EXHIBIT 4.4
UNITIL CORPORATION TAX DEFERRED SAVINGS AND INVESTMENT PLAN
TRUST AGREEMENT
This Trust Agreement is made as of this 1st day of July, 1996, by and
between Unitil Corporation, a New Hampshire corporation having its principal
office in Exeter, New Hampshire (the "Company") and Putnam Fiduciary Trust
Company, a Massachusetts trust company having its principal office in Boston,
Massachusetts (the "Trustee").
WITNESSETH:
1. Establishment of Plan. The Unitil Corporation Tax Deferred Savings and
Investment Plan (the "Plan") has been adopted by the Company and is
intended to satisfy those provisions of the Internal Revenue Code of 1986,
as the same may be amended from time to time (the "Code"), relating to
qualified employer plans.
2. Creation of Trust. There is hereby established a trust which shall be known
as the "Unitil Corporation Tax Deferred Savings and Investment Plan Trust."
The provisions of this Agreement shall supersede and take precedence over
any provision of the Plan which dealswith the Trustee's responsibilities
and/or which may conflict in any way with the Plan and any later signed
amendments thereto. All money and such property as shall be acceptable to
the Trustee as shall from time to time be paid or delivered to the Trustee
in its capacity as such, all investments made therewith and proceeds
thereof and all earnings and profits thereon, less the payments which at
the time of reference shall have been made by the Trustee, as authorized
herein, are referred to herein as the "Trust." The Trustee hereby accepts
the Trust created hereunder and agrees to perform the provisions of this
Agreement on its part to be performed. Subject to the conditions and
limitations set forth herein, the Trustee shall be responsible for the
property received by it as Trustee, but shall not be responsible for the
administration of the Plan or for those assets of the Plan which have not
been delivered to and accepted by the Trustee. The Trustee shall not have
any authority or obligation to determine the adequacy of or to enforce the
collection from the Company of any contribution to the Trust. Certain other
agreements and obligations between the Company and the Trustee or its
affiliates may be set forth from time to time in a service agreement
between such parties (the "Service Agreement").
The establishment of the Trust created by this Agreement shall not be
considered as giving any Plan member or any other person any legal or
equitable rights as against the Company or the Trustee of the property,
whether corpus or income, of the Trust unless such right is specifically
provided for in this Agreement, the Plan, or by law, nor shall it be
considered as giving any Plan member or other employee the right to
continue in the service of the Company.
3. Purposes. The Plan and the Trust have been established for the exclusive
benefit of the eligible employees and their beneficiaries. So far as
possible this Agreement shall be interpreted in a manner consistent with
the intention of the Company that the Trust satisfy those provisions of the
Code relating to qualified employees' trusts exempt from taxation under
Section 501(a) of the Code. It is specifically intended that the Company
shall have sole responsibility for maintaining the tax-qualified status of
the Plan and
<PAGE>
Trust. No property of the Trust or contributions made by the Company
pursuant to the terms of the Plan shall revert to the Company or be used
for any purpose other than providing benefits to eligible employees or
their beneficiaries and defraying the expenses of the Plan and the Trust,
except that to the extent provided by the Plan:
(a) Upon request of the Company, contributions made to the Plan before the
issuance of a favorable determination letter by the Internal Revenue
Service with respect to the initial qualification of the Plan under
Section 401(a) of the Code may be returned to the contributor, with
all attributable earnings, within one year after the Internal Revenue
Service refuses in writing to issue such a letter.
(b) Any amount contributed under the Plan by the Company by a mistake of
fact as determined by the Company may be returned to the Company, upon
its request, within one year after its payment to the Trust.
(c) Any amount contributed under the Plan by the Company on the condition
of its deductibility under Section 404 of the Code may be returned to
the Company, upon its request, within one year after the Internal
Revenue Service disallows the deduction in writing.
(d) Earnings attributable to contributions returnable under paragraph (b)
or (c) shall not be returned to the Company, and any losses
attributable to those contributions shall reduce the amount returned.
4. Management of Trust. It shall be the duty of the Trustee:
(a) to hold and, subject to the provisions of this Agreement, to invest
and to reinvest the assets of the Trust, and
(b) to make payments therefrom in accordance with the written directions
of the Plan Administrator (the "Administrator") specified in the Plan
or otherwise appointed by the Board of Directors of the Company
pursuant to the Plan to administer the Plan. The Administrator shall
be the "plan administrator" of the Plan as defined in Section 3(16)(A)
of the Employee Retirement Income Security Act of 1974 ("ERISA"), and
a "named fiduciary" within the meaning of Section402(a) of ERISA. The
Administrator may direct payments to be made from the Trust to any
person, including any member of the Administrator, or to the Company,
or to any paying agent designated by the Administrator, and in such
amounts as the Administrator may direct. Each such direction of the
Administrator shall be in writing and shall be deemed to include a
certification that any payment directed thereby is one which the
Administrator is authorized to direct, and the Trustee may
conclusively rely on such certification without further investigation.
Payments by the Trustee may be made by its check to the order of the
payee and mailed to the payee at the address last furnished to the
Trustee by the Administrator or by the payee, or if no such address
has been furnished, to the payee in care of the Company. The Trustee
shall make disbursements in the amounts and in the manner that the
Administrator directs from time to time in writing. The Trustee shall
have
2
<PAGE>
no responsibility to ascertain any direction's compliance with the
terms of the Plan or of any applicable law or the direction's effect
for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement. The
Trustee shall not be required to make any disbursement in excess of
the net realizable value of the assets of the Trust at the time of the
disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written
direction as to the assets to be converted to cash for the purpose of
making the disbursement.
