Trust Agreement
Between
United Savings Association of Texas FSB
And
Fidelity Management Trust Company
--------------------------------------------
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
EMPLOYEES' TAX DEFERRED SAVINGS PLAN
TRUST
--------------------------------------------
Dated as of July 1, 1991
TABLE OF CONTENTS
SECTION PAGE
1 Trust .............................................................. 2
2 Exclusive Benefit and Reversion of Sponsor Contributions ........... 2
3 Disbursements ...................................................... 3
(a) Directions from Administrator
(b) Limitations
4 Investment of Trust ................................................ 3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Notes
(f) Guaranteed Investment Contracts
(g) Reliance of Trustee on Directions
(h) Trustee Powers
5 Recordkeeping to Be Performed ...................................... 8
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 Compensation and Expenses .......................................... 10
7 Directions and Indemnification ..................................... 10
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
8 Resignation or Removal of Trustee .................................. 12
(a) Resignation
(b) Removal
9 Successor Trustee .................................................. 12
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 Termination ........................................................ 13
-i-
TABLE OF CONTENTS (Continued)
SECTION PAGE
11 Resignation, Removal, and Termination Notices ..................... 13
12 Duration .......................................................... 13
13 Amendment or Modification ......................................... 14
14 General ........................................................... 14
(a) Performance by Trustee, its Agent or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
15 Governing Law ..................................................... 15
(a) Massachusetts Controls
(b) Trust Agreement Controls
SCHEDULES
A. Recordkeeping Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Telephone Exchange Guidelines
-ii-
TRUST AGREEMENT, dated as of the first day of July, 1991, between United
Savings Association of Texas FSB, a Texas corporation, having an office at 0000
X.X. Xxxxxxx; Xxxxx 0000, Xxxxxxx, XX 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 United Savings Association of
Texas FSB Employees' Tax Deferred Savings Plan (the "PLAN"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and invest plan
assets under the Plan for the exclusive benefit of participants in the Plan and
their beneficiaries; and
WHEREAS, the Administrative Committee (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 Plan assets
in trust among several investment options selected by the Named Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain ministerial
recordkeeping functions under the Plan; and
WHEREAS, the Sponsor (the "ADMINISTRATOR") is the administrator of the
Plan (within the meaning of section 3(16)(A) of ERISA); and
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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 Plan provisions, guidelines and interpretations conveyed in writing
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 United Savings Association
of Texas FSB Employees' Tax Deferred Savings Plan 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. In accepting this
Trust, the Trustee shall be accountable for the assets received by it, subject
to the terms and conditions of this Agreement.
Section 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS. Except as
provided under applicable law, 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.
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Section 3. DISBURSEMENTS.
(a) DIRECTIONS FROM ADMINISTRATOR. 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) LIMITATIONS. 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) SELECTION OF INVESTMENT OPTIONS. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) AVAILABLE INVESTMENT OPTIONS. 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 the investment companies
advised by Fidelity Management & Research Company ("Mutual Funds"), (ii) notes
evidencing loans to Plan participants in accordance with the terms of the Plan,
(iii) equity securities issued by the Sponsor or an affiliate which are
publicly-traded and which are "qualifying employer securities" within the
meaning of section 407(d)(5) of ERISA ("SPONSOR STOCK"), (iv) guaranteed
investment contracts chosen by the Trustee, (v) guaranteed annuity contracts
heretofore entered into
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by the Sponsor or predecessor trustee and specifically identified on Schedule
"G" attached hereto ("EXISTING GICS"), and (vi) collective investment funds
maintained by the Trustee for qualified plans; provided, however, that the Named
Fiduciary hereby directs the Trustee to continue to hold such Existing GICs
until the Named Fiduciary directs otherwise, it being expressly understood that
such direction is given in accordance with Section 403(a) of ERISA; and
provided, further, that the Trustee shall be considered a fiduciary with
investment discretion only with respect to Plan assets that are invested in
guaranteed investment contracts chosen by the Trustee or in collective
investment funds maintained by the Trustee for qualified plans. The investment
options initially selected by the Named Fiduciary are identified on Schedules
"A" and "C" attached hereto. The Named Fiduciary may add additional investment
options with the consent of the Trustee and upon mutual amendment of this Trust
Agreement and the Schedules thereto to reflect such additions.
(c) PARTICIPANT DIRECTION. 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". With respect to any direction made by a participant using the
telephone exchange system, the Trustee shall have no responsibility to ascertain
such direction's (i) accuracy, (ii) compliance with the terms of the Plan or any
applicable law, or (iii) effect for tax purposes or otherwise. 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.
(d) 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 followiftg limitations:
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(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.
(e) NOTES. 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, (iv) advise the Trustee of the date, amount and payee of the checks
to be drawn representing loans, and (v) cancel and surrender the notes and other
loan documentation when a loan has been paid in full.
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(f) RELIANCE OF TRUSTEE ON DIRECTIONS. (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, except as otherwise provided under ERISA.
(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 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) TRUSTEE POWERS. 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) of this Section 4, to invest 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) and in collective investment funds maintained by the
Trustee for qualified plans, in which case the provisions of each collective
investment fund in which the Trust
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is invested shall be deemed adopted by the Sponsor and the provisions thereof
incorporated as a part of this Trust as long as the fund remains exempt from
taxation under Sections 401(a) and 501(a) of the Internal Revenue Code of 1986,
as amended.
(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, provided that the Sponsor is notified in writing prior to the
employment of any such assistance.
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(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.
Section 5. RECORDKEEPING TO BE PERFORMED.
(a) GENERAL. The Trustee shall perform those recordkeeping functions
described in Schedule "A" attached hereto. These recordkeeping functions shall
be performed within the framework of the Administrator's written directions
regarding the Plan's provisions, guidelines and interpretations.
