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EXHIBIT 10.53
VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST
FOR THE EMPLOYEES OF
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
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TABLE OF CONTENTS
Page
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ARTICLE I
TRUSTEE AND TRUST FUND
1.1 NAME OF TRUST 2
1.2 TRUST FUND 2
1.3 QUALIFIED TRUST 2
ARTICLE II
PLAN
2.1 DELIVERY OF PLAN TO TRUSTEE 3
2.2 PARTICIPANT'S AND BENEFICIARY'S RIGHTS 3
ARTICLE III
ADMINISTRATOR
3.1 NOTIFICATION OF NAME OF ADMINISTRATOR 4
3.2 PLAN ADMINISTRATOR DIRECTIONS 4
ARTICLE IV
CONTRIBUTIONS
4.1 RECEIPT OF CONTRIBUTIONS 5
ARTICLE V
TRUSTEE
5.1 BASIC RESPONSIBILITIES OF THE TRUSTEE 6
5.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE 6
5.3 OTHER POWERS OF THE TRUSTEE 7
5.4 DUTIES OF THE TRUSTEE REGARDING PAYMENTS 10
5.5 POST-RETIREMENT BENEFITS TO KEY EMPLOYEES 10
5.6 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES 10
5.7 ANNUAL REPORT OF THE TRUSTEE 10
5.8 AUDIT 11
5.9 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE 12
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ARTICLE VI
AMENDMENT, TERMINATION, AND MERGERS
6.1 AMENDMENT 13
6.2 TERMINATION 13
ARTICLE VII
MISCELLANEOUS
7.1 ALIENATION 14
7.2 CONSTRUCTION OF AGREEMENT 14
7.3 GENDER AND NUMBER 14
7.4 LEGAL ACTION 15
7.5 PROHIBITION AGAINST DIVERSION OF FUNDS 15
7.6 BONDING 15
7.7 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE 15
7.8 INSURER'S PROTECTIVE CLAUSE 15
7.9 RECEIPT AND RELEASE FOR PAYMENTS 16
7.10 HEADINGS 16
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VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST
FOR THE EMPLOYEES OF RESOURCE BANCSHARES
MORTGAGE GROUP, INC.
THIS AGREEMENT, made and entered into this day of November, 1999, by
and between RESOURCE BANCSHARES MORTGAGE GROUP, INC. (herein referred to as the
"Employer") and HSBC BANK, USA (herein referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, the Employer has concurrently herewith adopted a 501(c)(9)
plan known as the VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION PLAN FOR THE
EMPLOYEES OF RESOURCE BANCSHARES MORTGAGE GROUP, INC. (herein referred to as the
"Plan"); and
WHEREAS, under the terms of the Plan, funds will from time to time be
contributed to the Trust which funds as and when received by the Trustee, will
constitute a trust fund to be held by said Trustee under the Plan for the
benefit of the Participants and of their Beneficiaries; and
WHEREAS, the Employer desires the Trustee to hold and administer such
funds and the Trustee is willing to hold and administer such funds pursuant to
the terms of this Agreement; and
WHEREAS, the Employer intends that this Trust (and the Plan attached
hereto) shall constitute an employee welfare benefit plan under Section 3(1) of
the Employee Retirement Income Security Act of 1974 (ERISA) and as such shall be
subject to the requirements of Parts 1 and 4 of Subtitle B, Title I of ERISA;
NOW, THEREFORE, for and in consideration of the premises and of the
mutual covenants herein contained, the Employer and the Trustee do hereby
covenant and agree as follows:
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ARTICLE I
TRUSTEE AND TRUST FUND
1.1 NAME OF TRUST
This trust shall be entitled the "VOLUNTARY EMPLOYEES' BENEFICIARY
ASSOCIATION TRUST FOR THE EMPLOYEES OF RESOURCE BANCSHARES MORTGAGE GROUP, INC."
(hereinafter referred to as the "Trust"), and shall carry into effect the
provisions of the Plan created prior to, or concurrently herewith and forming a
part hereof. With the exception of the terms "Employer", "Plan", "Trustee" and
"Trust" which are defined in this Agreement, the definitions in such Plan are
hereby incorporated herein by reference. The Trustee hereby agrees to act as
Trustee of the Trust, and to take, hold, invest, administer and distribute in
accordance with the following provisions, any and all contributions and assets
paid or delivered to the Trustee pursuant to the Plan.
