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XXXXX XXXX XX XXXXXXXXXX
SelectBENEFIT
TRUST AGREEMENT
2
Union Bank of California
SelectBENEFIT Trust Agreement
PURPOSE
AGREEMENT
POWERS, DUTIES AND RIGHTS OF TRUSTEE
1.1 GENERAL 1
1.2 INVESTMENT OPTIONS 1
1.3 POWERS OF TRUSTEE REGARDING INVESTMENTS 2
1.4 OTHER POWERS OF TRUSTEE 4
1.5 DUTIES OF TRUSTEE 5
1.6 EMERGENCIES AND DELEGATION 5
1.7 EXPENSES AND TAXES 6
1.8 THIRD PARTIES 6
1.9 GENERAL FUNDING POLICY INVESTMENT OBJECTIVES AND
PROXY VOTING POLICY 6
1.10 EMPLOYER SECURITIES 6
RESTRICTIONS ON TRANSFER
2.1 PERSONS TO RECEIVE PAYMENT 7
2.2 ASSIGNMENT AND ALIENATION PROHIBITED 8
RESIGNATION AND SUCCESSION
3.1 WITH RESPECT TO ALL EMPLOYERS: 8
3.2 WITH RESPECT TO INDIVIDUAL EMPLOYERS: 9
AMENDMENT
4.1 POWER TO AMEND 9
4.2 LIMITATION ON AMENDMENT 9
4.3 CONFORMITY WITH LAW 9
LIABILITIES
5.1 DECLARATION OF INTENT 10
5.2 GENERAL LIMITATIONS OF LIABILITY 10
5.3 LIABILITY OF THE TRUSTEE 10
5.4 INDEMNIFICATION 11
DURATION AND TERMINATION
6.1 DURATION 11
MISCELLANEOUS
7.1 ADOPTION BY OTHER EMPLOYERS 11
7.2 SUCCESSOR EMPLOYER 11
7.3 RELATION TO PLAN 11
7.4 USE OF TRUST FUNDS 11
7.5 LOCATION OF TRUST FUND ASSETS 12
7.6 PARTIAL INVALIDITY 12
7.7 CONSTRUCTION, VENUE AND JURISDICTION 12
7.8 ALTERNATE DISPUTE RESOLUTION 12
7.9 LOCATING PARTICIPANTS 12
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This Trust Agreement (the "Trust Agreement") is made by and between Xxxxxx
International, Inc, (the "Employer"), sponsor of the Xxxxxx International, Inc.
Retirement Savings Plan, (the "Plan"), the Plan's named fiduciary, the Plan's
administrator or administrative committee (the "Administrator") and Union Bank
of California, N.A., a national banking association, ("Union Bank of California"
or "UBOC" or the "Trustee"), and shall be effective upon Trustee's receipt of
Plan assets to be held in trust hereunder (the "Trust").
PURPOSE
The Employer has adopted the Plan for the exclusive benefit of certain of its
employees ("Participants") and their beneficiaries ("Beneficiaries"). The Plan
provides that, from time to time, cash and other assets may be contributed to
the Trustee by the Employer to be held and administered as a trust for the uses
and purposes of the Plan. Subject to specific conditions set forth in this
Agreement, the Trustee agrees that it will hold in trust and invest cash and
other acceptable property of the Plan received pursuant to this Agreement and
received on account of contributions from the Employer or transfers for the
benefit of the Plan for the uses and purposes and upon the terms and conditions
stated below (the "Trust"). The Employer intends that the Plan shall qualify
under Section 401 of the Internal Revenue Code of 1986, as amended (the "Code"),
and that the Trust hereby created shall constitute a part of the Plan, and
thereby obtain tax exempt status Under Code Section 501.
AGREEMENT
NOW, THEREFORE, the Employer hereby adopts this Trust Agreement as hereinafter
set forth, and the Trustee agrees to receive and hold any and all cash and
acceptable property which has been or may be paid or delivered to it as Trustee
hereunder from time to time in trust for the uses and purposes and upon the
terms and conditions hereinafter stated.
ARTICLE I
POWERS, DUTIES AND RIGHTS OF TRUSTEE
1.1 GENERAL
It shall be the duty of the Trustee to hold the funds and property from time to
time received by it from the Employer and its Participants and designated by the
Employer as Plan and Trust assets which, together with the increase, earnings
and profits thereon, shall constitute the Employer's Trust Fund; to manage,
invest and reinvest the Trust Fund, except as provided in Section 1.2; to
collect and hold the increase, earnings and profits thereon; and to make
payments from the Trust Fund; all as herein and in the Plan provided. For both
accounting and investment purposes a separate Trust Fund shall be established
for each Employer. No Employer or any Trust Fund attributable to it shall be
liable for Plan benefits attributable to another Employer. The Trustee shall be
a fiduciary within the meaning of Section 3(21)(A) of ERISA and shall perform
its duties and exercise its powers as such subject to all provisions of the Plan
and this Trust Agreement, ERISA and other applicable laws and regulations
governing fiduciaries.
1.2 INVESTMENT OPTIONS
(a) The Employer's Trust Fund, subject to any administrative
restrictions imposed by the Trustee, shall be invested in one or
more Investment Options selected by the Administrator. Each
Investment Option shall consist only of Permissible investments
as set forth in Union Bank of California's Statement Of Policy
For Directed SelectBENEFIT Investments as published from time to
time. For purposes of the Plan and this Trust Agreement
"Permissible Investments" shall mean any investment medium which
the Trustee makes available for investment of assets held in the
Employer's Trust Fund, including but not limited to:
(i) any collective investment fund regularly maintained by
Union Bank of California for common investment of
qualified employee benefit plan trust funds,
(ii) any mutual fund for which Union Bank of California
provides investment advice or other services for a fee;
(iii) any type of interest-bearing deposit with Union Bank of
California or other financial institution made available
for use hereunder.
