EXHIBIT 10.5
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OLD KENT EXECUTIVE RETIREMENT INCOME PLAN
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OLD KENT
EXECUTIVE RETIREMENT INCOME PLAN
ARTICLE 1
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN.
Old Kent Financial Corporation ("OKFC") hereby amends and restates the
Old Kent Executive Retirement Income Plan, a supplemental nonqualified plan
for a select group of management personnel employed by OKFC and any
subsidiary of OKFC. This plan is intended to be a plan described in
Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). This plan is a nonqualified
supplemental executive retirement program which is not subject to
limitations in the Internal Revenue Code applicable to benefits provided
through a qualified, tax-exempt employee benefit plan established under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code").
1.2 EFFECTIVE DATE.
The "Effective Date" of this restated plan is January 1, 1989, unless
a provision of this plan specifies a different effective date. Each plan
provision applies until the effective date of an amendment of that
provision.
1.3 APPLICATION TO FORMER PARTICIPANTS.
Except to the extent it amends a provision of the plan which applies
to former Participants or expressly states that it is applicable to former
Participants, an amendment to this plan (including changes included in any
restatement of the plan) shall not apply to a former Participant. If a
former Participant returns to employment with the Employer after the
effective date of an amendment and is designated as eligible to participate
by OKFC, the Participant's rights under the plan shall be determined by the
plan provisions as amended and in effect at that time.
ARTICLE 2
DEFINITIONS
2.1 DEFINED TERMS.
Defined terms are found at the following locations:
TERM LOCATION
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Administrator 2.2
Agent for Service of Process 2.3
Average Monthly Income 4.1(a)(iii)
Beneficiary 2.4
Code 1.1
Compensation 4.1(a)(iv)
Effective Date 1.2
Employee 2.5
Employer 2.6
ERISA 1.1
Normal Retirement Date 2.7
OKFC 1.1
Old Kent Retirement Income Plan 2.8
Participant 3.1
Plan Year 2.9
Spouse 2.10
Surviving Spouse 2.11
2.2 ADMINISTRATOR.
"Administrator" means Old Kent Financial Corporation.
2.3 AGENT FOR SERVICE OF PROCESS.
"Agent for Service of Process" means the Administrator or the
individual designated by the Administrator.
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2.4 BENEFICIARY.
"Beneficiary" means the individual, trust or other entity designated
by the Participant to receive any benefits payable under this plan after
the Participant's death. A Participant may designate or change a
Beneficiary by filing a signed designation with the Administrator in the
form approved by the Administrator. The Participant's Will is not
effective for this purpose.
If a designation has not been properly completed and filed with the
Administrator or is ineffective for any other reason, the Beneficiary shall
be the Participant's Surviving Spouse. If there is no effective
designation and the Participant does not have a Surviving Spouse, the
remaining benefits, if any, shall be paid to the Participant's estate.
2.5 EMPLOYEE.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.6 EMPLOYER.
"Employer" means OKFC and any subsidiary of OKFC.
2.7 NORMAL RETIREMENT DATE.
"Normal Retirement Date" means the date the Participant attains age
65.
2.8 OLD KENT RETIREMENT INCOME PLAN.
"Old Kent Retirement Income Plan" means the qualified tax-exempt
defined benefit pension plan established and maintained by Old Kent
Financial Corporation under Code Section 401(a).
2.9 PLAN YEAR.
"Plan Year" means the 12-month period beginning each January 1.
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2.10 SPOUSE.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the spousal relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
2.11 SURVIVING SPOUSE.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this plan that the Participant
survived the Spouse.
ARTICLE 3
PARTICIPATION
3.1 DESIGNATION AS PARTICIPANT.
Only management and highly compensated Employees shall be eligible to
participate in this plan.
OKFC shall designate the eligible Employees who shall become
Participants ("Participant") and shall specify the date of participation
for each Participant.
3.2 TERMINATION OF PARTICIPATION.
A Participant's status as a Participant shall continue until the
earlier of termination of employment or termination of the Participant's
status as a Participant by OKFC. A former Participant may resume
participation in the plan only upon redesignation as a Participant and as
of the date specified by OKFC. Transfer of employment to OKFC or a
subsidiary of OKFC shall not be treated as termination of employment and
participation in this plan shall continue unless the Participant's status
as a Participant is terminated by OKFC.
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ARTICLE 4
AMOUNT OF BENEFITS
4.1 DETERMINATION OF BENEFIT.
The amount of the benefit to which the participant is entitled is
calculated as follows:
(a) BENEFIT BEFORE OFFSET. The amount of the Participant's benefit
shall be calculated without reduction by any provision of the Code which
directly or indirectly limits benefits payable from qualified plans,
including Subsection 401(a)(17) and Section 415.
(i) PLAN FORMULA. The benefit for a Participant shall be a
monthly pension payable as a 5-Year Certain and Life Annuity in the amount
of 60% of Average Monthly Income less 50% of the Participant's Social
Security Benefit. The entire benefit calculated under the preceding
sentence shall be reduced proportionately for each year or partial year of
benefit service by which the Participant's number of completed years of
benefit service (including any fractional part of a year) at Normal
Retirement Date is less than 25 years. All elements of the formula such as
calculating the Participant's years of benefit service shall be determined
under the Old Kent Retirement Income Plan as in effect on the date the
Participant's employment terminates. Notwithstanding the preceding
sentence, the Participant's Social Security Benefit shall be determined
under the Old Kent Retirement Income Plan as in effect on December 31,
1988.
(ii) ALTERNATIVE FORMULA. For purposes of calculating the
benefit under (i), any alternative or grandfathered benefit formula which
applies as a result of a merger or acquisition by OKFC (or for some other
reason) shall not be recognized.
