EXHIBIT 10 (iii) 26
CH ENERGY GROUP, INC.
DIRECTORS AND EXECUTIVES
DEFERRED COMPENSATION PLAN TRUST AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I. TITLE AND DEFINITIONS.....................................1
Section 1.1 Title.....................................................1
Section 1.2 Definitions...............................................2
ARTICLE II. ADMINISTRATION............................................2
Section 2.1 Trustee Responsibility....................................2
Section 2.2 Maintenance of Records....................................2
ARTICLE III. FUNDING...................................................3
Section 3.1 Contributions.............................................3
Section 3.2 Subtrusts.................................................3
ARTICLE IV. PAYMENTS FROM TRUST FUND..................................4
Section 4.1 Payments to Trust Beneficiaries...........................4
Section 4.2 Trustee Responsibility Regarding Payments to Trust
Beneficiaries When the Company is Insolvent...............5
Section 4.3 Payments to the Company...................................5
Section 4.4 Trustee Compensation and Expenses; Other Fees and
Expenses..................................................5
Section 4.5 Taxes.....................................................6
Section 4.6 Alienation................................................6
Section 4.7 Disputes..................................................6
ARTICLE V. INVESTMENT OF TRUST ASSETS................................6
Section 5.1 Investment of Subtrust Assets.............................6
Section 5.2 Disposition of Income.....................................6
ARTICLE VI. TRUSTEE...................................................7
Section 6.1 General Powers and Duties.................................7
Section 6.2 Records...................................................8
Section 6.3 Third Persons.............................................8
Section 6.4 Limitation on Obligation of Trustee.......................8
ARTICLE VII. RESIGNATION AND REMOVAL OF TRUSTEE........................8
Section 7.1 Method and Procedure......................................8
ARTICLE VIII. AMENDMENT AND TERMINATION.................................9
Section 8.1 Amendments................................................9
Section 8.2 Duration and Termination..................................9
Section 8.3 Distribution upon Termination............................10
(i)
ARTICLE IX. MISCELLANEOUS............................................10
Section 9.1 Limitation on Participants' Rights.......................10
Section 9.2 Receipt or Release.......................................10
Section 9.3 Governing Law............................................10
Section 9.4 Headings, etc., No Part of Agreement.....................11
Section 9.5 Instrument in Counterparts...............................11
Section 9.6 Successors and Assigns...................................11
Section 9.7 Indemnity................................................11
(ii)
CH ENERGY GROUP, INC.
DIRECTORS AND EXECUTIVES
DEFERRED COMPENSATION PLAN TRUST AGREEMENT
This Trust Agreement made and entered into as of this 1st day of January,
2000, by and between CH ENERGY GROUP, INC. (hereinafter called the "Company")
and FIRST AMERICAN TRUST COMPANY (hereinafter called "Trustee"), evidences the
terms of a trust for the benefit of members of the Board of Directors of
Company, certain employees, former employees and their designated beneficiaries
(hereinafter collectively called "Trust Beneficiaries") who will be entitled to
receive benefits under the CH Energy Group, Inc. Directors and Executives
Deferred Compensation Plan ("Plan").
This Trust is intended to be a grantor trust, of which the Company is the
grantor, within the meaning of subpart E, part I, subchapter J, Chapter l,
subtitle A of the Internal Revenue Code of 1986, as amended, (the "Code") and
shall be construed accordingly.
W I T N E S S E T H:
WHEREAS, the Company wishes to establish an irrevocable trust (hereinafter
called the "Trust") and to transfer to the Trust assets which shall be held
therein, subject to the claims of the Company's creditors in the event of the
Company's insolvency, until paid to the Trust Beneficiaries as benefits in such
manner and at such times as required hereunder; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA");
WHEREAS, the inclusion of members of the Board of Directors in the Plan
and as Trust Beneficiaries shall not affect the status of the Plan as an
unfunded plan maintained for the purpose of providing deferred compensation for
a select group of management or highly compensated employees for purposes of
Title I of ERISA.
NOW, THEREFORE, it is mutually understood and agreed as follows:
ARTICLE I.
TITLE AND DEFINITIONS
Section 1.1 Title.
This Trust Agreement shall be known as the CH Energy Group, Inc.
Directors and Executives Deferred Compensation Plan Trust Agreement.
Section 1.2 Definitions.