5. Investments. Except as otherwise provided in Sections 6, 7 and 8 below, the
Trustee shall invest and reinvest the assets of the Trust and keep the same
invested, without distinction between principal and income, in stocks,
bonds, stock options, option contracts of any type, contracts for the
immediate or future delivery of financial instruments and other property,
or other securities or certificates of participation or shares of any
mutual investment company, trust or fund (including mutual funds which are
sponsored, underwritten or managed by affiliates of the Trustee), or
deposits in the Trustee which bear a reasonable rate of interest, or
annuity or investment contracts issued by an insurance company, or other
property of any kind, real or personal, tangible or intangible, as it may
deem advisable, provided that the Trustee may hold assets of the Trust
uninfected from time to time if and to the extent that it may deem such to
be in the best interests of the Trust. Notwithstanding the foregoing,
unless an investment manager is appointed in accordance with Section 8, or
the Service Agreement otherwise specifically provides, all of the assets of
the Trust shall be invested as the Administrator directs in investment
products sponsored, underwritten or managed by affiliates of the Trustee,
loans to Plan members or securities issued by the Company satisfying the
conditions of Section 6.
6. Investment Funds. The Administrator from time to time may direct the
Trustee to establish one or more separate investment accounts within the
Trust, each such separate account being hereinafter referred to as an
"Investment Fund." The Trustee shall transfer to each such Investment Fund
such portion of the assets of the Trust as the Administrator or Plan
members direct in accordance with the specific provisions of the Plan and
in the manner provided in the Service Agreement. The Trustee shall invest
and reinvest the assets which have been allocated to an Investment Fund in
accordance with the investment guidelines, objectives and restrictions
which have been established by the Administrator for that Investment Fund
and, in the case of an Investment Fund for which an Investment Manager has
been appointed, the specific investment directions of such Investment
Manager. If, and to the extent, specifically authorized by the Plan, and
provided in the Service Agreement, the Administrator may direct the Trustee
to establish an Investment Fund all of the assets of which shall be
invested in shares of stock of the Company, subject to the terms and
conditions of Section 7.
The Trustee shall be under no duty to question or review the investment
guidelines, objectives and restrictions established, or the specific
investment directions given, by the Administrator or the Plan members for
any Investment Fund or to make suggestions to the Administrator in
connection therewith. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the Administrator's or Plan
members'
3
<PAGE>
exercise or non-exercise of rights under this Section 6, or from any
direction of the Administrator or Plan members unless it is clear on the
face of the direction that the actions to be taken under the direction are
prohibited by the fiduciary duty rules of Section 404(a) of ERISA. The
Trustee shall incur no liability on account of investing the assets of the
Trust in accordance with investment elections of the Administrator or Plan
members so delivered to the Trustee.
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, and all expenses of the Trust which are
properly allocable to a particular Investment Fund shall be so allocated
and charged. The Administrator may at any time direct the Trustee to
eliminate any Investment Fund or Funds, and the Trustee shall thereupon
dispose of the assets of such Investment Fund and reinvest the proceeds
thereof in accordance with the directions of the Administrator.
Pending investment in the Investment Funds in accordance with the
directions of the Administrator or the Plan members, the Trustee shall
invest assets of the Trust as provided in the Service Agreement, or if
there is no such provision, the Trustee may invest assets of the Trust, in
whole or in part, at any time or from time to time, in interest-bearing
accounts or certificates of deposit (including deposits in the Trustee
which bear a reasonable interest rate), Treasury Bills, commercial paper,
money market funds (including any such fund sponsored, underwritten or
managed by one of its affiliates), short-term investment funds or other
short-term obligations in its discretion, and the investment return thereon
shall be allocated among the Plan members whose assets have been so
invested and added to their respective investments in the Investment Funds.
7. Trust Investments in Company Stock. Trust investments pursuant to this
Section 7 shall be made only in securities constituting "qualifying
employer securities" within the meaning of Section 407(d)(5) of ERISA.
Trust investments in such securities of the Company("Company Stock") shall
be subject to the following terms and conditions:
(a) Acquisition Limit. Pursuant to the Plan, the Trust may be invested in
Company Stock to the extent necessary to comply with investment
directions under Section 6 of this Agreement.
(b) Fiduciary Duties of Named Fiduciaries. The Administrator as named
fiduciary shall continually monitor the suitability of acquiring and
holding Company Stock under the fiduciary duty rules of Section
404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA). The
Trustee shall not be liable for any loss, or by reason of any breach,
which arises from the direction of the Administrator with respect to
the acquisition and holding of Company Stock, unless it is clear on
the face of the direction that the actions to be taken under the
direction would be prohibited under ERISA. The Company hereby appoints
as named fiduciaries, solely with respect to the voting of Company
Stock held in the Trust and the tender or retention of such Company
Stock in response to a tender offer, the
4
<PAGE>
eligible employees who are Plan members in the Plan at the time in
question. The Company shall be responsible for determining whether,
under the circumstances prevailing at a given time, its fiduciary duty
to Plan members and beneficiaries under the Plan and ERISA requires
that the Company follow the advice of independent counsel as to the
voting and tender or retention of Company Stock.