(iii) AVERAGE MONTHLY INCOME. "Average Monthly Income" means the
average of the Participant's Compensation for the period of time (including
years prior to participation in this plan, if applicable) with respect to
which Average Monthly Compensation is determined for the Participant in the
Old Kent Retirement Income Plan. Average Monthly Income shall be
calculated in the same manner as Average Monthly Compensation under the Old
Kent Retirement Income Plan as in effect on the date the Participant's
employment terminates.
(iv) COMPENSATION. "Compensation" means all salary or wages
paid by the Employer to an Employee in a Plan Year for personal services
performed for the Employer, including base pay, vacation pay, holiday pay,
retroactive pay increases, regular sick pay, short-term disability,
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overtime pay, shift differential, bonuses, commissions, cash contest
awards, restricted stock dividends, ATM service pay, elective deferrals
under any plan of deferred compensation that are excluded from gross income
under Code Sections 125 (cafeteria plans) and 402(a)(8) (Thrift Plus
contributions), Old Kent Executive Thrift Plan contributions, and Old Kent
Deferred Compensation Plan contributions.
Compensation does not include moving expenses; lump-sum severance
pay (other than vacation pay paid after employment terminates); restricted
stock values; imputed income from noncash awards and supplemental cash
income paid solely on account of the contributions to or benefits paid from
insurance (including imputed income from employer paid group term life
insurance), worker's compensation or unemployment compensation programs;
payment for memberships, dues, subscriptions or continuing education;
expense reimbursements; exercised stock options; or deferred compensation
actually paid after a period of deferral.
(b) NET AMOUNT OF BENEFIT. From the amount determined under (a)
above, subtract the greater of (i) the Participant's benefit payable at
Normal Retirement Date under the Old Kent Retirement Income Plan without
consideration of any alternate formula described in (a)(ii) above or
(ii) the benefit payable at Normal Retirement Date under an alternate or
grandfathered benefit formula which applies as a result of a merger or
acquisition by OKFC (or for some other reason). The normal retirement
benefit to be subtracted in the preceding sentence also shall be expressed
in the 5-Year Certain and Life form. The difference is the amount of the
Participant's benefit under this plan. In determining the amount of the
benefit, any cost-of-living adjustment applicable to the actual benefit or
distributions pursuant to a qualified domestic relations order under the
Old Kent Retirement Income Plan shall be disregarded.
4.2 DATE OF DETERMINATION.
All benefit calculations shall be made at the time the Participant's
employment terminates or, if later, such other event which causes payment
of the benefit as stated in Section 6.4.
4.3 DUPLICATION OF BENEFITS.
There shall be no duplication of benefits between this plan and the
Old Kent Retirement Income Plan. If the Old Kent Retirement Income Plan
should be amended to provide additional benefits which are substantially
the same as benefits under this plan, this plan shall abate or terminate to
that extent and the Participants shall have the additional benefits under
the Old Kent Retirement Income Plan in lieu of the corresponding benefits
provided herein.
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ARTICLE 5
VESTING
5.1 FIVE YEAR REQUIREMENT.
The benefit provided with respect to the Participant under this plan
shall become nonforfeitable in the event of termination of employment after
completion of at least five years of service which would qualify as vesting
service under the Old Kent Retirement Income Plan or attainment of age 65.
5.2 FORFEITURE FOR CAUSE.
Notwithstanding the Participant's age or length of service, if a
Participant is discharged, or resigns, for cause, any benefit provided with
respect to the Participant under this plan shall be forfeited. The
Participant shall be deemed to have been discharged or to have resigned for
cause if the Participant's employment with the Employer terminates due to
or in conjunction with the commission of any criminal act injurious to the
Employer, any act evidencing fraud or dishonesty on the part of the
Participant or any intentional damaging of the property, assets and/or
business reputation of the Employer.
The existence of cause shall be established by the Administrator. The
determination by the Administrator shall be subject to a claims procedure
substantially the same as the claims procedure available under the Old Kent
Retirement Income Plan. If the existence of cause, as defined in the
preceding paragraph, is determined by the Administrator subsequent to
termination of the Participant's employment, such termination of employment
retroactively shall be deemed to have been discharge or resignation for
cause and to result in total forfeiture of all benefits with respect to the
Participant. In such event, benefits which are being paid, if any, shall
terminate and OKFC shall be entitled to recover back from the Participant,
the Participant's Beneficiary, and/or the Participant's estate, legal
representatives, heirs and assigns the full amount of the benefits which
were paid plus interest thereon.
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ARTICLE 6
PAYMENT OF BENEFITS
6.1 EVENT OF DISTRIBUTION.
If the Participant's employment terminates for any reason, benefit
payments shall begin at the time and in the manner specified herein. A
transfer of employment to OKFC or any subsidiary of OKFC is not a
termination of employment.
6.2 FORM OF PAYMENT.
The benefit shall be paid in the applicable form specified in this
section. Each form of benefit payment shall be actuarially equivalent
to the normal form (5-Year Certain and Life) based on the actuarial
equivalence assumptions and factors applicable in the Old Kent Retire-
ment Income Plan as in effect on the date the Participant's employment
terminates. 5-Year Certain and Life means a monthly benefit payable
for a minimum period of 60 months and for life thereafter.
(a) UNMARRIED PARTICIPANT: 10-YEAR CERTAIN AND LIFE. If the
Participant is not married at the time benefit payments are scheduled to
begin, the benefit shall be paid in an actuarially equivalent monthly
amount to the Participant for a minimum period of 120 months and for life
thereafter. In the event of death of the Participant prior to payment of
120 monthly benefit payments, the same monthly amount shall be paid to the
Participant's Beneficiary until a total of 120 monthly payments have been
made.
(b) MARRIED PARTICIPANT: JOINT AND 100% SPOUSE ANNUITY. If the
Participant is married at the time benefit payments are scheduled to begin,
the benefit shall be paid in an actuarially equivalent monthly amount to
the Participant for the Participant's lifetime and shall continue in the
same monthly amount to the Participant's Surviving Spouse, if any, for the
remainder of the Surviving Spouse's life after the Participant's death.