The following words, when used in this Trust Agreement with initial letter
capitalized, shall have the meanings set forth below:
"Company" shall mean CH Energy Group, Inc. and any successor corporations.
Company shall include each corporation which is a member of a controlled group
of corporations (within the meaning of Section 414(b) of the Code) of which CH
Energy Group, Inc. is a component member, if the Board of Directors of CH Energy
Group, Inc. provides that such corporation shall participate in the Plan and
such corporations governing board of directors adopts this Plan.
"General Fund" shall mean that portion of the Trust fund which is not
allocated to a Subtrust.
"Plan" shall mean the CH Energy Group, Inc. Directors and Executives
Deferred Compensation Plan as amended from time to time.
"Policy" shall mean an insurance policy purchased in accordance with the
terms of the Plan.
"Subtrust" shall mean a separate subtrust established for a Participant
pursuant to Section 3.2.
Capitalized terms not defined above shall be defined in accordance with
the Plan.
ARTICLE II.
ADMINISTRATION
Section 2.1 Trustee Responsibility.
By its acceptance of this Trust, Trustee agrees to make payments under
this Trust to Trust Beneficiaries in accordance with the provisions of this
Trust Agreement.
Section 2.2 Maintenance of Records.
The Committee shall have the duty and responsibility to maintain all
individual Trust Beneficiary records and to prepare and file all reports and
other information required by any federal or state law or regulation relating to
the Trust and the Trust assets.
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ARTICLE III.
FUNDING
Section 3.1 Contributions.
(a) The Company hereby deposits with the Trustee in trust the sum of
$100.00 to be held in the General Fund of the Trust.
(b) The Company shall contribute to the Trust an amount equal to the amount
deferred by each Participant for the Plan Year and Company Discretionary
Contribution Amounts for the Plan Year. In no event shall these contributions be
made after the Company's tax return due date for that Plan Year. The Company may
also contribute cash to the Trust in an amount approximately equal to the "cost
of insurance" (as defined in the Policies) needed to fund any death benefits as
may be provided in the Plan, whether the Participant is employed or otherwise.
(c) Except as provided otherwise herein, all contributions received
pursuant to (a) and (b) above, together with the income therefrom and any
increment thereon, shall be held by Trustee as a single Trust pursuant to the
terms of this Trust Agreement without distinction between principal and income.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan Participants and general creditors as herein set
forth. Trust Beneficiaries shall not have any preferred claim on, or any
beneficial ownership interest in, any assets of the Trust prior to the time such
assets are paid to Trust Beneficiaries as benefits as provided in Section 4.1,
and all rights created under this Trust Agreement shall be mere unsecured
contractual rights of Trust Beneficiaries against the Company or Trust. Any
assets held by the Trust will be subject to the claims of Company's general
creditors under federal and state law in the event of Insolvency, as defined in
Section 4.2(a) herein.
Section 3.2 Subtrusts.
(a) If directed by the Committee, the Trustee shall establish a separate
Subtrust for that Participant and credit the amount of such contribution to that
Participant's Subtrust. Each Subtrust shall reflect an individual interest in
the assets of the Trust fund and shall not require any segregation of particular
assets.
(b) Following the allocation of assets to Subtrusts pursuant to Section
3.2(a), the Trustee shall allocate investment earnings and losses of the Trust
fund, only at the direction of the Committee, among the Subtrusts in accordance
with Section 5.2. Payments to general creditors pursuant to Section 4.2 hereof
shall be charged against the Subtrusts in proportion to their account balances,
except that the payment of benefits to a Trust Beneficiary shall be charged
against the Subtrust established or maintained for such Trust Beneficiary.
(c) Amounts allocated to a Participant's Subtrust may not be utilized to
pay benefits to another Participant or Beneficiary of another Participant.
Following payment of a
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Participant's entire benefit under the Plan, including payment of a
Non-Scheduled In-Service Withdrawal or Hardship Distribution under Sections 6.2
and 6.3 of the Plan (whether by the Trustee pursuant to the terms of this Trust
Agreement or by the Company or by a combination thereof), any amounts remaining
allocated to that Participant's Subtrust (and any Policy held with respect to
such Participant) shall be transferred by the Trustee to the Company. In lieu of
transferring the Policy, the Committee may direct the Trustee to designate a new
beneficiary (which may be the Company) under the Policy or cash in the
applicable Policy and transfer the proceeds to the Company
ARTICLE IV.
