Trust Agreement
Between
Tucson Electric Power Company
And
Fidelity Management Trust Company
__________________________________
TUCSON ELECTRIC POWER COMPANY TRIPLE
INVESTMENT PLAN FOR SALARIED EMPLOYEES
TRUST
____________________________________
The original Trust document was dated as of November 1, 1985
This Composite Trust Document incorporates the following
Amendments to the original Trust document:
a. Amendment 1986-1 (executed October 29, 1986,
effective November 1, 1986);
b. Amendment 1990-1 (executed February 27, 1990,
effective January 1, 1990);
c. Amendment 1990-II (executed December 10, 1990,
effective January 1, 1991);
d. Amendment 1993-I (executed April 1, 1993,
effective March 1, 1993);
e. Amendment 1993-II (executed January 25, 1994,
effective July 1, 1993);
f. Amendment 1994-I (executed April 27, 1994,
effective April 25, 1994);
g. Amendment 1995-I (executed November 6, 1995,
effective November 1, 1995);
h. Amendment 1996-I (executed October 14, 1996,
effective October 1, 1996); and
i. Amendment 1997-1 (executed January 23, 1998,
effective January 1, 1998).
TABLE OF CONTENTS
Page
Section 1. Trust . . . . . . . . . . . . . . . . . . 2
Section 2. Exclusive Benefit and Reversion of Sponsor
Contributions . . . . . . . . . . . . . . 3
Section 3. Disbursements . . . . . . . . . . . . . . 4
Section 4. Investment of Trust . . . . . . . . . . . 4
Section 5. Recordkeeping to Be Performed . . . . . . 11
Section 6. Compensation and Expenses . . . . . . . . 13
Section 7. Directions. . . . . . . . . . . . . . . . 14
Section 8. Resignation or Removal of Trustee . . . . 15
Section 9. Successor Trustee . . . . . . . . . . . . 16
Section 10. Termination . . . . . . . . . . . . . . . 17
Section 11. Resignation, Removal, and Termination
Notices . . . . . . . . . . . . . . . . . 17
Section 12. Duration. . . . . . . . . . . . . . . . . 17
Section 13. Amendment or Modification . . . . . . . . 18
Section 14. General . . . . . . . . . . . . . . . . . 18
Section 15. Governing Law . . . . . . . . . . . . . . 19
Schedules
A. Recordkeeping Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. Opinion of Counsel
G. Telephone Exchange Procedures
H. Operational Guidelines for Non-Fidelity Mutual Funds
TRUST AGREEMENT, dated as of the 1st day of November, 1985,
between Tucson Electric Power Company, an Arizona corporation,
having an office at 000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxx 00000
(the "Sponsor"), and FIDELITY MANAGEMENT TRUST COMPANY, a
Massachusetts trust company, having an office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Tucson Electric
Power Company Triple Investment Plan for Salaried Employees (the
"Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and
invest contributions under the Plan for the exclusive benefit of
participants in the Plan and their beneficiaries; and
WHEREAS, the Committee established under Article VI of the
Plan (the "Named Fiduciary") is the named fiduciary of the Plan
(within the meaning of section 402(a) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the
aforesaid contributions in trust as a nondiscretionary trustee
subject to the direction of the Named Fiduciary;
WHEREAS, the Sponsor wishes to have the Trustee perform
certain ministerial recordkeeping functions under the Plan; and
WHEREAS, the Committee established under Article VI of the
Plan (the "Administrator") is the administrator of the Plan
(within the meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping
services for the Plan if the services are purely ministerial in
nature and are provided within a framework of policies,
interpretations, rules, practices, and procedures conveyed to the
Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements set forth below, the
Sponsor and the Trustee agree as follows:
Section 1. Trust. The Sponsor hereby establishes the Tucson
Electric Power Company Triple Investment Plan for Salaried
Employees Trust (the "Trust"), with the Trustee. The Trust shall
consist of an initial contribution of money or other property
acceptable to the Trustee in its sole discretion, made by the
Sponsor or transferred from a previous trustee under the Plan,
such additional sums of money as shall from time to time be
delivered to the Trustee under the Plan, all investments made
therewith and proceeds thereof, and all earnings and profits
thereon, less the payments that are made by the Trustee as
provided herein, without distinction between principal and
income. The Trustee hereby accepts the Trust on the terms and
conditions set forth in this Agreement.
