EXHIBIT 10(x)
ACCUDRAFT
PROTOTYPE 401(k) PLAN
NON-STANDARDIZED ADOPTION AGREEMENT
Adoption Agreement Form #006 For Use With BASIC PLAN #01
SECTION 1
PLAN AND SPONSORING EMPLOYER INFORMATION
1.1 NAME OF PLAN
CRIIMI MAE Management, Inc. Retirement Plan
1.2 PLAN NUMBER
001
1.3 TYPE OF PLAN
This Plan is a Profit Sharing 401(k) plan.
1.4 EFFECTIVE DATE
This Plan is an amended or restated plan, which was originally
effective July 1, 1995. The date this amended Plan is effective is
January 1, 2002.
1.5 SPONSORING EMPLOYER
CRIIMI MAE Management, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone (000) 000-0000
1.6 FORM OF BUSINESS
Corporation
1.7 FISCAL YEAR ENDS
December 31st
1.8 EMPLOYER IDENTIFICATION NUMBER
00-0000000
1.9 PLAN ADMINISTRATOR
The Sponsoring Employer
1.10 TRUSTEE
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000-0000
1.11 PLAN YEAR
January 1st to December 31st
1.12 ANNIVERSARY DATE
January 1st
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1.13 PRIOR BUSINESS ENTITY FOR WHICH PRIOR SERVICE IS CREDITED UNDER
THE PLAN
None
1.14 ADDITIONAL PARTICIPATING EMPLOYERS
CRIIMI MAE Services, L.P.
SECTION 2
PLAN PARTICIPATION, SERVICE
2.1 MINIMUM SERVICE AND AGE REQUIREMENT FOR ELIGIBILITY
There is no minimum Service requirement for participation in the
Plan. The minimum Age for Plan eligibility as of an Entry Date in
Section 2.2 is Age 21. Age shall mean actual attained age for all
purposes.
2.2 ENTRY DATE
An Eligible Employee in Section 2.4 who satisfies the minimum Age
and Service requirements in Section 2.1 shall become a
Participant as of the Plan Entry Date.
The Plan Entry Date to participate in the Plan for all purposes shall
be quarterly on the first day of the 1st, 4th, 7th and 10th month of
the Plan Year coinciding with or next following satisfaction of such
requirements.
2.3 AGE AND SERVICE REQUIREMENTS ON EFFECTIVE DATE OR OTHER DATE
The same Age requirement and/or minimum Service or months of
employment requirement in Section 2.1 shall be applicable for
all dates on or after the date this Plan or amended Plan is effective
in Section 1.4
2.4 ELIGIBLE CLASS OF EMPLOYEES
Persons not deemed by the Employer to be Employees but who instead are
deemed to be independent contractors are not eligible.
All Employees are Eligible Employees except that the following
classes of Employees in accordance with Section 2.1 of the Basic Plan
are ineligible to participate in the Plan for all purposes:
(1) Employees whose employment is governed by the terms of a
collective bargaining agreement between Employee representatives
and the Employer in which retirement benefits were the subject of good
faith bargaining, unless such agreement expressly provides for the
inclusion of such Employees as Participants in the Plan;
(2) Employees who are non-resident aliens who do not receive any
earned income from the Employer which constitutes income from
sources within the United States; and (3) Anyone who is employed
as an Employee of the following Affiliated Employers:
CRIIMI MAE, Inc., CRIIMI, Inc., CRI Liquidating REIT, Inc.,
CRIIMI MAE Financial Corp., CRIIMI MAE Financial III, CRIIMI MAE
Financial II.
2.5 COMPUTATION PERIOD, YEAR OF SERVICE OR 1-YEAR PERIOD OF SERVICE
The computation period for purposes of determining eligibility to
share in the allocation of Employer contributions (and forfeitures,
if applicable) shall be the Plan Year.
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The 12-consecutive month computation period for purposes of
determining a Year of Service for eligibility and to determine a
Break-in-Service for eligibility shall be the first employment year
beginning with the date an Employee first completed an Hour of Service
and each Plan Year beginning on the first day of the Plan Year which
begins prior to the first anniversary of the Employee's Employment
Commencement Date. If the Employee is credited with the required
number of Hours of Service in both the initial eligibility
computation period and in the second eligibility computation period,
the Employee will be credited with two Years of Service for
eligibility purposes.
The computation period for purposes of determining Years of
Service and a Break in Service for vesting and all other purposes
other than for eligibility and eligibility to share in the allocation
of Employer contributions (and forfeitures, if applicable) shall
be each Plan Year beginning with the Plan Year in which an Employee
first completed an Hour of Service. A Year of Service shall be
determined as follows: (a) for eligibility purposes, a Year of
Service shall be an applicable computation period during which an
Employee completed 1 Hours of Service; and (b) in determining
vesting and all purposes other than for determining eligibility,
and for determining eligibility to share in the allocation of Employer
contributions (and forfeitures, if applicable), a Year of Service
shall be an applicable computation period during which an Employee
completed 1,000 Hours of Service.
An Employee who returns to the employ of an Employer or an Affiliated
Employer before a Break in Service will receive credit for any prior
Years of Service. If an Employee returns to the employ of an Employer
or an Affiliated Employer after a Break in Service, prior Years of
Service will be available to be credited in accordance with
Section 1.81 of the Basic Plan immediately upon re-employment.
If Service with a prior employer is granted under Section 1.13, an
Employee will also receive credit for all such Years of Service to a
maximum of five such Years of Service or 1-Year Periods of Service
with any other business entity which is not an Employer or an
Affiliated Employer (or was not an Adopting Employer), if the
crediting thereof does not cause the Plan to discriminate in favor of
Highly Compensated Employees. Otherwise, an Employee will not receive
credit for Periods of Service with any other employer for any purpose
under the terms of this Plan except as otherwise set forth herein with
respect to an Employer or an Affiliated Employer.
2.6 BREAK IN SERVICE
The computation period for purposes of determining a
Break-in-Service shall be as determined in Section 2.5 above. An
Employee shall incur a Break in Service if he or she fails to
complete more than 500 Hours of Service in a 12-consecutive month
computation period.
SECTION 3
CONTRIBUTIONS AND ALLOCATIONS
3.1 PARTICIPANT COMPENSATION
The determination period for a Participant's applicable Plan
Compensation shall be the Plan Year.
In determining Compensation, all applicable amounts will be included,
including amounts earned both prior to the actual date as of which an
Employee initially becomes a Participant and prior to the
determination period during which an Employee initially becomes a
Participant.
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Compensation will include any amount received while an Employee
is a member of an ineligible class of Employees in accordance with
Section 2.4.
Compensation for all purposes will include elective amounts that
are not includible in the gross income of the Employee by reason of
Code section 132(f)(4) beginning with Limitation Years beginning on or
after January 1, 1998.
Elective Deferrals and Minimum Top Heavy Allocations
The amount of a Participant's applicable Plan Compensation in
accordance with Section 1.16 of the Basic Plan for the determination
period which is counted for purposes of determining Elective Deferrals
and for nondiscrimination testing for Elective Deferrals for the
Plan Year shall be wages, tips, and other fringe benefit
compensation as reported on IRS Form W-2. Compensation for Minimum Top
Heavy Allocations shall be similarly determined.
If either Code section 3401 or Form W-2 compensation is chosen,
Employer contribution amounts made pursuant to a salary reduction
greement which were not currently includible in an Employee's gross
income by reason of Code section 125, Code section 402(e)(3), Code
section 402(h)(1)(B), and Code section 403(b) will be included in
determining Compensation.
Compensation for purposes of determining Elective Deferrals for the
Plan Year but not for determining Minimum Top-Heavy Benefits and the
Code section 415 limitations (and if the Administrator elects, not for
determining nondiscrimination testing) shall exclude (1) amounts
received as a bonus; (2) Reimbursed moving expenses;
(3) Reimbursed car expenses; (4) Stock compensation, (5) Referral
fees, (6) Airfare bonuses, (7) BWI bonuses, (8) Group term life
insurance benefits, (9) Long-term disability benefits, (10) Tuition
reimbursements, (11) Deferred compensation, or (12) any amount
received which is used to determine an Employee's benefit under
another qualified plan which is not maintained by the Employer and
which is maintained by a professional guild.
Matching Contributions
The amount of a Participant's applicable Plan Compensation in
accordance with Section 1.16 of the Basic Plan for the
determination period which is counted for purposes of determining the
allocation of Employer Matching Contributions and for
nondiscrimination testing for Matching Contributions for the Plan
Year shall be wages, tips, and other fringe benefit compensation as
reported on IRS Form W-2.
If either Code section 3401 or Form W-2 compensation is chosen,
Employer contribution amounts made pursuant to a salary reduction
agreement which were not currently includible in an Employee's gross
income by reason of Code section 125, Code section 402(e)(3), Code
section 402(h)(1)(B), and Code section 403(b) will be included in
determining Compensation.