(c) DEATH OF PARTICIPANT BEFORE PAYMENTS BEGIN. If the Participant
is married and dies before benefit payments are required to begin (whether
or not employed by the Employer at time of death), the Surviving Spouse's
portion of the Joint and 100% Spouse Annuity (based on the Participant's
benefit as of the date of death or earlier termination of employment) shall
be payable to the Surviving Spouse. No benefits shall be payable in the
event that the Participant does not have a Surviving Spouse at the date of
the Participant's death.
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(d) LUMP SUM ELECTION. If the Participant irrevocably elects a
lump-sum payment at the time of initial participation in this plan, the
Participant's benefit shall be distributed in a single payment. The amount
of the lump sum shall be the actuarially equivalent present value of the
Participant's benefit payable at Normal Retirement Date. The lump sum
benefit shall be determined in the same manner as under the Old Kent
Retirement Income Plan in effect on the date the Participant's employment
terminates. The election of a lump-sum payment shall be void if the
Participant dies before the first day of the first month following the date
the Participant's employment terminates. If the Participant fails to make
the election at the time of initial participation, the Participant's
benefit shall be paid as specified in (a), (b), (c) or (e).
(e) $3,500 OR LESS. If the actuarially equivalent present value of
the benefit payable under (a), (b) or (c) does not exceed $3,500, the
Participant or Surviving Spouse shall be paid a lump sum. The amount of
the lump sum shall be determined in the same manner as (d) above.
6.3 MANNER OF PAYMENT.
Benefit payments shall be paid directly by the Employer or indirectly
through a grantor trust (owned or maintained by the Employer) to the
Participant or the Participant's Beneficiary. If a trust is established,
the Employer shall not be relieved of its obligation and liability to pay
the benefits of this plan except to the extent payments are actually made
from the trust.
6.4 TIME OF PAYMENT.
The payment of benefits under this plan (including the Surviving
Spouse benefit described in Section 6.2(c)) shall begin on the first day of
the first month following the date the Participant's employment terminates
for any reason or, if later, the date the Participant attains (or would
have attained) age 55. Notwithstanding the preceding sentence, the lump-
sum benefit payable under Section 6.2(d) or (3) shall be paid on March 1
following the end of the calendar year in which the Participant's
employment terminates.
If the payment of benefits commences before or after the Normal
Retirement Date, the normal retirement benefit shall be adjusted for early
or late payment in the same manner as under the Old Kent Retirement Income
Plan as in effect on the date the Participant's employment terminates.
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6.5 DEATH.
(a) PAYMENT TO SPOUSE. If a benefit is payable as a Joint and 100%
Spouse Annuity and the married Participant dies, payment shall continue to
the Participant's Surviving Spouse. No further benefits shall be payable
following death of the Participant with no Surviving Spouse.
(b) PAYMENT TO BENEFICIARY. If a benefit is payable as a 10-Year
Certain and Life annuity and the unmarried Participant dies prior to
payment of all amounts due under this plan, payment of all remaining
benefits shall be made to the Participant's Beneficiary.
(c) PAYMENT TO ESTATE. If payment is to be made to the estate of a
Participant, payment shall be made in a lump sum 90 days after the date of
the Participant's death.
(d) GENERATION-SKIPPING TRANSFER TAX. Notwithstanding any other
provision in this plan or any related trust agreement, OKFC may withhold or
direct the trustee to withhold any benefits payable to a Beneficiary as a
result of the death of a Participant or any other Beneficiary until it can
be determined whether a generation-skipping transfer tax, as defined in
Chapter 13 of the Code, or any substitute provision therefor, is payable by
OKFC or the trustee and the amount of generation-skipping transfer tax,
including interest, that is due. If such tax is payable, the benefits
otherwise payable hereunder shall be reduced by an amount equal to the
generation-skipping transfer tax and interest. Any benefits withheld shall
be payable as soon as there is a final determination of the applicable
generation-skipping transfer tax and interest. No interest shall be
payable to any Beneficiary for the period from the date of death to the
time when the amount of benefits payable to a Beneficiary can be fully
determined pursuant to this paragraph.
ARTICLE 7
GENERAL PROVISIONS
7.1 AMENDMENT; TERMINATION.
Old Kent Financial Corporation reserves the right to amend this plan
prospectively or retroactively, or to terminate this plan, provided that an
amendment or termination may not reduce or revoke the accrued benefits of
Participants as of the end of the Plan Year preceding the Plan Year in
which the amendment or termination is adopted.
Upon termination of this plan, the accrued benefits of affected
Participants shall become nonforfeitable. Each Participant's vested
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accrued benefits shall be distributed in accordance with the provisions of
this plan.
7.2 EMPLOYMENT RELATIONSHIP.
Nothing in this plan shall be construed as creating a contract of
employment between the Employer and any Participant or otherwise conferring
upon any Participant or other person a legal right to continuation of
employment or any rights other than those specified herein. This plan
shall not limit or affect the right of the Employer to discharge or retire
a Participant.
7.3 RIGHTS NOT ASSIGNABLE.
Except for designation of a Beneficiary, amounts promised hereunder
shall not be subject to assignment, conveyance, transfer, anticipation,
pledge, alienation, sale, encumbrance, or charge, whether voluntary or
involuntary, by the Participant or any Beneficiary of the Participant, even
if directed under a qualified domestic relations order or other divorce
order. An interest in an amount promised shall not provide collateral or
security for a debt of a Participant or Beneficiary or be subject to
garnishment, execution, assignment, levy, or to another form of judicial or
administrative process or to the claim of a creditor of a Participant or
Beneficiary, through legal process or otherwise. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of benefits payable, before actual receipt of the benefits, or a
right to receive benefits, shall be void and shall not be recognized.