Section 2. Exclusive Benefit and Reversion of Sponsor
Contributions.
(a) Except as provided in paragraphs (b), (c), and (d) of
this Section, no part of the Trust may be used for, or diverted
to, purposes other than the exclusive benefit of the participants
in the Plan or their beneficiaries prior to the satisfaction of
all liabilities with respect to the participants and their
beneficiaries.
(b) In the case of contributions made by the Sponsor prior
to the receipt of an initial favorable determination letter from
the Internal Revenue Service with respect to the Plan, the
Sponsor may direct the Trustee to return to the Sponsor those
contributions and all earnings thereon within one year after the
Internal Revenue Service refuses in writing to issue such a
letter.
(c) In the case of any portion of a contribution made by the
Sponsor by a mistake of fact, the Sponsor may direct the Trustee
to return to the Sponsor that portion of the contribution within
one year after the payment of that portion of the contribution.
(d) In the case of any portion of a contribution made by the
Sponsor and disallowed by the Internal Revenue Service as a
deduction under section 404 of the Internal Revenue Code of 1954,
as amended, the Sponsor may direct the Trustee to return to the
Sponsor that portion of the contribution within one year after
the Internal Revenue Service disallows the deduction in writing.
(e) Earnings attributable to the contributions returnable
under paragraph (c) or (d) shall not be returned to the Sponsor,
and any losses attributable to those contributions shall reduce
the amount returned.
Section 3. Disbursements.
(a) 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 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.
(b) 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.
Section 4. Investment of Trust.
(a) The Trustee shall have no responsibility for the
selection or management of investments of the Trust and shall not
render investment advice to any person in connection with any
assets of the Trust.
(b) The Named Fiduciary shall direct the Trustee as to what
investment options Plan participants may invest in, subject to
the following limitations. The Named Fiduciary may determine to
offer as investment options only (i) securities issued by
investment companies advised by Fidelity Management & Research
Company and certain securities issued by registered investment
companies not advised by Fidelity Management & Research Company
(collectively, "Mutual Funds"), (ii) guaranteed investment
contracts chosen by the Trustee (iii) collective investment funds
maintained by the Trustee for qualified plans and invested in
such contracts, in which case the Trustee shall be considered a
fiduciary with investment discretion only with respect to the
Plan assets in such collective investment funds and (iv) notes
evidencing loans to Plan participants in accordance with the
terms of the Plan.
(c) The Sponsor hereby (i) agrees to the Plan's
participation in the Fidelity Group Trust for Employee Benefit
Plans (the 'Group Trust'), a group trust maintained by the
Trustee for qualified plans, to serve as an investment option
described in Section 4(b)(iii) above, and (ii) acknowledges that
it has received from the Trustee a copy of the terms of the Group
Trust, the terms of the Declaration of Separate Fund for the GIC
Open-End Portfolio of the Group Trust, and the terms of the
Offering Circular for the GIC Open-End Portfolio.
(d) Participant Direction. All transactions involving
securities issued by registered investment companies not advised
by Fidelity Management & Research Company ("Non-Fidelity Mutual
Funds") shall be done in accordance with the Operational
Guidelines for Non-Fidelity Mutual Funds attached hereto as
Schedule "H". Each Plan participant shall direct the Trustee in
which investment option(s) to invest the assets in the
participant's individual accounts. Such directions may be made
by Plan participants by use of the telephone exchange system
maintained for such purposes by the Trustee or its agent, in
accordance with written Telephone Exchange Guidelines attached
hereto as Schedule "G". Any directions made by a Participant
using the telephone exchange system shall be treated as a
direction made in writing by the Named Fiduciary for purposes of
Section 7 hereafter. In the event that the Trustee fails to
receive a proper direction, the assets shall be invested in the
securities of the Mutual Fund set forth for such purpose on
Schedule "C", until the Trustee receives a proper direction.
(e) Mutual Funds. The Sponsor hereby acknowledges
that it has received from the Trustee a copy of the prospectus
for each Mutual Fund selected by the Named Fiduciary as a Plan
investment option. Trust investments in Mutual Funds shall be
subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases
and sales of Mutual Funds (other than for Exchanges) shall be
made on the date on which the Trustee receives from the Sponsor
in good order all information and documentation necessary to
accurately effect such purchases and sales (or in the case of a
purchase, the subsequent date on which the Trustee has received a
wire transfer of funds necessary to make such purchase).