Compensation for purposes of determining the allocation of Employer
Matching Contributions for the Plan Year but not for determining
Minimum Top-Heavy Benefits and the Code section 415 limitations (and
if the Administrator elects, not for determining nondiscrimination
testing) shall exclude (1) amounts received as a bonus; (2) Reimbursed
moving expenses; (3) Reimbursed car expenses; (4) Stock compensation,
(5) Referral fees, (6) Airfare bonuses, (7) BWI bonuses, (8) Group
term life insurance benefits, (9) Long-term disability benefits,
(10) Tuition reimbursements, (11) Deferred compensation, or (12)
any amount received which is used to determine an Employee's benefit
under another qualified plan which is not maintained by the
Employer and which is maintained by a professional guild.
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Employer Non-Elective Contributions
The amount of a Participant's applicable Plan Compensation in
accordance with Section 1.16 of the Basic Plan for the determination
period for purposes of determining eligibility to share in the
allocation of Employer Non-Elective Contributions (and forfeitures,
if applicable) shall be wages, tips, and other fringe benefit
compensation as reported on IRS Form W-2.
If either Code section 3401 or Form W-2 compensation is chosen,
Employer contribution amounts made pursuant to a salary reduction
agreement which were not currently includible in an Employee's gross
income by reason of Code section 125, Code section 402(e)(3),
Code section 402(h)(1)(B), and Code section 403(b) will be included
in determining Compensation.
3.2 EMPLOYEE ELECTIVE DEFERRAL CONTRIBUTIONS
A Participant may agree in writing to reduce the Participant's
Compensation by salary reduction agreement and authorize the
Employer to contribute such amounts to the Plan on his or her behalf as
Employee Elective Deferral Contributions per Section 1.20 of the
Basic Plan. A salary reduction agreement or other deferral mechanism
may not be adopted retroactively.
The maximum Employee Elective Deferral contribution shall be 25% of
the Code section 415 Compensation per Section 1.15 of the Basic Plan
for the Plan Year, to a maximum of $10,500 as adjusted per Code
section 402(g). In addition, in no event will a Participant be
entitled to make an Employee Elective Deferral contribution which
exceeds 15% of a Participant's applicable Compensation.
Upon reasonable advance notice not to exceed 30 days, a Participant
may request a resumption, cessation, or an increase or decrease in
the amount of Employee Elective Deferral Contributions effective as of
the next calendar quarter.
In addition to any other election periods provided under the Plan,
each Participant may make or modify an election for Employee
Elective Deferral Contributions during the 30-day period immediately
following receipt of a Safe Harbor Notice in accordance with
Section 1.63 of the Basic Plan.
The Plan Administrator may suspend the salary reductions of any
Participant who is a Highly Compensated Employee if it is deemed
necessary to insure that the Plan meets IRS nondiscrimination rules
under Code section 401(k) and Code section 401(m).
3.3 NON-ELECTIVE CONTRIBUTIONS AND QUALIFIED NON-ELECTIVE CONTRIBUTIONS
(a) Amount of Basic Employer Non-Elective Contributions
The amount of Employer Non-Elective Contributions for a Plan Year
shall be a discretionary amount as determined by the Employer.
The allocation of such Employer Non-Elective Contributions shall be
in accordance with an integrated formula, to the maximum permitted
under law and IRS rules in accordance with Section 3.2(c) of the
Basic Plan. The integration level for such integrated allocation
shall be the social security tax base (the FICA base) in effect on
the first day of the Plan Year of reference.
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The maximum integration percentage for such integrated allocation
shall be either 5.7%; or 5.4% if the integration level is less than
100% and more than 80% of the FICA base; or 4.3% if the integration
level is more than the greater of $10,000 or 20% of the FICA base,
and not more than 80% of the FICA base.
(b) Eligibility to Share in the Allocation of Basic Employer
Non-Elective Contributions
An Eligible Participant shall be eligible to share in the allocation of
Basic Employer Non-Elective Contributions for a Plan Year if he or
she was a Participant during the Plan Year.
Failsafe Allocation: For any Plan Year in which the Plan fails to
satisfy the average benefit percentage test of Code
section 410(b)(2) and the average benefits test of regulation
section 1.401(a)(4) (or the Administrator is unable to or elects not
to perform such test), in accordance with Section 3.6 of the
Basic Plan to the extent necessary to insure that the Plan satisfies
one of the tests set forth in Code section 410(b)(1)(A) (in which the
Plan initially fails to benefit at least 70% of Non-Highly
Compensated Employees) or Code sections 410(b)(1)(B) (in which the
Plan initially fails to benefit a percentage of Non-Highly
Compensated Employees that is at least 70% of the percentage of
Highly Compensated Employees who benefit under the Plan), an
additional Employer contribution may be made and allocated for certain
Employees.
To determine each Employee's priority within each group indicated
in Section 3.6 (a), (b), (c), and (d) of the Basic Plan, for this
purpose individuals will be ranked as follows: by Compensation for
the Plan Year with the lowest amount first beginning first by
including only those who were Employees on the last day of the Plan
Year and then those Employees who completed at least 1,000 Hours of
Service during the Plan Year.
(c) Amount of Employer Qualified Non-Elective Contributions
Subject to the Safe Harbor Employer Qualified Non-Elective
Contributions as provided for in Section 3.5, the amount of
Employer Qualified Non-Elective Contributions (QNECs) for a Plan
Year shall be a discretionary amount as determined by the Employer. In
addition, to the extent deemed necessary to assist in satisfying IRS
nondiscrimination rules under Code section 401(k) and Code
section 401(m), the Plan Administrator may elect for any Plan
Year to treat all or a portion of Basic Employer Non-Elective
Contributions as Employer Qualified Non-Elective Contributions in
accordance with Section 3.1(a)(5) of the Basic Plan.
(d) Allocation of Employer Qualified Non-Elective Contributions
(1) Participants Eligible For An Allocation: Subject to
paragraph (2) below, QNECS will be allocated to each Eligible
Participant who is an NHCE for the Plan Year and who (A) is
eligible for a Non-Elective Contribution for the Plan
Year, or (B) if Non-Elective Contributions are not permitted
or if eligibility for Non-Elective Contributions is more
restrictive than for Elective Deferrals and for any Plan Year
the Administrative so elects, who is considered an Eligible
Participant only for the purpose of making Elective Deferrals.
Alternatively, at the Administrator's discretion, such
allocation under clauses (A) or (B) above may also be made to
all such Eligible Participants who are HCEs for the Plan
Year, provided the ADP and ACP Tests are passed.
(2) Method Of Allocation: Any allocation under this Section
will be made beginning with a group as determined by the
Administrator of one of more such Eligible Participants who
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have the lowest Compensation and continuing with the
next one or more Eligible Participant who have the next
lowest Compensation until no further allocations are
required for the Plan to pass the ADP or ACP Tests. The
amount that is so allocated for any such Eligible
Participant will be determined by the Administrator, but
will not exceed an amount equal to such Participant's
maximum Annual Addition for the Plan Year as set forth in
Article 6.
In addition, if permissible disaggregation under Code
section 410(b)(4) or Code section 401(k)(3)(F) is utilized for
purposes of ADP and/or ACP testing for the Plan Year, the
Administrator may further limit the number of Eligible
Participants who receive such allocation to those
Participants (A) who also satisfy the maximum minimum
age and service requirements under Code section 410(b) for the
purpose of making Elective Deferrals, or (B) to those
Participants who do not satisfy the maximum minimum age and
service requirements under Code section 410(b) for the
purpose of making Elective Deferrals; and if permissible
disaggregation under Code section 410(b)(4) is utilized for
ADP and/or ACP testing for the Plan Year, the Administrator
may also determine that a different allocation amount be made
hereunder with respect to such Eligible Participants in
clauses (A) or (B).
3.4 EMPLOYER BASIC MATCHING AND QUALIFIED MATCHING CONTRIBUTIONS
(a) Amount of Employer Basic Matching Contributions
For the Plan Year or any other contribution period the Employer
in its sole discretion may make a Basic Matching Contribution
which will be allocated to an Eligible Participant's Matching
Contributions Account in any specific dollar amount (including zero)
and/or any specific percentage (including zero) of all or a portion
of Elective Deferrals, as determined by the Employer.
True-Up Election: If for any Plan Year Employer Basic Matching
Contributions are made to the Plan on a basis that is more
frequent than annual, and if on the last day of any such Plan Year the
dollar amount of any such contribution made on behalf of an Eligible
Participant is less than the dollar amount that would have been made if
such contribution for that Plan Year had been contributed on an
annual basis only, then the Employer may elect for any such Plan
Year to make an additional contribution in order to make the amount
contributed for a Eligible Participant for the full Plan Year equal
to the amount that would have been made if the contribution for that
Plan Year had been contributed on an annual basis only. However, any
such additional contribution can only be made to the Plan on a
uniform nondiscriminatory basis.
(b) Eligibility to Share in the Allocation of Employer Basic Matching
Contributions
A Participant shall be entitled to share in the allocation of Employer
Basic Matching Contributions for a Plan Year if he or she was an
Eligible Participant and made Elective Deferral Contributions during
the Plan Year.