(c) Execution of Purchases and Sales. To implement transactions regarding
investments in Company Stock, including purchases, redemptions and
exchanges, the Trustee shall purchase or sell Company Stock on the
open market, as the case may be, as soon as practicable following the
date on which the Trustee receives from the Company in good order all
information and documentation necessary to effect such purchase or
sale. However, the Trustee may accumulate all like purchases into a
single batch and may accumulate all like sales as a result of
receiving instructions for redemptions and exchanges out of Company
Stock into a single batch, but shall not be required to do so.
The Trustee may purchase or sell Company Stock from or to the Company
if the purchase or sale is for no more than adequate consideration
(within the meaning of Section3(18) of ERISA) and no commission is
charged. To the extent that Company contributions under the Plan are
to be invested in Company Stock, the Company may transfer Company
Stock to the Trust in lieu of cash. The number of shares so
transferred shall be determined by dividing the amount of the
contribution by the closing price of Company Stock on any national
securities exchange on the trading day immediately preceding the date
as of which the contribution is made.
The Trustee and the Company may, in an appendix to this Section 7,
agree upon such prescribed dates for purchases and sales of Company
Stock and such rules and conventions in connection with such purchases
and sales as they may find mutually acceptable.
(d) Securities Law Reports. The Administrator shall be responsible for
filing all reports required under federal or state securities laws
with respect to the Trust's ownership of Company Stock, including,
without limitation, any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Company Stock pending the filing of any report. The Trustee shall
provide to the Administrator such information on the Trust's ownership
of Company Stock as the Administrator may reasonably request in order
to comply with federal or state securities laws.
(e) Voting. Notwithstanding any other provision of this Agreement, the
provisions of this Section 7(e) shall govern the voting of Company
Stock. When the issuer of Company Stock files preliminary proxy
solicitation materials with the Securities and Exchange Commission,
the Company shall cause a copy of all the materials to be
simultaneously sent to the Trustee, and the Trustee shall prepare a
voting instruction form based upon these materials. At the time of
mailing of
5
<PAGE>
notice of each annual or special stockholders' meeting of the issuer
of Company Stock, the Company shall cause a copy of the notice and all
proxy solicitation materials to be sent to each Plan member, together
with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the number of full and
fractional shares of Company Stock credited to the Plan member's
accounts, whether or not vested. For purposes of this Section 7(e),
the number of shares of Company Stock deemed credited to a Plan
member's accounts shall be determined as of the date of record
determined by the Company for which an allocation has been completed
and Company Stock has actually been credited to Plan members'
accounts. The Company shall provide the Trustee with a copy of any
materials provided to Plan members and shall certify to the Trustee
that the materials have been mailed or otherwise sent to Plan members.
Each Plan member shall have the right to direct the Trustee as to the
manner in which to vote that number of shares of Company Stock
credited to his accounts. Such directions shall be communicated in
writing or by facsimile or similar means and shall be held in
confidence by the Trustee and not divulged to the Company, or any
officer or employee thereof, or any other person. Upon its receipt of
directions, the Trustee shall vote the shares of Company Stock
credited to the Plan member's account as directed by the Plan member.
The Trustee shall vote those shares of Company Stock not credited to
Plan members' accounts, and those shares of Company Stock credited to
the accounts of Plan members for which no voting directions are
received, in the same proportion on each issue as it votes those
shares credited to Plan members' accounts for which it received voting
directions from Plan members.
(f) Tender Offers. Upon commencement of a tender offer for any Company
Stock, the Company shall notify each Plan member, and use its best
efforts to timely distribute or cause to be distributed to Plan
members the same information that is distributed to shareholders of
the issuer of Company Stock in connection with the tender offer, and
after consulting with the Trustee shall provide at the Company's
expense a means by which Plan members may direct the Trustee whether
or not to tender the Company Stock credited to their accounts (whether
or not vested). The Company shall provide to the Trustee a copy of any
material provided to Plan members and shall certify to the Trustee
that the materials have been mailed or otherwise sent to Plan members.
Each Plan member shall have the right to direct the Trustee to tender
or not to tender some or all of the shares of Company Stock credited
to his accounts. Directions from a Plan member to the Trustee
concerning the tender of Company Stock shall be communicated in
writing or by facsimile or such similar means as is agreed upon by the
Trustee and the Company. The Trustee shall tender or not tender shares
of Company Stock as directed by the Plan member. The Trustee shall not
tender shares of Company Stock credited to a Plan member's accounts
for which it has received no directions from the Plan members.
6
<PAGE>
The Trustee shall tender that number of shares of Company Stock not
credited to Plan members' accounts determined by multiplying the total
number of such shares by a fraction, of which the numerator is the
number of shares of Company Stock credited to Plan members' accounts
for which the Trustee has received directions from Plan members to
tender (which directions have not been withdrawn as of the date of
this determination), and of which the denominator is the total number
of shares of Company Stock credited to Plan members' accounts.
A Plan member who has directed the Trustee to tender some or all of
the shares of Company Stock credited to his accounts may, at any time
before the tender offer withdrawal date, direct the Trustee to
withdraw some or all of the tendered shares, and the Trustee shall
withdraw the directed number of shares from the tender offer before
the tender offer withdrawal deadline. A Plan member shall not be
limited as to the number of directions to tender or withdraw that he
may give to the Trustee.