(b) ACCOUNTS. The Trustee shall keep accurate accounts of all investments,
receipts, disbursements, and other transactions hereunder, and shall report the
value of the assets held in the Trust as of the last day of each fiscal quarter
of the Plan and, if not on the last day of a fiscal quarter, the date on which
the Trustee resigns or is removed as provided in Section 8 of this Agreement or
is terminated as provided in Section 10 (the "Reporting Date"). Within thirty
(30) days following each Reporting Date or within sixty (60) days in the case of
a Reporting Date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, 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 Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date. 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
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transactions as to which the sponsor shall within such six (6) month period file
with the Trustee written objections; provided, however, nothing in this Section
5(b) shall act or be construed as relieving the Trustee of any of its fiduciary
liabilities with respect to such account or as an indemnification by the Sponsor
of the Trustee for any of its errors or breaches of its fiduciary duties with
respect to such account.
(c) INSPECTION AND AUDIT. 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) EFFECT OF PLAN AMENDMENT. 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, if
requested, an IRS determination letter or an opinion of counsel substantially in
the form of Schedule "F" covering such amendment, 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) RETURNS, REPORTS AND INFORMATION. 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. The Administrator shall also
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be responsible for making any disclosures to participants required by law
including, without limitation, such disclosures as may be required under federal
or state truth-in-lending laws with regard to participant loans.
Section 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt of the
Trustee's xxxx, which shall be computed and billed 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 reasonable
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 AND INDEMNIFICATION.
(a) IDENTITY OF ADMINISTRATOR AND NAMED FIDUCIARY. 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) DIRECTIONS FROM ADMINISTRATOR. 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 in the form attached hereto as
Schedule "D", provided the Trustee reasonably believes the signature of the
individual to be genuine. The Trustee shall have no responsibility to
10
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) DIRECTIONS FROM NAMED FIDUCIARY. 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 in the form
attached hereto as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear 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) CO-FIDUCIARY LIABILITY. 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) INDEMNIFICATION. 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 are 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 from the
Trustee's willful misconduct, negligence, bad faith, or breach of any duty under
ERISA.
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(f) SURVIVAL. The provisions of this Section 7 shall survive the termination
of this Agreement.
Section 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) RESIGNATION. 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 in writing by the Sponsor.
(b) REMOVAL. 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 in writing by the Trustee.
Section 9. SUCCESSOR TRUSTEE.
(a) APPOINTMENT. 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) ACCEPTANCE. 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.
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(c) CORPORATE ACTION. 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 unless the
Trustee agrees to a shorter notice period. 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 reasonable
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 Xxxxxxxx X.
Xxxxxx, United Savings Association FSB, 0000 X.X. Xxxxxxx, Xxxxx 0000, Xxxxxxx,
XX 00000, and to the Trustee c/o Xxxx X. Xxxxxx, Fidelity Investments, 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.
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Section 13. AMENDMENT OR MODIFICATION. 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. 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) PERFORMANCE BY TRUSTEE, ITS AGENT OR AFFILIATES. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates including
Fidelity Investments Institutional Operations Company or its successor.
(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.
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(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) MASSACHUSETTS LAW CONTROLS. 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) TRUST AGREEMENT CONTROLS. 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 to the extent
not inconsistent with applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their duly authorized officers as of the day and year first above
written.
UNITED SAVINGS ASSOCIATION OF
TEXAS FSB
Attest: /s/ CAN NOT READ NAME By /s/ CAN NOT READ NAME
Secretary Vice President
Vice President, Compensation
and Benefits
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: /s/ CAN NOT READ NAME By /s/ CAN NOT READ NAME
Assistant C1erk Senior Vice President
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Schedule "A"
ADMINISTRATIVE SERVICES
ADMINISTRATION
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of five plan investment options:
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Intermediate Bond Fund
- Fidelity Growth & Income Portfolio
- Fidelity Fund
- Fidelity Magellan Fund
* Maintenance of five money classifications:
- Fully Vested
- Employee Tax Deferred
- Employer
- Prior Plan
- Rollovers
* Processing of mutual fund trades.
The Trustee will provide only the recordkeeping services set forth on this
Schedule "A" and no others.
PROCESSING
* Monthly processing of contribution data.
* Daily processing of transfers and changes of future allocations.
* Monthly processing of withdrawals.
OTHER
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* 1099-Rs
* Participant Loans
* Performance of section 401(k) limitation testing upon request. In order to
obtain this service, the client shall be required to provide the information
identified in the Fidelity Discrimination Testing Package Guidelines.
* Employee communications describing available investment options, including
multimedia informational materials and group presentations.
UNITED SAVINGS ASSOCIATION OF FIDELITY MANAGEMENT TRUST COMPANY
TEXAS FSB
By /s/ SIG. ILLEGIBLE 6/21/91 By /s/ SIG. ILLEGIBLE 7/15/91
Date Senior Vice President Date
17
Schedule "B"
FEE SCHEDULE
o Annual Participant Fee $20.00 per participant*, subject to a
$15,000 per year minimum, billed and
payable quarterly.
o Conversion Fee $2.50 per participant, subject to a
$2,500 minimum, a one-time fee billed
and payable at the conclusion of the
conclusion of the first quarter for
which services are performed.
o Loan Fees Establishment fee of $10.00 per loan
account; annual fee of $15.00 per loan
account.
o Other Fees: separate charges for optional ADP testing or use of remote
access or extraordinary expenses resulting from large numbers of
simultaneous manual transactions or from errors not caused by Fidelity.
* This fee will be imposed pro rata 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 1099-R reporting.
TRUSTEE FEES
o To the extent that assets are invested in Mutual Funds, 0.02% per year of
such assets in the Trust payable pro rata quarterly on the basis of such
assets as of the calendar quarter's last valuation date, but no less than
$2,500.00 nor more than $5,000.00 per year.