Highly Compensated Employees are only entitled to share in Basic
Employer Matching Contributions to the extent the Plan satisfies IRS
nondiscrimination rules under Code Sections 401(k) and 401(m).
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(c) Amount of Employer Qualified Matching Contributions
Subject to the Safe Harbor Employer Qualified Matching Contributions
as provided for in Section 3.5, the amount of Employer Qualified
Matching Contributions made by an Employer shall be discretionary for
each Plan Year.
(d) Allocation of Employer Qualified Matching Contributions
Except for any Safe Harbor Qualified Matching Employer Contributions
as provided for in Section 3.5, Employer Qualified Matching
Contributions (QMACs) and Employer Basic Matching Contributions that
are treated as Employer Qualified Matching Contributions will be
allocated to the Qualified Matching Contribution Account of a
Participant in accordance with the following provisions:
(1) Participants Eligible For An Allocation:
(A) Subject to subparagraph (B) and paragraph (2) below,
Qualified Matching Contributions will be allocated
on behalf of each Eligible Participant who (i) is an
NHCE for the Plan Year and who is eligible for an
Employer Basic Matching Contribution for the Plan
Year or (ii) if eligibility for Matching Contributions
is more restrictive than for Elective Deferrals, and
for any Plan Year the Administrator so elects, who is
considered an Eligible Participant only for the
purpose of making Elective Deferrals.
Alternatively, at the Administrator's discretion,
such allocation under clauses (A) (i) or (ii) above may
also be made to all such Eligible Participants who are
HCEs for the Plan Year provided the ADP and ACP Tests
are passed.
(B) In addition, if permissable disaggregation under
Code section 410(b)(4) or Code section 401(k)(3)(F)
is utilized for purposes of ADP and/or ACP testing
for the Plan Year, the Administrator may further
limit the number of Eligible Participants who receive
such allocation to those Participants (i) who also
satisfy the maximum minimum age and service
requirements under Code section 410(b) for the purpose
of making Elective Deferrals, or (ii) to those
Participants who do not satisfy the maximum minimum age
and service requirements under Code section 410(b)for
the purpose of making Elective Deferrals; and if
permissable disaggregation under Code section 410(b)(4)
is utilized for ADP and/or ACP testing for the Plan
Year, the Administrator may also determine that a
different allocation amount be made hereunder with
respect to such Eligible Participants in clauses (B)(i)
and (ii).
(2) Participant Ranking: Notwithstanding subparagraph (1), in
making an allocation of Qualified Matching Contributions,
the Administrator may limit the number of Eligible
Participants who receive such allocation by beginning with a
group as determined by the Administrator of one or more such
Eligible Participants who have the lowest Compensation
and continuing with the next one or more Eligible
Participants who have the next lowest Compensation until
no further allocations are required for the Plan to pass
the ADP or ACP Tests. The amount so allocated for any such
Eligible Participant will be determined by the Administrator
as a percentage of each such Participant's Elective
Deferrals which are eligible for Employer Matching
Contributions, but will not exceed an amount which, when
taking into account all other Annual Additions for the Plan
Year exceeds each such Participant's maximum Annual Addition
as set forth in Article 6.
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3.5 SAFE HARBOR NON-ELECTIVE AND MATCHING CONTRIBUTIONS
Beginning with the Plan Year which commences in 1999, for any Plan
Year for which the Employer issues a Safe Harbor Notice under Section
1.63 of the Basic Plan notifying Participants that a Safe Harbor
Non-Elective Contribution or Matching Contribution or Alternative
Contribution will be made for a Plan Year (or that such
contribution may be made and subsequently issues a supplemental
notice notifying Participants that such contribution will actually be
made), and elects to administer the Plan pursuant to the "safe harbor"
provisions of Code section 401(k)(12) (pertaining to alternative
methods of satisfying the ADP Test) and/or Code section 401(m)(11)
(pertaining to additional alternative methods of satisfying the ACP
Test), the Employer will make a minimum ADP Test Safe Harbor
Contribution, the amount of which shall be at least equal to a
Non-Elective Contribution as described in paragraph (a) below, or a
Matching Contribution as described in paragraph (b) below.
For these purposes a "Safe Harbor Participant" shall be eligible to
share in such contributions. A Safe Harbor Participant shall mean
each Eligible Participant who is an NHCE for the Plan Year (and, if
the Sponsoring Employer elects, who is an HCE for the Plan Year) who
was eligible to make an Elective Deferral to the Plan at any time
during the Plan Year or who would have been eligible to make Elective
Deferrals but for a suspension due to a hardship distribution or a
statutory limitation (such as Code section 402(g) and section 415).
Any such Safe Harbor Notice under Section 1.63 of the Basic Plan
must specify the Plan Year for which the safe harbor is elected, the
method in which the safe harbor is to be satisfied, and whether Safe
Harbor contributions will be made to HCEs as well as NHCEs. A Safe
Harbor Notice will be deemed to be an amendment to this Plan.
(a) Amount and Allocation of Employer Safe Harbor Non-Elective
Contributions
The Employer Safe Harbor Non-Elective Contribution shall be equal to
a minimum of 3% of the applicable Compensation of each Safe Harbor
Participant who is not a Highly Compensated Employee for the Plan Year.
The Employer may also make an Employer Safe Harbor Non-Elective
Contribution equal to a discretionary amount as determined by the
Employer equal to up to a similar % of the applicable Compensation
of each Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who was eligible to make an Elective Deferral
to the Plan at any time during the Plan Year or who would have been
eligible to make Elective Deferrals but for a suspension due to a
hardship distribution or a statutory limitation (such as Code
section 402(g) and section 415).
(b) Amount and Allocation of Employer Safe Harbor Matching
Contributions
The Employer Safe Harbor Matching Contribution shall be at least
equal to the "Tiered Match" or "Enhanced Match" as described in
Section 3.1(a)(3) of the Basic Plan. Notwithstanding the foregoing,
Matching Contributions contributed under this subparagraph must,
at any rate of Elective Deferral Contributions, equal at least the
Matching Contribution the Participant would have received if the
Employer were making Tiered Matching Contributions, but the rate
of match cannot increase as Elective Deferral Contributions increase.
True-Up Election: If for any Plan Year Employer Safe Harbor Matching
Contributions are made to the Plan on a basis that is more frequent
than annual, and if on the last day of any such Plan
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Year the dollar amount of any such contribution made on behalf of a
Safe Harbor Participant is less than the dollar amount that would have
been made if such contribution for that Plan Year had been
contributed on an annual basis only, then the Employer may elect
for any such Plan Year to make an additional contribution in order to
make the amount contributed for a Safe Harbor Participant for the full
Plan Year equal to the amount that would have been made if the
contribution for that Plan Year had been contributed on an annual
basis only. However, any such additional contribution can only be to
the Plan made on a uniform nondiscriminatory basis.
3.6 FORFEITURE REALLOCATION RULES
A forfeiture of all or a portion of a Participant's Account(s) which
are not 100% vested shall be deemed to occur on the day the Participant
last completed an Hour of Service.
Forfeitures ttributable to Non-Elective Contributions not required to
make restorations per Section 5.7 of the Basic Plan or pay
administrative expenses per Section 3.4 of the Basic Plan will be
reallocated in the current or next succeeding Plan Year, reducing like
kind contributions for the succeeding year.
Forfeitures attributable to Matching Contributions not required to
make restorations per Section 5.7 of the Basic Plan or pay
administrative expenses per Section 3.4 of the Basic Plan will be
reallocated in the current or next succeeding Plan Year, reducing
like kind contributions for the succeeding year.
Unallocated forfeitures shall share in the allocation of Trust Fund
investment earnings or losses.
3.7 HIGHLY COMPENSATED EMPLOYEE
The term Highly Compensated Employee is defined in Section 1.29 of the
Basic Plan. The family aggregation rules which were described in Code
section 414(q)(6) as in effect prior to January 1, 1997 will not
apply to this Plan for Plan Years beginning on or after January 1,
1997. In determining who is a Highly Compensated Employee for a
particular Plan Year, the following will apply:
Determination Of Look-Back Year: The look-back year will be the 12
month period immediately preceding the Plan Year for which the
determination is being made.
Top Paid Group Election: In determining if an Employee is a Highly
Compensated Employee based on Code section 415 Compensation, the top
paid group election set forth in Code section 414(q)(3) is being
applied for the following Plan Years: the 2000 Plan Year and the 2001
Plan Year.
3.8 NONDISCRIMINATION TESTING
For the first Plan Year of the Plan, the actual deferral percentage
(ADP) and actual contribution percentage (ACP) of Participants who
are NHCEs for the Plan Year shall be 3% or, if greater, the actual
ADP and ACP of NHCEs for the Plan Year as determined for such first
Plan Year.