Exchanges of Mutual Funds shall be made in accordance with the
Telephone Exchange Guidelines attached hereto as Schedule "G".
(ii) Voting. At the time of mailing of notice of
each annual or special stockholders' meeting of any Mutual Fund,
the Trustee shall send a copy of the notice and all proxy
solicitation materials to each Plan participant who has shares of
the Mutual Fund credited to the participant's accounts, together
with a voting direction form for return to the Trustee or its
designee. The participant shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the
shares credited to the participant's accounts (both vested and
unvested). The Trustee shall vote the shares as directed by the
participant. The Trustee shall not vote shares for which it has
received no directions from the participant. With respect to all
rights other than the right to vote, the Trustee shall follow the
directions of the participant and if no such directions are
received, the directions of the Named Fiduciary. The Trustee
shall have no duty to solicit directions from participants.
(f) (i) The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from any participant's
exercise or non-exercise of rights under this Section 4 over the
assets in the participant's accounts.
(ii) The Trustee shall not be liable for any loss, or
by reason of any breach, which arises from the Named Fiduciary's
exercise or non-exercise of rights under this Section 4, unless
it was clear on their face that the actions to be taken under the
Named Fiduciary's directions were prohibited by the fiduciary
duty rules of section 404(a) of ERISA or were contrary to the
terms of the Plan or this Agreement.
(g) The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c), and (d) of this
Section 4, to sell, exchange, convey, transfer, or otherwise
dispose of any property held in the Trust, by private contract or
at public auction. No person dealing with the Trustee shall be
bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other
disposition.
(ii) Subject to paragraphs (b) and (c), to invest in
guaranteed investment contracts and collective investment funds
maintained by the Trustee for qualified plans and invested in
guaranteed investment contracts and short-term investments,
including interest bearing accounts with the Trustee or money
market mutual funds advised by affiliates of the Trustee, in
which case the provisions of each collective investment fund in
which the Trust is invested shall be adopted by, and become a
part of, the Plan as long as the fund remains exempt from
taxation under sections 401(a) and 501(c) of the Internal Revenue
Code.
(iii) To cause any securities or other property held as
part of the Trust to be registered in the Trustee's own name, in
the name of one or more of its nominees, or in the Trustee's
account with the Depository Trust Company of New York and to hold
any investments in bearer form, but the books and records of the
Trustee shall at all times show that all such investments are
part of the Trust.
(iv) To keep that portion of the Trust in cash or cash
balances as the Named Fiduciary or Administrator may, from time
to time, deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and
all documents of transfer or conveyance and to carry out the
powers herein granted.
(vi) To settle, compromise, or submit to arbitration
any claims, debts, or damages due to or arising from the Trust;
to commence or defend suits or legal or administrative
proceedings; to represent the Trust in all suits and legal and
administrative hearings; and to pay all reasonable expenses
arising from any such action, from the Trust if not paid by the
Sponsor.
(vii) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of
this Agreement and to pay their reasonable expenses and
compensation from the Trust if not paid by the Sponsor.
(viii) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out
any of the foregoing powers and the purposes of the Trust.
(h) General Purpose Notes. The Administrator shall act as
the Trustee's agent for the participant loan notes and as such
shall (i) collect and remit all principal and interest payments
to the Trustee and (ii) keep the proceeds of such loans separate
from the other assets of the Administrator and clearly identify
such assets as Plan assets. To originate a participant loan, the
Plan participant shall direct the Trustee as to the term and the
amount of the loan to be made from the participant's individual
account. Such directions shall be made by Plan participants by
use of the telephone exchange system maintained for such purpose
by the Trustee or its agent. The Trustee shall determine, based
on the current value of the participant's account on the date of
the request and any guidelines provided by the Sponsor, the
amount available for the loan. Based on the monthly interest
rate supplied by the Sponsor in accordance with the terms of the
Plan, the Trustee shall advise the participant of such interest
rate, as well as the installment payment amounts. The Trustee
shall distribute the loan note with the proceed check to the
participant. The Trustee shall also distribute truth-in-lending
disclosure to the participant. To facilitate recordkeeping, the
Trustee may destroy the original of any promissory note made in
connection with a loan to a participant under the Plan, provided
that the Trustee first creates a duplicate by a photographic or
optical scanning or other process yielding a reasonable facsimile
of the promissory note and the Plan participant's signature
thereon, which duplicate may be reduced or enlarged in size from
the actual size of the original promissory note.