7.4 UNSECURED CREDITOR STATUS.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this plan. The right of any
Participant or Beneficiary to be paid the amount promised in this plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
7.5 NO TRUST OR FIDUCIARY RELATIONSHIP.
Nothing contained in this plan shall be deemed to create a trust or
fiduciary relationship of any kind for the benefit of any Participant or
Beneficiary.
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7.6 CONSTRUCTION.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
have the meaning specified in this plan. If a capitalized term is not
defined in this plan, the term shall have, for purposes of this plan, the
stated definitions of those terms in the Old Kent Retirement Income Plan as
amended from time to time.
7.7 UNFUNDED PLAN.
This shall be an unfunded plan within the meaning of ERISA. Benefits
provided herein constitute only an unsecured contractual promise to pay in
accordance with the terms of this plan by the Employer.
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TRUST AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
This Trust Agreement is made this 15th day of February, 1991,
between OLD KENT FINANCIAL CORPORATION, a Michigan corporation ("OKFC") ,
and OLD KENT BANK AND TRUST COMPANY (the "Trustee").
OKFC hereby establishes the trust to hold all money and other
property, together with the income thereon, paid or transferred to the
trust under this Trust Agreement. The Trustee accepts the trust and agrees
to hold in trust all money and other property transferred to it hereunder
for the uses and purposes set forth herein, and the Trustee agrees to
discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
INTRODUCTION
OKFC has adopted the Old Kent Executive Retirement Income Plan
(the "Plan") for the benefit of selected management and highly compensated
employees.
The purpose of this trust is to give Plan participants greater
security by placing assets in trust to pay benefits under the Plan, unless
OKFC or a subsidiary of OKFC that employs one or more participants in the
Plan becomes insolvent, in which case the assets will be used to pay
creditors of the insolvent corporation. OKFC shall be liable to
participants to make all payments required under the Plan to the extent
that such payments are not made from this trust. Distributions made from
this trust to participants or their beneficiaries shall, to the extent of
such distributions, satisfy OKFC's obligations to pay benefits under the
Plan.
OKFC and the Trustee agree that the trust has been established to
pay obligations of OKFC pursuant to the Plan and, upon insolvency, is
subject to the rights of general creditors of OKFC. The trust is intended
to be a grantor trust under the provisions of Sections 671 through 677 of
the Internal Revenue Code of 1986 as amended (the "Code") . OKFC agrees to
report all items of income and deduction of the trust on its income tax
returns. OKFC shall have no right to any distributions from the trust or
any claim against the trust for funds necessary to pay any income taxes
that OKFC is required to pay. No contribution to or income of the trust is
intended to be taxable to Plan participants until benefits are distributed
to them.
The Plan is intended to be "unfunded" as described in Parts 2
through 4 of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and maintained primarily for the
purpose of providing deferred compensation for a select group of management
and highly compensated employees.
ARTICLE I
Effective Date; Duration
1.1 Effective Date and Trust Year.
This trust shall become effective when the Trust Agreement has
been executed by OKFC and the Trustee, and OKFC has made a contribution to
the trust. The trust year shall coincide with OKFC's fiscal year. OKFC
shall report any change in its fiscal year to the Trustee.
1.2 Duration.
(a) This trust shall continue in effect until all assets of the
trust fund are exhausted through distribution of benefits to participants,
payment to general creditors in the event of insolvency, payment of fees
and expenses of the Trustee, and return of remaining funds to OKFC pursuant
to Section 1.3.
(b) The Trustee may make payments before they would otherwise be
due if, based on a change in the federal tax or revenue laws, a published
ruling, or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court
of competent jurisdiction involving a participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by
the Internal Revenue Service and involves a participant, it is determined
that a participant has or will recognize income for federal income tax pur-
poses with respect to amounts that are or will be payable under the Plan
before they are to be paid.
1.3 Irrevocability.
This trust shall become irrevocable upon the issuance by the
Internal Revenue Service of a private letter ruling establishing that it is
unfunded for purposes of the Code. If such a ruling is denied, OKFC may
revoke the trust and take possession of all assets held by the Trustee for
the trust. This trust also shall become irrevocable if such a ruling is
not requested by OKFC within 90 days after the date of establishing this
trust.
Except as provided in Sections 1.2 and 2.3 the trust shall be
irrevocable with respect to amounts contributed to it, including income
attributable to such contributions, until all benefit rights under the Plan
for participants who are covered by this trust are satisfied. The Trustee
shall then return to OKFC any assets remaining in the trust.
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ARTICLE II
Trust Fund and Funding Policy
2.1 Contributions.
(a) OKFC may contribute to the trust such amounts as shall be
reasonably necessary to provide for all benefits payable under the Plan to
participants covered by this trust. The time of payment of contributions
shall be decided by OKFC. Contributions may be in cash or in kind.
(b) The Trustee shall accept the contributions made by OKFC and
shall hold them as a trust fund for the payment of benefits under the Plan.
The Trustee shall not be responsible for the adequacy of the trust fund to
meet and discharge liabilities under the Plan.
2.2 Investments.
The Trustee shall invest and reinvest the assets of the trust as
the Trustee, in its sole discretion, may deem appropriate, including,
without limitation, improved and unimproved real property (whether or not
income producing); common and preferred stocks; shares or certificates of
participation issued by investment companies; investment trusts and mutual
funds; common or pooled investment funds; bonds; debentures; mortgages;
deeds of trust; insurance and annuity contracts; notes secured by real or
personal property; leases; ground leases; limited partnership interests;
real or personal property interests owned, developed or managed by joint
ventures or limited partnerships; obligations of governmental bodies, both
domestic and foreign; notes, commercial paper, certificates of deposit, and
other securities or evidences of indebtedness, secured or unsecured,
including variable amount notes, convertible securities of all types and
kinds, interest-bearing savings or deposit accounts with any federally
insured bank (including the Trustee) or any federally insured savings and
loan association; and any other property permitted as trust investments
under applicable law. The Trustee is authorized to invest in any common or
pooled investment fund or mutual fund now or hereafter maintained by the
Trustee and any interest-bearing savings or deposit accounts with the
banking department of the Trustee.