Subject to the provisions of Section 1.2 and 1.11 of the Basic Plan,
for purposes of determining IRS nondiscrimination testing under
Code section 401(k) and section 401(m), the current Plan Year ADP and
ACP of non Highly Compensated Employees shall be determined for this
Plan Year and future Plan Years based on the current Plan Year of
testing.
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Sections 5.16, 5.17, and 5.18 of the Basic Plan provide for corrective
action in the event the nondiscrimination tests of Code
section 401(k) and section 401(m) would otherwise be failed for any
Plan Year. This corrective action must be taken before the end of the
Plan Year following the year in which the failure occurred, or such
other later date as permitted by Internal Revenue Service rules. In
order to avoid an excise tax, corrective action must be within
12 months following the end of the year in which the failure occurred.
The excise tax, payable by the Employer, currently equals 10% of the
amount by which allocations to Highly Compensated Employees exceed the
permissible level.
3.9 VOLUNTARY EMPLOYEE CONTRIBUTIONS
There shall be no voluntary non-deductible employee contributions
permitted after the effective date of this amended plan.
3.10 ROLLOVER CONTRIBUTIONS
Rollover contributions shall be permitted for all Employees who are
in the eligible class of Employees in accordance with Section 2.4, r
egardless of whether such Employee has yet to satisfy the eligibility
requirements of Section 2.
A withdrawal of the Employee's Rollover Account may be requested as
of the earlier of (1) the date the Employee is entitled to a
distribution of the Participant's benefits under the provisions
of Section 5, or (2) the soonest possible administratively
practical date after the Participant's Termination of Employment.
SECTION 4
RETIREMENT DATES AND VESTING
4.1 NORMAL RETIREMENT DATE
A Participant's Normal Retirement Age is Age 65 or if later the
effective date of this or a predecessor plan. The term Normal
Retirement Date means the same date a Participant reaches Normal
Retirement Age.
4.2 EARLY RETIREMENT DATE AND BENEFITS
There is no Early Retirement Age under the Plan.
4.3 VESTED PERCENTAGE (See Section 4.6 of the Basic Plan)
For purposes of determining vesting, Years of Service shall be
determined in accordance with Section 2.5. All contributions
are vested upon attaining Normal Retirement Age, death or Disability.
In all other cases, the following vesting schedule shall apply to
Matching Contributions and Non-Elective Contributions,
including amounts attributable to Minimum Top-Heavy Allocations:
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Years of Service Vested Interest
1 . . . . . . .. . . . . . 20%
2 . . . . . . . . . . . . 40%
3 . . . . . . . . . . . . 60%
4 . . . . . . . . . . . . 80%
5 . . . . . . . . .. . . . 100%
4.4 BUY BACK REQUIREMENT
A partially vested Participant whose employment has terminated and who
receives one or more distributions that are less than 100% of the
value of his or her Account(s), shall forfeit any remaining non-vested
Account balances. Such Participant is entitled to restoration of
the forfeited Account balance(s) upon his or her upon re-employment
by the Employer as an Employee only if the Participant repays to the
Plan the sum of the amounts previously distributed to him or her.
Repayment must be completed before five consecutive 1-year Breaks
in Service have occurred and in any event within five years after
the date employment is resumed.
SECTION 5
DISTRIBUTIONS
5.1 DISTRIBUTIONS UPON DEATH, RETIREMENT, OR DISABILITY
A Participant who retires at or after Normal Retirement Date or who
terminates employment because of a Disability, or the Beneficiary
of a Participant who dies prior to the commencement of benefits,
shall be entitled to receive a distribution of his or her vested
Accounts shortly following such event, but subject to the option to
defer distributions in accordance with Section 5.4, not later than a
date as soon as administratively practical after the Valuation Date
coincident with or next following such event.
For these purposes, a Participant shall be considered to have
incurred a Disability if he or she is totally and permanently
disabled in a manner which prevents the Participant from engaging in
any occupation for remuneration or profit.
5.2 DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT
Subject to the option to defer distributions in accordance with
Section 5.4, a Participant who terminates employment prior to the
dates indicated in Section 5.1 shall receive a distribution of the
Vested Interest in his or her Account(s) as soon as administratively
practical after the request of the Participant.
5.3 REQUIRED DISTRIBUTIONS AFTER AGE 70 1/2
The required beginning date for a Participant who is employed by an
Employer and has not commenced benefits shall be for a Participant
who is not considered a 5% owner, the April 1 of the calendar year
following the later of the calendar year in which the Participant
attains age 70 1/2 or retires from the Employer, and for a Participant
who is a 5% owner, the April 1 of the calendar year following the
calendar year in which the Participant attains age 70 1/2.
The pre-retirement age 70 1/2 distribution option will only be
eliminated with respect to Employees who reach age 70 1/2 in or
after a calendar year that begins after the later of December 31,
1998, or
-12-
the adoption date of this amended plan. The pre-retirement
age 70 1/2 distribution option is an optional form of benefit under
which benefits payable in a particular distribution form (including
any modifications that may be elected after benefit commencement)
begin at a time during the period that begins on or after January 1st
of the calendar year in which an Employee reaches age 70 1/2 and ends
April 1 of the immediately following calendar year.
However, if the Administrator offers an election to defer
distributions, any Participant who reaches age 70 1/2 in years after
1995 may elect by April 1st of the calendar year following the year
in which he or she reached age 70 1/2 (or by December 31, 1997 in the
case of a Participant who reaches age 70 1/2 in 1996) to defer
distributions until the calendar year following the calendar year in
which such Participant retires. If no such election is made, the
Participant will begin receiving distributions by April 1st of the
calendar year following the year in which he or she reaches age
70 1/2 (or by December 31, 1997 in the case of a Participant who
reaches age 70 1/2 in 1996). In addition, if the Administrator offers
an election to suspend distributions, any Participant who reaches
Age 70 1/2 in years prior to 1997 may elect to stop distributions and
recommence by April 1st of the calendar year following the year in
which the Participant retires. A new annuity starting date shall begin
upon the recommencement date.
5.4 FORMS OF BENEFIT PAYMENT
For Plan Years beginning before August 6, 1997, a Participant or
other payee whose total distribution including any prior Plan
distributions (excluding Rollovers) is equal to a lump sum of
$3,500 or less shall only be entitled to a lump sum distribution.
If the lump sum exceeds such amount, benefits shall be distributed
in accordance with the remainder of this Section 5.
For Plan Years beginning on or after August 6, 1997, a Participant
or other payee whose total distribution including any prior Plan
distributions (excluding Rollovers) is equal to a lump sum of $5,000
or less shall only be entitled to a lump sum form of benefit
distribution. If the lump sum exceeds $5,000, benefits shall be
distributed in accordance with the remainder of this Section 5.
A Participant whose total distribution including any prior Plan
distributions (excluding Rollovers) exceeds the above amount(s)
shall be entitled to a normal form of distribution of a Qualified
Joint and Survivor Annuity if the Participant is married on the
Annuity Starting Date and has not died before such date; and if the
Participant is unmarried on the Annuity Starting Date and has not died
before such date, as a life annuity. Subject to the spousal consent
requirements of Section 5.8 of the Basic Plan, such a Participant
shall also be entitled to elect an optional form of distribution in
the form of a lump sum (or in designated sums from time to time as
elected by the Participant or payee) in cash or property or, with the
consent of the Administrator, in monthly, quarterly, semi-annual or
annual cash installments over a period certain of up to 10 years or in
any other form of distribution permitted in accordance with
Section 5.1 of the Basic Plan. If installments are elected, the
lump sum benefit will either be segregated and separately invested by
the Trustee or it will be invested in a nontransferable annuity
available for purchase from an insurance company providing for
installments (which does not include as part of the annuity a life
contingency element).
In addition, a Participant or Beneficiary of the Participant
shall have the option to defer the commencement of his or her
distribution (a) for the Participant and for the Participant's Spouse
Beneficiary, for a period up to but no later than the Participant's
Normal Retirement Date; and (b) for the Participant's non-spouse
Beneficiary, for a period not to exceed 5 years following the last
-13-
day of the Plan Year during which the Participant last completed an
hour of service, but no later than the Participant's Normal
Retirement Date.
5.5 IN-SERVICE DISTRIBUTIONS
A Participant may elect to receive an in-service distribution of
his or her Account balance attributable to Elective Deferral
Contributions in accordance with Section 5.20 of the Basic Plan
without satisfying any hardship requirements provided the Participant
has attained Age 59 1/2.
Amounts attributable to Employer Qualified Matching Contributions and
Employer Qualified Non-Elective Contributions shall not be available
for in-service distributions.
Subject to the joint and survivor requirements of Section 5.8 of the
Basic Plan, an in-service distribution shall only be available in a
lump sum form and, if applicable to an amount transferred from a
plan subject to joint and survivor requirements of the Code, must
be consented to by the Participant's Spouse.
There shall be no other in-service distributions prior to the date
a Participant dies, retires, or otherwise terminates employment
from the Employer except as otherwise may be permitted for hardship
distributions in Section 5.6.