1.2 TRUST FUND
All of the assets at any time held hereunder by the Trustee are
hereinafter referred to collectively as the "Trust Fund". All right, title and
interest in and to the assets of the Trust Fund shall be at all times, vested
exclusively in the Trustee. The Trustee shall receive, take and hold any
contributions paid to the Trustee in cash or in other property acceptable to the
Trustee. All contributions so received together with the income therefrom and
any other increment thereon shall be held, managed and administered by the
Trustee pursuant to the terms of this Agreement without distinction between
principal and income and without liability for the payment of interest thereon.
The Trustee shall not be responsible for collection of any contributions to the
Plan.
1.3 QUALIFIED TRUST
The Trust is hereby designated as constituting a part of the Plan which
is intended to continue to qualify and to be tax exempt under Section 501(c)(9)
of the Code, as amended from time to time. Until advised otherwise, the Trustee
may conclusively presume that this Trust is qualified under Section 501(c)(9) of
the Code as amended from time to time, and that this Trust is exempt from
federal income taxes.
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ARTICLE II
PLAN
2.1 DELIVERY OF PLAN TO TRUSTEE
The Employer shall deliver to the Trustee a copy of the Plan and of any
amendments thereto for convenience of reference, but rights, powers, titles,
duties, discretion and immunities of the Trustee shall be governed solely by
this instrument without reference to the Plan.
2.2 PARTICIPANT'S AND BENEFICIARY'S RIGHTS
This Plan shall not be deemed to constitute a contract between the
Employer and any Participant or Beneficiary or to be a consideration or an
inducement for the employment of any Participant or Employee. Nothing contained
in this Plan shall be deemed to give any Participant or Employee the right to be
retained in the service of the Employer or to interfere with the right of the
Employer to discharge any Participant of Employee at any time regardless of the
effect which such discharge shall have upon him as a Participant of this Plan.
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ARTICLE III
ADMINISTRATOR
3.1 NOTIFICATION OF NAME OF ADMINISTRATOR
The Plan provides for the appointment of an Administrator or
Administrators to administer the Plan. The Employer shall notify the Trustee in
writing of the name of the Administrator, and of any change in the identity of
such Administrator. Until notified of the change, the Trustee shall be fully
protected in acting upon the assumption that the identity of the Administrator
has not been changed.
3.2 PLAN ADMINISTRATOR DIRECTIONS
The Administrator shall have sole responsibility for determining the
existence, non-existence, nature and amount of the rights and interests of all
persons in the Trust Fund. All directions by the Administrator to the Trustee
shall be in writing signed by such Administrator. The Employer shall furnish to
the Trustee a specimen signature of the Administrator or Administrators at the
time he or they are appointed.
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ARTICLE IV
CONTRIBUTIONS
4.1 RECEIPT OF CONTRIBUTIONS
The Trustee shall receive all contributions paid in cash or other
property and all contributions so received together with the income therefrom
and any increment thereon shall be held, managed and administered by the Trustee
pursuant to this Agreement without distinction between principal and income. The
Trustee shall have no duty to require any contributions to be made to the Trust
by the Employer or to determine that the amounts received comply with the Plan,
or to determine that the Trust Fund is adequate to provide the benefits payable
pursuant to the Plan.
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ARTICLE V
TRUSTEE
5.1 BASIC RESPONSIBILITIES OF THE TRUSTEE
The Trustee shall have the following categories of responsibilities:
(a) Consistent with the "funding policy and method" determined by the
Employer to invest, manage, and control the Plan assets subject, however, to the
direction of an Investment Manager if the Employer should appoint such manager
as to all or a portion of the assets of the Plan in accordance with the
provisions of the Plan;
(b) At the direction of the Administrator, to pay benefits required
under the Plan to be paid to Participants or Beneficiaries.
(c) To maintain records of receipts and disbursements and furnish to
the Employer and/or Administrator for each Plan Year a written annual report per
Section 5.7.