(i) Notes for the Purchase of a Primary Residence. The
Administrator shall act as the Trustee's agent for the purpose of
holding all trust investments in participant loan notes and
related documentation and as such shall (i) hold physical custody
of and keep safe the notes and other loan documents, (ii) collect
and remit all principal and interest payments to the Trustee,
(iii) keep the proceeds of such loans separate from the other
assets of the Administrator and clearly identify such assets as
Plan assets and (iv) cancel and surrender the notes and other
loan documentation when a loan has been paid in full. To
originate a participant loan, the Plan participant shall notify
the Trustee of the request by use of the Telephone Exchange
System. The Trustee shall determine, based on the current value
of the Plan participant's account, the amount available for the
loan. The Plan participant shall then direct the Trustee
regarding the amount to be borrowed and the term or period for
repayment. Based on the most recent interest rate supplied by
the Sponsor in accordance with the terms of the Plan, the Trustee
shall advise the Plan participant of such interest rate, as well
as the installment payment amounts. The Trustee shall forward
the loan document to the Plan participant for execution and
submission for approval to the Administrator. The Administrator
shall have the responsibility for approving the loan, via remote
access, and instructing the Trustee of such approval. The
Trustee shall send the loan proceeds to the Administrator or to
the Plan participant in accordance with the directions from the
Administrator. In all cases, such approval by the Administrator
shall be made within 30 days of the Plan participant's initial
request (the origination date).
Section 5. Recordkeeping to Be Performed.
(a) The Trustee shall perform only the recordkeeping
services set forth on Schedule "A" attached hereto and made a
part hereof, as amended from time to time, and only within a
framework of policies, interpretations, rules, practices, and
procedures that the Administrator shall provide to the Trustee.
(b) The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions
hereunder. Within thirty (30) days following each valuation date
or within sixty (60) days after the resignation or removal of the
Trustee as provided in Section 9, or the termination of this
Agreement as provided in Section 10, the Trustee shall file with
the Administrator a written account setting forth all
investments, receipts, disbursements, and other transactions
effected by the Trustee between the valuation date and the prior
valuation date or between the date of such resignation, removal,
or termination and the prior valuation date, and setting forth
the value of the Trust as of the valuation date or date of such
resignation, removal, or termination. Except as otherwise
required under ERISA, upon the expiration of six (6) months from
the date of filing such account with the Administrator, the
Trustee shall have no liability or further accountability to
anyone with respect to the propriety of its acts or transactions
shown in such account, except with respect to such acts or
transactions as to which the Sponsor shall within such six (6)
month period file with the Trustee written objections.
(c) All records generated by the Trustee in accordance with
paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the
termination of this Agreement, by the Administrator or any person
designated by the Administrator. Upon the resignation or removal
of the Trustee or the termination of this Agreement, the Trustee
shall provide to the Administrator, at no expense to the Sponsor,
in the format regularly provided to the Administrator, a
statement of each participant's accounts as of the resignation,
removal, or termination, and the Trustee shall provide to the
Administrator or the Plan's new recordkeeper such further records
as are reasonable, at the Sponsor's expense.
(d) The Trustee's provision of the recordkeeping services
set forth in this Section 5 shall be conditioned on the Sponsor
delivering to the Trustee a copy of any amendment to the Plan as
soon as administratively feasible following the amendment's
adoption, with an opinion of counsel substantially in the form of
Schedule "F", and on the Administrator providing the Trustee on a
timely basis with all the information the Administrator deems
necessary for the Trustee to perform the recordkeeping services
and such other information as the Trustee may reasonably request.
(e) The Administrator shall be responsible for the
preparation and filing of all returns, reports, and information
required of the Trust or Plan by law. The Trustee shall provide
the Administrator with such information as the Administrator may
reasonably request to make these filings.
