and the Trustee may rely upon any resolution so
certified until revoked or modified by a further resolution similarly
certified to the Trustee.
10.02 The Company shall furnish the Trustee from time to time
with a certificate of its Secretary or an Assistant Secretary as to the
names and signatures of all persons authorized to issue orders, requests,
instructions and objections to the Trustee pursuant to the provisions of
this Agreement.
10.03 All orders, requests, instructions and objections of any of
the persons authorized to act in accordance with the provisions of this
Agreement may be required by the Trustee, to the extent practical, to be
in writing, but the Trustee shall be fully protected in acting in
accordance with either such written instructions or oral instructions
received by the Trustee in good faith.
10.04 The Trustee shall have the right to assume in the absence
of written notice to the contrary, that no event constituting a change in
the authority of any person or terminating any Investment Manager's
authority has occurred.
ARTICLE ELEVEN
11.01 If Marshall & Ilsley Trust Company is at any time acting as
a successor Trustee or succeeds to responsibilities hereunder for
management of plan assets with respect to the Fund (or any portion
thereof), the Company hereby agrees to hold Marshall & Ilsley Trust
Company harmless from and against all taxes, expenses (including counsel
fees), liabilities, claims, damages, actions, suits or other charges
incurred by or assessed against it as successor Trustee, as a direct or
indirect result of any act or omission of a predecessor trustee or any
other person who, prior to Marshall & Ilsley Trust Company's acceptance as
Trustee, was charged under any agreement affecting Fund assets for
investment responsibility with respect to such assets.
ARTICLE TWELVE
12.01 Upon receipt of notice from the Company of the termination,
the disqualification under Section 401(a) of the Code, or the withdrawal
from this Master Trust, of any Participating Plan or any part thereof, the
Trustee shall withdraw and segregate the share of the assets of the Fund
allocable to such Participating Plan or part thereof and shall either
dispose of such segregated share in accordance with the directions of the
Company or continue to hold such segregated share, in trust, as a separate
trust governed by the same provisions as this Agreement, except that if
such segregated share is equal to an entire Participating Plan in the
Fund, the entity or successor thereto which had established such
Participating Plan shall thereafter be deemed to be "the Company" for all
purposes of the Agreement. If such segregated share is less than the
entire equitable share of a Participating Plan in the Fund, the Company
shall certify to the Trustee, that portion of the equitable share of such
Participating Plan attributable to the participants and their
beneficiaries on whose account such assets are to be segregated.
12.02 The Company reserves the right at any time and from time to
time to terminate or to amend, in whole or in part, any or all of the
provisions of this Agreement by notice thereof in writing delivered to the
Trustee; provided that, no such amendment which affects the rights, duties
or responsibilities of the Trustee may be made without its consent, and
provided further that, except as may be otherwise allowed under Section
403(c) of ERISA (it being the Company's intent that all contributions by
it or any Corporation to any Participating Plan be conditioned as allowed
in said Section), no instrument of termination or amendment shall
authorize or permit, at any time prior to the satisfaction of all
liabilities with respect to the participants and their beneficiaries under
the Plans, any part of the corpus or income of the Fund to be used for or
diverted to purposes other than for the exclusive benefit of such
participants and their beneficiaries.
12.03 In the event of the termination of the Trust as above
provided (or of all the Participating Plans), the Trustee shall continue
to administer the Fund as hereinabove provided until all of the purposes
for which it has been established have been accomplished or dispose of the
Fund after the payment or other provision of all expenses incurred in the
administration and termination of the Trust (including any compensation to
which the Trustee may be entitled), all in accordance with the written
order of the Company or any successor thereto. Until the final
distribution of such Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this
Agreement.
12.04 The Trustee may be removed by the Company at any time upon
thirty (30) days' notice in writing to the Trustee. The Trustee may
resign at any time upon thirty (30) days' notice in writing to the
Company. Upon such removal or resignation of the Trustee, the Company
shall appoint a successor trustee and, upon acceptance of such appointment
by the successor trustee, the Trustee shall assign, transfer and pay over
to such successor trustee the funds and properties then constituting the
Fund, or the Company shall establish an alternative funding medium and the
Trustee shall assign, transfer and pay over the Fund, as then constituted,
upon the directions of the Company. The Trustee is authorized, however,
to reserve such amount as to it may seem advisable for payments of its
fees and expenses in connection with the settlement of its account or
otherwise, and any balance of such reserve remaining after the payment of
such fees and expenses shall be paid over to the successor trustee or
alternative funding medium, as the case may be. Notwithstanding any
provision of the Plans or this Agreement to the contrary, the Trustee is
hereby authorized to invest and reinvest such reserves in any investment
or investment vehicle (including any collective investment fund described
in Section 4.02) appropriate for the temporary investment of each cash
reserves of trusts.