UNITED SAVINGS ASSOCIATION OF FIDELITY MANAGEMENT TRUST COMPANY
TEXAS FSB
By /s/ SIG ILLEGIBLE 6/21/91 By /s/ SIG. ILLEGIBLE 7/15/91
Date Senior Vice President Date
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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:
o Fidelity Money Market Trust: Retirement Money Market Portfolio
o Fidelity Intermediate Bond Fund
o Fidelity Growth & Income Portfolio
o Fidelity Fund
o Fidelity Magellan Fund
The mutual fund advised by Fidelity Management & Research Company referred to in
Section 4(c) shall be Fidelity Money Market Trust: Retirement Money Market
Portfolio.
ADMINISTRATIVE COMMITTEE OF
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
/s/ XXXXX X. XXXXXXXX 6/21/91
Xxxxx X. Xxxxxxxx Date
/s/ XXXXXXXX X. XXXXXX 6/24/91
Xxxxxxxx X. Xxxxxx Date
/s/ XXXXXXX X. XXXXXXX 6/21/91
Xxxxxxx X. Xxxxxxx Date
/s/ XXXXXXXX X. XXXXXXX 6/21/91
Xxxxxxxx X. Xxxxxxx Date
/s/ XXXXXXX XXXXXXXX 6/25/91
Xxxxxxx Xxxxxxxx Date
[UNITED SAVINGS LETTERHEAD]
June 21, 1991
Xx. Xxxxx Xxxxx
Fidelity Investments Institutional Operations Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
EMPLOYEE'S TAX DEFERRED SAVINGS PLAN AND TRUST
Dear Xx. Xxxxx:
This letter is sent to you in accordance with Section 7(b) of the Trust
Agreement, dated as of June 21, 1991, between United Savings Association of
Texas FSB and Fidelity Management Trust Company. I hereby designate Xxxxxxx X.
Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, and Xxxxxxxx X. Xxxxxx, 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 I deliver to you written notice of the termination of authority of
designated individual.
Very truly yours,
By /s/ XXXXX X. XXXXXXXX 6/21/91
Xxxxx X. Xxxxxxxx Date
Senior Vice President
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
/s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
/s/ XXXXXXXX X. XXXXXX
Xxxxxxxx X. Xxxxxx
[UNITED SAVINGS LETTERHEAD]
June 21, 1991
Xx. Xxxxx Xxxxx
Fidelity Investments Institutional Operations Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
EMPLOYEE'S TAX DEFERRED SAVINGS PLAN AND TRUST
Dear Xx. Xxxxx:
This letter is sent to you in accordance with Section 7(c) of the Trust
Agreement, dated as of June 21, 1991, between United Savings Association of
Texas FSB and Fidelity Management Trust Company. I hereby designate Xxxxx X.
Xxxxxxxx, Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx,
and Xxxxxxx Xxxxxxxx, 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 I deliver to you written notice of the termination of authority of
designated individual.
Very truly yours,
By /s/ XXXXX X. XXXXXXXX 6/21/91
Xxxxx X. Xxxxxxxx Date
Senior Vice President
ADMINISTRATIVE COMMITTEE OF
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
/s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
/s/ XXXXXXXX X. XXXXXX
Xxxxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
/s/ XXXXXXXX X. XXXXXXX
Xxxxxxxx X. Xxxxxxx
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
[MAYOR, DAY, XXXXXXXX & XXXXXX LETTERHEAD]
June 20, 1991
Xxxxxxxxxx X. Xxxxx
Fidelity Institutional Retirement
Services Company
00 Xxxxxxxxxx Xxxxxx - XX0
Xxxxxx, XX 00000
Re: UNITED SAVINGS ASSOCIATION OF TEXAS FSB
EMPLOYEES' TAX DEFERRED SAVINGS PLAN
Dear Xx. Xxxxx:
In accordance with your request, this letter sets forth our opinion with
respect to the qualified status under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), of the United Savings Association of
Texas FSB Employees' Tax Deferred Savings Plan, as it is amended to the date of
this letter (the "Plan").
The material facts regarding the Plan as we understand them are as
follows. United Financial Group, Inc. ("UFG) was the sponsor of the United
Financial Group, Inc. Employees' Tax Deferred Savings Plan (the "UFG Plan").
United Savings Association of Texas ("USAT") was a subsidiary of UFG and an
adopting employer of the UFG Plan. The most recent favorable determination
letter as to the UFG Plan's qualified status under Section 401(a) of the Code
was issued by the Dallas District Office of the Internal Revenue Service and was
dated May 12, 1988 (copy enclosed). The version of the Plan submitted by UFG for
the District Director's review in connection with this determination letter did
not contain amendments required by the Tax Reform Act of 1986 and subsequent
federal tax acts.
The UFG Plan was amended effective February 11, 1988, in order to reflect
USAT as the new sponsor of the UFG Plan, the name of which was then changed to
the United Savings Association of Texas Employees' Tax Deferred Savings Plan
(the "USAT Plan"). Effective December 30, 1988, United Savings Association of
Texas FSB ("USAT FSB") acquired all of the assets of USAT, and UFO and USAT
ceased to be part of the same controlled group or affiliated service group under
Section 414 of the Code. Effective January 1,1989, USAT FSB assumed sponsorship
of the USAT Plan, the name of which was then changed to the United Savings
Association of Texas FSB Employees' Tax Deferred Savings Plan (the "Plan").
Effective March 31, 1989, UFG adopted, as an amendment, restatement and
continuation of its participation in the Plan, the United Financial Group, Inc.
Employees' Tax Deferred Savings Plan (the "New UFG Plan"). The terms and
provisions of the New UFG Plan were substantially
Xx. Xxxxxxxxxx X. Xxxxx
June 20, 1991
Page 2
identical to the terms and provisions of the Plan. Effective June 30, 1989, the
assets of the Plan held on behalf of employees of UFG were transferred from the
trust maintained in connection with the Plan to the trust maintained in
connection with the New UFG Plan. Consequently, the Plan does not currently hold
any assets for the account of employees of UFG.