A direction by a Plan member to the Trustee to tender shares of
Company Stock credited to his accounts shall not be considered a
written election under the Plan by the Plan member to withdraw or to
have distributed to him any or all of such shares. The Trustee shall
credit to each account of the Plan member from which the tendered
shares were taken the proceeds received by the Trustee in exchange for
the shares of Company Stock tendered from that account. Pending
receipt of directions through the Administrator from the Plan member
as to the investment of the proceeds of the tendered shares, the
Trustee shall invest the proceeds as the Administrator shall direct.
(g) General. With respect to all rights other than the right to vote, the
right to tender, and the right to withdraw shares previously tendered,
the Trustee shall follow the directions of the Plan member as to
Company Stock credited to his accounts, and if no such directions are
received, the directions of the Administrator. The Trustee shall have
no duty to solicit directions from Plan members. With respect to all
rights other than the right to vote and the right to tender, in the
case of Company Stock not credited to Plan members' accounts. the
Trustee shall follow the directions of the Administrator. All
provisions of this Section 7 shall apply to any securities received as
a result of a conversion of Company Stock.
8. Appointment of Investment Managers. The Administrator from time to time may
appoint one or more Investment Managers (as that term is defined in Section
3(38) of ERISA) to manage (including the power to acquire and dispose of)
all or any portion or portions of the Trust. The Administrator may enter
into such agreements setting forth the terms and conditions of any such
appointment as it determines to be appropriate. The Administrator shall
retain the right to remove and discharge any Investment Manager. The
compensation of such Investment Managers shall be an expense payable in
accordance with Section 14. The Administrator shall notify the Trustee of
the appointment of any Investment Manager by delivering to the Trustee an
executed copy
7
<PAGE>
of the agreement under which such Investment Manager was appointed together
with a written acknowledgment by such Investment Manager that it is:
(a) a fiduciary with respect to the Plan,
(b) bonded as required by ERISA, and
(c) either
(i) registered as an investment advisor under the Investment Advisers
Act of 1940, or
(ii) a bank as defined in said Act, or
(iii)an insurance company qualified to perform investment management
services under the laws of more than one state of the United
States.
The Trustee shall be entitled to rely upon such notice until such time as
the Administrator shall notify and direct the Trustee in writing that
another Investment Manager has been appointed in the place and stead of the
first-named Investment Manager, or in the alternative, that the Investment
Manager has been removed. In each case where an Investment Manager is
appointed, the Administrator shall determine the assets of the Trust to be
allocated to the Investment Manager from time to time and shall issue
appropriate instructions to the Trustee with respect thereto. The Trustee
shall carry out the written instructions of any Investment Manager with
respect to the management and investment of the assets then under control
of such Investment Manager and shall not incur any liability on account of
its compliance with such instructions. Purchase and sale orders may be
placed without the intervention of the Trustee and, in such event, the
Trustee's sole obligation shall be to make payment for purchased securities
and deliver those that have been sold when advised of the transaction. The
Trustee shall not incur any liability on account of its failure to exercise
any of the powers delegated to any Investment Manager because of the
failure of such Investment Manager to give instructions for the management
of the assets under the control of such Investment Manager. The Trustee
shall be under no duty to question any Investment Manager, nor to review
any securities or other property acquired or retained at the direction of
any Investment Manager, nor to make any suggestions to any Investment
Manager in connection therewith. The Trustee shall have no obligation to
vote upon any securities over which the Investment Manager has investment
management control unless the Trustee is instructed in writing by the
Investment Manager as to the voting of such securities within a reasonable
time before the time for voting thereof expires.
Each Investment Manager shall have the authority to exercise all of the
powers of the Trustee hereunder with respect to assets under its control
but-only to the extent that such powers relate to the investment of such
assets.
9. Insurance Contracts. If provided in the Service Agreement, the
Administrator may direct the Trustee to receive and hold or apply assets of
the Trust to the
8
<PAGE>
purchase of individual or group insurance or annuity contracts ("policies"
or "contracts") issued by any insurance company and in a form approved by
the Administrator (including contracts under which the contract holder is
granted options to purchase insurance or annuity benefits), or financial
agreements which are backed by group insurance or annuity contracts
("financial agreements"). If such investments are to be made, the
Administrator shall direct the Trustee to execute and deliver such
applications and other documents as are necessary to establish record
ownership, to value such policies, contracts or financial agreements under
the method of valuation selected by the Administrator, and to record or
report such values to the Administrator or any investment manager selected
by the Administrator, in the form and manner agreed to by the
Administrator.
The Administrator may direct the Trustee to exercise or may exercise
directly the powers of contract holder under any policy, contract or
financial agreement, and the Trustee shall exercise such powers only
upon direction of the Administrator. The Trustee shall have no
authority to act in its own discretion, with respect to the terms,
acquisition, valuation, continued holding and/or disposition of any
such policy, contract or financial agreement or any asset held
thereunder. The Trustee shall be under no duty to question any
direction of the Administrator or to review the form of any such
policy, contract or financial agreement or the selection of the issuer
thereof, or to make recommendations to the Administrator or to any
issuer with respect to the form of any such policy, contract or
financial agreement.