2.3 Return of Excess Assets.
(a) In the event the trust shall hold Excess Assets, OKFC, at
its option, may direct the Trustee to return part or all of such Excess
Assets to OKFC.
(b) "Excess Assets" are assets of the trust exceeding one
hundred fifteen percent (115%) of the present value of all benefits payable
under the Plan to participants who are covered under this trust. The
present value of all benefits payable under the Plan shall be determined in
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accordance with the terms of the Plan and the actuarial assumptions and
methodology used to determine the Accumulated Benefit Obligation under the
Statement of Financial Accounting Standard Number 87 issued by the
Financial Accounting Standards Board.
(c) Notwithstanding any limitations contained in this Trust
Agreement, income of the trust may be distributed to OKFC and immediately
recontributed by OKFC to the trust if OKFC advises the Trustee that such
distribution and recontribution is necessary for federal income tax
purposes to enable OKFC to obtain a deduction for benefit payments to
participants made from income of the trust. OKFC agrees to recontribute to
the trust any amounts distributed pursuant to this paragraph immediately
following any such distribution. In the event OKFC fails to recontribute
any such amount immediately upon receipt thereof, the Trustee shall not be
obligated to make any further distributions pursuant to this paragraph.
For administrative convenience, the Committee desires to have the Trustee
retain such income distributions in the trust fund as additional
contributions by OKFC, without first making payment to OKFC and then
receiving payment from OKFC, unless it instructs the Trustee otherwise. In
such event the Trustee shall treat the income of the trust fund for each
quarter of the trust year as an additional contribution to the trust by
OKFC for such quarter.
2.4 Accounts.
(a) The Trustee shall establish a separate account for each Plan
participant who is covered by this trust, to which it shall credit
contributions for that participant. The account shall be a bookkeeping
account only, shall reflect an undivided interest in assets of the trust
fund and shall not require any segregation of particular assets. OKFC
shall direct the Trustee with respect to the allocation of assets of the
trust fund among the separate accounts. With respect to any new
contributions to the trust by OKFC after separate accounts have been
established, OKFC shall designate each Plan participant for whom such
contributions are made. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
accounts or does not receive a valid direction with respect to the
participants for whom new contributions are made within a reasonable time
after such accounts are established or such contributions are received, the
unallocated assets shall be allocated and new contributions shall be
credited in proportion to the accrued benefits of the participants entitled
thereto. The Trustee shall have no duty to inquire whether any of the
foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of the Plan. After separate
accounts are established, assets allocated to an account for one Plan
participant may not be utilized to provide benefits for any other
participants until all benefits for such participant have been paid in
full.
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(b) The Trustee shall allocate investment earnings and losses of
the trust fund among the accounts in proportion to their balances, except
that changes in the value of insurance and annuity contracts shall be
allocated to the account or accounts for which they are held. Payments to
general creditors during Insolvency Administration under Section 5.2 shall
be charged against the accounts in proportion to their balances, except
that payment of benefits to a Plan participant as a general creditor shall
be charged against the account for that participant.
(c) OKFC and the Trustee may agree that the accounts under this
Section 2.4 shall be maintained by the Plan Administrator, or such other
person as may be designated by the Plan Administrator, rather than the
Trustee.
2.5 Substitution of Other Property.
(a) In the event that any contributions to the trust are made in
kind as provided in Section 2.1(a), OKFC shall have the power to reacquire
part or all of the trust fund consisting of such contributions at any time,
by substituting other readily marketable property of equivalent value, net
of any costs of disposition. Such power is exercisable in a non-fiduciary
capacity and may be exercised without the approval or consent of
participants or any other person.
(b) The value of all assets in the trust fund shall be fair
market value. Values shall be determined by the Trustee and may be based
on the determination of Experts, as described in Section 2.6(b).