The Plan has been amended and restated, effective January 1, 1989, to
incorporate applicable requirements of the Tax Reform Act of 1986 and subsequent
federal tax acts. USAT FSB has informed us that it intends to submit the amended
and restated Plan to the Dallas District Director of the Internal Revenue
Service and to request from him a favorable determination letter as to the
Plan's qualified status under Section 401(a) of the Code. USAT FSB may have to
make some modifications to the Plan at the request of the Internal Revenue
Service in order to obtain this favorable determination letter, but we do not
expect any of these modifications to be material. USAT FSB has informed us that
it will make these modifications.
Based on the foregoing statements of USAT FSB and our review of the
provisions of the Plan, as amended and restated effective January 1, 1989, it is
our opinion that the Internal Revenue Service will issue a favorable
determination letter as to the qualified status of the Plan, as modified at the
request of the Internal Revenue Service, under Section 401(a) of the Code,
subject to the customary condition that qualification of the Plan, as modified,
will depend on its effect in oporation.
Sincerely,
MAYOR, DAY, XXXXXXXX & XXXXXX
By /s/ XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
cc: Xx. Xxxxx X. Xxxxxxxx,
Senior Vice President
United Savings Association of
Texas FSB
Mr. J. Xxxxxx Xxxxxx (Firm)
0000 XXXXXXXX XXXXXX Employer Identification Number:
XXXXXX, XX 00000 00-0000000
File Folder Number:
Date: 12 May 1988 760000205
Person to Contact:
UNITED FINANCIAL GROUP INC EP TECHNICAL ASSISTOR
C/O J. XXXXXX XXXXXX Contact Telephone Number:
1900 REPUBLICBANK CENTER (000) 000-0000
XXXXXXX, XX 00000 Plan Name:
EMPLOYEES TAX DEFERRED SAVINGS PLAN
Plan Number: 001
Dear Applicant
Based on the information supplied, we have made a favorable determination
on your application identified above. Please keep this letter in your permanent
records.
Continued qualification of the plan will depend on its effect in operation
under its present form. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) The status of the plan in operation will be reviewed periodically.
The enclosed document describes the impact of Notice 86-13 and some events
that could occur after you receive this letter that would automatically nullify
it without specific notice from us. The document also explains how operation of
the plan may effect a favorable determination letter, and contains information
about filing requirements.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other Federal or
local statutes.
This determination expresses an opinion on whether the amendment(s), in and
of itself (themselves), affect(s) the continued qualified status of the plan
under Code section 401 and the exempt status of the related trust under section
501(a). This determination should not be construed as an opinion on the
qualification of the plan as a whole and the exempt status of the related trust
as a whole.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
This determination letter is applicable for the amendment(s) adopted on
FEB 9, 1988.
-2-
UNITED FINANCIAL GROUP INC
If you have any questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ XXXXX XXXXX
Xxxx Xxxxx
District Director
Enclosures:
Publication 794
OPWBP 515
-3-
UNITED FINANCIAL GROUP INC
THIS DETERMINATION ALSO APPLIES TO: UNITED FINANCIAL GROUP INC., UNITED CAPITAL
MORTGAGE CORPORATION, UNITED REPUBLIC, REINSURANCE AND UNITED SAVINGS
ASSOCIATION OF TEXAS.
Schedule "G"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by Fidelity
Investments Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) 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 procedures 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. (EST), it will receive
that day's trade date. Calls received after 4:00 p.m. (EST) will be
processed on a next day basis.
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
By /s/ SIG. ILLEGIBLE
Date
23
FIRST AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
THIS AMENDMENT, dated as of the first day of September, 1992, by and between
Fidelity Management Trust Company (the "Trustee") and United Savings Association
of Texas FSB (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated July 1, 1991, with regard to the United Savings Association of
Texas FSB Employees' Tax Deferred Savings Plan (the "Plan"); and
WHEREAS, the Sponsor has informed the Trustee that Bank United of Texas FSB
has adopted and become the Sponsor of the United Savings Association of Texas
FSB Employees' Tax Deferred Savings Plan Trust; and
WHEREAS, the Trustee and the Company now desire to amend said trust
agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Company hereby amend the trust agreement by:
(1) Amending the first "WHEREAS" clause to read as follows:
WHEREAS, the Sponsor is the sponsor of the Bank United of Texas FSB
Employees' Tax Deferred Savings Plan (the "PLAN"); and
(2) Amending the first sentence of Section 1 to read as follows:
Section 1. TRUST. The Sponsor hereby establishes the Bank United
of Texas FSB Employees' Tax Deferred Savings Plan Trust (the "TRUST").
IN WITNESS WHEREOF, the Trustee and the Company have caused this Amendment to be
executed by their duly authorized officers effective as of the day and year
first above written.
BANK UNITED OF TEXAS FSB
By 9/10/92 /s/ SIG ILLEGIBLE
Date Senior Vice President Date
FIDELITY MANAGEMENT TRUST COMPANY
/s/ SIG. ILLEGIBLE 10/7/92
Senior Vice President Date
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
BANK UNITED OF TEXAS FSB
ThIS SECOND AMENDMENT, dated as of the first day of January, 1994, by
and between Fidelity Management Trust Company (the "Trustee") and Bank United
of Texas FSB (the "Sponsor");
WITNESSETH:
WHEREAS. the Trustee and the Sponsor heretofore entered into a trust
agreement dated July 1, 1991, with regard to the Bank United of Texas FSB
Employees' Tax Deferred Savings Plan (the "Plan"); and
WHEREAS. the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(1) Amending and adding the following mutual funds to the "investment
options" portion of Schedules "A" and "C", as follows:
Fidelity Asset Manager
Fidelity Asset Manager: Growth
Fidelity Asset Manager: Income
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Second
Amendment to be executed by their duly authorized officers effective as of
the day and year flrst above written.