PAYMENTS FROM TRUST FUND
Section 4.1 Payments to Trust Beneficiaries.
(a) The Committee shall direct the Trustee to pay (or to commence to pay)
to a Participant (or, in the case of the Participant's death, to the
Participant's Beneficiary) the benefit payable to such Participant under the
Plan (the "Benefit Amount") as soon as practicable following the Participant's
Payment Date (as defined in the Plan). If Subtrusts are established, the Trustee
shall make such payment only from funds allocated to the Participant's Subtrust
plus the General Fund, if any.
(b) The Committee shall have full authority and responsibility to determine
the correct time and amount of payment of the Benefit Amount. In making such
determination, the Committee shall be governed by the terms of the Plan and this
Trust Agreement.
(c) Any obligation to a Trust Beneficiary under this Trust Agreement is
also an obligation of the Company to the extent not paid from the Trust.
Accordingly, to the extent payments to a Trust Beneficiary are discontinued
pursuant to Section 4.2, the Company shall be obligated to pay the Trust
Beneficiary the same amount (plus applicable interest from its general fund). If
the amount credited to the Trust (or a Subtrust if applicable) is not sufficient
to make the payment of the Benefit Amount to a Trust Beneficiary in accordance
with the determination by the Committee, the Company agrees that it shall make
the balance of such payment.
(d) Unless a Trust Beneficiary furnishes documentation in form and
substance satisfactory to Trustee that no withholding is required with respect
to a payment of benefits from the Trust, Trustee shall deduct from any such
Benefit Payment any federal, state or local taxes required by law to be withheld
by Trustee. Any taxes that are withheld by Trustee shall be paid separately to
the Company. The Company shall be responsible for payment and reporting of such
withheld taxes to the appropriate taxing authorities.
(e) Trustee shall provide the Company and the Committee with written
confirmation of the fact and time of any payment hereunder within ten business
days after making any payment to a Trust Beneficiary.
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Section 4.2 Trustee Responsibility Regarding Payments to Trust Beneficiaries
When the Company is Insolvent.
(a) The Company shall be considered "Insolvent" for purposes of this Trust
Agreement if (i) the Company is unable to pay its debts as they become due, or
(ii) is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of the Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Company as hereinafter set forth, and at any time Trustee has actual knowledge,
or has determined, that the Company is Insolvent, Trustee shall deliver any
undistributed principal and income in the Trust to satisfy such claims as a
court of competent jurisdiction may direct. The Company, through its Board of
Directors or any of its executive officers, shall advise Trustee promptly in
writing of the Company's Insolvency. If Trustee receives such notice, or
otherwise receives written notice from a third party which Trustee, in its sole
discretion, deems reliable and responsible, Trustee shall discontinue payments
to Trust Beneficiaries, shall hold the Trust assets for the benefit of the
Company's general creditors, and shall resume payments to Trust Beneficiaries in
accordance with Section 4.1 of this Trust Agreement only after Trustee has
determined that the Company is not Insolvent or is no longer Insolvent. Unless
Trustee has actual knowledge of the Company's Insolvency or has received notice
from the Company or a third party alleging the Company is Insolvent, Trustee
shall have no duty to inquire whether the Company is Insolvent. Trustee may in
all events rely on such evidence concerning the solvency of the Company as may
be furnished to Trustee which will give Trustee a reasonable basis for making a
determination concerning its solvency. Nothing in this Trust Agreement shall in
any way diminish any rights of Trust Beneficiaries to pursue their rights as
general creditors of the Company with respect to benefits payable hereunder or
otherwise.
(c) If Trustee discontinues payments of benefits from the Trust pursuant to
Section 4.2(b) and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all payments
which would have been made to Trust Beneficiaries together with interest at the
Pension Benefit Guaranty Corporation rate applicable to immediate annuities on
the amount delayed during the period of such discontinuance, less the aggregate
amount of payments made to Trust Beneficiaries by the Company in lieu of the
payments provided for hereunder during any such period of discontinuance.
Section 4.3 Payments to the Company.
Except as provided in Sections 3.2(c) or 4.2, the Company shall have no
right or power to direct Trustee to return to the Company or to divert to others
any of the Trust assets before the Trust is terminated pursuant to Section 8.2.