2.6 Administrative Powers of Trustee.
(a) Subject in all respects to applicable provisions of this
Trust Agreement and the Plan, including limitations on investment of the
trust fund, the Trustee shall have the rights, powers and privileges of an
absolute owner when dealing with property of the trust, including, without
limitation, the powers listed below:
(1) To sell, convey, transfer, exchange, partition, lease,
and otherwise dispose of any of the assets of the trust at any time held by
the Trustee under this Trust Agreement;
(2) To exercise any option, conversion privilege or
subscription right given the Trustee as the owner of any security held in
the trust; to vote any corporate stock either in person or by proxy, with
or without power of substitution; to consent to or oppose any
reorganization, consolidation, merger, readjustment of financial structure,
sale, lease or other disposition of the assets of any corporation or other
organization, the securities of which may be an asset of the trust; and to
take any action in connection therewith and receive and retain any
securities resulting therefrom;
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(3) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power and
authority with respect thereto as the Trustee may deem proper, and to agree
to pay out of the trust such portion of the expenses and compensation of
such committee as the Trustee, in its discretion, shall deem appropriate;
(4) To cause any property of the trust to be issued, held
or registered in the name of the Trustee as trustee, or in the name of one
or more of its nominees, or one or more nominees of any system for the
central handling of securities, or in such form that title will pass by
delivery, provided that the records of the Trustee shall in all events
indicate the true ownership of such property;
(5) To renew or extend the time of payment of any
obligation due or to become due;
(6) To commence or defend lawsuits or legal or adminis-
trative proceedings; to compromise, arbitrate or settle claims, debts or
damages in favor of or against the trust; to deliver or accept, in either
total or partial satisfaction of any indebtedness or other obligation, any
property; to continue to hold for such period of time as the Trustee may
deem appropriate any property so received; and to pay all costs and
reasonable attorney fees in connection therewith out of the assets of the
trust;
(7) To grant options to purchase or to acquire options to
purchase any real property;
(8) To foreclose any obligation by judicial proceeding or
otherwise;
(9) To manage any real property in the trust in the same
manner as if the Trustee were the absolute owner thereof, including the
power to lease the same for such term or terms within or beyond the
existence of the trust and upon such conditions, including (but not by way
of limitation) agreements for the purchase or disposal of buildings thereon
and options to the tenant to renew such lease from time to time, or to
purchase such property, as the Trustee may deem proper;
(10) To borrow money from any person in such amounts, upon
such terms and for such purposes as the Trustee, in its discretion, may
deem appropriate; and in connection therewith, to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets
as security; and to lend money on a secured or unsecured basis to any
person other than a party in interest;
(11) To appoint one or more persons or entities as agents or
custodians to act as ancillary trustees or sub-trustees for the purpose of
investing in and holding title to real or personal property or any interest
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therein located outside the State of Michigan; provided that any such
ancillary trustee or sub-trustee shall act with. such power, authority,
discretion, duties, and functions of the Trustee as shall be specified in
the instrument establishing such ancillary or sub-trust, including without
limitation, the power to receive, hold and manage property, real or
personal, or undivided interests therein; and the Trustee may pay the
reasonable expenses and compensation of such ancillary trustees or sub-trustees
out of the trust;
(12) To deposit any securities held in the trust with a
securities depository;
(13) To retain in money market funds or other daily
interest, daily availability funds and investment cash so much of the trust
assets as the Trustee deems advisable;
(14) To determine how all receipts and disbursements shall
be credited, charged or apportioned as between income and principal, and
the decision of the Trustee shall be final and not subject to question by
any participant or beneficiary of the trust; and
(15) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
orderly administration or protection of the trust fund.
Notwithstanding the foregoing or any other language in this
Trust Agreement, the Trustee shall not have the power to start, enter into,
or otherwise engage in any business enterprise, or continue to operate any
business interest that becomes part of the trust estate, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the Procedure and Administration Regulations under the Internal Revenue
Code of 1986, as amended.
(b) The Trustee may engage one or more independent attorneys,
accountants, actuaries, appraisers or other experts (an "Expert") for any
purpose, including the determination of Excess Assets pursuant to Section
2.3 or disputed claims pursuant to Section 3.3. The determination of an
Expert shall be final and binding on OKFC, the Trustee, and all of the
participants unless within 30 days after receiving a determination deemed
by any participant to be adverse, the participant initiates suit in a court
of competent jurisdiction seeking appropriate relief. The Trustee shall
have no duty to oversee or independently evaluate the determination of the
Expert. The Trustee shall be authorized to pay the fees and expenses of
any Expert out of the assets of the trust fund.
(c) OKFC shall from time to time pay taxes (including interest
and applicable penalties) of any and all kinds whatsoever that at any time
are lawfully levied or assessed upon or become payable in respect of the
trust fund, the income or any property forming a part thereof, or any
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security transaction pertaining thereto. To the extent that any taxes
levied or assessed upon the trust fund are not paid by OKFC or contested by
OKFC pursuant to the last sentence of this paragraph, the Trustee shall pay
such taxes out of the trust fund, and OKFC may, in its discretion, deposit
into the trust fund an amount equal to the amount paid from the trust fund
to satisfy such tax liability. If requested by OKFC, the Trustee shall, at
OKFC's expense, contest the validity of such taxes in any manner deemed
appropriate by OKFC or its counsel, but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of
such contest. Alternatively, OKFC may itself contest the validity of any
such taxes.
ARTICLE III
Administration
3.1 Company Representatives.
(a) OKFC is the Plan Administrator for the Plan and has general
responsibility to interpret the Plan and determine the rights of
participants and beneficiaries.
(b) The Trustee shall be given the names and specimen signatures
of OKFC representatives authorized to take action with regard to the
administration of the Plan and this trust. The Trustee shall accept and
rely upon the names and signatures until notified of any change.
Instructions to the Trustee shall be signed for OKFC by any such
representatives as OKFC may designate.
3.2 Payment of Benefits.
(a) The Trustee shall pay benefits to participants and bene-
ficiaries on behalf of OKFC in satisfaction of OKFC's obligations under the
Plan or shall reimburse OKFC for payments made directly by OKFC in
satisfaction of its obligations under the Plan. Benefit payments from an
account, or reimbursements therefor, shall be made until the assets of the
account are exhausted. OKFC's obligation shall not be limited to the trust
fund, and a participant shall have a claim against OKFC for any payment not
made by the Trustee.
(b) The Trustee shall make payments in accordance with written
directions from OKFC. To the extent that the Trustee makes payments to
participants and beneficiaries as directed by OKFC, the Trustee shall make
any required income tax withholding and shall pay amounts withheld to
taxing authorities on OKFC's behalf or determine that such amounts have
been paid by OKFC.
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(c) A participant's entitlement to benefits under the Plan shall
be determined by OKFC. Any claim for such benefits shall be considered and
reviewed under the claims procedures established for the Plan.
3.3 Disputed Claims.
A claim with respect to eligibility to participate in the Plan,
eligibility for a benefit, the amount of a benefit or any other matter
relating to a particular participant or beneficiary shall be made to the
Plan Administrator in accordance with the terms of the Plan. The
determination by the Plan Administrator with respect to such claims shall
be binding upon the Trustee. The Trustee shall have no obligation to
determine any claim presented to it and may file suit to have any such
matter resolved by a court of competent jurisdiction. All of the Trustee's
expenses in the court proceeding, including attorney fees, shall be allowed
as administrative expenses of the trust.