BANK UNITED OF TEXAS FSB FIDELITY MANAGEMENT
TRUST COMPANY
By /s/ CAN NOT READ NAME 12/14/93 By /s/ CAN NOT READ NAME 12/28/93
Date Senior Vice President Date
By /s/ CAN NOT READ NAME 12/14/93
THIRD AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
BANK UNITED OF TEXAS FSB
THIS THIRD AMENDMENT, dated as of the first day of April, 1995, by and
between Fidelity Management Trust Company (the "Trustee") and Bank United of
Texas FSB (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated July 1, 1991, with regard to the Bank United of Texas FSB
Employees' Tax Deferred Savings Plan( the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(I) Amending and adding the following mutual funds to the "investment
options" portion of Schedules "A" and "C", as follows:
- Fidelity Overseas Fund
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Third
Amendment to be executed by their duly authorized officers effective as of
the day and year first above written.
BANK UNITED OF TEXAS FSB FIDELITY MANAGEMENT TRUST
COMPANY
By /s/ CAN NOT READ NAME 3/9/95 By /s/ CAN NOT READ NAME 3/30/95
Date Vice President Date
FOURTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
BANK UNITED OF TEXAS FSB
THIS FOURTH AMENDMENT, dated as of the fifteenth day of November, 1995, by
and between Fidelity Management Trust Company (the "Trustee" and Bank United of
Texas FSB (the "Sponsor"); and
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated July 1, 1991, with regard to the Bank United of Texas FSB
Employees' Tax Deferred Savings Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(1) Amending and restating Section 4(e) in its entirety, to read as
follows:
(e) NOTES. 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 notity 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).
(2) Amending Schedule "A" by adding a fourth bullet point to the
processing section as follows:
* Enroll new participants via telephone; provide confirmation of
enrollment within five (5) business days of the request.
(3) Amending Schedule "A" by adding a fifth bullet point to the processing
section as follows:
* Daily processing of changes of deferral percentages; prepare and mail
to the participant a confirmation of telephonic instructions relative
to deferral percentages within five (5) business days of the
participant's instructions.
(4) Amending Schedule "B" to reflect the Loan Fee as follows:
Loan Fees Establishment fee of $35.00 per loan
account; annual fee of $15.00 per loan
account.
Enrollment by Phone $5.00 per non-active employee residing on
Fidelity's participant recordkeeping
system
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fourth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
BANK UNITED OF TEXAS FSD. FIDELITY MANAGEMENT TRUST COMPANY
By /s/ SIG ILLEGIBLE 10/11/95 By /s/ SIG ILLEGIBLE 11/6/95
Date Vice President Date
FIFTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
BANK UNITED
THIS FIFTH AMENDMENT, dated as of the first day of July, 1999, by and
between Fidelity Management Trust Company (the "Trustee") and Bank United (the
"Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated July 1, 1991, with regard to the Bank United 401(k) Retirement
Savings Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending Section 3, DISBURSEMENTS, by adding a new subsection (b) as
follows and relettering all subsequent subsections:
(b) PARTICIPANT WITHDRAWAL REQUESTS. The Sponsor hereby directs
that, pursuant to the Plan, a Participant withdrawal request
(in-service or full withdrawal) may be made by the Participant
by telephone or such other means as may be agreed to by the
Sponsor and the Trustee, and the Trustee shall process such
request only after the identity of the Participant is verified
by use of a personal identification number ("PIN") and social
security number. The Trustee shall process such withdrawal in
accordance with written guidelines provided by the Sponsor and
documented in the Plan Administrative Manual. In the case of a
hardship withdrawal request, the Trustee shall forward the
withdrawal document to the participant for execution and
submission for approval to the Administrator. The
Administrator shall have the responsibility for approving the
hardship withdrawal and instructing the Trustee to send the
proceeds to the Administrator or to the participant if so
directed by the Administrator.
(2) Amending Section 4, INVESTMENT OF TRUST, by restating subsection (e)
as follows:
(e) NOTES. The Administrator shall act as the Trustee's agent for
participant loan notes and as such shall (i) separately
account for repayments of such loans and clearly identify such
assets as Plan assets and (ii) collect and remit all principal
and interest payments to the Trustee. To originate a
participant loan, the Plan participant shall direct the
Trustee as to the term and 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, or such other means as may be agreed to by the Sponsor
and the Trustee. 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 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 Participant
loan agreement and truth-in-lending disclosure with the
proceeds check 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.
(3) Amending Section 4, INVESTMENT OF TRUST, by inserting the following
new Section 4(h) SPONSOR STOCK:
(h) SPONSOR STOCK. Trust investments in Sponsor Stock shall be
made via the Bank United Corp. Common Stock Fund (the "Stock
Fund"). Investments in the Stock Fund shall consist primarily
of shares of Sponsor Stock. In order to satisfy daily
participant requests for transfers and payments, the Stock
Fund shall also include cash or short-term liquid investments
in accordance with this paragraph. Such holdings may include
Fidelity Institutional Cash Portfolios: Money Market
Portfolio: Class A or such other Mutual Fund or commingled
money market pool as agreed to by the Sponsor and Trustee. The
Sponsor shall, after consultation with the Trustee, establish
and communicate to the Trustee in writing a target percentage
and drift allowance for such short-term/liquid investments.
The Trustee is responsible for ensuring that the actual cash
held in the Stock Fund falls within the agreed upon range over
time. Each participant's proportional interest in the Stock
Fund shall be measured in units of participation, rather than
shares of Sponsor Stock. Such units shall represent a
proportionate interest in all of the assets of the Stock Fund,
which includes shares of Sponsor Stock, short-term investments
and at times, receivables for dividends and/or Sponsor Stock
sold and payables for Sponsor Stock purchased. A Net Asset
Value ("NAV") per unit will be determined daily for each unit
outstanding of the Stock Fund. The NAV shall be adjusted by
dividends paid on the shares of Sponsor Stock held in the
Stock Fund, gains or losses realized on sales of Sponsor
Stock, appreciation or depreciation in the market price of
those shares owned, and interest on the short-term investments
held by the Stock Fund. Dividends received by the Stock Fund
are reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shalt be subject to the following
limitations:
(i) ACQUISITION LIMIT. Pursuant to the Plan, the Trust
may be invested in Sponsor Stock to the extent necessary to
comply with investment directions under Section 4(c) of this
Agreement. The Trustee shall maintain records sufficient to
limit transfers among each participant's investment options,
so that no participant may make contributions to, or effect a
transfer into, the Stock Fund in an amount sufficient to cause
such participant's investment in the Stock Fund, immediately
after giving effect to such contribution or transfer, to
exceed 25% of such participant's total investments in all
funds maintained in such participant's name in this Trust by
the Trustee; and provided further, contributions may continue
to be made, in an amount not to exceed
2
25% of such contributions, notwithstanding that the value of a
participant's Stock Fund exceeds 25% of such participant's
account value.