(b) With regard to the management of all or part of the Employer's
Trust Fund, the Employer shall direct the Trustee in writing as
to which of the following subparagraphs shall from time to time
be operative, except that, if the Employer has selected Employer
Securities, mutual funds or investment vehicles advised by
entities not affiliated with the Trustee, the Employer shall
serve as investment fiduciary for such vehicles unless the
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provisions of Section 1.2(b)(ii) apply. The Employer's written direction
shall remain in force until the Trustee is otherwise directed in
writing:
(i) Employer Directed Account:
The Employer shall retain full investment authority, in which
event the Employer shall, within the limitations set forth below
and in accordance with the provisions of Section 1.2(a) above,
direct the Trustee in writing with respect to the investment,
management and control of Trust assets, and the Trustee shall,
as promptly as possible, comply with such written directions;
however, the Trustee, in its sole discretion, may refuse to
comply with the directions of the Employer to invest in assets
other than Permissible Investments or with directions which the
Trustee deems to be improper or contrary to the provisions of
the Plan and Trust, ERISA or the Internal Revenue Code. The
Trustee shall not be liable, in any manner for any reason, for
the making, retention or disposition of any investment pursuant
to the Employer's directions or for its failure to invest any or
all of the Employer's Trust Fund in the absence of such written
directions, nor shall the Trustee be liable when it is directed
by the Employer to acquire a security for failure to exercise
any conversion, redemption, exchange, subscription or other
right with respect to that security, notice having been given
with respect to such right prior to the purchase of such
security, unless the Trustee is informed of the existence of the
right and is instructed to exercise such right, in writing, by
the Employer, within a reasonable time prior to the expiration
of such right. The Employer shall not direct the purchase, sale
or retention of any assets of the Trust other than Permissible
Investments and shall only make directions which are in
compliance with the applicable provisions of ERISA and any
regulations or rulings issued thereunder.
(ii) Investment Manager Directed Account:
The Employer shall appoint an Investment Manager (as defined in
Section 3(38) of ERISA) or a Qualified Professional Asset
Manager ("QPAM" as defined in PTCE 84-14) and shall inform the
Trustee in writing of such appointment. The Investment Manager
or QPAM shall, within the limitations set forth below and in
accordance with the provisions of Section 1.2(a) above, direct
the Trustee in writing with respect to the investment,
management and control of Trust assets, and the Trustee shall,
as promptly as possible, comply with such written directions.
The Investment Manager or QPAM shall not direct the purchase,
sale or retention of any assets of the Trust other than
Permissible Investments and shall only make directions which are
in compliance with the applicable provisions of ERISA and any
regulations or rulings issued thereunder. The Trustee shall have
no liability for the acts or omissions of such Investment
Manager or QPAM or be under an obligation to invest or otherwise
manage any asset of the Trust which is subject to the management
of such Investment Manager or QPAM.
(iii) Participant Directed Account:
The above notwithstanding, if the Employer has so elected, the
Participant shall have full investment authority over the
investment of assets allocated to such Participant's account
("Participant Directed Account") or ("Account") in that the
Participant shall select among the Investment Options authorized
by the Administrator. Such Participant Directed Accounts are
intended to qualify as ERISA SS404(c) accounts. The Employer,
the Administrator or Investment Manager shall have full
responsibility for designating the Investment Options under the
Plan and for selecting the underlying investment vehicle(s) for
each designated Option from the list of Permissible Investments.
To the extent allowed under the Internal Revenue Code, ERISA and
applicable regulations thereunder, none of the Employer, the
Administrator or the Trustee shall have any responsibility for
monitoring the directions of the Participant nor shall they be
liable in any manner for investment or other losses or other
liability for following the directions of a Participant. The
Administrator shall establish uniform and nondiscriminatory
rules for the operation of the Participant Directed Accounts,
including whether the Participant shall direct the Trustee or
direct the Administrator who directs the Trustee. Participant
Directed Accounts shall be subject to the provisions of the Plan
and may only be invested in Permissible Investments. The Trustee
may refuse to comply with the directions of the Participant to
invest in assets other than Permissible Investments or with
directions which the Trustee deems to be improper or contrary to
the provisions of the Plan and Trust, ERISA or the Internal
Revenue Code and shall have no liability for such refusal.
1.3 POWERS OF TRUSTEE REGARDING INVESTMENTS
After receiving the required directions from the Employer, if the
Employer has retained investment authority, from the Investment Manager
or QPAM, if Employer has delegated authority to an Investment Manager or
QPAM, or, from the Participant, if Participant Directed Accounts have
been established, the Trustee, subject to the limitations of Sections
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1.1 and 1.2, the provisions of ERISA and other applicable laws, is
authorized and empowered:
(a) To invest and reinvest the Employer's Trust Fund or any part
thereof in any one or more kind, type, class, item or parcel of
property, real, personal or mixed, tangible or intangible; or in
any one or more kind, type, class, item or issue of investment
or security: or in any one or more kind, type, class or item of
obligation, secured or unsecured; or in any combination of them.
(b) To acquire and sell options to buy securities ("call" options)
and to acquire and sell options to sell securities ("put"
options).
(c) To buy, sell, assign, transfer, acquire, lease (for any purpose,
including mineral leases, and for terms within or extending
beyond the life of this Trust), exchange and in any other manner
to acquire, manage, deal with and dispose of all or any part of
the Trust property, for cash or credit and upon any reasonable
terms and conditions.
(d) To make "deposits", within the meaning of Section 408(b)(4) of
ERISA, with any bank or savings and loan institution, including
any such facility of Union Bank of California or an affiliate
thereof provided that the deposit in an interest bearing account
or a timed certificate of deposit bears a reasonable rate of
interest.
(e) To invest and reinvest the Employer's Trust Fund in any mutual
fund or short term investment fund ("Fund"), whether sponsored
or advised by Union Bank of California or any affiliate of
Trustee, as well as one or more collective investment funds
regularly maintained by Union Bank of California for common
investment of trust funds. The Declaration of Trust for such
collective investment funds is hereby made a part of this Trust
Agreement and the Plan document. Notwithstanding any contrary
provision in this Trust Agreement, Union Bank of California
shall have full investment responsibility over assets in such
collective investment funds. To retain funds of the Trust in
cash temporarily awaiting investment or for the purpose of
making distributions or other payments, without liability for
interest thereon. Union Bank of California or its affiliates may
be compensated for providing investment advice or other services
to such Funds, as well as the collective investment funds, and
may receive "float" on disbursements pending encashment, and on
any uninvested cash, in addition to any Trustee's fees received
pursuant to this Trust Agreement.
(f) To borrow or raise money for the purposes of the Trust from any
source (other than in a prohibited transaction as defined in
Sections 406 of ERISA or 4975 of the Internal Revenue Code); to
pay interest; to execute promissory notes and to secure the
repayment thereof by pledging all or any part of the Employer's
Trust Fund.
(g) Except as related to Employer Securities pursuant to Section
1.10; and unless directed by the Employer, an Investment Manager
or QPAM to vote upon any stocks, bonds or other securities and
to give general or special proxies or powers of attorney with or
without power of substitution, to exercise any conversion
privileges, subscription rights or other options of which
Trustee receives actual notice, and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stocks,
bonds, securities or other property held in the Employer's Trust
Fund.