Section 4.4 Trustee Compensation and Expenses; Other Fees and Expenses.
The Company shall pay the Trustee such reasonable compensation for its
services as shall be agreed upon from time to time by the Company and Trustee,
and Trustee shall be reimbursed
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by the Company for its expenses that are reasonably necessary and incident to
its administration of the Trust.
Following reasonable consultation with the Company such expenses shall
include fees of counsel and other advisors, if any, incurred by Trustee for the
purpose of determining its responsibilities under the Trust. Such compensation,
expenses or fees, as well as all other administrative fees and expenses, shall
be paid from Trust assets unless paid directly by the Company.
Section 4.5 Taxes.
Trustee shall not be personally liable for any real and personal property
taxes, income taxes and other taxes of any kind levied or assessed under the
existing or future laws against the Trust assets. Such taxes shall be paid
directly from the Trust assets unless paid by the Company, in the discretion of
the Company.
Section 4.6 Alienation.
The benefits, proceeds, payments or claims of Trust Beneficiaries payable
from the Trust assets shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, either voluntary or involuntary. Any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
garnish, levy or otherwise dispose of or execute upon any right or benefits
payable hereunder shall be void. The Trust assets shall not in any manner be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any Trust Beneficiary entitled to benefits hereunder and such benefits shall
not be considered an asset of Trust Beneficiary in the event of his insolvency
or bankruptcy.
Section 4.7 Disputes.
All disputes, other than disputes between the Trustee and the Committee
or Company, shall be resolved in accordance with Section 7.8 of the Plan.
ARTICLE V.
INVESTMENT OF TRUST ASSETS
Section 5.1 Investment of Subtrust Assets.
The Trustee shall invest the assets of the Trust (and each Subtrust, if
any) in accordance with written directions from the Committee.
Section 5.2 Disposition of Income.
All income received by the Trust shall be reinvested. Any income that is
attributable to the amount credited to a Subtrust in accordance with Section
3.2, and income thereon, shall be credited to such Subtrust and reinvested.
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ARTICLE VI.
TRUSTEE
Section 6.1 General Powers and Duties.
Subject to written directions from the Committee regarding the investment
of Trust assets, Trustee, on behalf of Trust Beneficiaries, shall have all
powers necessary to administer the Trust, including, but not by way of
limitation, the following powers in addition to other powers as are set forth
herein or conferred by law:
(a) To hold, invest and reinvest the principal or income of the Trust in
bonds, common or preferred stock, other securities, or other personal, real or
mixed tangible or intangible property (including investment in deposits with
Trustee which bear a reasonable interest rate, including without limitation
investments in trust savings accounts, certificates of deposit, time
certificates or similar investments or deposits maintained by the Trustee);
(b) To hold, invest and reinvest the principal or income of the Trust in
the Policies, direct investments under the Policies and take any other action
regarding the Policies, as specifically directed by the Committee, including
those specified by Sections 3.1(b) or 3.2(c) and enter into split-dollar life
insurance agreements with Participants pursuant to which each Participant
designates the beneficiary to receive a portion of the death benefits.
(c) If directed by the Company or Committee to discontinue a Policy;
(d) To pay and provide for the payment of all reasonable and necessary
expenses of administering the affairs of the Trust, subject to reimbursement of
such expenses within 30 days by the Company in accordance with Section 4.4;
(e) To pay and provide for the payment of all benefits to Trust
Beneficiaries in accordance with the provisions of this Trust Agreement;
(f) To retain noninterest bearing deposits or a cash balance with Trustee
of so much of the funds as may be determined to be temporarily held awaiting
investment or payment of benefits or expenses;
(g) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust and to institute, compromise and defend actions and
proceedings;
(h) To vote any stock, bonds or other securities of any corporation or
other issuer at any time held in the Trust; to otherwise consent to or request
any action on the part of any such corporation or other issuer; to give general
or special proxies or powers of attorney, with or without power of substitution;
to participate in any reorganization, recapitalization, consolidation, merger or
similar transaction with respect to such stocks, bonds or other securities and
to deposit such stocks, bonds or other securities in any voting trust, or with
any protective or like committee, or with a trustee, or with the depositaries
designated thereby; to exercise any subscription rights and conversion
privileges; and to generally exercise any of the powers of an owner with respect
to the stocks, bonds or other securities or properties in the Trust; and
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(i) Generally, to do all such acts, execute all such instruments, take all
such proceedings, and exercise all such rights and privileges with relation to
the property constituting the Trust as if Trustee were the absolute owner
thereof.