(ii) FIDUCIARY DUTY OF NAMED FIDUCIARY. The Named
Fiduciary shall continually monitor the suitability under the
fiduciary duty rules of section 404(a)(1) of ERISA (as
modified by section 404(a)(2) of ERISA) of acquiring and
holding Sponsor Stock. The Trustee shall not be liable for any
loss or expense which arises from the directions of the Named
Fiduciary with respect to the acquisition and holding of
Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited
by the foregoing fiduciary duty rules or would be contrary to
the terms of this Agreement.
(iii) Purchase and sales of Sponsor Stock shall be made
on the open market as necessary to maintain the target cash
percentage and drift allowance for the Stock Fund, provided
that:
(A) If the Trustee is unable to purchase or sell
the total number of shares required to be purchased or
sold on such day as a result of market conditions; or
(B) If the Trustee is prohibited by the Securities
and Exchange Commission, the New York Stock Exchange, or
any other regulatory body from purchasing or selling any
or all of the shares required to be purchased or sold on
such day, then the Trustee shall purchase or sell such
shares as soon as possible thereafter. The Trustee may
follow directions from the Administrator or Named
Fiduciary to deviate from the above purchase and sale
procedures provided that such direction is made in
writing by the Administrator or Named Fiduciary.
(iv) EXECUTION OF PURCHASES AND SALES. (A) Purchases and
sales of units in the Stock Fund (other than for exchanges)
shall be made on the date on which the Trustee receives from
the Administrator in good order all information,
documentation, and wire transfers of funds (if applicable),
necessary to accurately effect such transactions. Exchanges of
units in the Stock Fund shall be made in accordance with the
Exchange Guidelines attached hereto as Schedule "H". The
Trustee may follow directions from the Administrator or Named
Fiduciary to deviate from the above purchase and sale
procedures provided that such direction is made in writing by
the Administrator or Named Fiduciary.
(B) PURCHASES AND SALES FROM OR TO SPONSOR. If
directed by the Sponsor in writing prior to the trading
date, the Trustee may purchase or sell Sponsor Stock
from or to the Sponsor if the purchase or sale is for
adequate consideration (within the meaning of section
3(18) of ERISA) and no commission is charged. If Sponsor
contributions (employer) or contributions made by the
Sponsor on behalf of the participants (employee) under
the Plan are to be invested in Sponsor Stock, the
Sponsor may transfer Sponsor Stock in lieu of cash to
the Trust. In either case, the number of shares to be
transferred will be determined by dividing the total
amount of Sponsor Stock to be purchased or sold by the
NYSE closing price of the Sponsor Stock on the trading
date.
3
(C) USE OF AN AFFILIATED BROKER. The Sponsor
hereby directs the Trustee to use Fidelity Capital
Markets ("Capital Markets") to provide brokerage
services in connection with any purchase or sale of
Sponsor Stock in accordance with directions from Plan
participants. Capital Markets shall execute such
directions directly or through its affiliate, National
Financial Services Company ("NFSC"). The provision of
brokerage services shall be subject to the following:
(1) As consideration for such brokerage
services, the Sponsor agrees that Capital Markets shall
be entitled to remuneration under this direction
provision in an amount of no more than three and
one-fifth cents ($.032) commission on each share of
Sponsor Stock. Any change in such remuneration may be
made only by a signed agreement between Sponsor and
Trustee.
(2) The Trustee will provide the Sponsor
with a description of Capital Markets' brokerage
placement practices and a form by which the Sponsor may
terminate this direction to use a broker affiliated with
the Trustee. The Trustee will provide the Sponsor with
this termination form annually, as well as quarterly and
annual reports which summarize all securities
transaction-related charges incurred by the Plan.
(3) Any successor organization of Capital
Markets, through reorganization, consolidation, merger
or similar transactions, shall, upon consummation of
such transaction, become the successor broker in
accordance with the terms of this direction provision.
(4) The Trustee and Capital Markets shall
continue to rely on this direction provision until
notified to the contrary. The Sponsor reserves the right
to terminate this direction upon written notice to
Capital Markets (or its successor) and the Trustee, in
accordance with Section 11 of this Agreement.
(v) SECURITIES LAW REPORTS. The Named Fiduciary shall be
responsible for filing all reports required under Federal or
state securities laws with respect to the Trust's ownership of
Sponsor Stock, including, without limitation, any reports
required under section 13 or 16 of the Securities Exchange Act
of 1934, and shall immediately notify the Trustee in writing
of any requirement to stop purchases or sales of Sponsor Stock
pending the filing of any report. The Trustee shall provide to
the Named Fiduciary such information on the Trust's ownership
of Sponsor Stock as the Named Fiduciary may reasonably request
in order to comply with Federal or state securities laws.
(vi) VOTING AND TENDER OFFERS. Notwithstanding any other
provision of this Agreement the provisions of this Section
shall govern the voting and tendering of Sponsor Stock. The
Sponsor shall provide and pay for all printing, mailing,
tabulation and other costs associated with the voting and
tendering of Sponsor Stock. The Trustee, after consultation
with the Sponsor, shall prepare the necessary documents
associated with the voting and tendering of sponsor stock.
(A) VOTING.