(h) To make, execute, acknowledge and deliver any and all documents
of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to carry out the powers
herein granted.
(i) To exercise all the further rights, powers, options and
privileges granted, provided for, or vested in trustees
generally under applicable federal or state laws, as amended
from time to time, it being intended that, except as herein
otherwise provided, the powers conferred upon the Trustee herein
shall not be construed as being in limitation of any authority
conferred by law, but shall be construed as in addition thereto.
(j) To pay or cause to be paid any and all real or personal property
taxes, income taxes or other taxes or assessments of any or all
kinds levied or assessed upon or with respect to the Employer's
Trust Fund or the Plan.
(k) To hold term or ordinary life insurance contracts on the lives
of Participants (but in the case of conflict between any such
contract and the Plan, the terms of the Plan shall prevail); to
pay the premiums on such contracts; to distribute, surrender or
otherwise dispose of such contracts; to pay proceeds if any, of
such contracts to the proper persons in the event of the death
of the insured Participant; to enter
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into, modify, renew and terminate annuity contracts of deposit
administration or immediate participation or other group or
individual type with one or more insurance companies and to pay
or deposit all or any part of the Employer's Trust Fund
thereunder; to provide in any such contract for the investment
of all or any part of funds so deposited with the insurance
company in securities under separate accounts; to exercise and
claim all rights and benefits granted to the contract holder by
any such contracts.
1.4 OTHER POWERS OF TRUSTEE
In addition to the above-enumerated powers and whether or not the
Employer has retained investment authority, or delegate such authority,
the Trustee in any and all events is authorized and empowered:
(a) To cause all or any part of the Trust Fund to be held in
the name of the Trustee (which in such instance need not
disclose its fiduciary capacity) or, as permitted by
levy, in the name of any nominee, and to acquire for the
Trust Fund any investment in bearer form; but the books
and records of the Trust shall at all times show that
all such investments are a part of the Trust Fund.
(b) To serve as sole custodian with respect to the Trust
assets, provided Union Bank of California is the sole
Trustee.
(c) To employ such agents and counsel as may be reasonably
necessary in managing and protecting the Trust assets
and to pay them reasonable compensation; to employ any
broker-dealer, including any broker-dealer affiliated
with Union Bank of California, and pay to such
broker-dealer at the expense of the Trust its standard
commissions; to settle, compromise or abandon all claims
and demands in favor of or against the Employer's Trust
Fund; and to charge any premium on bonds purchased at
par value to the principal of the Employer's Trust Fund
without amortization from the Employer's Trust Fund,
regardless of any law relating thereto.
(d) In addition to the powers listed herein, to do all other
acts necessary or desirable for the proper
administration of the Trust Fund, as though the absolute
owner thereof.
(e) To abandon, compromise, contest, arbitrate or settle
claims or demands; to prosecute, compromise and defend
lawsuits, but without obligation to do so; all at the
risk and expense of the Trust Fund.
(f) To exercise and perform any and all of the other powers
and duties specified in this Trust Agreement or the
Plan.
(g) To permit such inspections of documents at the principal
office of the Trustee as are required by law during
Trustee's normal business hours.
(h) To comply with all requirements imposed by ERISA or
other applicable provisions of law.
(i) To act upon proper directions of the Employer, the
Plan's Committee, the Plan's Administrator designated by
the Employer (the "Administrator") or any other named
fiduciary or participant, including directions in
writing, or oral directions which Trustee in its
discretion may follow prior to receipt of written
instructions, instructions given by photostatic
teletransmission using facsimile signature, or those
instructions which are digitally recorded on the
Trustee's oral recording or Voice Response Unit ("VRU")
communications system, and the Trustee's recording or
lack of recording of any such instructions taken in the
Trustee's ordinary course of business shall constitute
conclusive proof of Trustee's receipt or non-receipt of
the instructions.
(j) As directed by the Employer:
(i) To cause the benefits provided under the Plan to
be paid directly to or for the benefit of the
persons entitled thereto under the Plan, and in
the amounts and in the manner specified, and to
charge such payments against the Employer's
Trust Fund with respect to which such benefits
are payable.
(ii) To compensate such executive, consultant,
actuarial, accounting, investment, appraisal,
administrative, clerical, secretarial, medical,
custodial, depository and legal firms, personnel
and other employees or assistants as are engaged
by the Employer in connection with the
administration of the Plan and Trust of such
Employer, including the Trustee, and to pay from
the Employer's Trust Fund the necessary expenses
of such firms, personnel and assistants, to
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the extent not paid by the Employer.
(iii) To impose a reasonable charge to cover the cost
of furnishing to Participants or Beneficiaries
upon their written request documents as required
under Section 104(b)(4) of ERISA (but not for
furnishing information, statements or documents
as required by Section 104(b)(1), (2) or (3) or
Section 104(c) or Section 105(a) or (c) of
ERISA).
(iv) To pay premiums for insurance for such purposes,
in such amounts and with such companies as the
Employer shall elect, including insurance to
cover liability or losses occurring by reason of
the acts or omissions of fiduciaries.
(v) To vote proxies or tender securities, except for
Employer Securities, which shall be voted in
accordance with paragraph 1.10(b) hereof.
1.5 DUTIES OF TRUSTEE
In reference to the duties of the Trustee:
(a) The Trustee shall exercise any of the foregoing powers
from time to time as required by law.
(b) The Trustee shall maintain or cause to be maintained
appropriate records, data and information relating to
the Trust Fund and its functions hereunder.
(c) The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other
actions hereunder, as required by law. Its books and
records relating thereto shall be open to inspection and
audit at all reasonable times by the Employer, the
Administrator or their duly authorized representatives.
(d) Within sixty days after the close of each Plan Year and
within sixty days after the resignation of the Trustee
as provided in Article III hereof, the Trustee shall
render to the Employer and to the Participant for his or
her Participant Directed Account, a written account
showing in reasonable summary the investments, receipts,
disbursements and other transactions engaged in by the
Trustee during the preceding Plan Year or period with
respect to the Employer's Trust Fund or the
Participant's Account. Such account shall set forth the
assets and liabilities of the Trust or the Participant's
Directed Account at the end of the period. The Employer
and any Participant shall have ninety days after the
Trustee's mailing of each such account and any
participant statement of account provided by UBOC under
a separate recordkeeping agreement, within which to file
with the Trustee written objections to such account or
statement. Upon the expiration of each such period, the
Trustee shall be forever released and discharged from
all liability and accountability to the Employer and the
Participant with respect to the propriety of its acts
and transactions shown in such account except with
respect to any such acts or transactions as to which the
Employer files written objections within such sixty day
period with the Trustee.