Section 6. Compensation and Expenses. Within thirty (30) days
of receipt of the Trustee's quarterly xxxx, which shall be
computed in accordance with Schedule "B" attached hereto and made
a part hereof, as amended from time to time, the Sponsor shall
send to the Trustee a payment in such amount. All expenses of
the Trustee relating directly to the acquisition and disposition
of investments constituting part of the Trust, and all taxes of
any kind whatsoever that may be levied or assessed under existing
or future laws upon or in respect of the Trust or the income
thereof, shall be a charge against and paid from the appropriate
Plan participants' accounts.
Section 7. Directions.
(a) The Trustee shall be fully protected in relying on the
fact that the named fiduciary and the administrator under the
Plan are the individuals or persons named as such above or such
other individuals or persons as the Sponsor may notify the
Trustee in writing.
(b) Whenever the Administrator provides a direction to the
Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction
is contained in a writing (or is oral and immediately confirmed
in a writing) signed by any individual whose name and signature
have been submitted (and not withdrawn) in writing to the Trustee
by the Administrator (see Schedule "D"), provided the Trustee
reasonably believes the signature of the individual to be
genuine. The Trustee shall have no responsibility to ascertain
any direction's (i) accuracy, (ii) compliance with the terms of
the Plan or any applicable law, or (iii) effect for tax purposes
or otherwise.
(c) Whenever the Named Fiduciary or Sponsor provides a
direction to the Trustee, the Trustee shall not be liable for any
loss, or by reason of any breach, arising from the direction (i)
if the direction is contained in a writing (or is oral and
immediately confirmed in a writing) signed by any individual
whose name and signature have been submitted (and not withdrawn)
in writing to the Trustee by the Named Fiduciary (see Schedule
"E") and (ii) if the Trustee reasonably believes the signature of
the individual to be genuine, unless it is clear on the
direction's face that the actions to be taken under the direction
would be prohibited by the fiduciary duty rules of section 404(a)
of ERISA or would be contrary to the terms of the Plan or this
Agreement.
(d) In any other case, the Trustee shall not be liable for
any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided
in section 405(a) of ERISA.
(e) The Sponsor shall indemnify the Trustee against, and
hold the Trustee harmless from, any and all loss, damage,
penalty, liability, cost, and expense, including without
limitation, reasonable attorneys' fees and disbursements, that
may be incurred by, imposed upon, or asserted against the Trustee
by reason of any claim, regulatory proceeding, or litigation
arising from any act done or omitted to be done by any individual
or person with respect to the Plan or Trust, excepting only any
and all loss, etc., arising solely from the Trustee's negligence
or bad faith.
(f) The provisions of this Section 7 shall survive the
termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) The Trustee may resign at any time upon sixty (60) days'
notice in writing to the Sponsor, unless a shorter period of
notice is agreed upon by the Sponsor.
(b) The Sponsor may remove the Trustee at any time upon
sixty (60) days' notice in writing to the Trustee, unless a
shorter period of notice is agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) If the office of Trustee becomes vacant for any reason,
the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights,
powers, privileges, obligations, duties, liabilities, and
immunities granted to the Trustee under this Agreement. The
successor trustee and predecessor trustee shall not be liable for
the acts or omissions of the other with respect to the Trust.
(b) When the successor trustee accepts its appointment under
this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further
action on the part of the predecessor trustee. The predecessor
trustee shall execute all instruments and do all acts that
reasonably may be necessary or reasonably may be requested in
writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust
assets to the successor trustee.
(c) Any successor of the Trustee or successor trustee,
through sale or transfer of the business or trust department of
the Trustee or successor trustee, or through reorganization,
consolidation, or merger, or any similar transaction, shall, upon
consummation of the transaction, become the successor trustee
under this Agreement.
Section 10. Termination. This Agreement may be terminated at
any time by the Sponsor upon sixty (60) days' notice in writing
to the Trustee. On the date of the termination of this
Agreement, the Trustee shall forthwith transfer and deliver to
such individual or entity as the Sponsor shall designate, all
cash and assets then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in
writing as to whom the assets and cash are to be transferred and
delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of
competent jurisdiction. The Trustee shall be reimbursed by the
Sponsor for all costs and expenses of the action or proceeding
including, without limitation, reasonable attorneys' fees and
disbursements.
Section 11. Resignation, Removal, and Termination Notices. All
notices of resignation, removal, or termination under this
Agreement must be in writing and mailed to the party to which the
notice is being given by certified or registered mail, return
receipt requested, to the Sponsor c/o Xxxx Xxxxxxx, Tucson
Electric Power Company, 000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxx
00000, and to the Trustee c/o Xxxx Xxxxx, Fidelity, 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses
as the parties have notified each other of in the foregoing
manner.