If there shall be more than one Trustee, they shall act by a majority
of their number, but may authorize one or more of them to sign papers on their
behalf.
5.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust Fund to keep the
Trust Fund invested without distinction between principal and income and in such
securities or property, real or personal, wherever situated, as the Trustee
shall deem advisable, including, but not limited to, stocks, common or
preferred, bonds and other evidences of indebtedness or ownership, and real
estate or any interest therein. The Trustee shall at all times in making
investments of the Trust Fund consider, among other factors, the short and
long-term financial needs of the Plan on the basis of information furnished by
the Employer. In making such investments, the Trustee shall not be restricted to
securities or other property of the character expressly authorized by the
applicable law for trust investments; however, the Trustee shall give due regard
to any limitations imposed by the Code or the Act so that at all times this Plan
may qualify as both an employee welfare benefit plan and a voluntary employees'
beneficiary association.
(b) The Trustee may, from time to time with the consent of the
Employer, transfer to a common, collective, or pooled trust fund maintained by
any corporate Trustee hereunder, all or such part of the Trust Fund as the
Trustee may deem advisable, and such part or all of the Trust Fund so
transferred shall be subject to all the terms and provisions of the common,
collective, or pooled trust fund which contemplate the commingling for
investment purposes of such Trust assets with trust assets of other trusts. The
Trustee may, from time to time with the consent of the Employer, withdraw from
such common, collective, or pooled trust fund all or such part of the Trust Fund
as the Trustee may deem advisable.
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(c) If life insurance policies have been issued under the Plan, the
Trustee, at the direction of the Administrator, shall apply for, own, and pay
premiums on such life insurance policies.
5.3 OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under common
law, statutory authority, including the Act, and other provisions of this
Agreement, shall have the following powers and authorities, to be exercised in
the Trustee's sole discretion:
(a) To purchase, or subscribe for, any securities or other property and
to retain the same. In conjunction with the purchase of securities, margin
accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to purchase, or
otherwise dispose of any securities or other property held by the Trustee, by
private contract or at public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money or to inquire into the
validity, expediency, or propriety of any such sale or other disposition, with
or without advertisement;
(c) To vote upon any stocks, bonds, or other securities; to give
general or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights or
other options, and to make any payments incidental thereto; to oppose, or to
consent to, or otherwise participate in, corporate reorganizations or other
changes affecting corporate securities, and to delegate discretionary powers,
and to pay any assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stocks, bonds,
securities, or other property;
(d) To cause any securities or other property to be registered in the
Trustee's own name or in the name of one or more of the Trustee's nominees, and
to hold any investments in bearer form, but the books and records of the Trustee
shall at all times show that all such investments are part of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in such
amount, and upon such terms and conditions, as the Trustee shall deem advisable;
and for any sum so borrowed, to issue a promissory note as Trustee, and to
secure the repayment thereof by pledging all, or any part, of the Trust Fund;
and no person lending money to the Trustee shall be bound to see to the
application of the money lent or to inquire into the validity, expediency, or
propriety of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash balances as
the Trustee may, from time to time, deem to be in the best interests of the
Plan, without liability for interest thereon;
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(g) To accept and retain, for such time as it may deem advisable, any
securities or other property received or acquired by it as Trustee hereunder,
whether or not such securities or other property would normally be purchased as
investments hereunder;
(h) To make, execute, acknowledge, and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted.