(e) The above notwithstanding, as to investments directed by
Participants, Trustee shall furnish written
confirmations to Participants, and all such investment
transactions shall be deemed approved by Participants
unless Participants notify Trustee to the contrary
within 30 days of mailing such confirmations.
(f) The Trustee shall file such descriptions and reports and
shall furnish such information and make other
publications, disclosures, registrations and other
filings as are required of the Trustee by ERISA or other
applicable law except for filings in connection with
Employer Securities, which shall be the sole
responsibility of Employer.
(g) The Trustee shall have the power and duty to comply
promptly with all proper directions of the Employer, the
Committee and Plan Administrator. Unless a Participant
Directed Account has been established, the Trustee shall
not act on any directions or requests received from
Participants.
1.6 EMERGENCIES AND DELEGATION
In reference to situations involving emergencies or delegation of
duties:
(a) In case of an emergency, the Trustee may, but is not
required to, act in the absence of directions from any
other fiduciary having the power and duty to direct the
Trustee with respect to the matter involved and shall
incur no liability in so acting or not acting.
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(b) By written notice to the Trustee, the Employer,
Administrator or Committee may authorize the Trustee to
act on matters in the ordinary course of the business of
the Trust or on specific matters upon the signature of
its authorized representative.
1.7 EXPENSES AND TAXES
In reference to expenses incurred and the taxes paid by the Trustee:
(a) Trustee and record keeping fees shall be paid to Union
Bank of California as Trustee by the Employer, in
accordance with Union Bank of California's fee schedule
applicable as of the date such fees are payable, but if
not so paid, such fees shall constitute a charge upon
the Employer's Trust Fund, allocated proportionately to
Participants' Accounts based upon market value.
(b) Reasonable counsel fees, reasonable costs, expenses, and
charges of Union Bank of California as Trustee incurred
or made in the performance of its duties, including but
not limited to expenses relating to investment of the
Employer's Trust Fund such as brokers' commissions,
stamp taxes, and similar items and all taxes of any and
all kinds that may be levied or assessed under existing
or future laws upon or in respect to the Employer's
Trust Fund or the income thereof shall be allocated as
directed by Employer to the Participants' Accounts
incurring such expenditures, or allocated
proportionately to all Participants' Accounts if
applicable to the Plan as a whole, unless paid by
Employer.
1.8 THIRD PARTIES
In reference to dealings with third parties by the Trustee:
(a) No person dealing with the Trustee shall be required to
follow the application of purchase money paid or money
loaned to the Trustee nor inquire as to whether the
Trustee has complied with the requirements hereof.
(b) In any judicial or administrative proceedings, only the
affected Employer and the Trustee shall be necessary
parties and no Participant or other person having or
claiming any interest in the Employer's Trust Fund shall
be entitled to any notice or service of process (except
as required by law). Any judgment, decision or award
entered in any such proceeding or action shall be
conclusive upon all interested persons.
1.9 GENERAL FUNDING POLICY INVESTMENT OBJECTIVES AND PROXY VOTING POLICY
In reference to the general funding policy, investment objectives and
proxy voting policy of the Trust established by the Employer:
(a) Subject to the requirements of law and the provisions of
this Trust Agreement, the assets of the Trust Fund shall
be prudently invested and managed in accordance with the
Employer's funding policy consistent with the objectives
of the Plan and the requirements of ERISA.
(b) Employer shall assure that sufficient liquidity shall be
maintained to meet the reasonably anticipated
requirements of the Trust Fund for payment of expenses
of administration, investment and management and for
distribution of benefits to Participants and
Beneficiaries.
(c) Employer shall establish and communicate to Trustee the
proxy voting policy for the Trust Fund and the Trustee
shall vote proxies as directed by the person with
investment authority, except that all proxies for
securities in Participant Directed Accounts shall be
voted by Trustee as directed by Employer, or by the
Participant, if the Plan so provides.
(d) The policies established in this Section may be modified
at any time by the Employer upon written notice to
Trustee.
1.10 EMPLOYER SECURITIES
In reference to Employer Securities within the Trust Fund:
(a) The Employer shall not elect Employer Securities as a
Permissible investment and shall not direct the
investment of assets in the Employer's Trust Fund in
Employer Securities unless the Employer is satisfied
that the Employer Securities are exempt from
registration under the federal Securities Act of 1933,
as amended, and are exempt from qualification under the
California Corporate Securities Law of
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1968, as amended, and from any other applicable blue sky
law, or in the alternative, that the Employer Securities
have been so registered and/or qualified. The Employer
shall also specify what restrictive legend on transfer,
if any, is required to be set forth on the certificates
for the Employer Securities and the procedure to be
followed by the Trustee to effectuate a resale of such
Employer Securities. The Employer shall not direct the
investment in "Employer Securities" or "Employer Real
Property", as those terms are used in ERISA, if such
investment would be prohibited by ERISA. The Employer
shall only elect as Permissible Investments or direct
the investment of funds into Employer Securities (i) if
those securities are traded on an exchange permitting a
readily ascertainable fair market value, or (ii) if the
Employer shall have obtained a current valuation by an
independent appraiser, and periodically supplies updated
independent valuations while the Employer Securities
remain in the Trust. Any Employer Securities not traded
on an exchange permitting a readily ascertainable fair
market value shall be held in a separate subaccount, and
Employer shall provide recordkeeping services to
ascertain participants' interests therein.
In determining the value of Employer Securities not
traded on an exchange on a periodic basis, the Trustee
may conclusively rely on the certified appraisal or
other form of valuation submitted to it by the Employer,
or by the Administrator, or the Investment Manager or
QPAM, if any, on behalf of Employer.
(b) The Trustee shall vote Employer Securities or sell
pursuant to a tender offer as directed by written
instructions of the Employer, the Administrator, the
Investment Manager with authority over those assets, if
any, or by the Participants if the Plan is a Participant
Directed Account or an ESOP or the Employer has
otherwise elected pass through voting, it being
understood that the person with investment discretion
over the Trust assets has exclusive authority and
responsibility to vote proxies for Employer Securities
unless pass through voting to Participants is set forth
within the Plan or is mandated by law. If the vote is to
be passed through to the Participants, the Administrator
shall provide any information requested by the Trustee
that is necessary or convenient to obtain and preserve
the confidentiality of the Participants' directions.
Employer shall ensure that Participants receive at least
as much information regarding the proxy or tender offer
matters as is sent to shareholders.