Section 12. Duration. This Trust shall continue in effect
without limit as to time, subject, however, to the provisions of
this Agreement relating to amendment, modification, and
termination thereof.
Section 13. Amendment or Modification. Subject to the
provisions of Section 2, this Agreement may be amended or
modified at any time and from time to time only by an instrument
executed by both the Sponsor and the Trustee. The Trustee shall
not unreasonably withhold its consent to any amendment or
modification required to obtain or maintain the Trust's qualified
status under section 401(a) of the Internal Revenue Code of 1954,
as amended. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may once each calendar year amend
Schedule "B" without the Sponsor's consent upon seventy-five (75)
days' written notice to the Sponsor.
Section 14. General.
(a) Fidelity Service Co. as Agent for Trustee. The Sponsor
specifically acknowledges and authorizes that Fidelity Service
Co. may act as agent for the Trustee in the performance of
nonfiduciary, ministerial functions under this Agreement;
Fidelity Service Co.'s expenses and compensation shall be paid by
the Trustee and not by the Sponsor or from the Trust.
(b) Entire Agreement. This Agreement contains all of the
terms agreed upon between the parties with respect to the subject
matter hereof.
(c) Waiver. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be deemed a
waiver of any other or subsequent failure or refusal to so
comply.
(d) Successors and Assigns. The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the
successors and assigns of the respective parties.
(e) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
(f) Section Headings. The headings of the various sections
and subsections of this Agreement have been inserted only for the
purposes of convenience and are not part of this Agreement and
shall not be deemed in any manner to modify, explain, expand or
restrict any of the provisions of this Agreement.
Section 15. Governing Law.
(a) This Agreement is being made in the Commonwealth of
Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and
administration of this Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts, except to the extent those laws are superseded
under section 514 of ERISA.
(b) The Trustee is not a party to the Plan, and in the event
of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement
shall control.
SCHEDULE "A"
RECORDKEEPING SERVICES
Administration
* Establishment and maintenance of participant account and
election percentages.
* Maintenance of eleven plan investment options:
- Fidelity Equity-Income Fund
- Fidelity Magellan Fund
- Fidelity Growth Company Fund
- Fidelity Retirement Money Market Portfolio
- Fidelity Managed Income Portfolio
- Fidelity Asset Manager
- Fidelity Intermediate Bond Fund
- Fidelity Low-Priced Stock Fund
- Spartan U.S. Equity Index Fund
- Janus Worldwide Fund
- Janus Flexible Income Fund
* Maintenance of five money classifications:
- Company Matching Contributions
- Salary Deferral Contributions
- CPC Deferred Compensation Contributions Account
- CPC Company Contributions Account
- CPC Rollover Contributions Account
* Processing of mutual fund trades.
The Trustee will provide only the recordkeeping services set
forth on this Schedule "A" and no others.
Processing
* Bi-Weekly processing of contribution data.
* Quarterly processing of transfers and changes of future
allocations.
* Monthly processing of withdrawals.
* Daily processing of terminations via telephone according to
specific guidelines provided by the Sponsor; prepare and
mail to the participant a confirmation of telephonic
instructions within five (5) business days of the
instruction.
Other
* Monthly trial balance.
* Quarterly administrative reports.
* Quarterly participant statements.
* 1099Rs
Other
* Loans.
THE COMMITTEE FIDELITY MANAGEMENT TRUST CO.
By /s/ Xxxxxxxx X. Xxxxxx 1/25/94 By /s/ Xxxx X. Xxxxxx Xx. 2/9/94
Date Date
SCHEDULE "B"
FEE SCHEDULE
Recordkeeping Fees
__ Per Participant Annual Fee $3.25 billed quarterly
for participants invested
in mutual funds only.
$4.25 billed quarterly for
participants invested in GIC Group
Trust.
Subject to a $5,000.00 minimum.
__ Loan Fees: Establishment fee of $35.00
per loan account; annual fee
of $15.00 per loan account.
__ Account Establishment Fees $2.00 per participant.
__ Other Fees: extraordinary expenses resulting from (i) large
numbers of simultaneous manual transactions, (ii) collection
of unpaid loans, or (iii) from errors not caused by the
Trustee.