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(1) When the issuer of Sponsor Stock prepares for any
annual or special meeting, the Sponsor shall notify the
Trustee at least thirty (30) days in advance of the intended
record date and shall cause a copy of all proxy solicitation
materials to be sent to the Trustee. If requested by the
Trustee, the Sponsor shall certify to the Trustee that the
aforementioned materials represents the same information that
is distributed to shareholders of Sponsor Stock. Based on
these materials the Trustee shall prepare a voting instruction
form and shall provide a copy of all proxy solicitation
materials to be sent to each Plan participant with an interest
in Sponsor Stock held in the Trust, together with the
foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional
interest in the number of full and fractional shares of
Sponsor Stock credited to the participant's accounts held in
the Stock Fund.
(2) Each participant with an interest in the Stock Fund
shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote (including not to vote) that
number of shares of Sponsor Stock reflecting such
participant's proportional interest in the Stock Fund (both
vested and unvested). Directions from a participant to the
Trustee concernmg the voting of Sponsor Stock shall be
communicated in writing, or by such other means as is agreed
upon by the Trustee and the Sponsor. These directions shall be
held in confidence by the Trustee and shall not be divulged to
the Sponsor, or any officer or employee thereof, or any other
person except to the extent that the consequences of such
directions are reflected in reports regularly communicated to
any such persons in the ordinary course of the performance of
the Trustee's services hereunder. Upon its receipt of the
directions, the Trustee shall vote the shares of Sponsor Stock
reflecting the participant's proportional interest in the
Stock Fund as directed by the participant. Except as otherwise
required by law, the Trustee shall not vote shares of Sponsor
Stock reflecting a participant's proportional interest in the
Stock Fund for which it has received no direction from the
participant.
(B) TENDER OFFERS.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the
Sponsor shall timely notify the Trustee in advance of the
intended tender date and shall cause a copy of all materials
to be sent to the Trustee. The Sponsor shall certify to the
Trustee that the aforementioned materials represent the same
information distributed to shareholders of Sponsor Stock.
Based on these materials and after consultation with the
Sponsor the Trustee shall prepare a tender instruction form
and shall provide a copy of all tender materials to be sent to
each plan participant with an interest in the Stock Fund,
together with the foregoing tender instruction form, to be
returned to the Trustee or its designee. The tender
instruction form shall show the number of full and fractional
shares of Sponsor Stock that reflect the participants
proportional interest in the Stock Fund (both vested and
unvested).
(2) Each participant with an interest in the Stock Fund
shall have the right to direct the Trustee to tender or not to
tender some or all of the shares of Sponsor Stock reflecting
such participant's proportional interest in the Stock Fund
(both vested and unvested). Directions from a participant to
the Trustee concerning the tender
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of Sponsor Stock shall be communicated in writing, or by such
other means as is agreed upon by the Trustee and the Sponsor.
These directions shall be held in confidence by the Trustee
and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person except to the extent
that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of
Sponsor Stock as directed by the participant. Except as
otherwise required by law, the Trustee shall not tender shares
of Sponsor Stock reflecting a participant's proportional
interest in the Stock Fund for which it has received no
direction from the participant.
(3) A participant who has directed the Trustee to tender
some or all of the shares of Sponsor Stock reflecting the
participant's proportional interest in the Stock Fund may, at
any time prior to the tender offer withdrawal date, direct the
Trustee to withdraw some or all of the tendered shares
reflecting the participant's proportional interest, and the
Trustee shall withdraw the directed number of shares from the
tender offer prior to the tender offer withdrawal deadline. A
participant shall not be limited as to the number of
directions to tender or withdraw that the participant may give
to the Trustee.
(5) A direction by a participant to the Trustee to
tender shares of Sponsor Stock reflecting the participant's
proportional interest in the Stock Fund shall not be
considered a written election under the Plan by the
participant to withdraw, or have distributed, any or all of
his withdrawable shares. The Trustee shall credit to each
proportional interest of the participant from which the
tendered shares were taken the proceeds received by the
Trustee in exchange for the shares of Sponsor Stock tendered
from that interest. Pending receipt of directions (through the
Administrator) from the participant or the Named Fiduciary, as
provided in the Plan, as to which of the remaining investment
options the proceeds should be invested in, the Trustee shall
invest the proceeds in the investment option described in
Schedule "C".
(vii) GENERAL. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares
previously tendered, in the case of Sponsor Stock credited to a
participant's proportional interest in the Stock Fund, 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.
(viii) CONVERSION. All provisions in this Section 4(h) shall
also apply to any securities received as a result of a conversion of
Sponsor Stock.
(4) Amending Section 4(g) by adding the following additional Trustee power and
authority:
(ix) To borrow funds from a bank not affiliated with the Trustee in order
to provide sufficient liquidity to process Plan transactions in a timely
fashion; provided that the cost of such borrowing shall be allocated in a
reasonable fashion to the investment fund(s) in need of liquidity.
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(5) Adding a new Section 14, Electronic Services, as follows, and renumbering
all subsequent subsections accordingly:
SECTION 14. ELECTRONIC SERVICES.
(a) The Trustee may provide communications and services via
electronic medium ("Electronic Services"), including, but not limited to,
Fidelity Plan Sponsor WebStation, Client Intranet, Client e-mail,
interactive software products or any other information provided in an
electronic format. The Sponsor, its agents and employees agree to keep
confidential and not publish, copy, broadcast, retransmit, reproduce,
commercially exploit or otherwise redisseminate the data, information,
software or services without the Trustee's written consent.
(b) The Sponsor shall be responsible for installing and maintaining
all Electronic Services on its computer network and/or Intranet upon
receipt in a manner so that the information provided via the Electronic
Service will appear in the same form and content as it appears on the form
of delivery, and for any programming required to accomplish the
installation. Materials provided for Plan Sponsor's intranet web sites
shall be installed by the Sponsor and shall be clearly identified as
originating from Fidelity. The Sponsor shall promptly remove Electronic
Services from its computer network and/or Intranet, or replace the
Electronic Service with an updated service provided by the Trustee, upon
written notification (including written notification via facsimile) by the
Trustee.