3.4 Records.
The Trustee shall keep complete records on the trust fund open to
inspection by OKFC at all reasonable times. In addition to accountings
required below, the Trustee shall furnish to OKFC any information requested
about the trust fund.
3.5 Accountings.
(a) The Trustee shall furnish OKFC with a complete accounting of
the trust fund annually as soon as reasonably practicable after the end of
the trust year showing assets and liabilities and income and expense for
the year. The form and content of the accounting shall be sufficient for
OKFC to include in computing its taxable income the income, deductions and
credits against taxes that are attributable to the trust fund.
(b) OKFC may object to an accounting within 180 days after it is
furnished and require that it be settled by audit by a qualified,
independent certified public accountant. The auditor shall be chosen by
the Trustee from a list of at least three such accountants furnished by
OKFC at the time the audit is requested. Either OKFC or the Trustee may
require that the account be settled by a court of competent jurisdiction,
in lieu of or in conjunction with the audit. All expenses of any audit or
court proceedings, including reasonable attorney fees, shall be allowed as
administrative expenses of the trust.
(c) If OKFC does not object to an accounting within the time
provided, the account shall be settled for the period covered by it. When
an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
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3.6 Expenses and Fees.
(a) The Trustee shall be reimbursed for all expenses and shall
be paid a reasonable fee fixed by agreement with OKFC from time to time.
No increase in the fee shall be effective before 60 days after the Trustee
gives notice to OKFC of the increase. The Trustee shall notify OKFC
periodically of expenses and fees.
(b) OKFC shall pay administrative fees and expenses. If not so
paid, the fees and expenses shall be paid from the trust fund. OKFC may
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
Liability
4.1 Indemnity.
Subject to such limitations as may be imposed by applicable law,
OKFC shall indemnify and hold harmless the Trustee from any claims, loss,
liability, or expense arising from any action or inaction in administration
of this trust based on direction or information from either OKFC, or any
Expert, absent willful misconduct or bad faith.
4.2 Bonding.
The Trustee need not give any bond or other security for
performance of its duties under this trust.
ARTICLE V
Insolvency
5.1 Determination of Insolvency.
(a) For purposes of this trust, an entity is Insolvent if it is
unable to pay its debts as they come due or it is the subject of a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute).
(b) If OKFC or any subsidiary of OKFC that employs one or more
participants in the Plan (individually a "Participating Employer") becomes
Insolvent, the Chief Executive officer and the Board of Directors of the
Participating Employer shall notify the Trustee that the corporation is
Insolvent. If the Trustee receives such notice or receives from any other
person claiming to be a creditor of the Participating Employer a written
allegation that the Participating Employer is Insolvent, the Trustee shall
commence Insolvency Administration under Section 5.2 and shall
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independently determine whether such insolvency exists. The expenses of
such determination shall be allowed as administrative expenses of the
trust.
(c) Payments from the trust fund to participants under the Plan
shall cease and the Trustee shall commence Insolvency Administration under
Section 5.2 upon the earlier of:
(1) Receipt of a notice or allegation of insolvency under
Section 5.1(b); or
(2) A determination by the Trustee or a court of competent
jurisdiction that the Participating Employer is Insolvent.
(d) The Trustee shall have no obligation to investigate the
financial condition of the Participating Employer prior to receiving a
notice or allegation of insolvency under Section 5.1(b).
5.2 Insolvency Administration.
(a) During Insolvency Administration, the Trustee shall hold the
trust fund for the benefit of the general creditors of the Participating
Employer and make payments only in accordance with Section 5.2(b). The Plan
participants and beneficiaries shall have no greater rights than general
creditors of the Participating Employer. The Trustee shall continue the
investment of the trust fund in accordance with Section 2.2.
(b) The Trustee shall make payments out of the trust fund in one
or more of the following ways:
(1) To general creditors in accordance with instructions
from a court, or a person appointed by a court, having jurisdiction over
the Participating Employer's condition of insolvency;
(2) To Plan participants and beneficiaries in accordance
with such instructions; and
(3) In payment of its own fees or expenses.
5.3 Termination of Insolvency Administration.
(a) Insolvency Administration shall terminate when the Trustee
determines that the Participating Employer:
(1) Is not Insolvent;
(2) Has ceased to be Insolvent; or
(3) Has been determined by a court of competent
jurisdiction not to be Insolvent or to have ceased to be Insolvent.
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(b) Upon termination of Insolvency Administration under Section
5.3(a), the trust fund shall continue to be held for the benefit of the
participants in the Plan. Benefit payments due during the period of
Insolvency Administration shall be made as soon as practicable, together
with interest from the due dates at a rate equal to the interest rate fixed
by the Pension Benefit Guaranty Corporation for valuing immediate annuities
in the preceding month.
5.4 Creditors' Claims During Solvency.
(a) During periods of Solvency the Trustee shall hold the trust
fund exclusively to pay Plan benefits and fees and expenses of the trust
until all Plan benefits have been paid. Creditors of a Participating
Employer shall not be paid from the trust fund during Solvency, and the
trust fund may not be seized by or subjected to the claims of such
creditors in any way.
(b) A period of Solvency is any period not covered by Section
5.2.
ARTICLE VI
Successor Trustees
6.1 Resignation and Removal.
(a) The Trustee may resign at any time by notice to OKFC, which
shall be effective in 60 days unless OKFC and the Trustee agree otherwise.
(b) The Trustee may be removed by OKFC on 60 days' notice or
shorter notice accepted by the Trustee.
(c) When resignation or removal is effective, the Trustee shall
begin transfer of assets to the successor Trustee immediately. The
transfer shall be completed within 60 days, unless OKFC extends the time
limit.