The Trustee shall be fully protected in acting in accordance with
written directions of the Administrator, 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 accordance with any direction of the
Administrator, or by reason of inaction in the absence of written
directions from the Administrator. In the event that the Administrator
directs that any monies or property be paid or delivered to the
contract holder other than for the benefit of specific individual
beneficiaries, the Trustee agrees to accept such monies or property as
assets of the Trust subject to all the terms hereof.
10. Powers of Trustee. Subject to the foregoing provisions and limitations, the
Trustee is authorized and empowered:
(a) to sell at public auction or by private contract, redeem, convey,
transfer, exchange, pledge, or otherwise realize upon, any securities,
investments or other property forming a part of the Trust, and for
such purposes may execute such instruments and writings and do such
things as it shall deem proper;
(b) to keep any or all securities or other property in the name of some
other person, nominee, firm or corporation or in its own name without
disclosing its fiduciary capacity, but the books and records of the
Trustee shall at all times show that all such securities and other
property are part of the Trust;
9
<PAGE>
(c) except as otherwise provided in Sections 7 and 8, to the extent that
the Trustee receives direction from the Administrator or the Plan
members, as the case may be, to vote upon any stock, bonds or other
securities of any corporation, association or trust at any time
comprising the Trust, or otherwise consent to or request any action on
the part of such corporation, association or trust, and to give
general or special proxies or powers of attorney, with or without
power of substitution, and to exercise any conversion privileges,
subscription rights or other options, to participate in
reorganizations, recapitalizations, consolidations, mergers and
similar transactions with respect to such securities; to deposit such
stocks or other securities in any voting trust, or with any protective
or like committee, or with a trustee, or with depositories designated
thereby; and generally to exercise any of the powers of an owner with
respect to stocks or other securities or property comprising the Trust
which the Trustee deems to be for the best interests of the Trust. The
Trustee will not vote such stock or other securities as to which it
receives no written directions;
(d) when instructed or directed by the Administrator, to borrow money for
the purposes of this Trust in such amounts and upon such terms and
conditions as the Administrator, in its discretion, may approve, and
for any amount so borrowed to issue the promissory note of the Trustee
and to secure the repayment thereof by pledge, mortgage, or
hypothecation of all or any part of the property of the Trust, and no
person loaning money to the Trustee shall be bound to see to the
application of the money loaned or to inquire into the validity of any
such borrowing;
(e) to make, execute, acknowledge and deliver any and all instruments that
it shall deem necessary or appropriate to carry out the powers herein
granted;
(f) to manage, administer, operate, lease for any number of years,
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein at any time held by it, and to cause to be formed a
corporation or trust to hold title to any such real property with the
aforesaid powers, all upon such terms and conditions as may be deemed
advisable;
(g) to renew or extend or participate in the renewal or extension of any
mortgage, upon such terms as may be deemed advisable, and to agree to
a reduction in the rate of interest on any mortgage or to any other
modification or change in the terms of any mortgage or of any
guarantee pertaining thereto, in any manner and to any extent that may
be deemed advisable for the protection of the Trust or the
preservation of the value of the investment, to waive any default
whether in the performance of any covenant or condition of any
mortgage or in the performance of any guarantee, or to enforce any
such default in such manner and to such extent as may be deemed
advisable, to exercise and enforce any and all rights of foreclosure,
to bid in property on foreclosure, to take a deed in lieu of
foreclosure with or without paying a consideration therefor and in
connection therewith to release the obligation on the bond secured by
such mortgage; and
10
<PAGE>
to exercise and enforce in any action, suit or proceedings at law or
in equity any rights or remedies in respect to any such mortgage or
guarantee;
(h) upon express direction by the Administrator, or the Investment
Manager, as the case may be, to transfer assets of the Trust to itself
as trustee or to any other trustee of any trust which has been
qualified under Section401(a) and is exempt from tax under Section
501(a) of the Code, and which is maintained by it or such other
trustee as a medium for the collective investment of funds of pension,
profit-sharing or other employee benefit trusts, in which event such
trust shall be deemed to be a part of the Plan, and to withdraw any
assets of the Trust so transferred;
(i) when instructed or directed by the Administrator, to settle,
compromise or submit to arbitration any claims, debts, or damages, due
or owing to or from the Trust, to commence or defend suits or legal
proceedings and to represent the Trust in all suits or legal
proceedings in any court of law or before any other body or tribunal;
provided, however, that the Trustee shall have no obligation to take
any legal action for the benefit of the Trust unless it shall have
been first indemnified for all expenses in connection therewith,
including counsel fees;
(j) to lend to Plan members such amount or amounts, and upon such terms
and conditions, as the Administrator may direct in accordance with the
provisions of the Plan, if applicable;
(k) to employ such agents, consultants, custodians, depositories,
advisors, and legal counsel as may be reasonably necessary or
desirable in the Trustee's judgment in managing and protecting the
Trust and, subject to the provisions of Section 14, to pay them
reasonable compensation out of the Trust;
(1) to cause any securities or other property which may at any time form a
part of the Trust to be issued, held or registered in the individual
name of the Trustee, or in the name of its nominee (including any
custodian employed by the Trustee, any nominee of such a custodian,
and any depository, clearing corporation or other similar system), or
in such form that title will pass by delivery;
(m) to enter into stand-by agreements for future investment either with or
without a stand-by fee;
(n) to transfer any assets of the Trust to a custodian or sub-custodian
employed by the Trustee;
(o) when directed by the Administrator, to participate in a securities
lending program sponsored and administered by the Trustee and, in
connection therewith, the Trustee is authorized to release and deliver
securities and return collateral received for loaned securities in
accordance with the provisions of such program;
11
<PAGE>
(p) to write options on securities held or to otherwise participate in
so-called covered option writing; and
(q) to do all other acts in its judgment necessary or desirable for the
proper administration of the Trust, in accordance with the provisions
of the Plan and this Agreement. although~h the power to do such acts
is not specifically set forth herein.