Section 6.2 Records.
Trustee shall keep a full, accurate and detailed record of all
transactions of the Trust which the Company shall have the right to examine at
any time during Trustee's regular business hours. Within ninety (90) days after
the close of each calendar year and within forty-five (45) days after the
removal or resignation of Trustee, Trustee shall furnish the Company with a
statement of account with respect to the Trust. This account shall set forth all
receipts, disbursements and other transactions (including sales and purchases)
effected by Trustee during said year (or until its removal or resignation),
shall show the investments at the end of the year (or date of removal or
resignation), including the cost and fair market value of each item, and the
amounts allocated to each Subtrust.
Section 6.3 Third Persons.
A third person dealing with Trustee shall not be required to make any
inquiry as to whether the Company or the Committee has instructed Trustee, or
Trustee is otherwise authorized, to take or omit any action, and shall not be
required to follow the application by Trustee of any money or property which may
be paid or delivered to Trustee.
Section 6.4 Limitation on Obligation of Trustee.
Trustee shall have no responsibility for the validity of the Plan or of
the Trust and does not guarantee the payment of any amount which may become
payable to any Trust Beneficiary under the terms hereof.
ARTICLE VII.
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1 Method and Procedure.
(a) Trustee may resign at any time by delivering to the Company a written
notice of resignation, to take effect on a date specified therein, which shall
be not less than sixty (60) days after the delivery thereof, unless such notice
shall be waived.
(b) The Company may remove Trustee at any time by delivering to Trustee a
written notice of removal, to take effect on a date specified therein, which
shall be not less than thirty (30) days after the delivery thereof, unless such
notice shall be waived.
(c) In case of the resignation or removal of Trustee, Trustee shall have a
right to a settlement of its accounts, which may be made, at the option of
Trustee, either (1) by a judicial settlement in an action instituted by Trustee
in a court of competent jurisdiction, or (2) by an agreement of settlement
between Trustee and the Company.
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(d) Upon such settlement, all right, title and interest of such Trustee in
the assets of the Trust, and all rights and privileges under the Trust
theretofore vested in such Trustee shall vest in the successor Trustee, and
thereupon all liabilities of such Trustee shall terminate; provided, however,
that Trustee shall execute, acknowledge and deliver all documents and written
instruments which are necessary to transfer and convey all the right, title and
interest in the assets of the Trust, and all rights and privileges in the Trust
to the successor Trustee.
(e) The Company, upon receipt of or giving notice of the resignation or
removal of Trustee, shall promptly appoint a successor Trustee. The successor
Trustee shall be a bank or trust company qualified and authorized to do trust
business in any state and having on the date of appointment total assets of at
least $10,000,000 and a credit rating from Xxxxx'x of A or better. In the event
of the failure or refusal of the Company to appoint such a successor Trustee
within thirty (30) days after the notice of resignation or removal, Trustee may
secure, at the expense of the Company, the appointment of such successor Trustee
by an appropriate action in a court of competent jurisdiction. Any successor
Trustee so appointed may qualify by executing and delivering to the Company an
instrument accepting such appointment and, upon delivery, such successor,
without further act, shall become vested with all the right, title and interest,
and all rights and privileges of the predecessor Trustee with like effect as if
originally named as Trustee herein.
ARTICLE VIII.
AMENDMENT AND TERMINATION
Section 8.1 Amendments.
The Company shall have the right to amend (but not terminate) the Trust
from time to time and to amend further or cancel any such amendment. Any
amendment shall be stated in an instrument in writing executed by the Company
and Trustee, and this Trust Agreement shall be amended in the manner and at the
time therein set forth, and the Company and Trustee shall be bound thereby;
provided, however:
(a) No amendment shall have any retroactive effect so as to deprive any
Trust Beneficiary of any benefits already vested under the Plan, or create a
reversion of Trust assets to the Company except as already provided in this
Trust Agreement, other than such changes, if any, as may be required in order
for the Trust to be considered a component of a plan described in Section 9.3;
(b) No amendment shall make the Trust revocable; and
(c) No amendment shall increase the duties or liabilities of Trustee
without its written consent.
Section 8.2 Duration and Termination.