Any conflicting instructions shall be resolved by the
Administrator, who shall advise the Trustee on the
voting of Employer Securities or tendering the
securities in response to a tender offer. Proxies of
Employer Securities which are unallocated to a
Participant's Account, or for which any votes are not
cast, shall be voted by the Trustee as the Administrator
directs, or in the absence of instructions from the
Administrator, in the same manner as those voted by
Participants, proportionately in the same ratio as those
voted, unless the Trustee is required by law to vote the
proxies exercising the Trustee's discretion. In response
to a tender offer, the Trustee shall tender only those
allocated shares for which participant direction to
tender has been received; any unvoted, but allocated,
shares shall not be tendered. Moreover, any unallocated
shares shall be retained or tendered as directed by the
Administrator, to the extent permitted by law. The
Employer shall indemnify and hold harmless the Trustee
with respect to any claim, demand or loss in connection
with electing Employer Securities as Permissible
Investments, and any action taken or refrained from with
regard to voting or tendering Employer Securities except
for losses resulting from Trustee's negligence or
willful misconduct, it being expressly understood that
the Trustee shall have no discretion with respect to
such action unless required by law. Trustee shall have
no duty to provide Participants with information
necessary to make an informed decision with respect to
the voting or tendering of Employer Securities, which
shall be the exclusive duty of the Employer.
(c) The Trustee shall not be liable under the Plan or the
Trust for any delays in purchase of sale of, or
investment in or retention of Employer Securities held
as Trust assets, whether retention is due to
instructions to retain, or inability to sell due to any
Federal or State securities law restrictions, or the
unmarketable or illiquid nature of the investment.
ARTICLE II
RESTRICTIONS ON TRANSFER
2.1 PERSONS TO RECEIVE PAYMENT
In reference to payments made by the Trustee:
(a) The Trustee shall, except as otherwise provided in
subsection (b), pay all amounts payable hereunder only
to or for the benefit of the person or persons
designated under the Plan as directed by the Employer or
Administrator and not to any other person or
corporation, and only to the extent of assets held in
the Employer's Trust Fund allocated to the Participant's
Account.
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(b) In the event any controversy shall arise as to the
person or persons to whom any distribution or payment is
to be made by the Trustee, or as to any other matter
arising in the administration of the Plan, the Trustee
may retain the amount in controversy pending resolution
of the controversy or the Trustee may file an action
seeking declaratory relief and/or may interplead the
Trust assets to which persons are making conflicting
demands.
(c) The Trustee shall not be liable for the payment of any
interest or income on any amount interpleaded under
subsection (b) pending resolution of claims and ultimate
distribution.
(d) The expenses of the Trustee for taking any action under
subsection (b) shall be charged by the Trustee to the
Employer's Trust Fund to the extent not paid by
Employer.
2.2 ASSIGNMENT AND ALIENATION PROHIBITED
(a) Benefits or interest available hereunder will not be subject to
assignment or alienation, either voluntarily or involuntarily.
The preceding sentence shall also apply to the creation,
assignment, or recognition of a right to any benefit payable
with respect to a Participant pursuant to a domestic relations
order, unless such an order is determined by the Employer or
Administrator to be a Qualified Domestic Relations Order, as
defined in Section 414(p) of the Code. Any domestic relations
order entered before January 1, 1985, will be treated as a
Qualified Domestic Relations Order if payment of benefits has
commenced as of such date, and may be treated as a Qualified
Domestic Relations Order if payment of benefits had not
commenced as of such date, even though the order does not
satisfy the requirements of Section 414(p).
(b) Notwithstanding the above, Employer may agree to allow
Participants to borrow from the Plan, and secure their loans
with their vested Participant Account balances ("Participant
Loans"). Where loans are made to Plan Participants, all
fiduciary duties and responsibilities for administration of the
Trust with respect to any Participant Loans, including but not
limited to the review and acceptance or rejection of loan
applications, making of the Participant Loans, the determination
of when to declare default and issue tax reports for such deemed
distributions, and when to foreclose on collateral securing
defaulted Participant Loans shall rest with the named fiduciary
which shall be appointed by the Employer (the "Loan Fiduciary").
All loan documents shall be prepared by the Loan Fiduciary, or
upon written direction of the Loan Fiduciary, by the Trustee:
the Loan Fiduciary shall establish the interest rate to be
charged for the Participant Loan, the maturity date of the loan,
the amount which may be loaned and the amount of the
Participant's vested Account balance which may secure the
Participant Loan under applicable laws and regulations.
To the extent permitted by law, the Employer shall indemnify and
hold the Trustee harmless from all liability, damages, costs or
expenses, including reasonable attorney's fees, arising out of
any action or inaction of the Loan Fiduciary with respect to
Participant Loans.
ARTICLE III
RESIGNATION AND SUCCESSION
3.1 WITH RESPECT TO ALL EMPLOYERS:
In reference to the resignation of the Trustee or the appointment of a
successor Trustee:
(a) The Trustee may resign at any time upon thirty days
prior written notice to the Employer(s) adopting the
Plan (which notice may be waived by the Employer(s)).
Upon resignation of the Trustee the Trustee shall
simultaneously designate a Successor Trustee.
(b) A Successor Trustee shall have the same powers and
duties as those conferred herein. A resigning Trustee
shall transfer the Trust Fund to its successor and shall
deliver appropriate Trust and Plan books, accounts and
records thereto. The resigning Trustee is authorized,
however, to reserve such amount as may be necessary for
the payment of its fees and expenses incurred prior to
its resignation, and the costs or transfer of the Trust.
(c) If the Trustee shall fail to so appoint a successor
Trustee prior to the effective date of its resignation,
the Employer's Plan Administrative Committee members
shall be the Successor Trustee.
(d) A Successor Trustee shall have no duty to audit or
otherwise inquire into the acts and transactions of its
predecessor.
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3.2 WITH RESPECT TO INDIVIDUAL EMPLOYERS:
In reference to the resignation or removal of the Trustee or the
succession of the Trustee:
(a) The Trustee may resign as Trustee with respect to the
Plan and Trust Agreement as adopted by an individual
Employer at any time upon thirty days' prior written
notice to the Employer (which notice may be waived by
the Employer). Notwithstanding the preceding sentence,
if any Employer Securities are held as an asset of the
Trust, Trustee may resign at any time with such
resignation to be effective immediately upon written
notice to the Employer and Employer's Plan
Administrative Committee members shall immediately be
appointed successor trustee.
(b) An Employer may remove the Trustee with respect to the
Plan and Trust Agreement as adopted by the Employer at
any time upon thirty days prior written notice to the
Trustee (which notice may be waived by the Trustee).