No person dealing with the Trustee shall be required to take any notice of
this Agreement, but all persons so dealing shall be protected in treating
the Trustee as the absolute owner with full power of disposition of all the
monies, securities and other property of the Trust, and all persons dealing
with the Trustee are released from inquiry into the decision or authority
of the Trustee and from seeing to the application of monies, securities or
other property paid or delivered to the Trustee.
11. Liquidation of Assets. Upon termination of the Trust as provided herein,
the Trustee shall not be required to make any payments hereunder until it
has received such documentation as it shall consider necessary to establish
that the termination complies with applicable law, or to make any payments
in excess of the net realizable value of the assets of the Trust at the
time of such payment. The Trustee shall not be required to make any
payments in cash unless there shall be in the Trust at the time an amount
of cash sufficient for the purpose. In case of a deficiency in cash, the
Trustee shall take such action as to the disposition of securities or other
property forming a part of the Trust as will provide the amount of cash for
such payments. The Trustee shall not be required to make any payment in
cash until the Administrator has provided direction as to the assets to be
converted to cash for the purpose of making such payment.
12. Direction by Company or Administrator. The Company shall certify to the
Trustee the names and specimen signatures of the Administrator. The Company
shall give prompt notice to-the Trustee of changes in the Administrator,
and until such notice is received by the Trustee, the Trustee shall be
fully protected in assuming that the Administrator is unchanged and in
acting accordingly. The Administrator may certify to the Trustee the names
of persons authorized to act for it in relation to the Trustee and may
designate a person, corporation or other entity, whether or not affiliated
with the Company, to so act. Whenever the Trustee is required or authorized
to take any action hereunder pursuant to any written direction or
determination of the Company or the Administrator, such direction or
determination shall be sufficient protection to the Trustee if contained in
a writing signed by any one or more of the persons authorized to execute
documents on behalf of the Company or the Administrator, as the case may
be, pursuant to the Plan. The Trustee shall act, and shall be fully
protected in acting, in accordance with such orders, requests and
instructions of the Company or the Administrator. By such a writing the
Company or the Administrator, as the case may be, may ratify, approve or
confirm any action taken by the Trustee, and upon such ratification,
approval or confirmation the Trustee shall be protected as though
authorization or determination by the Company or the Administrator had
preceded such action. In the absence of direction by the Company or the
Administrator as to any matter provided in this Agreement or the Plan, the
Trustee may in its discretion take such action as it deems fit and proper
with respect thereto after
12
<PAGE>
reasonable attempts to secure Company or Administrator direction, provided,
however, that the Trustee shall not be obligated to take any such action.
The Trustee may deliver documents to the Company or the Administrator by
delivering the same, or by mailing the same, postage prepaid, addressed to
the Company or the Administrator, as the case may be, at its principal
place of business.
13. Records and Accounting. The Trustee shall keep adequate and accurate
accounts of investments, receipts, disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall be
open at all reasonable times to inspection and audit by the Administrator
and its authorized representatives. The Trustee shall render to the Company
and the Administrator in writing, at least once each twelve (12) months and
at such times as required by the Plan and, in any event, within ninety (90)
days after its removal or resignation as provided in Section 15 hereof,
accounts of its transactions under this Agreement, and the Administrator
may approve such accounts of the Trustee by an instrument in writing
delivered to the Trustee. In the absence of the filing in writing with the
Trustee by the Administrator of exceptions or objections to any such
account within one year after the receipt thereof, the Administrator shall
be deemed to have approved such account; and in such case, or upon the
written approval of the Administrator of any such account, the Trustee, to
the extent permitted by applicable law, shall be released, relieved and
discharged with respect to all matters and things set forth in such
account. The Trustee shall from time to time make such other reports and
furnish such other information concerning the Trust (including valuations
of each Investment Fund established pursuant to Section 6) to the
Administrator as the Administrator may reasonably request or as may be
required by the Plan. The Administrator shall arrange for each Investment
Manager appointed pursuant to Section 8, and each insurance company issuing
contracts held by the Trustee pursuant to Section 9, to furnish the Trustee
with such valuations and reports as are necessary to enable the Trustee to
fulfill its obligations under this Section 13, and the Trustee shall be
fully protected in relying upon such valuations and reports. In any
proceeding instituted by the Trustee, the Company or the Administrator or
all of them with respect to any account of the Trustee, only the Company,
the Administrator and the Trustee shall be necessary parties.