5.6 HARDSHIP DISTRIBUTIONS
A Participant who is deemed eligible by the Plan administrator may
request an in-service hardship withdrawal per Section 5.19 of the
Basic Plan of his or her Elective Deferrals.
Subject to the joint and survivor requirements of Section 5.8 of the
Basic Plan, an in-service distribution shall only be available in a
lump sum form, and, if applicable to an amount transferred from
a plan subject to joint and survivor requirements of the Code, must
be consented to by the Participant's Spouse.
SECTION 6
SECTION 415 LIMITATION AND TOP HEAVY RULES
6.1 TOP-HEAVY RATIO PRESENT VALUES
The interest and post retirement mortality factors set forth in the
definition of Top Heavy Ratio in Article 1 of the Basic Plan shall
apply.
6.2 TOP-HEAVY MINIMUMS
The Top-Heavy Minimum Allocations are provided to all eligible
Participants, including Key Employees.
A Participant shall be eligible for a Top-Heavy Minimum Allocation for
a Plan Year if he or she was a Participant during the Plan Year.
An eligible Participant who participates in this Plan and one or
more defined benefit plans that are part of a Top Heavy Required
Aggregation Group will receive a Top Heavy Minimum Allocation under
the Plan equal to 5% (or 7.5% if the 125% rule in Section 6.4(f) of the
Basic Plan is used)
-14-
of the Eligible Participant's applicable Compensation in lieu of any
Top Heavy minimum benefit under the defined benefit Plan, in accordance
with Section 3.5(c)(2) of the Basic Plan.
An eligible Participant who participates in this Plan and in one or
more other defined contribution plans that are part of a Top Heavy
Required Aggregation Group will receive the Top Heavy Minimum
Allocation under this Plan in lieu of any Top Heavy Minimum Allocation
under another defined contribution plan.
6.3 LIMITATION YEAR FOR CODE section 415
The limitation year for purposes of Code section 415 shall be the Plan
Year. If this action constitutes a change in limitation year, a
short limitation year is established, beginning the day after the
last day of the limitation year in effect before this change and ending
with the first limitation year ending on or after the date of execution
of this Adoption Agreement.
For the purpose of determining maximum benefits and contributions for
Code section 415 per Article 6 of the Basic Plan, applicable Plan
Compensation shall mean Code section 415 safe-harbor Compensation for
the limitation year including Compensation not currently includible in
gross income by reason of Code section 125 relating to cafeteria plans,
section 402(e)(3) relating to lump sum distributions from qualified
retirement plans, section 402(h)(1)(B) relating to Simplified
Employee Pension Plans, section 403(b) relating to tax deferred
annuities, or section 401(k) and section 402(a)(8) relating to cash
or deferred plans. In addition, Code section 415 Compensation will
also include elective amounts that are not includible in the gross
income of the Employee by reason of Code section 132(f)(4) for
Limitation Years beginning on or after January 1, 2001 (or if
elected in Section 3.1(a), any earlier Limitation Year beginning on
or after January 1, 1998).
SECTION 7
LOANS AND INSURANCE
7.1 PARTICIPANT LOANS
The Plan Administrator may arrange for the availability of Participant
loans as described in Section 7.14 of the Basic Plan.
The loan rules of Section 7.14 of the Basic Plan shall apply.
Loans are treated (a) as a general investment of the Trust Fund rather
than to the individual Participant's Account or (b) if the
Sponsoring Employer and the Plan Administrator have elected to
activate the investment fund options under Section 8.1 and
Section 7.15 of the Basic Plan, as a reduction in the investment fund
option from which it was withdrawn.
The amount of loan shall not exceed the lesser of (a) $50,000 reduced
by the excess of the highest loan during the preceding 12 months over
the currently outstanding loan, or (b) one-half of the Vested Aggregate
Account balance.
The interest rate on such loans shall be 1% higher than the prime
rate of interest charged by representative local commercial banks.
The rate of interest on such loan shall be fixed at the time of the
loan.
7.2 INSURANCE
There shall be no insurance purchased under the Plan.
-15-
SECTION 8
PLAN ADMINISTRATION AND MISCELLANEOUS PROVISIONS
8.1 INVESTMENT FUND OPTIONS
There shall be a single pooled investment fund accounting maintained
for all Participants' Accounts, unless Participant investment fund
elections are made available by adoption by the Sponsoring Employer
and agreement by the trustee of rules relating to the Participant
selection of two or more investment fund options in accordance
with Section 7.15 of the Basic Plan.
If the investment fund options offered under the Plan are intended to
comply with Code section 404(c), the Plan administrator shall establish
the rules relating to the investment fund options which shall be
intended to comply with the provisions of Code section 404(c).
8.2 VALUATION DATE
The dates for allocating Employer contributions shall be the last
day of each Plan Year. The Valuation Dates for allocating Trust Fund
investment earnings or losses and determining the value of
Participants' Accounts shall occur daily.
8.3 QUALIFIED DOMESTIC RELATIONS ORDERS
Distributions to alternate payees under a Qualified Domestics
Relations Order (QDRO) shall be made prior to the time a Participant
has terminated employment even if the affected Participant has not
yet reached the Earliest Retirement Age as defined in Section 8.11 of
the Basic Plan.
8.4 COVERAGE IN MULTIPLE PLANS
If a Participant (a) is or was covered under two or more current or
terminated plans sponsored by the same Employer (or Employers in the
same controlled or affiliated service group) which are not paired
plans per Section 8.5; or (b) is covered under either a welfare
benefit fund as defined in Code section 419(e), or an individual
medical account as defined in Code section 415(l)(2) under which
amounts are treated as Annual Additions with respect to any
Participant in this Plan, the following shall apply: The provisions of
Article 6 of the Basic Plan shall be applicable so that Annual
Additions under this Plan will be reduced first.
8.5 PLAN PAIRING PROVISION
This Plan is not part of a group of paired plans.
8.6 TRUST AGREEMENT
The Trust Agreement with the corporate trustee named in the signature
article is hereby established as part of this Plan as named in the
signature Section.
-16-
SECTION 9
RELIANCE AND ADOPTION
9.1 RELIANCE
An Adopting Employer which adopts this Plan as a non standardized
plan may rely on an opinion letter issued by the Internal Revenue
Service as evidence that the Plan is qualified under Code section 401
only to the extent provided in Announcement 2001-77, 2001-30 I.R.B.
The Employer may not rely on the opinion letter in certain other
circumstances or with respect to certain qualification requirements,
which are specified in the opinion letter issued with respect to the
Plan and in Announcement 2001-77. In order to obtain reliance in
such circumstances or with respect to certain qualification
requirements, application for a determination letter must be made to
the Employee Plans Determinations of the Internal Revenue Service.
This Adoption Agreement may be used only in conjunction with the Basic
Plan identified in the title of this agreement.
The appropriateness of the adoption of this Plan and the terms of
the Adoption Agreement, its qualification with the Internal Revenue
Service, and the related tax and Employee benefit consequences are
the responsibility of the Sponsoring Employer and its tax and legal
advisors.
9.2 ADMINISTRATIVE INFORMATION
Failure to properly complete this Adoption Agreement may result in
disqualification of the Plan. In accordance with IRS requirements,
Accudraft, Inc. certifies that it will inform the adopting Sponsoring
Employer of any amendments made to the prototype document forms or of
the discontinuance or abandonment of such forms. For information r
egarding these documents, the adopting Sponsoring Employer may contact
Xxxxxx X. Xxxxxxxx, by mail addressed to Accudraft, Inc. at 000 Xxxxxx
Xxxxxx, Xxxxxxxxx Xxxxxxx, XX 00000; or by telephoning (000) 000-0000.
9.3 AUTHORIZED SIGNATURES
FOR THE SPONSORING EMPLOYER:
CRIIMI MAE MANAGEMENT, INC.
Name and Title: Xxxx Xxxxxx V.P./General Counsel
---------------------------------- --------------------
(Print name) (Title)
Signature and Date: /s/Xxxx Xxxxxx March 27, 2003
----------------------------- --------------
(Signature) (Date)
-17-
FOR AN ADDITIONAL ADOPTING EMPLOYER:
(as authorized by the Sponsoring Employer):
Adopting Employer: CRIIMI MAE SERVICES, L.P.
Name and Title: Xxxx Xxxxxx V.P./General Counsel
------------------------- --------------------
(Print name) (Title)
Signature and Date:/s/Xxxx Xxxxxx March 27, 2003
---------------------------------- --------------
(Signature) (Date)
CORPORATE TRUSTEE: WILMINGTON TRUST COMPANY
Xxxxx Xxxx Xxxxx Assistant V.P.
----------------------- ------------------
(Print name) (Title)
/s/Xxxxx Xxxx Xxxxx March 28, 2003
Signature and Date: ----------------------- ------------------
(Signature) (Date)
-18-
WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING
OF THE
BOARD OF DIRECTORS OF CRIIMI MAE MANAGEMENT, INC.