(c) Upon resignation or removal of the Trustee pursuant to
Section 3.2(a) or (b), the Employer shall promptly
designate a Successor Trustee who must be acceptable to
the Trustee. If the named Successor Trustee is not
acceptable to the Trustee, the Employer shall promptly
designate a Successor Plan and Trust (as defined below)
and a qualified trustee thereunder who will accept
transfer of the assets of the Employer's Trust Fund. The
term "Successor Plan and Trust" means a plan and trust
intended to meet the requirements of ERISA and Section
401(a) and 501(a) of the Code.
(d) If the Employer does not designate a Successor Plan and
Trust and a qualified trustee thereunder within thirty
days after the Trustee gives notice of resignation
pursuant to Section 3.2(a) or receives notice of removal
pursuant to Section 3.2(b), the Employer's Plan
Administrative Committee shall be deemed to be Successor
Trustee. Alternatively, Trustee may, at the expense of
the Employer's Trust Fund apply to a court of competent
jurisdiction for the designation of a Successor Plan and
Trust and a qualified trustee thereunder. Until such
time as a Successor Plan and Trust and a qualified
trustee are appointed and have accepted appointment and
the Trust Assets are delivered to them, the Trustee
shall be entitled to its regular fees for acting as
Trustee as provided under the Plan.
(e) Upon the designation of a Successor Plan and Trust and a
qualified trustee thereunder or a successor trustee, the
Trustee shall promptly transfer the assets of the
Employer's Trust Fund, suitable records, and other
information to the trustee of the Successor Plan and
Trust or the successor trustee and the Trustee shall
have no further responsibility with respect to the Plan
and Trust or such assets, records, and information. The
Trustee is authorized, however, to reserve such amount
as may be necessary for the payment of its fees and
expenses incurred prior to and in connection with the
transfer of such assets, records, and information.
ARTICLE IV
AMENDMENT
4.1 POWER TO AMEND
The Trustee and the Employer shall have the right at any time and from
time to time to modify or amend this Trust Agreement in whole or in part
by written mutual consent.
4.2 LIMITATION ON AMENDMENT
No amendment shall be made at any time under which any part of the
Employer's Trust Fund may be diverted to purposes other than for the
exclusive benefit of Participants and their Beneficiaries or which shall
decrease the percentage or amount of the interest of any Participant
which shall theretofore have become Vested.
4.3 CONFORMITY WITH LAW
Notwithstanding anything herein to the contrary, this Trust Agreement
may be amended prospectively or retroactively at any time by the Trustee
if deemed necessary to conform to the provisions and requirements of
ERISA or the Internal Revenue Code or regulations promulgated pursuant
thereto in order to maintain the Trust's tax-exempt status thereunder,
or to conform to the provisions and requirements of any law, regulation,
order at ruling affecting the character or purpose of the Trust.
ARTICLE V
LIABILITIES
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5.1 DECLARATION OF INTENT
In keeping with the public policy expressed in Section 410(a) of ERISA,
nothing in this Article purports to relieve a fiduciary from liability
for any responsibility, obligation or duty under Part 4 of Title I of
ERISA. However, to the full extent permitted in Section 405 of ERISA and
otherwise as not prohibited by law, it is the intent of this Article to
relieve each fiduciary from ail liability for any acts or omissions of
any other fiduciary or any other person and to declare the absence of
liabilities of all persons referred to in this Article to the extent not
imposed by law or by Section 1.2 or other provisions of this Trust
Agreement. Each of the following Sections, in declaring such limitations
of liability, is set forth without limiting the generality of this
Section but in each case shall be subject to the provisions, limitations
and policies set forth in this Section. Additionally, to the full extent
permitted in Section 404(c) of ERISA, no fiduciary shall be liable for
any investment selection, investment loss or by reason of any breach of
fiduciary duty or of this Agreement which results from Participant's or
Beneficiary's exercise of control over the assets of his or her Account.
5.2 GENERAL LIMITATIONS OF LIABILITY
In reference to the limitation of liability of the fiduciary:
(a) No fiduciary shall be liable with respect to a breach of
fiduciary duty under Title I of ERISA if such breach was
committed before he or she became a fiduciary or after
he or she ceased to be a fiduciary.
(b) No named fiduciary shall be liable for any act or
omission of any person to whom fiduciary
responsibilities (other than Trustee responsibilities)
are allocated by the Trust Agreement or by a named
fiduciary, except as provided in Section 405(c) of
ERISA.
5.3 LIABILITY OF THE TRUSTEE
In reference to the liabilities and responsibilities of the Trustee:
(a) The Trustee shall have no powers, duties or
responsibilities with regard to the administration of
the Plan or to determine the rights or benefits of any
person having or claiming an interest under the Plan or
in the Trust Fund or under this Trust Agreement or to
examine or control any disposition of the Trust Fund or
part thereof which is directed by the Employer or
Administrator.
(b) The Trustee shall have no liability for the adequacy of
contributions for the purposes of the Plan or for
collection or enforcement of the payment thereof.
(c) The Trustee shall have no liability for the acts or
omissions of the Employer or the Administrator or the
Participant or Beneficiary, nor any Investment Manager
or QPAM.
(d) The Trustee shall have no liability for following proper
directions of a named fiduciary or Participant when such
directions are made in accordance with this Trust
Agreement and the Plan and are not contrary to Title I
of ERISA.
(e) During such period or periods of time, if any, as any
named fiduciary or Participant is directing the
investment and management of Trust assets, the Trustee
shall have no obligation to determine the existence of
any conversion, redemption, exchange, subscription or
other right relating to any securities purchased on the
directions of such named fiduciary or participant if
notice of any such right was given prior to the purchase
of such securities. If such notice is given after the
purchase of such securities, the Trustee shall notify
such named fiduciary or Participant thereof. The Trustee
shall have no obligation to exercise any such right
unless it is informed of the existence of the right and
is instructed to exercise such right, in writing, by the
named fiduciary or Participant in question within a
reasonable time prior to the expiration of such right.
(f) During such period or periods of time, if any, as a
named fiduciary or Participant is directing the
investment and management of Trust assets, if such named
fiduciary or Participant directs the Trustee to purchase
securities issued by any foreign government or agency
thereof, or by any corporation domiciled outside of the
United States, it shall be the responsibility of the
named fiduciary or Participant to advise the Trustee in
writing with respect to any laws or regulations of any
foreign countries or any United States territories or
possessions which shall apply, in any manner whatsoever,
to such securities, inducing, but not limited to,
receipt and taxation of dividends or interest by the
Trustee for such securities.