(c) All Electronic Services shall be provided to the Sponsor without
any express or implied legal warranties or acceptance of legal liability
by the Trustee relative to the use of material or Electronic Services by
the Sponsor. No rights are conveyed to any property, intellectual or
tangible, associated with the contents of the Electronic Services and
related material.
(d) To the extent that any Electronic Services utilize Internet
services to transport data or communications, the Trustee will take, and
Plan Sponsor agrees to follow, reasonable security precautions; however,
the Trustee disclaims any liability for interception of any such data or
communications. The Trustee shall not be responsible for, and makes no
warranties regarding access, speed or availability of Internet or network
services. The Trustee shall not be responsible for any loss or damage
related to or resulting from any changes or modifications to the
electronic material after delivering it to the Plan Sponsor.
(6) Amending the "investment options" portion of Schedules "A" and "C" by
adding the following:
Bank United Corp. Common Stock Fund
(7) Amending the "OTHER" Section of Schedule "A" to add the following:
o Change of Address by Telephone: The Trustee shall allow terminated
and retired participants to make address changes via Fidelity's
toll-free telephone service.
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o For terminated and retired participants with outstanding loans:
Fidelity shall provide to these participants a loan coupon book for
the purpose of scheduling and processing loan repayments.
o DE MINIMIS DISTRIBUTIONS: After a participant terminates employment
and is eligible for a distribution, Fidelity will determine whether
the vested account balance exceeds $5,000, exceeded $5,000 at any
prior distribution or in-service withdrawal date in the account
history at Fidelity, or exceeds $5,000 at the end of the warning
period (at least 30 days, but not more than 70 days, from the
determination date). If not, Fidelity will process a mandatory and
immediate cashout, subject only to the requirement to offer a
rollover opportunity. The $5,000 threshold will increase or decrease
as the IRS may from time to time amend this threshold in Internal
Revenue Code Section 411(a)(l1).
o ROLL-IN PROCESSING. The Trustee shall process the qualification of
rollover contributions to the Trust. The procedures for qualifying a
rollover are directed by the Sponsor and the Trustee shall accept or
deny each rollover based upon the Plan's written criteria and any
written guidelines provided by the Administrator and documented in
the Plan Administrative Manual, or, if none, as set forth below:
To process a rollover request the participant must obtain the
signature from the distributing plan, trustee or custodian, on
the designated form, certifying that the monies distributed
originally came from a qualified plan and have not been
commingled with any non-eligible money. If a signature cannot
be obtained a signed letter from the distributing plan,
trustee or custodian on it's Company letterhead will also be
acceptable.
Requests that do not meet the specified criteria will be
returned to the participant with further an explanation as to
why the request cannot be processed. If the Sponsor or the
Trustee determine that a request is not a valid rollover, the
full amount of the requested rollover will be distributed to
the participant.
(8) Amending Schedule "B" by adding the following:
In-Service Withdrawals by Phone: $20.00 per withdrawal.
o To the extent that assets are invested in Sponsor Stock, .10% of
such assets in the Trust, payable pro rata quarterly on the basis of
such assets as of the calendar quarter's last valuation date, with a
$35,000 annual maximum and a $10,000 annual minimum. Pursuant to
Section 13 of this Agreement, should more than 10% of the assets of
the Trust be invested in Sponsor Stock, the fees on this Schedule
"B" may become subject to revision.
(9) Amending Schedule "B" by restating the first bullet point as follows:
o Other Fees: separate charges for optional non-discrimination
testing, extraordinary expenses resulting from large numbers of
simultaneous manual
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transactions, from errors not caused by Fidelity, reports not contemplated
in this Agreement, or extraordinary and/or duplicative expenses associated
with electronic services. The Administrator may withdraw reasonable
administrative fees from the Trust by written direction to the Trustee.
(10) Amending and restating Schedule "G", Telephone Exchange Procedures, as
attached.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fifth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
BANK UNITED FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ SIG. ILLEGIBLE 6/25/99 By: SIG. ILLEGIBLE 6/25/99
Date Vice President Date
9
SCHEDULE "G"
TELEPHONE EXCHANGE GUIDELINES
The following telephone exchange guidelines are currently employed by Fidelity
Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours via a Fidelity Representative are 8:30 a.m. (ET) to
12:00 midnight (ET) on each business day. A "business day" is any day on which
the New York Stock Exchange ("NYSE") is open. The Voice Response System is
intended to be available virtually 24 hours each day and may be used to initiate
exchanges subject to the same tnne frames described below.
NOTE: The NYSE normal closing time is 4:00 p.m. (ET); in the event the NYSE
alters its closing time, all references below to 4:00 p.m. (ET), shall mean the
NYSE closing time as altered.
FIRSCO reserves the right to change these telephone exchange guidelines at its
discretion
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.
EXCHANGES BETWEEN BANK UNITED CORP. COMMON STOCK FUND AND MUTUAL FUNDS
Subject to the restrictions identified in Section 4(h)(i), Participants
may call on any business day to exchange between the mutual funds and the
Bank United Corp. Common Stock Fund. 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.
EXCHANGE RESTRICTIONS
Investments in the Stock Fund will consist primarily of shares of Sponsor
Stock. However, in order to satisfy daily participant requests for
exchanges, loans and withdrawals, the Stock Fund will also hold cash or
other short-term liquid investments in an amount that has been agreed to
in writing by the Sponsor and the Trustee. The Trustee will be responsible
for ensuring that the percentage of these investments falls within the
agreed upon range over time. However, if there is insufficient liquidity
in the Sponsor Stock Fund to allow for such activity, the Trustee will
sell shares of Sponsor Stock in the open market. Exchange and redemption
transactions will be processed as soon as proceeds from the sale of
Sponsor Stock are received.
BANK UNITED
By /s/ SIG. ILLEGIBLE 6/25/99
Date
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