In lieu of a special meeting of the Board of Directors ("Board") of CRIIMI
MAE Management, Inc., a Maryland corporation (the "Corporation"), the Directors,
in accordance with Section 2-408(c) of the Maryland General Corporation Law,
unanimously agree to the following resolutions:
WHEREAS, the Board has previously approved and adopted the CRIIMI MAE
Management, Inc. Retirement Plan (the "Plan"); and
WHEREAS, the Board deems it advisable and in the best interests of the
Corporation to amend and restate the Plan effective as of January 1, 2002, to
comply with certain proposed and final regulations under the Internal Revenue
Code of 1986, as amended (the "Code"), and the Economic Growth and Tax Relief
Reconciliation Act ("EGTRRA").
NOW, THEREFORE, BE IT RESOLVED, that the Plan as amended and restated
effective January 1, 2002, attached as Exhibit A hereto, is hereby adopted;
FURTHER RESOLVED, that the amendment to the Plan under proposed regulations
under Section 401(a)(9) of the Code, attached as Exhibit B , is hereby adopted
with respect to distributions under the Plan made for calendar years beginning
on or after January 1, 2001;
FURTHER RESOLVED, that the amendment regarding minimum distribution
requirements in conformance with final regulations under the Code Section
401(a)(9) and Internal Revenue Service Announcement 2002-29, a copy of which is
attached hereto as Exhibit C;
FURTHER RESOLVED, that the amendment to increase the maximum elective
deferral contribution amount under the Plan as permitted under Section 402(g) of
the Code, attached as Exhibit D, is hereby adopted;
FURTHER RESOLVED, that the "Good Faith" amendment to the Plan for
conformance with EGTRRA, attached as Exhibit E, is hereby adopted; and
FURTHER RESOLVED, that the proper officers of the Corporation be, and each
of them hereby is, authorized and directed to take all further actions and to
execute all further agreements, instruments and documents as shall be necessary
or desirable in order to effectuate the foregoing resolutions.
-19-
The Directors, by signing this consent, agree to the transaction of the
business of the special meeting of the Board of Directors by a unanimous consent
of the Directors in lieu of such meeting effective as of the 23rd day of January
2003, and order that this consent be filed with the records of the proceedings
of the Board of Directors.
/s/Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
/s/Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
-20-
CRIIMI MAE MANAGEMENT, INC.
RETIREMENT PLAN
ADDITIONAL EMPLOYER ADOPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the date below between CRIIMI
MAE MANAGEMENT, INC. (the Sponsor) and CRIIMI MAE SERVICES, L.P. (the Adopting
Employer).
W I T N E S S E T H:
WHEREAS, the Sponsor previously established the CRIIMI MAE Management, Inc.
Retirement Plan (hereafter called the Plan) which the Adopting Employer wishes
to adopt;
NOW, THEREFORE, effective January 1, 2002, the Adopting Employer hereby
adopts the Plan subject to the following conditions and limitations:
(1) The Adopting Employer agrees to abide by such rules and
procedures as the Administrator deems necessary for
the proper administration of the Plan.
(2) With respect to the Adopting Employer, the definition of
Fiscal Year will mean the tax year of the Adopting Employer.
(3) Employees of the Adopting Employer will be given credit
for all Years of Service or Periods of Service earned with the
Employer.
(4) Employees of the Employer will be given credit for all Years
of Service or Periods of Service earned with the Adopting
Employer.
IN WITNESS WHEREOF, this agreement is hereby executed by the parties hereto
this 27th day of March , 2003.
CRIIMI MAE MANAGEMENT, INC.
/s/Xxxx Xxxxxx
-------------------------------------
By
CRIIMI MAE SERVICES, L.P.
By: CMSLP Management Company, Inc., its
General Partner
/s/Xxxx Xxxxxx
-------------------------------------
By
-21-
AMENDMENT
TO INCREASE THE MAXIMUM ELECTIVE DEFERRAL AMOUNT
Name Of Plan: CRIIMI MAE Management, Inc. Retirement Plan (the "Plan")
Plan Sponsor: CRIIMI MAE Management, Inc. (the "Sponsor")
THIS AMENDMENT is hereby adopted by the Sponsor in order to increase the maximum
allowable Elective Deferral contributions under the Plan to up to 100% of
each Eligible Participant's Compensation. Accordingly, the following
amendment shall be effective for the Plan Year which begins in 2002:
The second paragraph of Section 3.2 of the Adoption Agreement is hereby amended
in its entirety to read as follows:
The maximum Employee Elective Deferral contribution for a
Participant for a Plan Year shall be 100% of the Code section 415
Compensation per Section 1.15 of the Basic Plan for the Plan
Year inclusive of any other amounts allocated to such
Participant and counted under Code section 415(c)and section 611(b)
and section 32 of the Economic Growth and Tax Relief Reconciliation
Act (EGTRRA), to the maximum dollar amount permitted under Code
section 402(g).
CRIIMI MAE MANAGEMENT, INC.
/s/Xxxx Xxxxxx
---------------------------------------
By
Date: March 27, 2003
-22-
FINAL CODE section 401(a)(9) AMENDMENT
REGARDING MINIMUM DISTRIBUTION REQUIREMENTS
Name Of Plan: CRIIMI MAE Management, Inc. Retirement Plan (the "Plan")
Plan Sponsor: CRIIMI MAE Management, Inc. (the "Sponsor")
This Amendment is hereby adopted by the Sponsor to permit the Plan to make
required minimum distributions in accordance with final Internal Revenue
Service regulations under Code section 401(a)(9) effective no later than for
calendar years which begin in 2003 in accordance with Rev. Proc. 2002-29.
Section 1. General Rules
1.1. Effective Date. The provisions of this amendment will apply for purposes
of determining required minimum distributions for calendar years
beginning with the 2002 calendar year.
1.2. Coordination with Minimum Distribution Requirements Previously in
Effect. Required minimum distributions for calendar 2002 will be
determined as follows: If the total amount of 2002 required
minimum distributions under the Plan made to a distributee for
calendar 2002 (a) equals or exceeds the required minimum distributions
determined under this amendment, then no additional distributions
will be required to be made for 2002 on or after such date to the
distribute; or (b) is less than the amount determined under this
amendment, then required minimum distributions for 2002 on and after
such date will be determined so that the total amount of required
minimum distributions for 2002 made to the distributee will be the
amount determined under this amendment.
1.3. Precedence. The requirements of this amendment will take precedence over
any inconsistent provisions of the Plan and any prior amendments thereto.
1.4. Requirements of Internal Revenue Service Regulations Incorporated.
All distributions required under this amendment will be determined and
made in accordance with the Internal Revenue Service regulations under
Code section 401(a)(9).
1.5. TEFRA section 242(b)(2) Elections. Notwithstanding the other provisions
of this amendment, distributions may be made under a designation made
before January 1, 1984, in accordance with section 242(b)(2) of the Tax
Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the
Plan that relate to section 242(b)(2) of TEFRA.
Section 2. Time and Manner of Distribution
2.1. Required Beginning Date. The Participant's entire interest will be
distributed, or begin to be distributed, to the Participant
no later than the Participant's Required Beginning Date.
2.2. Death of Participant Before Distribution Begin. If the Participant dies
before distributions begin, his or her entire interest will be
distributed, or begin to be distributed, no later than as follows:
-1-
(a) If the Participant's surviving Spouse is the Participant's sole
designated Beneficiary, then subject to section 2.2 (e) below
distributions to the surviving Spouse will begin by December 31
of the calendar year immediately following the calendar year in
which the Participant died, or by December 31 of the calendar year
in which the Participant would have attained age 70 1/2, if
later.
(b) If the Participant's surviving Spouse is not the Participant's
sole designated Beneficiary, then subject to section 2.2(e)
below distributions to the designated Beneficiary will begin
by December 31 of the calendar year immediately following the
calendar year in which the Participant died.
(c) If there is no designated Beneficiary as of September 30 of the
year following the year of the Participant's death, the
Participant's entire interest will be distributed by December 31
of the calendar year containing the fifth anniversary of the
Participant's death.
(d) If the Participant's surviving Spouse is the Participant's
sole designated Beneficiary and the surviving Spouse dies after
the Participant but before distributions to the surviving
Spouse begin, this section 2.2, other than section 2.2(a), will
apply as if the surviving Spouse were the Participant.
(e) If the Participant dies before distributions begin and there is a
designated Beneficiary, distribution to the designated
Beneficiary is not required to begin by the date specified in
sections 2.2(a) or (b) above if the Participant's entire
interest is distributed to the designated Beneficiary by
December 31 of the calendar year containing the fifth
anniversary of the Participant's death. In addition, a
designated Beneficiary who is receiving payments under this
5-year rule may make a new election to receive payments under the
life expectancy rule until December 31, 2003, provided that all
amounts that would have been required to be distributed under
the life expectancy rule for all distribution calendar years
before 2004 are distributed by the earlier of December 31, 2003 or
the end of the 5-year period.