14. Trustee's Compensation and Expenses. The Trustee shall be paid such
reasonable compensation as provided in the Service Agreement. The
compensation of the Trustee and any reasonable expenses, including
reasonable attorneys' fees and the cost of any bond, surety or other
security which may be required of the Trustee by ERISA, incurred by the
Trustee in the performance of its duties, and all other proper charges and
disbursements of the Trustee may be paid by the Company within thirty (30)
days after so billed, and will automatically be deducted from the Trust if,
upon the expiration of thirty (30) days, such fees are not separately paid
by the Company. All expenses (including taxes pursuant to Section 21) of
the Trust, other than those expenses which are paid by the Company, which
are allocable to an Investment Fund established pursuant to Section 6 shall
be charged to such Investment Fund. All such expenses which are not so
allocable shall be charged against each of the Investment Funds in the same
proportion as the value of the assets held in such Investment Fund bears to
the value of the total assets held in all of the Investment Funds. Any
account maintenance or
13
<PAGE>
administration fees applicable to any Plan member's account which are not
paid hereunder by the Company shall be charged against the interest of the
Plan member and, in the case of a loan of a Plan member, if applicable, all
expenses (including taxes pursuant to Section 21) of the Trust, other than
those expenses which are paid by the Company, which are allocable to such
loan, shall be charged against the interest of such Plan member under the
Plan.
15. Resignation or Removal of Trustee. The Trustee may resign at any time upon
sixty (60) days' written notice to the Company, and the Company may remove
the Trustee at any time upon sixty (60) days' written notice to the
Trustee; provided, however, that the parties may by written instrument
waive such notice. The Trustee reserves the right at any time to resign
immediately if the Company transfers the Plan's administration to a
recordkeeper other than the recordkeeper designated in the Service
Agreement, without the Trustee's prior written consent, by delivering to
the Company a notice of resignation certified by the Trustee. The Trustee
further reserves the right at any time to resign immediately by delivering
to the Company a notice of resignation certified by the Trustee if the
assets of the Trust are not invested in investment products which are
sponsored, underwritten or managed by affiliates of the Trustee, unless the
Service Agreement otherwise specifically provides. If the Trustee shall
resign, be removed or for any other reason cease to be Trustee, the Company
shall appoint a successor Trustee or Trustees to whom the Trustee, upon
receipt of acceptance by such successor, shall promptly deliver all of the
assets of the Trust less any unpaid fees or expenses. Subject to the
foregoing provisions, any resignation or removal of the Trustee or
appointment of a new Trustee shall be by instrument in writing and shall
become effective on the date therein specified. Any successor Trustee shall
have the same powers and duties as the succeeded Trustee, subject to such
changes as the Company may then determine. Upon request of such successor
Trustee or Trustees, the Company and the Trustee ceasing to act shall
execute and deliver such instruments of conveyance and further assurance
and do such things as may reasonably be required for more fully and
certainly vesting and confirming in such successor Trustee or Trustees all
the right, title and interest of the retiring Trustee in and to the assets
of the Trust. The Trustee is authorized, however, to reserve such sums of
money as may be reasonable for payment of its compensation and expenses
(including legal fees) in connection with the settlement of its account or
otherwise, and any balance of such reserve remaining after payment of such
compensation and expenses shall be promptly paid over to the successor
Trustee or Trustees.
16. Duties of Trustee. The Trustee shall discharge its duties with respect to
the Trust solely in the interests of the Plan members and their
beneficiaries and 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
like character and with like aims. The duties of the Trustee shall be only
those specifically undertaken by the Trustee pursuant to this Trust
Agreement. The Trustee shall have no responsibility for the administration
of the Plan (including, but not limited to, the determination of Plan
participation rights of employees of the Company, the determination of
benefits of members of the Plan and the maintenance of individual accounts
of members of the Plan). Except as otherwise provided by ERISA, in no event
shall the Trustee be responsible for any act or omission of any other
fiduciary of the Plan.
14
<PAGE>
The Trustee shall have no liability for the acts or omissions of any
predecessors and successors in office.
17. Indemnification. The Company hereby agrees to indemnify and hold harmless
the Trustee from and against any losses, damages, liabilities, claims,
costs or expenses (including reasonable attorneys' fees) which the Trustee
may incur by reason of this Trust Agreement, (including, without
limitation, by reason of the Trustee's making benefit payments pursuant to
fraudulent or unauthorized instructions) excepting only losses, damages,
liabilities, claims, costs or expenses arising from the Trustee's
negligence or willful misconduct. A waiver by the Trustee of any signature
guarantee requirement relating to the investments held hereunder shall not
be construed as negligence or willful misconduct on the part of the
Trustee. The provisions of this Section 17 shall survive the termination of
this Trust Agreement.
18. Amendment or Termination. The Company reserves the right at any time and
from time to time to amend, in whole or in part, any or all of the
provisions of, or to terminate, this Agreement by delivering to the Trustee
a copy of an amendment or a notice of termination certified by an officer
of the Company; 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 no such amendment shall authorize or permit any
part of the corpus or income of the Trust to be used for or diverted to
purposes other than those set forth in Section 3. Any such amendment shall
be effective upon delivery to the Trustee unless a different effective date
is specifically stated and any such amendment may be made retroactively as
shall be permitted under applicable law. Upon termination of this
Agreement, the Trustee, upon direction of the Administrator shall liquidate
the Trust to the extent required for distribution and, after the final
account of the Trustee has been approved and settled, shall distribute the
balance of the Trust remaining in its hands as directed by the
Administrator or in the absence of such direction, as may be directed by a
judgment or decree of a court of competent jurisdiction. Following any such
termination the powers of the Trustee hereunder shall continue as long as
any of the assets of the Trust remain in its hands, but only as to those
assets which during such time remain in the Trust.