(i) To settle, compromise, or submit to arbitration any claims, debts
or damages due or owing to or from the Plan, to commence or defend suits or
legal or administrative proceedings, and to represent the Plan in all suits and
legal and administrative proceedings;
(j) To employ suitable agents and counsel and to pay their reasonable
expenses and compensation, and such agent or counsel may or may not be agent or
counsel for the Employer;
(k) To do all such acts and exercise all such rights and privileges,
although not specifically mentioned herein, as the Trustee may deem necessary to
carry out the purposes of the Plan;
(l) To apply for and procure from responsible insurance companies, to
be selected by the Administrator, such endowment or other insurance contracts on
the life of any Participant or Beneficiaries as required to insure or protect
the benefits under the Plan as the Administrator shall deem proper; to exercise,
at any time or from time to time, whatever rights and privileges may be granted
under such endowment or other insurance contracts; to collect, receive, and
settle for the proceeds of all such endowment or other insurance contracts as
and when entitled to do so under the provisions thereof;
(m) To invest funds of the Trust in time deposits or savings accounts
bearing a reasonable rate of interest in the Trustee's bank;
(n) To invest in Treasury Bills and other forms of United States
government obligations;
(o) Except as hereinafter expressly authorized, the Trustee is
prohibited from selling or purchasing stock options. The Trustee is expressly
authorized to write and sell call options under which the holder of the option
has the right to purchase shares of stock held by the Trustee as a part of the
assets of this Trust, if such options are traded on and sold through a national
securities exchange registered under the Securities Exchange Act of 1934, as
amended, which exchange has been authorized to provide a market for option
contracts pursuant to Rule 9B-1 promulgated under such Act, and so long as the
Trustee at all times up to and including the time of exercise or expiration of
any such option holds sufficient stock in the assets of this Trust to meet the
obligations under such option of exercised. In addition, the Trustee is
expressly authorized to
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purchase and acquire call options for the purchase of shares of stock covered by
such options if the options are traded on and purchased through a national
securities exchange as described in the immediately preceding sentence, and so
long as any such option is purchased solely in a closing purchase transaction,
meaning the purchase of exchange traded call option the effect of which is to
reduce or eliminate the obligations of the Trustee with respect to a stock
option contract or contracts which it has previously written and sold in a
transaction authorized under the immediately preceding sentence.
(p) To deposit monies in federally insured savings accounts or
certificates of deposit in banks or savings and loan associations;
(q) To pool all or any of the Trust Fund, from time to time, with
assets belonging to any other qualified employee benefit trust or created by the
Employer, and to commingle such assets and make joint or common investments and
carry joint accounts on behalf of this Plan and such other trust or trusts,
allocating undivided shares or interests in such investments or accounts or any
pooled assets of the two or more trusts in accordance with their respective
interests.
(r) To acquire by lease, purchase or rent, property, real or personal,
at public or private sale, with or without security, in such manner, at such
time or times, for such purposes, for such prices and upon such terms, credits
and conditions as the Trustee may deem advisable.
(s) To retain such real or personal property for any period, whether or
not the same be of the character permissible for investments by fiduciaries
under any applicable law, and without regard to any effect the retention may
have upon the diversification of the investments.
(t) To sell, transfer, exchange, convert or otherwise dispose of, or
grant options with respect to any property, real or personal, held in the trust
fund, at public or private sale, with or without security, in such manner, at
such time or times, for such purposes, for such prices and upon such terms,
credits and conditions as the Trustee may deem advisable.
(u) To possess, manage, insure against loss by fire or other
casualties, develop, subdivide, control, partition, mortgage, lease (to
Participants or their Beneficiaries) or otherwise deal with any and all real
property; to satisfy and discharge or extend the term of any mortgage thereon;
to execute the necessary instruments and covenants to effectuate the foregoing
powers, including the giving or granting of options in connection therewith; to
make improvements, structural or otherwise, or abandon the same if deemed to be
worthless or not of sufficient value to warrant keeping or protecting; to
abstain from the payment of taxes, water rents, assessments, repairs,
maintenance and upkeep of the same; to permit to be lost by tax sale or other
proceeding or to convey the same for a nominal consideration or without
consideration; to set up appropriate reserves out of income for repairs,
modernization and upkeep of buildings, including reserves for depreciation and
obsolescence, and to add such reserves to principal, and, if the income from the
property itself should not suffice for such purposes, to advance out of the
other income any sums needed therefor, and, to advance any income of the Trust
for the amortization of any mortgage on
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property held in the Trust.
5.4 DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from time to
time, in accordance with the terms of the Plan, make payments out of the Trust
Fund. The Trustee shall not be responsible in any way for the application of
such payments.
5.5 POST-RETIREMENT BENEFITS TO KEY EMPLOYEES
The Trustee shall establish separate accounts for each key employee (as
defined in Section 416(i) of the Code) for any medical benefits or life
insurance to be provided to such key employee after retirement. The key
employee's post-retirement medical and life insurance benefits may only be paid
from such separate account.