For purposes of this section 2.2 and section 4, unless section 2.2(d)
applies, distributions are considered to begin on the Participant's
Required Beginning Date. If section 2.2(d) applies, distributions
are considered to begin on the date distributions are required to
begin to the surviving Spouse under section 2.2(a). If
distributions under an annuity purchased from an insurance company
irrevocably commence to the Participant before the Participant's
Required Beginning Date (or to the Participant's surviving Spouse
before the date distributions are required to begin to the surviving
Spouse under section 2.2(a)), the date distributions are considered to
begin is the date distributions actually commence.
2.3. Forms of Distribution. Unless the Participant's interest is distributed
in the form of an annuity purchased from an insurance company or in a
single sum on or before the Required Beginning Date, as of the first
distribution calendar year distributions will be made in accordance with
sections 3 and 4 of this amendment. If the Participant's interest is
distributed in the form of an annuity purchased from an insurance
company, distributions thereunder will be made in accordance with the
requirements of Code section 401(a)(9) and the IRS regulations.
-2-
Section 3. Required Minimum Distributions During Participant's Lifetime
3.1. Amount of Required Minimum Distribution for Each Distribution Calendar
Year. During the Participant's lifetime, the minimum amount that will
be distributed each distribution calendar year is the lesser of
(a) the quotient obtained by dividing the Participant's account balance
by the distribution period in the Uniform Lifetime Table in
section 1.401(a)(9)-9 of the IRS regulations using the Participant's
age as of his or her birthday in the distribution calendar year; or
(b) if the Participant's sole designated Beneficiary for the
distribution calendar year is the Participant's Spouse, the quotient
obtained by dividing the Participant's account balance by the number in
the Joint and Last Survivor Table in section 1.401(a)(9)-9 of the IRS
regulations using the Participant's and Spouse's attained ages as of the
Participant's and Spouse's birthdays in the distribution calendar year.
3.2. Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be determined
under this section 3 beginning with the first distribution calendar
year and up to and including the distribution calendar year that
includes the Participant's date of death
Section 4. Required Minimum Distributions After Participant's Death
4.1. Death On or After Date Distributions Begin
(a) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and
there is a designated Beneficiary, the minimum amount that will
be distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by dividing
the Participant's account balance by the longer of the remaining
life expectancy of the Participant or the remaining life
expectancy of the Participant's designated Beneficiary,
determined as follows: (1) the Participant's remaining life
expectancy is calculated using the age of the Participant in the
year of death, reduced by one for each subsequent year; (2) if
the Participant's surviving Spouse is the sole designated
Beneficiary, the remaining life expectancy of the surviving
Spouse is calculated for each distribution calendar year after
the year of the Participant's death using the surviving Spouse's
age as of the Spouse's birthday in that year. For distribution
calendar years after the year of the surviving Spouse's death,
the remaining life expectancy of the surviving Spouse is
calculated using the age of the surviving Spouse as of the
Spouse's birthday in the calendar year of the Spouse's
death, reduced by one for each subsequent calendar year;
and (3) if the Participant's surviving Spouse is not the
Participant's sole designated Beneficiary, the designated
Beneficiary's remaining life expectancy is calculated using
the age of the Beneficiary in the year following the year of
the Participant's death, reduced by one for each subsequent year.
(b) No Designated Beneficiary. If the Participant dies on or after
the date distributions begin and there is no designated
Beneficiary as of September 30 of the year after the year of the
Participant's death, the minimum amount that will be distributed
for each distribution calendar year after the year of the
Participant's death is the quotient obtained by dividing the
Participant's account balance by the Participant's remaining
life expectancy calculated using the age of the Participant in
the year of death, reduced by one each subsequent year.
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4.2. Death Before Date Distributions Begin
(a) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is
a designated Beneficiary, the minimum amount that will be
distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by dividing
the Participant's account balance by the remaining life
expectancy of the Participant's designated Beneficiary, as
determined in section 4.1.
(b) No Designated Beneficiary. If the Participant dies before
distributions begin and there is no designated Beneficiary as
of September 30 of the year following the year of the
Participant's death, distribution of the Participant's entire
interest will be completed by December 31 of the calendar
year containing the 5th anniversary of the Participant's
death.
(c) Death of Surviving Spouse Before Distributions to Surviving
Spouse Are Required to Begin. If the Participant dies before
the date distributions begin, the Participant's surviving Spouse
is the Participant's sole designated Beneficiary, and
the surviving Spouse dies before distributions are required to
begin to the surviving Spouse under section 2.2(a), this
section 4.2 will apply as if the surviving Spouse were the
Participant.
Section 5. Definitions
5.1. Designated Beneficiary. The Beneficiary designated by the Participant
is the designated Beneficiary under Code section 401(a)(9) and
section 1.401(a)(9)-1, Q&A-4 of the IRS regulations.
5.2. Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before
the Participant's death, the first distribution calendar year is
the calendar year immediately preceding the calendar year which contains
the Participant's Required Beginning Date. For distributions beginning
after the Participant's death, the first distribution calendar year is
the calendar year in which distributions are required to begin under
section 2.2. The required minimum distribution for the Participant's
first distribution calendar year will be made on or before the
Participant's Required Beginning Date. The required minimum
distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in which
the Participant's Required Beginning Date occurs, will be made on or
before December 31 of that distribution calendar year.
5.3. Life expectancy. Life expectancy as computed by use of the Single Life
Table in section 1.401(a)(9)-9 of the IRS regulations.
5.4. Participant's Account balance. For purposes of determining minimum
distributions the Account balance as of the last Valuation Date in the
calendar year immediately preceding the distribution calendar year
(valuation calendar year) increased by the amount of any contributions
made and allocated or forfeitures allocated to the Account balance
as of dates in the valuation calendar year after the Valuation Date and
decreased by distributions made in the valuation calendar year after
the Valuation Date. The Account balance for the valuation calendar year
includes any amounts rolled over or transferred to the Plan either in
the valuation calendar year or in the distribution calendar year if
distributed or transferred in the valuation calendar year.
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CRIIMI MAE MANAGEMENT, INC.
/s/Xxxx Xxxxxx
---------------------------------------
By
Date: March 27, 2003
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EGTRRA "GOOD FAITH"PLAN AMENDMENT
FOR DEFINED CONTRIBUTION PLANS WHICH INCLUDE 401(k) PROVISIONS
Per IRS Notices 2001-42, 2001-56, and 2001-57 and the
Job Creation and Worker Assistance Act of 2002 (the 2002 Tax Act)
Name Of Plan: CRIIMI MAE Management, Inc. Retirement Plan (the "Plan")
Plan Sponsor: CRIIMI MAE Management, Inc. (the "Sponsor")
This Amendment is hereby adopted by the Sponsor to reflect certain provisions
of the Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"),
is intended as good faith compliance with the requirements of EGTRRA, and is
to be construed in accordance with EGTRRA and guidance issued thereunder,
including IRS Notices 2001-42, 2001-56, and 2001-57, and with the Job Creation
and Worker Assistance Act of 2002 (the 2002 Tax Act). This amendment will
supersede the provisions of the Plan to the extent they are inconsistent
with the provisions of this amendment, and except as otherwise indicated,
is effective as of the first day of the first Plan Year beginning after
December 31, 2001.
WITNESSETH:
WHEREAS, the Sponsoring Employer desires to amend the Plan, heretofore
established by the Sponsoring Employer.
NOW THEREFORE, it is hereby agreed by and between the Sponsoring Employer
and the Trustees that the Plan is hereby amended effective as of the first day
of the first Plan Year beginning after December 31, 2001 (except where otherwise
indicated) as follows:
sections 611(b) and 632 of EGTRRA - LIMITATIONS ON CONTRIBUTIONS
Maximum Annual Addition: Except to the extent permitted under this
amendment which provides for catch-up contributions under EGTRRA
section 631 and Code section 414(v), if applicable, the Annual Addition
that may be contributed or allocated to a Participant's Account under the
Plan for any Limitation Year will not exceed the lesser of (a) $40,000, as
adjusted for increases in the cost-of-living under Code section 415(d), or
(b) 100 percent of the Participant's Compensation, within the meaning
of Code section 415(c)(3), for the Limitation Year. The Compensation
limit referred to in (b) will not apply to any contribution for medical
benefits after separation from service (within the meaning of Code
section 401(h) or Code section 419A(f)(2)) which is otherwise treated as an
Annual Addition.
section 611(c) of EGTRRA - INCREASE IN COMPENSATION LIMIT
The annual Compensation of each Participant used in determining
allocations (including Top-Heavy Minimum Allocations) will not
exceed $200,000 as adjusted for cost-of-living increases in accordance
with Code section 401(a)(17)(B). Annual Compensation means
Compensation during the Plan Year or such other consecutive 12-month
period over which Compensation is otherwise determined under the Plan (the
determination period). The cost-of-living adjustment in effect for a
calendar year
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applies to annual Compensation for the determination period
that begins with or within such calendar year.
section 612 of EGTRRA - PLAN LOANS FOR OWNER-EMPLOYEES / SHAREHOLDER
EMPLOYEES
Effective for Plan loans made after December 31, 2001, Plan provisions
prohibiting or otherwise restricting loans to any Owner-Employee or
Shareholder-Employee will cease to apply.
section 613 of EGTRRA - MODIFICATION OF TOP-HEAVY RULES
1. Effective Date: This section will apply for purposes of determining
whether the Plan is a Top-Heavy Plan under Code section 416(g) for Plan
Years beginning after December 31, 2001, and whether the Plan
satisfies the minimum benefits requirements of Code section 416(c)
for such years. This section amends the sections of the Plan that
include Top-Heavy provisions.