19. Additional Participating Companies. Any affiliate or subsidiary of the
Company may, with the consent of the Company, become a participating
employer by action of the board of directors of such affiliate or
subsidiary to adopt the Trust as a trust for the benefit of its employees.
Each such additional participating employer shall be deemed the "Company"
hereunder and shall have and exercise all the rights, powers, and duties
thereof with respect to the Trust as applied to itself and its employees
and that part of the Trust which represents the interest of members
employed by it; provided, however, that each such additional participating
employer hereby delegates all such rights, powers, and duties, including
amendment or termination of the Trust, to Unitil Corporation acting alone,
except as such additional participating employer may exercise the same for
itself with the approval of Unitil Corporation.
20. Spendthrift Provision. Except as otherwise provided in the Plan, to the
maximum extent permitted by law, beneficial interests in the Trust of
members or former members under
15
<PAGE>
the Plan or their beneficiaries shall not be assignable nor subject to
alienation, sale, transfer, pledge, encumbrance, mortgage, attachment,
execution, levy or receivership, nor shall they pass to any trustee in
bankruptcy or be reached or applied by any legal process for the payment of
any obligations of any such person; provided, however, that nothing herein
shall prevent a member from assigning his interest in the Trust as security
for the repayment of any loan made to him from the Trust pursuant to the
Plan, and further provided that nothing herein shall prevent the Trustee
from making payments in accordance with a Qualified Domestic Relations
Order, as that term is defined in Code Section 414(p). Any attempt at any
other assignment, alienation, sale, transfer, pledge, encumbrance,
mortgage, attachment, execution or levy shall be void and unenforceable.
21. Payment of Taxes. The Trustee may pay out of the Trust (or the appropriate
Investment Fund or Funds) any and all taxes of any and all kinds, including
without limitation property taxes and income taxes levied or assessed under
existing or future laws upon or in respect of the Trust or any monies,
securities or other property forming a part thereof or the income therefrom
subject to the terms of any agreements or contracts made with respect to
trust investments which make other provision for such tax payments. The
Trustee may assume that any taxes assessed on or in respect of the Trust or
its income are lawfully assessed unless the Administrator shall in writing
advise the Trustee that in the opinion of counsel for the Company such
taxes are or may be unlawfully assessed. In the event that the
Administrator shall so advise the Trustee, the Trustee will, if so
requested in writing by the Administrator contest the validity of such
taxes in any manner deemed appropriate by the Company or its counsel but at
the expense of the Trust; or the Company may contest the validity of any
such taxes at the expense of the Trust and in the name of the Trustee; and
the Trustee agrees to execute all documents, instruments, claims, and
petitions necessary or advisable in the opinion of the Company or its
counsel for the refund, abatement, reduction or elimination of any such
taxes. At the direction of the Administrator, the Trustee shall collect all
income tax to be withheld from any benefit payments from the Trust and
shall report and pay over such taxes to the Internal Revenue Service,
except for payments made directly by an insurer to a Plan member or
beneficiary under an annuity or insurance contract, if applicable.
22. Successor to Company or Trustee. Any successor to all or a major part of
the business of the Trustee, by whatever form or manner resulting, shall
ipso facto succeed to all the rights, powers and duties hereunder of the
Trustee. Any successor to all or a major part of the business of the
Company, by whatever form or manner resulting, may continue the Plan and
Trust by executing appropriate amendments thereto, and thereupon such
successor shall ipso facto succeed to all the rights, powers and duties
hereunder of the Company.
23. Construction. In any question of interpretation or other matter of doubt,
the Trustee, the Administrator and the Company may rely upon the opinion of
counsel for the Company or any other attorney at law designated by the
Company with the approval of the Trustee. The provisions of this Agreement
shall be construed, administered and enforced according to the laws of the
United States and, to the extent permitted by such laws, by
16
<PAGE>
the laws of the Commonwealth of Massachusetts. All contributions to the
Trust shall be deemed to be made in the Commonwealth of Massachusetts.
24. Impossibility of Performance. In case it becomes impossible for the
Company, the Administrator or the Trustee to perform any act under this
Trust Agreement, that act shall be performed which in the judgment of the
Administrator will most nearly carry out the intent and Purpose of the Plan
and Trust. All parties to this Agreement or in any way interested in the
Trust shall be bound by any acts performed under such condition.
25. Definition of Words. Feminine or neuter pronouns shall be substituted for
those of the masculine form, and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions.
26. Titles. The titles of Sections are included only for convenience and shall
not be construed as part of this Agreement or in any respect affecting or
modifying-its provisions.
27. Execution of Trust Agreement. This Trust Agreement may be executed in any
number of counterparts and each fully executed counterpart shall be deemed
an original.
IN WITNESS WHEREOF these presents have been signed and sealed for and in behalf
of the Company and the Trustee by their duly authorized officers as of the 16th
day of May, 1996.
UNITIL CORPORATION
/s/George E. Long, Jr. By:/s/Gail S. Siart
--------------------------------------------- -----------------
Witness Title: Chief Financial Officer
Date: May 16, 1996
PUTNAM FIDUCIARY TRUST COMPANY
/s/ Heather Manthorne By:/s/ Debra Beal
---------------------------------------------- --------------
Witness Title: Senior Vice President
Date: May 16, 1996
17