5.6 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as shall from
time to time be agreed upon in writing by the Employer and the Trustee. In
addition, the Trustee shall be reimbursed for any reasonable expenses, including
reasonable counsel fees incurred by it as Trustee. Such compensation and
expenses shall be paid from the Trust Fund unless paid or advanced by the
Employer. All taxes of any kind and all kinds whatsoever that may be levied or
assessed under existing or future laws upon, or in respect of, the Trust Fund or
the income thereof, shall be paid from the Trust Fund.
5.7 ANNUAL REPORT OF THE TRUSTEE
Within ninety (90) days after the end of each Plan Year, the Trustee
shall furnish to the Employer and Administrator a written statement of the
account with respect to the Fiscal Year for which such contribution was made
setting forth:
(1) the net income, or loss, of the Trust Fund;
(2) the gains, or losses, realized by the Trust Fund upon
sales or other disposition of the assets;
(3) the increase, or decrease, in the value of the Trust Fund;
(4) all payments and distributions made from the Trust Fund;
and
(5) such further information as the Trustee and/or
Administrator deems appropriate.
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The Employer, forthwith upon its receipt of each such statement of
account, shall acknowledge receipt thereof in writing and advise the Trustee
and/or Administrator of its approval or disapproval thereof. Failure by the
Employer to disapprove any such statement of account within sixty (60) days
after its receipt thereof shall be deemed an approval thereof. The approval by
the Employer of any statement of account shall be binding as to all matters
embraced therein as between the Employer and the Trustee to the same extent as
if the account of the Trustee had been settled by judgment or decree in an
action for a judicial settlement of its account in a court of competent
jurisdiction in which the Trustee, the Employer and all persons having or
claiming an interest in the Plan were parties; provided, however, that nothing
herein contained shall deprive the Trustee of its right to have its accounts
judicially settled if the Trustee so desires.
5.8 AUDIT
(a) If an audit of the Plan's records shall be required by the Act and
the regulations thereunder for any Plan Year, the Administrator shall engage an
independent certified public accountant for that purpose. Such accountant shall,
after an audit of the books and records of the Plan in accordance with generally
accepted auditing standards, within a reasonable period after the close of the
Plan Year, furnish to the Administrator and the Trustee a report of his audit
setting forth his opinion as to whether each of the following statements,
schedules, or lists, or any others that are required by Section 103 of the Act
or the Secretary of Labor to be filed with the Plan's annual report, are
presented fairly in conformity with generally accepted accounting principles
applied consistently:
(1) statement of the assets and liabilities of the Plan;
(2) statement of changes in net assets available to the
Plan;
(3) statement of receipts and disbursements, a schedule
of all assets held for investment purposes, a
schedule of all loans or fixed income obligations in
default at the close of the Plan Year;
(4) a list of all loans in default or uncollectible
during the Plan Year;
(5) the most recent annual statement of assets and
liabilities of any bank common or collective trust
fund in which Plan assets are invested or such
information regarding separate accounts or trusts
with a bank or insurance company as the Trustee, and
(6) a schedule of each transaction or series of
transactions involving an amount in excess of five
percent (5%) of Plan assets.
All auditing and accounting fees shall be an expense of and may, at the
election of the
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Administrator, be paid from the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply with Section 103 of the Act is maintained by a bank,
insurance company, or similar institution, regulated and supervised and subject
to periodic examination by a state or federal agency, it shall transmit and
certify the accuracy of that information to the Administrator as provided in
Section 103(b) of the Act within one hundred twenty (120) days after the end of
the Plan Year or such other date as may be prescribed under regulations of the
Secretary of Labor.
5.9 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the Employer,
at least thirty (30) days before its effective date, a written notice of his
resignation.
(b) The board of directors of the Employer may remove the Trustee by
mailing by registered or certified mail, addressed to such Trustee at his last
known address, at least thirty (30) days before its effective date, a written
notice of his removal and a copy, certified by the Secretary of the Employer, of
the resolution adopted by such board of directors effecting his removal.