If for any reason the Company cannot or does not act in the
event of the resignation or removal of the Trustee, as hereinabove
provided, the Trustee may apply to a court of competent jurisdiction for
the appointment of a successor Trustee or for instructions. Any expenses
incurred by the Trustee in connection therewith shall be paid from the
Fund as an expense of administration.
12.05 Anything hereinabove to the contrary notwithstanding, the
Trustee may condition its delivery, transfer or distribution of any asset
under this Article upon the Trustee's receiving assurance satisfactory to
it that the approval of appropriate governmental or other authorities has
been secured and that all notices and other procedures required by
applicable law have been accomplished.
ARTICLE THIRTEEN
13.01 To the extent that State law shall not have been preempted
by the provisions of ERISA or any other laws of the United States
heretofore or hereafter enacted, as the same may be amended from time to
time, this Agreement shall be administered, construed and enforced
according to the laws of the State of Wisconsin.
ARTICLE FOURTEEN
14.01 The Company shall provide the Trustee with copies of all
documents constituting the Participating Plans at the time this Agreement
is executed by the Company or adopted under any other plan, as provided in
Article Two, and all other documents amending or supplementing the
Participating Plan promptly upon their adoption. The Trustee shall be
entitled to rely upon the Company's attention to this obligation and shall
be under no duty to inquire of the Company as to the existence of any
documents not provided by the Company hereunder.
ARTICLE FIFTEEN
15.01 Pursuant to a resolution of its Board of Directors and in
consideration of the Trustee's agreeing to enter into this Agreement, the
Company hereby agrees to hold harmless Marshall & Ilsley Trust Company,
individually and as Trustee under this Agreement, and Marshall & Ilsley
Trust Company directors, officers, and employees from and against all
amounts including without limitation, taxes, expenses (including
reasonable counsel fees), liabilities, claims, damages, actions, suits or
other charges, incurred by or assessed against Marshall & Ilsley Trust
Company, individually or as Trustee, or its directors, officers, or
employees, (i) as a direct or indirect result of anything done in good
faith, or alleged to have been done, by or on behalf of Marshall & Ilsley
Trust Company in reliance upon the directions of the Company, any
Investment Manager appointed by the Company, or any person or committee
authorized to act on behalf of the Company or to appoint such Investment
Manager under any Participating Plan, or anything omitted to be done in
good faith, or alleged to have been omitted, in the absence of such
directions, or (ii) as a direct or indirect result of the failure of the
Company or such person or a committee, as a co-fiduciary under said Plans,
directly or through its agents, to adequately, carefully and diligently
discharge its responsibilities with respect to the selection, supervision
and/or retention of any Investment Manager.
15.02 The Company further agrees that the undertakings made in
this Article of this Agreement shall be binding on its successors or
assigns and shall survive termination, amendment or restatement of this
Agreement, or the resignation or removal of the Trustee, and that this
Article shall be construed as a contract between the Company and the
Trustee according to the laws of the State of Wisconsin in effect from
time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective authorized officers and their corporate
seals to be affixed as of the date first above set forth.
WICOR, INC
BY:
TITLE:
[Corporate Seal]
ATTEST:
TITLE:
MARSHALL & ILSLEY TRUST COMPANY
BY:
TITLE:
[Corporate Seal]
ATTEST:
TITLE:
Appendix A
Affiliated and Subsidiary Corporations
WICOR, Inc.
Wisconsin Gas Company
WICOR Energy Services
WEXCO of Delaware, Inc.
Sta-Rite Industries, Inc.
HYPRO Corporation
SHURflo, Inc.
Plans
Wisconsin Gas Company Employees Savings Plan
Wisconsin Gas Company Local 6-18-1 Savings Plan
Wisconsin Gas Company Local 6-18 Savings Plan
Hypro Corporation 401(k) and Profit Sharing Plan
Sta-Rite Industries Incentive Savings Plan
SHURflo 401(k) Profit Sharing Plan