2. Determination of Top-Heavy Status:
(a) Key Employee: Key Employee means any employee or former
Employee (including any deceased Employee) who at any time during
the Plan Year that includes the determination date was an officer
of the Employer having annual Compensation greater than $130,000
(as adjusted under Code section 416(i)(1) for Plan Years beginning
after December 31, 2002), a 5-percent owner of the Employer, or a
1-percent owner of the Employer having annual Compensation of more
than $150,000. For this purpose, annual Compensation means
Compensation within the meaning of Code section 415(c)(3). The
determination of who is a Key Employee will be made in accordance
with Code section 416(i)(1) and the applicable regulations and other
guidance of general applicability issued thereunder.
(b) Determination of Present Values and Amounts: This section 2 will
apply for purposes of determining the present values of accrued
benefits and the amounts of Account balances of Employees as of the
determination date.
(1) Distributions During The Year Ending On The Determination
Date: The present values of accrued benefits and the amounts
of Account balances of an Employee as of the determination date
will be increased by the distributions made with respect to the
Employee under the Plan and any Plan aggregated with the Plan
under Code section 416(g)(2) during the 1-year period ending on
the determination date. The preceding sentence will also
apply to distributions under a terminated Plan which had it
not been terminated would have been aggregated with the
Plan under Code section 416(g)(2)(A)(i). In the case of a
distribution made for a reason other than severance from
employment, death, or disability, this provision will apply by
substituting "5-year period" for "1-year period."
(2) Employees Not Performing Services During The Year Ending On
The Determination Date: The accrued benefits and the amounts
of Account balances of any individual who has not performed
services for the Employer during the 1-year period ending on the
determination date will not be counted.
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3. Minimum benefits
(a) Matching Contributions: Matching Contributions will be counted
to satisfy the minimum contribution requirements of Code
section 416(c)(2). The preceding sentence will apply to Matching
Contributions under the Plan or, if the Plan provides that the
minimum contribution requirement will be met in another Plan, such
other Plan. Matching Contributions used to satisfy the minimum
contribution requirements will be treated as Matching Contributions
for purposes of the ACP test and other requirements of Code
section 401(m).
(a) Contributions Under Other Plans: The Sponsor may provide that
the minimum benefit requirement will be met in another Plan
(including one that consists solely of a cash or deferred arrangement
which meets the requirements of Code section 401(k)(12) and Matching
Contributions with respect to which the requirements of Code
section 401(m)(11) are met).
section 631 of EGTRRA - CATCH-UP CONTRIBUTIONS
All Employees eligible to make Elective Deferrals under this Plan and who
have attained age 50 before the close of the Plan Year will be eligible to
make catch-up contributions in accordance with, and subject to the
limitations of, Code section 414(v) and the 2002 Tax Act. Such catch-up
contributions will not be taken into account for purposes of the
provisions of the Plan implementing the required limitations of Code
section 402(g) and section 415. The Plan will not be treated as failing to
satisfy the provisions of the Plan implementing the requirements of Code
section 401(k)(3), section 401(k)(11), section 401(k)(12),
section 410(b), or section 16, as applicable, by reason of the making of
such catch-up contributions.
In accordance with the 2002 Tax Act, (a) the amount of catch-up
contributions that a Participant may exclude from income is limited to
the catch-up contribution limit, which will apply on an aggregate basis
to all plans of the Employer and the group of Affiliated Employers of
which the Employer is a part (except that for this purpose an Affiliated
Employer will not include a trade or business which is acquired as part of
an asset or stock acquisition, merger, or similar
Code section 410(b)(6)(C) transaction involving a change in the
employer of the employees of a trade or business, during the period
beginning on the date of the transaction and ending on the last day of the
first Plan Year beginning after the date of the transaction); and
(b) a Participant who attains Age 50 during a Plan Year will be considered
to be Age 50 on the first day of the Plan Year. Catch-up contributions
will apply to contributions on or after January 1, 2002.
section 641, section 642 and section 643 of EGTRRA - DIRECT ROLLOVERS OF
PLAN DISTRIBUTIONS
1. Effective Date: This section will apply to distributions made after
December 31, 2001.
2. Modification of Definition of Eligible Retirement Plan: For purposes
of the Direct Rollover section of the Plan, an eligible retirement
plan also means an annuity contract described in Code section 403(b)
and an eligible plan under Code section 457(b) which is maintained
by a state, political subdivision of a state, or any agency or
instrumentality of a state or political subdivision of a state and
which agrees to separately account for amounts transferred into
such plan from this Plan. The definition of eligible retirement plan
also applies to a distribution to a surviving spouse, or to a spouse
or former spouse who is the alternate payee under a qualified domestic
relation order, as defined in Code section 414(p).
-3-
3. Modification of Definition of Eligible Rollover Distribution to
Include After-Tax Employee Contributions: For purposes of
the Direct Rollover provisions of the Plan, a portion of a
distribution will not fail to be an eligible rollover distribution
merely because the portion consists of after-tax or
non-deductible Employee contributions which are not includible in
gross income. However, such portion may be paid only to an individual
retirement account or annuity described in Code section 408(a) or (b),
or to a qualified defined contribution plan described in Code
section 401(a) or section 403(a) that agrees to separately account for
amounts so transferred, including separately accounting for the
portion of such distribution which is includible in gross income and
the portion of such distribution which is not so includible. In
accordance with the 2002 Tax Act, when a distribution includes
after-tax Employee contributions which are not includible in gross
income, the amount that is rolled over will first be attributed to
amounts includible in gross income.
4. Modification of Definition of Eligible Rollover Distribution to
Exclude Hardship Distributions: For purposes of the Direct
Rollover provisions of the Plan, any amount distributed on account
of hardship will not be an eligible Rollover distribution and the
distributee may not elect to have any portion of such a distribution
paid directly to an eligible retirement plan.
5. Additional Types of Rollovers Accepted Pursuant to EGTRRA section 641,
section 642 and section 643
(a) Direct Rollovers or Participant Rollover Contributions from Other
Plans: The Plan will accept a direct rollover of an eligible
rollover distribution of a Participant contribution of an eligible
rollover distribution from the following plans:
? a qualified Plan described in Code section 401(a) or
section 403(a), excluding after-tax Employee Contributions.
? an annuity contract described in Code section 403(b),
excluding after-tax Employee Contributions.
? an eligible Plan under Code section 457(b) which is maintained
by a state, political subdivision of a state, or any agency
or instrumentality of a state or political subdivision of a
state.
(b) Participant Rollover Contributions From IRAs: The Plan will
accept a Participant rollover contribution of the portion of
a distribution from an individual retirement account or annuity
described in Code section 408(a) or section 408(b) that is
eligible to be rolled over and would otherwise be includible in
gross income.
6. Effective date of direct rollover and participant rollover
contribution provisions: This section will be effective January
1, 2002 for rollovers to and from the Plan.
section 646 of EGTRRA - DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT
1. Effective date: This section will apply for distributions and severance
from employment occurring after January 1, 2002 regardless of when the
severance from employment occurred.
2. New distributable event: A Participant's Elective Deferrals, Qualified
Non-Elective Contributions, Qualified Matching Contributions, and
earnings attributable to these contributions will be distributed on
account of the Participant's severance from employment. However,
such a
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distribution will be subject to the other provisions of the Plan
regarding distributions, other than provisions that require a severance
from employment before such amounts may be distributed.
section 666 of EGTRRA - REPEAL OF MULTIPLE USE TEST
The multiple use test described in Treasury Regulation Code
section 1.401(m)-2 and in the Plan will not apply for Plan Years beginning
after December 31, 2001.
section 636(a) of EGTRRA - SUSPENSION PERIOD FOLLOWING HARDSHIP
DISTRIBUTION
A Participant who receives a distribution of Elective Deferrals after
December 31, 2001 on account of hardship will be prohibited from making
Elective Deferrals and Employee contributions under this and all other
Plans of the Employer for 6 months after receipt of the distribution. A
Participant who receives a distribution of Elective Deferrals in calendar
year 2001 on account of hardship will be prohibited from making Elective
Deferrals and Employee contributions under this and all other Plans of
the Employer for the period specified in the provisions of the Plan
relating to suspension of Elective Deferrals that were in effect
prior to this amendment.
/s/Xxxx Xxxxxx March 27, 2003
-------------------------------------------- ----------------------
By Date
CRIIMI MAE MANAGEMENT, INC.
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