(c) Upon the death, resignation, incapacity, or removal of any Trustee,
a successor may be appointed by resolution of the board of directors of the
Employer; and such successor, upon accepting such appointment in writing and
delivering same to the Employer, shall, without further act, become vested with
all the estate, rights, powers, discretions, and duties of his predecessor with
like respect as if he were originally named as Trustee herein. Until such a
successor is appointed, the remaining Trustee or Trustees shall have full
authority to act under the terms of this Agreement.
(d) The board of directors may designate one or more successors prior
to the death, resignation, incapacity, or removal of a Trustee. In the event a
successor is so designated by the board of directors of the Employer and accepts
such designation, the successor shall, without further act, become vested with
all the estate, rights, powers, discretions, and duties of his predecessor with
the like effect as if he were originally named as Trustee herein immediately
upon the death, resignation, incapacity, or removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such, he shall
furnish to the Employer and Administrator a written statement of account with
respect to the portion of the Plan Year during which he served as Trustee. This
statement shall be either (i) included as part of the annual statement of
account for the Plan Year required under Section 5.7 or (ii) set forth in a
special statement. Any such special statement of account should be rendered to
the Employer no later than the due date of the annual statement of account for
the Plan Year. The procedures set forth in Section 5.7 for the approval by the
Employer of annual statements of account shall apply to any special statement of
account rendered hereunder and approval by the Employer of any such special
statement in the manner provided in Section 5.7 shall have the same effect upon
the statement as the Employer's approval of an annual statement of account. No
successor to the Trustee shall have any duty or responsibility to investigate
the acts or transactions of any predecessor who has
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rendered all statements of account required by Section 5.7 and this
subparagraph.
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ARTICLE VI
AMENDMENT, TERMINATION AND MERGERS
6.1 AMENDMENT
The Employer shall have the right at any time and from time to time to
amend, in whole or in part, any or all of the provisions of this Agreement.
However, no such amendment shall authorize or permit any part of the Trust Fund
(other than such part as is required to pay taxes and administration expenses)
to be used for or diverted to purposes other than for the exclusive benefit of
the Participants or their Beneficiaries or estates; no such amendment shall
cause or permit any portion of the Trust Fund to revert to or become the
property of the Employer; and no such amendment which affects the rights, duties
or responsibilities of the Trustee and Administrator may be made without the
Trustee's and Administrator's written consent. Any such amendment shall become
effective upon delivery of a duly executed instrument to the Trustee, provided
that the Trustee shall in writing consent to the terms of such amendment.
6.2 TERMINATION
The Employer shall have the right at any time to terminate the Plan by
delivering to the Trustee and Administrator written notice of such termination.
Upon such termination of the Plan, the Employer, by written notice to the
Trustee and Administrator, may direct either:
(a) complete distribution of the assets in the Trust Fund to the
Participants or their Beneficiaries as soon as the Trustee deems it to
be in the best interests of the Participants or their Beneficiaries,
except however, such distribution shall only be made (1) pursuant to the
terms of a collective bargaining agreement or (2) on the basis of
objective and reasonable standards which do not result in unequal
payments to similarly situated Participants or their Beneficiaries or in
disproportionate payments to officers, shareholders, or highly
compensated Employees of an Employer contributing to or otherwise
funding this Plan; or
(b) that any assets remaining in the Plan, after the satisfaction of all
liabilities to existing Participants or their Beneficiaries, be applied
to provide such Participants or their Beneficiaries with the benefits
set forth in the Plan, provided, however, that such benefits shall not
be provided in disproportionate amounts to officers, shareholders, or
highly compensated Employees of the Employer.
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ARTICLE VII
MISCELLANEOUS
7.1 ALIENATION
No benefit which shall be payable out of the Trust Fund to any person
(including a Participant or Beneficiary) shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be void; and no such benefit shall in any
manner be liable for, or subject to, the debts, contracts, liabilities,
engagements, or torts of any such person, nor shall it be subject to attachment
or legal process for or against such person, and the same shall not be
recognized by the Trustee, except to such extent as may be required by law.