__ This fee will be imposed for each calendar quarter, or any
part thereof, that it remains necessary to keep a
participant's account(s) as part of the Plan's records,
e.g., vested deferred, forfeiture, top-heavy and terminated
participants who must remain on file through calendar
year-end for 1099R reporting.
Trustee Fees
__ Assets other than those invested (directly or through
collective investment funds maintained by the Trustee) in
guaranteed investment contracts: 0.0125% per calendar
quarter of the assets in the Trust as of the calendar
quarter's last valuation date.
__ Assets invested in closed-end GIC, collective investment
funds maintained by the Trustee; at an annual rate of 0.6%
of the average daily book value and accrued interest. The
Sponsor agrees that the Trustee may compensate itself for
these fees from the funds' assets.
__ Assets invested in GIC Open-End Portfolio of the Fidelity
Group Trust for Employee Benefit Plans: 0.55% of the
average daily net assets per annum, payable monthly. The
Sponsor agrees that the Trustee may compensate itself for
these fees from the funds' assets.
__ Non-Fidelity Mutual Funds: .25% annual administration fee
on all other Non-Fidelity Mutual Fund assets (to be paid by
the Non-Fidelity Mutual Fund vendor.)
TUCSON ELECTRIC POWER COMPANY FIDELITY MANAGEMENT TRUST CO.
By /s/ Xxxxxx X. Xxxxxxx 2/27/90 By /s/ Xxxxx X. XxXxxxxx 5/15/90
Date Date
SCHEDULE "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby
directs the Trustee that participants' individual accounts may be
invested in the following investment options:
Fidelity Equity-Income Fund
Fidelity Magellan Fund
Fidelity Growth Company Fund
Fidelity Retirement Money Market Portfolio
Fidelity Management Income Portfolio
Fidelity Asset Manager
Fidelity Intermediate Bond Fund
Fidelity Low-Priced Stock Fund
Spartan U.S. Equity Index Fund
Janus Worldwide Fund
Janus Flexible Income Fund
The investment company advised by Fidelity Management &
Research Company referred to in Section 4(d) shall be Retirement
Money Market Portfolio.
THE COMMITTEE
By /s/ Xxxxxx X. Xxxxxxx 12/10/90
Date
SCHEDULES "D" AND "E"
[TUCSON ELECTRIC POWER COMPANY LETTERHEAD]
October 17, 1996
Xx. Xxxxx X. Xxxxxxx
Fidelity Investments
000 Xxxxxxx Xxx, XX0X
Xxxxxxxxxxx, XX 00000-0000
RE: Tucson Electric Power Company Triple Investment Plan
for Salaried Employees
Dear Xx. Xxxxxxx,
This letter is sent to you in accordance with the Trust
Agreement (Section 7(b) and 7(c)), dated November 1, 1985. We
hereby designate Xxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx
and Xxxxx X. Xxxxxxxxxx, as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be
fully protected in relying. Only one such individual need
provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may rely upon each designation and certification set
forth in this letter until we deliver to you written notice of
the termination of authority of a designated individual.
Sincerely Yours,
TUCSON ELECTRIC POWER COMPANY
By /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
/s/ Xxx X. Xxxxx
Xxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
SCHEDULE "F"
SCHEDULE "G"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently
employed by Fidelity Institutional Retirement Services Company
(FIRSCO).
Telephone exchange hours are 8:30 a.m. (ET) to 8:00 p.m. (ET) on
each business day. A "business day" is any day on which the New
York Stock Exchange is open.
FIRSCO reserves the right to change these telephone exchange
guidelines at its discretion.
MUTUAL FUNDS
EXCHANGES BETWEEN MUTUAL FUNDS
Participants may call on any business day to exchange
between the mutual funds. If the request is received before
4:00 p.m. (ET), it will receive that day's trade date.
Calls received after 4:00 p.m. (ET) will be processed on a
next day basis.
MANAGED INCOME PORTFOLIO
I. EXCHANGES BETWEEN MUTUAL FUNDS AND MANAGED INCOME PORTFOLIO
Participants who wish to exchange between a mutual fund and
the Managed Income Portfolio may call on any business day.
If the request is received before 4:00 p.m. (ET), it will
receive that day's trade date. Calls received after 4:00
p.m. (EST) will be processed on a next day basis.