(g) If by reason of any action or failure to act by any
Employer and without the knowledge of the Trustee, the
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Trust of a portion thereof, ceases to be a tax-exempt
trust pursuant to a qualified plan under Sections 401
and 501 of the Internal Revenue Code, the Employer
involved shall indemnify the Trustee for any taxes and
penalties, and interest including but not limited to
federal or state income estate or inheritance taxes
which the Trustee is required to pay as a result of a
distribution thereafter made at the direction of the
Administrator under subsection 1.4(j)(i) to a
Beneficiary in which event the Employer shall be
subrogated to the right of the Trustee to proceed
against such Beneficiary, the executor of the estate of
the deceased Participant or any other person for
reimbursement of the amount paid.
5.4 INDEMNIFICATION
In reference to indemnification of the parties to this Trust Agreement:
(a) The Employer, by adoption of this Trust Agreement,
agrees to indemnify the Trustee and the Administrator
against any and all claims, demands, liability, loss,
expenses, including attorney fees and costs and against
claims of breach of fiduciary duty and liability
incurred or to be incurred by them for acts or omissions
of such Employer, any Affiliated Employer or any of
their Employees or for breach by any of them of any duty
under this Agreement.
(b) The Employer agrees to indemnify the Trustee against any
liability imposed as a result of a claim asserted by any
person or persons with respect to whom the Trustee has
acted in good faith in reliance on a direction of the
Employer or the Administrator, a Participant, or other
person to whom power of direction is given over the Plan
or Trust.
ARTICLE VI
DURATION AND TERMINATION
6.1 DURATION
This Trust shall continue in full force and effect for the maximum
period of time permitted by law and in any event until the expiration of
twenty-one years after the death of the last surviving person who was
living at the time of execution hereof who at any time becomes a
Participant or Beneficiary in the Plan, unless this Trust is sooner
terminated in accordance with the Plan.
ARTICLE VII
MISCELLANEOUS
7.1 ADOPTION BY OTHER EMPLOYERS
An Employer which (or an Affiliated Employer which adopts the Plan with
the approval of both the Administrator and the Trustee shall
concurrently become a party to this Trust Agreement by giving written
notice of its adoption of the Plan and this Trust Agreement to the
Trustee. Upon executing such plan document, the Employer (or such
Affiliated Employer) shall become a signatory to this Trust Agreement
upon acceptance by Trustee. Employer shall notify Trustee of any change
of Employer entity, including but not limited to changes due to merger,
acquisition, purchase of assets and assumption of liabilities, or
assignment for the benefit of creditors, dissolution, or if it becomes
subject to any proceeding under the Bankruptcy Code.
7.2 SUCCESSOR EMPLOYER
If any successor to an Employer continues the Plan adopted by the
Employer, such successor shall concurrently become a successor first
party to this Trust Agreement by giving written notice of its adoption
of the Plan and this Trust Agreement to the Trustee by duty authorized
persons, which said written notice shall constitute such successor a
signatory hereto.
7.3 RELATION TO PLAN
All words and phrases used herein shall have the some meaning as in the
Plan and this Trust Agreement and the Plan shall be read and construed
together. Whenever in the Plan it is provided that the Trustee shall act
as therein prescribed, the Trustee shall be and is hereby authorized and
empowered to do so for all purposes as fully as though specifically so
provided herein. The Trustee shall furnish the Employers with copies of
the Plan, the Trust Agreement and all amendments thereto.
7.4 USE OF TRUST FUNDS
Under no circumstances shall any part of the Employer Trust Fund be
recoverable by the Employer or any Affiliated Employer from the Trustee
or from any Participant or Former Participant, his or her Beneficiaries,
or any other person, or be used for or
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diverted to purposes other than for the exclusive purposes of providing
benefits to Participants and their Beneficiaries; provided, however,
that:
(a) an Employer's contribution which is made under a mistake
of fact pursuant to ERISA Section 403(c)(2)(A) may be
returned to such Employer to the extent permitted by law
and in accordance with the applicable provisions of the
Plan,
(b) an Employer's contribution which is conditioned on
deductibility to the extent such deduction is disallowed
pursuant to ERISA Section 403(c)(2)(C) may be returned
to such Employer to the extent permitted by law and in
accordance with the applicable provisions of the Plan,
and
(c) the portion, if any, of the Trust Fund attributable to
an Employer not required for the satisfaction of all
liabilities of the Plan including liabilities to
Participants and their Beneficiaries shall, upon such
Employer's termination of the Plan, revert to such
Employer, but only to the extent permitted under Section
15.03 of the Plan
7.5 LOCATION OF TRUST FUND ASSETS
Except as authorized by the Secretary of Labor by regulation, the
indicia of ownership of any assets of the Trust Fund and Plan shall not
be maintained outside the jurisdiction of the District Courts of the
United States.
7.6 PARTIAL INVALIDITY
If any provision of this Trust Agreement is held to be illegal or
invalid for any reason, such illegality or invalidity shall not affect
the remaining portions of this Trust Agreement, unless such illegality
or invalidity prevents accomplishment of the objectives and purposes of
this Trust Agreement and the Plan. In the event of any such holding, the
parties will immediately amend this Trust Agreement as necessary to
remedy any such defect.
7.7 CONSTRUCTION, VENUE AND JURISDICTION
This Trust Agreement shall be construed, administered and enforced
according to ERISA and the Internal Revenue Code and where state law is
applicable, under California laws, fairly and equitably, and in
accordance with the purposes of the Plan. Venue and Jurisdiction for any
dispute hereunder shall be in California.
7.8 ALTERNATE DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or the
performance or breach thereof, the parties agree first to try in good
faith to settle the dispute by mediation under the Commercial Mediation
Rules of the American Arbitration Association. Thereafter, any remaining
unresolved controversy or claim arising out of or relating to this
Agreement, or the performance or breach thereof, shall be decided by
binding arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association and California Code of Civil
Procedure Sections 1280 et seq. The sole arbitrator shall be a retired
or former Judge or other qualified panelist associated with the American
Arbitration Association. Judgement upon any award rendered by the
arbitrator shall be final and may be entered in any court having
jurisdiction and the parties waive their right to jury trial. Each party
shall bear its own costs, attorney's fees and its share of arbitration
fees. The Alternate Dispute Resolution provisions in this Agreement do
not constitute a waiver of the parties' rights to a judicial forum in
instances where arbitration would be void under applicable law, and do
not preclude the Trustee from exercising its rights to interplead the
funds of the Trust Fund at the cost of the Trust Fund.
7.9 LOCATING PARTICIPANTS
The Employer and its Plan Administrator will be responsible for locating
Participants and Beneficiaries to facilitate benefit payments and
compliance with reporting and disclosure requirements.