Except, however, this provision shall not apply to the extent a Participant or
Beneficiary is indebted to the Plan, for any reason, under any provision of this
Agreement and at the time a distribution is to be made or for his benefit, such
proportion of the amount distributed as shall equal such indebtedness shall be
paid by the Trustee to the Trustee or the Administrator, at the direction of the
Administrator, to apply against or discharge such indebtedness. Prior to making
a payment, however, the Participant or Beneficiary must be given written notice
by the Administrator that such indebtedness is to be deducted in whole or part
from his benefits. If the Participant or Beneficiary does not agree that the
indebtedness is a valid claim against his benefits, he shall be entitled to a
review of the validity of the claim by the Administrator.
In the event a Participant 's or Beneficiary's benefits are garnished
or attached by order of any court, the Administrator may bring an action for a
declaratory judgment in a court of competent jurisdiction to determine the
proper recipient of the benefits to be paid by the Plan. During the pendency of
said action, any benefits that become payable shall be paid into the court as
they become payable, to be distributed by the court to the recipient it deems
proper at the close of said action.
7.2 CONSTRUCTION OF AGREEMENT
This Plan shall be construed and enforced according to the Act and the
laws of the State of South Carolina to the extent not preempted by the Act.
7.3 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter
gender, they shall be construed as though they were also used in another gender
in all cases where they would so apply, and whenever any words are used herein
in the singular or plural form, they shall be construed as though they were also
used in the other form in all cases where they would so apply.
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7.4 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding the
Trust and/or Plan established hereunder to which the Trustee or the
Administrator may be a party, not arising out of any willful action of such
Trustee or Administrator they shall be entitled to be reimbursed from the Trust
Fund for any and all costs, attorney's fees, and other expenses pertaining
thereto incurred by them for which they shall have become liable.
7.5 PROHIBITION AGAINST DIVERSION OF FUNDS
It shall be impossible by operation of the Plan or of the Trust, by
termination of either, by power of revocation or amendment, by the happening of
any contingency, by collateral arrangement or by any other means, for any part
of the corpus or income of any trust fund maintained pursuant to the Plan or any
funds contributed thereto to be used for, or diverted to, purposes other than
the exclusive benefit of Participants or their Beneficiaries.
7.6 BONDING
Every Fiduciary, except a bank or an insurance company, unless exempted
by the Act and regulations thereunder, shall be bonded in an amount not less
than 10% of the amount of the funds such Fiduciary handles; provided, however,
that the minimum bond shall be $1,000 and the maximum bond, $500,000. The amount
of funds handled shall be determined at the beginning of each Plan Year by the
amount of funds handled by such person, group, or class to be covered and their
predecessors, if any, during the preceding Plan Year, or if there is no
preceding Plan Year, then by the amount of the funds to be handled during the
then current year. The bond shall provide protection to the Plan against any
loss by reason of acts of fraud or dishonesty by the Fiduciary alone or in
connivance with others. The surety shall be a corporate surety company (as such
term is used in Section 412(a)(2) of the Act), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in this Agreement
to the contrary, the cost of such bonds shall be an expense of and may, at the
election of the Administrator, be paid from the Trust Fund or by the Employer.
7.7 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer nor the Trustee, nor their successors, shall be
responsible for the validity of any contract of insurance issued hereunder or
for the failure on the part of the insurer to make payments provided by any such
contract, or for the action of any person which may delay payment or render a
contract null and void or unenforceable in whole or in part.
7.8 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue contracts of insurance hereunder shall not
have any
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responsibility for the validity of this Plan or for the tax or legal aspects of
this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
7.9 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative, Beneficiary,
or to any guardian or committee appointed for such Participant or Beneficiary in
accordance with the provisions of this Agreement, shall, to the extent thereof,
be in full satisfaction of all claims hereunder against the Trustee and the
Employer, either of whom may require such Participant, legal representative,
Beneficiary, guardian or committee, as a condition precedent to such payment, to
execute a receipt and release thereof in such form as shall be determined by the
Trustee or Employer.
7.10 HEADINGS
The headings and subheadings of this Agreement have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
RESOURCE BANCSHARES MORTGAGE
GROUP, INC.
WITNESS: By:_______________________________
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HSBC BANK, USA
WITNESS: By:________________________________
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