II. EXCHANGE RESTRICTIONS
Participants will not be permitted to make direct transfers
from the Managed Income Portfolio into a competing fund.
Participants who wish to exchange from the Managed Income
Portfolio into a competing fund must first exchange into a
non-competing fund for a period of 90 days.
TUCSON ELECTRIC POWER FIDELITY MANAGEMENT TRUST
COMPANY COMPANY
By: /s/ Xxxxxx X. X'Xxxxx 10/18/95 By: /s/ 11/16/95
Xxxxxx X. X'Xxxxx Date Vice President Date
SCHEDULE "H"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
PRICING
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Non-
Fidelity Mutual Fund Vendor (Fund Vendor) will input the
following information ("Price Information") into the Fidelity
Participant Recordkeeping System ("FPRS") via the remote access
price screen that Fidelity Investments Institutional Operations
Company, Inc. ("FIIOC"), an affiliate of the Trustee, has
provided to the Fund Vendor: (1) the net asset value for each
Fund at the Close of Trading, (2) the change in each Fund's net
asset value from the Close of Trading on the prior Business Day,
and (3) in the case of an income fund or funds, the daily accrual
for interest rate factor ("mil rate"). FIIOC must receive Price
Information each Business Day (a "Business Day" is any day the
New York Stock Exchange is open). If on any Business Day the
Fund Vendor does not provide such Price Information to FIIOC,
FIIOC shall pend all associated transaction activity in the
Fidelity Participant Recordkeeping System ("FPRS") until the
relevant Price Information is made available by Fund Vendor.
TRADE ACTIVITY AND WIRE TRANSFERS
By 7:00 a.m. ET each Business Day following Trade Date ("Trade
Date plus One"), FIIOC will provide, via facsimile, to the Fund
Vendor a consolidated report of net purchase or net redemption
activity that occurred in each of the Funds up to 4:00 p.m. ET on
the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each
Fund. FIIOC will transmit this report to the Fund Vendor each
Business Day, regardless of processing activity. In the event
that data contained in the 7:00 a.m. ET facsimile transmission
represents estimated trade activity, FIIOC shall provide a final
facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at
the net asset value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction
confirms for all daily activity in each of the Funds. The Fund
Vendor shall also send via regular mail to FIIOC, by no later
than the fifth Business Day following calendar month close, a
monthly statement for each Fund. FIIOC agrees to notify the Fund
Vendor of any balance discrepancies within twenty (20) Business
Days of receipt of the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily wire
for aggregate purchase activity and the Fund Vendor shall
transmit a daily wire for aggregate redemption activity, in each
case including all activity across all Funds occurring on the
same day.
PROSPECTUS DELIVERY
FIIOC shall be responsible for the timely delivery of Fund
prospectuses and periodic Fund reports ("Required Materials") to
Plan participants, and shall retain the services of a third-party
vendor to handle such mailings. The Fund Vendor shall be
responsible for all materials and production costs, and hereby
agrees to provide the Required Materials to the third-party
vendor selected by FIIOC. The Fund Vendor shall bear the costs
of mailing annual Fund reports to Plan participants. FIIOC shall
bear the costs of mailing prospectuses to Plan participants.
PROXIES
The Fund Vendor shall be responsible for all costs associated
with the production of proxy materials. FIIOC shall retain the
services of a third-party vendor to handle proxy solicitation
mailings and vote tabulation. Expenses associated with such
services shall be billed directly to the Fund Vendor by the
third-party vendor.
PARTICIPANT COMMUNICATIONS
The Fund Vendor shall provide internally-prepared fund
descriptive information approved by the Funds' legal counsel for
use by FIIOC in its written participant communication materials.
FIIOC shall utilize historical performance data obtained from
third-party vendors (currently Morningstar, Inc., FACTSET
Research Systems and Lipper Analytical Services) in telephone
conversations with plan participants and in quarterly participant
statements. The Sponsor hereby consents to FIIOC's use of such
materials and acknowledges that FIIOC is not responsible for the
accuracy of such third-party information. FIIOC shall seek the
approval of the Fund Vendor prior to retaining any other third-
party vendor to render such data or materials under this
Agreement.
COMPENSATION
FIIOC shall be entitled to fees as set forth in a separate
agreement with the Fund Vendor.