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Executed at Burbank California By:
------------------------, -----------------
(City) (State)
UNION BANK OF CALIFORNIA, TRUSTEE
XXXXXXXX X. XXXXXXX VICE PRESIDENT AND MANAGER
--------------------------------- -------------------------------------
Name of Authorized Signer Title
for Union Bank of California
/s/ XXXXXXXX X. XXXXXXX 2/26/98
--------------------------------- -------------------------------------
Signature of Authorized Signer Date
for Union Bank of California
PLAN SPONSOR
XXXXXX X. XXXXXXX CHIEF FINANCIAL OFFICER
--------------------------------- -------------------------------------
Name of Authorized Signer Title
for Plan Sponsor
/s/ XXXXXX X. XXXXXXX 2/26/98
--------------------------------- -------------------------------------
Signature of Authorized Signer Date
for Plan Sponsor
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SelectBENEFIT New Account Package ADMINISTRATIVE SERVICES AGENCY AGREEMENT
--------------------------------------------------------------------------------
Administrative Services Agency Agreement
for Daily Valuation Recordkeeping Services
THIS AGREEMENT is made by and between UNION BANK OF CALIFORNIA, National
Association ("Agent"), and the employer ("Principal"). This Agreement sets forth
the terms, conditions and obligations of the parties with regard to services to
be performed by the Agent on behalf of the Principal in connection with the
Employee Benefit Plan ("Plan") designated below.
PRINCIPAL, by signing this Agreement, has retained the Agent to provide the
services listed below in Article 1 and following. It is understood by the
parties to this Agreement that the Agent's duties under this Agreement shall be
strictly confined to the terms of this Agreement and are separate and distinct
from any duties it may have to the Plan if it is also named as the Plan Trustee.
Moreover, Principal warrants that the Plans Administrative Committee is the Plan
Administrator as the term is defined in ERISA 3(16).
SECTION I
AGENT'S DUTIES
1.1. RECORDKEEPING. Agent shall maintain records of participant accounts
established by the Principal under the terms of the Plan. Such records
shall reflect adjustments and allocations of employer contributions,
participant contributions, if any, forfeitures, if any, and investment
gains or losses. Agent shall make such adjustments and allocations in
accordance with the terms of the Plan and applicable Internal Revenue
Service ("IRS") and Department of Labor ("DOL") regulations based on
information furnished by the Principal in accordance with Paragraph 2.2
of this Agreement.
1.2. REPORTS. Agent shall furnish the Principal a comprehensive Employer
Administrative Report and individual Participant Statements quarterly.
Such statements shall reflect the status of the account of each Plan
participant as of the last day of the quarterly reporting period
specified by the Principal. Statements shall include the balance of the
account at the beginning of the reporting period, adjustments and
allocations to the account (such as contributions, forfeitures,
withdrawals and investment earnings, etc.) during the reporting period,
and the balance at the end of the reporting period. Additionally, the
Agent shall furnish the Principal a monthly Transaction Summary which
shall reflect total transaction activity, itemizing all contributions
and distributions. All reports and statements shall be delivered solely
to the Principal unless otherwise agreed to by the Agent.
1.3. ALLOCATIONS OF CONTRIBUTIONS. Agent shall allocate contributions to
individual participant accounts as specified by the Principal and to
investment funds established under the Plan based upon the directions of
the Participant as described in Section 3, unless specified otherwise by
the Principal. In the absence of directions or in the case of improper
or incomplete directions at the sole discretion of the Agent, cash shall
automatically be invested in the cash management investment vehicle
designated by the Employer. Agent shall promptly notify the directing
party and request further instruction. Such cash shall continue to be so
invested unless and until the person responsible for giving investment
directions directs otherwise or until such date as the cash is returned
to the Principal as described in Paragraph 4.1.
1.4. TRANSFERS BETWEEN INVESTMENT FUNDS. Agent shall transfer existing
account balances among investment funds established under the Plan based
upon directions of the Participant as described in Section 3, unless
specified otherwise by the Principal. In the case of improper or
incomplete transfer directions at the sole discretion of the Agent, no
such transfer shall be effected. Agent shall promptly notify the
directing party and request further instruction.
1.5. DOCUMENTATION FOR PARTICIPANT LOANS. Based upon available records and
information supplied by the Principal, the Agent shall initiate
participant loan documentation at the request of the Participant and
designated Loan Fiduciary (as defined in the Trust Agreement) as
described in Section 3, unless specified otherwise by the Principal.
Such documentation shall include direction, spousal consent to loan and
pledge of account balance, application for loan and certification of
loan purpose, and promissory note, security agreement and federal
disclosure statement. However, it is agreed and understood by all
parties that the Agent in its capacity under this Agreement shall have
no discretionary authority to grant a request for a loan, to establish
the terms of a loan or to make the final determination of maximum
allowable loan amounts under the Plan.
1.6. DETERMINATION OF VESTED INTEREST. The Agent shall assist the Principal
in the determination of each participant's vested interest based upon
data supplied by the Principal. However, the Agent shall not assume sole
responsibility to make such a determination nor shall the Agent be
responsible for the correctness of the determination.
1.7. REGULATORY TESTING. Annually, the Agent shall perform Internal Revenue
Code ("IRC") Section 415(c) Annual Additions testing and prospective Top
Heavy Testing. The Agent shall also provide a summary of benefits
payable to Participants age 70 or older. Annually (if appropriate), the
Agent shall perform IRC Section 401(k) and 401(m) nondiscrimination
testing. In the event that the Plan fails any such test, the Agent shall
not be responsible for the determination or performance of any
corrective action. Any consulting or corrective measures performed by
the Agent resulting from such test failure shall be performed solely at
the direction of the Principal and shall be subject to extraordinary
fees as described in the Fee Schedule. Agent is not responsible for
controlled group testing, including, but not limited to, determination
of "Employer" under IRC section 414.
1.8. REGULATORY REPORTING. Agent shall furnish the Principal with a
substantially completed Annual Return/Report of Employee Benefit Plan
(Form 5500/5500-C) for submission to the Internal Revenue Service and
the required Summary Annual Report (SAR) for distribution by the
Principal to Plan participants. Agent shall have no duty to file such
reports with any governmental agency and shall have no duty to maintain
or furnish any records or reports required under Sections 105 or 209 of
the Employee Retirement Income Security Act of 1974 and any regulations
thereunder ("ERISA") to be kept or furnished by Principal. Agent is not
responsible for aggregation reporting required if Plan is a controlled
group.
--------------------------------------------------------------------------------
Plan Name: Xxxxxx International, Inc. Retirement Savings Plan
Union Bank of California