This Trust shall not be revocable and shall continue until the earliest of
(a) the accomplishment of the purpose for which it was created, (b) the
exhaustion of all appeals of a final determination of a court of competent
jurisdiction that the interest in the Trust of Trust
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Beneficiaries is includable for federal income tax purposes in the gross income
of such Trust Beneficiaries, without such determination having been reversed (or
the earlier expiration of the time to appeal), (c) if required to comply with
California rules regulating the maximum length for which trusts may be
established, the expiration of twenty (20) years and six (6) months after the
death of the last surviving Trust Beneficiary who is living and is a Trust
Beneficiary on the date this Trust is established, (d) a determination of the
Company to terminate the Trust because applicable law requires it to be amended
in a way that could make it taxable and failure to so amend the Trust would
subject the Company to material penalties, or (e) the dissolution or liquidation
of the Company.
Section 8.3 Distribution upon Termination.
Upon termination of this Trust, Trustee shall liquidate the Trust fund and
provide a final account to the Company and the Committee. To the extent Trust
assets are sufficient, the Trustee shall pay to each Participant the appropriate
Benefit Amount. After its final account has been settled as provided in Section
7.1(c), Trustee shall return to the Company any assets remaining after the
distributions described in this Section 8.3. Upon making such distributions,
Trustee shall be relieved from all further liability. The powers of Trustee
hereunder shall continue so long as any assets of the Trust fund remain in its
hands.
ARTICLE IX.
MISCELLANEOUS
Section 9.1 Limitation on Participants' Rights.
Participation in the Trust shall not give Participants the right to be
retained in the Company's employ or any right or interest in the Trust other
than as herein provided. The Company reserves the right to dismiss Participants
who are employees without any liability for any claim either against the Trust,
except to the extent provided herein, or against the Company. All benefits
payable hereunder shall be provided solely from the assets of the Trust.
Section 9.2 Receipt or Release.
Any payment to a Trust Beneficiary in accordance with the provisions of
the Trust shall, to the extent thereof, be in full satisfaction of all claims
against Trustee and the Company, and Trustee may require such Trust Beneficiary,
as a condition precedent to such payment, to execute a receipt and release to
such effect.
Section 9.3 Governing Law.
This Trust Agreement and the Trust hereby created shall be construed,
administered and governed in all respects under applicable federal law, and to
the extent that federal law is inapplicable, under the laws of the State of
California; provided, however, that if any provision is susceptible to more than
one interpretation, such interpretation shall be given thereto as is consistent
with the Trust being (a) classified as a grantor trust as defined in Sections
671 et seq. of the Code, and (b) classified as a component of an unfunded plan
maintained primarily to provide deferred compensation for a select group of
management or highly compensated
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employees, as described in Section 201(2) of ERISA. If any provision of this
instrument shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective.
Section 9.4 Headings, etc., No Part of Agreement.
Headings and subheadings in this Trust Agreement are inserted for
convenience of reference only and are not to be considered in the construction
of the provisions hereof.
Section 9.5 Instrument in Counterparts.
This Trust Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instruments, which may be sufficiently evidenced by any one
counterpart.
Section 9.6 Successors and Assigns.
This Trust Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their successors and assigns.
Section 9.7 Indemnity.
(a) Except in the case of liabilities and claims arising out of Trustee's
willful misconduct or gross negligence, Company shall indemnify and hold Trustee
harmless from and against all liabilities and claims (including reasonable
attorney's fees and expenses in defense thereof) arising out of or in any way
connected with the Plan or the Trust fund or the management, operation,
administration or control thereof and based in whole or in part on:
(1) Any act or inaction of Company or Committee (which term includes,
in this paragraph, any actual or ostensible agent of Company) or
(2) Any act or inaction of Trustee resulting from the absence of
proper directions hereunder, or in accordance with any directions,
purported or real, from Company or Committee, whether or not proper
hereunder, if relied upon in good faith by Trustee.
(b) The Trustee does not warrant and shall not be liable for any tax
consequences associated with the Trust or the Plans.
(c) The Trustee shall not be liable for the inadequacy of the Trust to pay
all amounts due under the Plans.
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IN WITNESS WHEREOF the undersigned have executed this Trust Agreement as
of the date first written above.
CH ENERGY GROUP, INC.
By
By
FIRST AMERICAN TRUST COMPANY
By
By
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