(d) If the Trustee resigns or is removed, OKFC shall appoint a
successor by the effective date of resignation or removal under Sections
6.1(a) or (b). If no such appointment has been made, the Trustee may apply
to a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the trust.
6.2 Appointment of Successor.
(a) OKFC may appoint any national or state bank or trust company
as a successor to replace the Trustee upon resignation or removal. The
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appointment shall be effective when accepted in writing by the new Trustee,
which shall have all of the rights and powers of the former Trustee,
including ownership rights in the trust assets. The former Trustee shall
execute any instruments necessary or reasonably requested by OKFC or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts
of any prior Trustee and may retain or dispose of existing trust assets,
subject to Article II. The successor Trustee shall not be responsible for,
and OKFC shall indemnify and hold harmless the successor Trustee from any
claim or liability because of, any action or inaction of any prior Trustee
or any other past event, any existing condition or any existing assets.
6.3 Accountings; Continuity.
(a) A Trustee who resigns or is removed shall submit a final
accounting to OKFC as soon as practicable. The accounting shall be
received and settled as provided in Section 3.5 for regular accountings.
(b) No resignation or removal of the Trustee or change in
identity of the Trustee for any reason shall cause a termination of the
Plan or this trust.
ARTICLE VII
General Provisions
7.1 Interests Not Assignable.
(a) The interest of a participant in the trust fund may not be
assigned, seized by legal process, transferred, or subjected to the claims
of the participant's creditors in any way. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of promised benefits or the right to receive promised benefits,
before actual receipt of the benefits, shall be void and shall not be
recognized.
(b) Neither OKFC nor any other Participating Employer may create
a security interest in the trust fund in favor of any of its creditors.
The Trustee shall not make payments from the trust fund of any amounts to
creditors of OKFC who are not Plan participants, except as provided in
Section 5.2.
(c) The participants shall have no interest in the assets of the
trust fund beyond the right to receive payment of Plan benefits from such
assets outside periods of Insolvency Administration under Section 5.2.
During Insolvency Administration the participants' rights to trust assets
shall not be superior to those of any other general creditors of the
Participating Employer.
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7.2 Amendment.
Except as provided in Sections 1.2 and 1.3, no amendment shall
alter or reduce the rights of Plan participants in the Plan, increase the
rights of other general creditors in the assets of the trust fund, or cause
this Trust Agreement or the trust to be revoked and terminated or to become
revocable. The duties and powers of the Trustee shall not be increased
without the Trustee's written consent.
7.3 Applicable Law.
This Trust shall be governed, construed and administered
according to the laws of the State of Michigan, except as preempted by
ERISA.
7.4 Agreement Binding on All Parties.
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties and Plan participants.
7.5 Notices and Directions.
Any notice or direction under this trust shall be in writing and
shall be effective when actually delivered, or if mailed, when deposited
postpaid as first-class mail. Mail to a party shall be directed to the
address stated below or to such other address as either party may specify
by notice to the other party. Until notice is given to the contrary,
notices to OKFC and the Trustee shall be addressed as follows:
If to OKFC:
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Attention: Director of Human Resources
If to the Trustee:
Old Kent Bank and Trust Company
200 Monroe, N.W.
Suite 430
Grand Rapids, Michigan 49503
Attention: Corporate Trust Services
7.6 No Implied Duties.
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
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IN WITNESS WHEREOF, OKFC and the Trustee have caused this Trust
Agreement to be executed by their respective duly authorized officers on
the date first written above.
OLD KENT FINANCIAL CORPORATION
By:___________________________________________
Its_______________________________________
"OKFC"
OLD KENT BANK AND TRUST COMPANY
By:___________________________________________
Its_______________________________________
"Trustee"
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- -----------------------------------------------------------------------------
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
TRUST AGREEMENT
Between
OLD KENT FINANCIAL CORPORATION
And
OLD KENT BANK AND TRUST COMPANY
- -----------------------------------------------------------------------------
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - Effective Date; Duration . . . . . . . . . . . . . . . . . . .2
1.1 Effective Date and Trust Year. . . . . . . . . . . . . . . . . .2
1.2 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - Trust Fund and Funding Policy . . . . . . . . . . . . . . . .3
2.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3 Return of Excess Assets. . . . . . . . . . . . . . . . . . . . .3
2.4 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.5 Substitution of Other Property . . . . . . . . . . . . . . . . .5
2.6 Administrative Powers of Trustee . . . . . . . . . . . . . . . .5
ARTICLE III - Administration . . . . . . . . . . . . . . . . . . . . . . .8
3.1 Company Representatives. . . . . . . . . . . . . . . . . . . . .8
3.2 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . .8
3.3 Disputed Claims. . . . . . . . . . . . . . . . . . . . . . . . .8
3.4 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.5 Accountings. . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.6 Expenses and Fees. . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV - Liability . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V - Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Determination of Insolvency. . . . . . . . . . . . . . . . . . 10
5.2 Insolvency Administration. . . . . . . . . . . . . . . . . . . 11
5.3 Termination of Insolvency Administration . . . . . . . . . . . 11
5.4 Creditors' Claims During Solvency. . . . . . . . . . . . . . . 12
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ARTICLE VI - Successor Trustees. . . . . . . . . . . . . . . . . . . . . 12
6.1 Resignation and Removal. . . . . . . . . . . . . . . . . . . . 12
6.2 Appointment of Successor . . . . . . . . . . . . . . . . . . . 13
6.3 Accountings; Continuity. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII - General Provisions . . . . . . . . . . . . . . . . . . . . 13
7.1 Interests Not Assignable . . . . . . . . . . . . . . . . . . . 13
7.2 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 14
7.4 Agreement Binding on All Parties . . . . . . . . . . . . . . . 14
7.5 Notices and Directions . . . . . . . . . . . . . . . . . . . . 14
7.6 No Implied Duties. . . . . . . . . . . . . . . . . . . . . . . 15
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