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VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION PLAN
FOR THE EMPLOYEES OF
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
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TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS AND CONSTRUCTION 2
1.1 DEFINITIONS 2
1.2 GENDER AND NUMBER 4
1.3 HEADINGS 4
1.4 UNIFORMITY 4
ARTICLE II - ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER 5
2.2 ASSIGNMENT AND DESIGNATION OF ADMINISTRATIVE
AUTHORITY 5
2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES 6
2.4 POWERS, DUTIES AND RESPONSIBILITIES 6
2.5 RECORDS AND REPORTS 7
2.6 APPOINTMENT OF ADVISERS 7
2.7 INFORMATION FROM EMPLOYER 8
2.8 PAYMENT OF EXPENSES 8
2.9 MAJORITY ACTIONS 8
2.10 ACTION BY EMPLOYER 8
2.11 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY 8
2.12 LEGAL ACTION 9
ARTICLE III - ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY 10
3.2 EFFECTIVE DATE OF PARTICIPATION 10
3.3 REQUIREMENTS OF HEALTH INSURANCE PORTABILITY
AND ACCOUNTABILITY ACT OF 1996 11
3.4 DETERMINATION OF ELIGIBILITY 12
3.5 OMISSION OF A PARTICIPANT 12
3.6 INCLUSION OF INELIGIBLE PERSON 13
3.7 NONDISCRIMINATION REQUIREMENTS 13
ARTICLE IV - BENEFITS
4.1 SICK AND ACCIDENT BENEFITS 14
4.2 DESIGNATION OF BENEFICIARY 14
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ARTICLE V - CLAIMS PROCEDURE
5.1 FILING OF CLAIM 15
5.2 DENIAL OF CLAIM 15
5.3 REVIEW OF CLAIM DENIAL 15
5.4 DECISION UPON REVIEW OF CLAIM DENIAL 15
ARTICLE VI - CONTRIBUTIONS AND VALUATION
6.1 EMPLOYER CONTRIBUTIONS 17
6.2 PARTICIPANT CONTRIBUTIONS 17
6.3 VALUATION OF THE TRUST FUND 17
6.4 METHOD OF VALUATION 17
ARTICLE VII - CESSATION OF BENEFITS
7.1 BENEFITS FOR PARTICIPANTS 18
7.2 BENEFITS FOR DEPENDENTS 18
7.3 CONVERSION OF POLICIES 18
7.4 CONTINUATION OF COVERAGE 18
ARTICLE VIII - DISTRIBUTION OF BENEFITS
8.1 DISTRIBUTION OF BENEFITS 20
8.2 DISTRIBUTION FOR MINOR BENEFICIARY 20
8.3 LOCATION OF A PARTICIPANT OR BENEFICIARY UNKNOWN 20
ARTICLE IX - AMENDMENTS AND TERMINATION
9.1 AMENDMENTS 21
9.2 TERMINATION 21
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VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION PLAN FOR THE
EMPLOYEES OF RESOURCE BANCSHARES MORTGAGE GROUP, INC.
THIS AGREEMENT, made and entered into this day of December, 1998 by and
between RESOURCE BANCSHARES MORTGAGE GROUP, INC. (herein referred to as the
"Employer") and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, N.A.
(herein referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer desires to recognize the contribution made to its
successful operation by its employees and to reward such contribution by means
of a Voluntary Employees' Beneficiary Association Plan for those employees who
shall qualify and elect to participate hereunder; and
WHEREAS, the Employer intends that this Plan (and the Trust attached
hereto) shall constitute an employee welfare benefit plan under Title I, 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; and
WHEREAS, the Employer intends that this Plan (and the Trust attached
hereto) shall constitute a Voluntary Employees' Beneficiary Association and as
such shall be a tax exempt organization pursuant to Sections 501(a) and
501(c)(9) of The Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, effective January 1, 1999 (hereinafter called the
"Effective Date"), the Employer hereby establishes a Voluntary Employees'
Beneficiary Association Plan and creates a separate trust (which plan and trust
are hereinafter called the "Plan"), as a successor plan of the current health
benefit program maintained by the Employer, for the exclusive benefit of the
Participants and their Beneficiaries and the Trustee hereby accepts the Plan on
the following terms;
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ARTICLE I
DEFINITIONS
1.1 DEFINITIONS
Wherever used in the Plan, unless the content clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Act" means Parts 1 and 4 of Subtitle B, Title I, of the Employee
Retirement Income Security Act of 1974, as it may be amended from time to time.
(b) "Administrator" means the person or persons designated by the
Employer pursuant to Section 2.2 to administer the Plan on behalf of the
Employer.
(c) "Agreement" or "Plan" means this instrument including all
amendments hereto and any other documents (including the separate trust
agreement) which are incorporated by reference and made a part hereof.
(d) "Beneficiary" or "Beneficiaries" means any person or persons (or a
trust) designated by a Participant in such form as the Administrator may
prescribe to receive any benefit that may be payable hereunder if such person or
persons survive the Participant.
(e) "Benefit Schedules" means the Benefit Schedules or booklets issued
by the Employer describing benefits provided by the Plan. The terms, conditions,
limitations, and exclusions of said Benefit Schedules or Booklets are hereby
incorporated by reference and made a part hereof, except insofar as the Benefit
Schedules or Booklets are in conflict with this Agreement.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Contingent Beneficiary" means the person or persons (or a trust)
duly designated by the Participant to receive any benefit from the Plan in the
event the designated Beneficiary does not survive the Participant.
(h) "Dependent" means the Participant's wife or husband and unmarried
children within the prescribed age limits who are not employed by the Employer.
The term "children" also includes step children, adopted children and any other
children related by blood or marriage who are dependent upon the Participant and
residing with the Participant in regular parent-child relationship. The
prescribed age limit for eligible children is under nineteen years of age, and
with respect to unmarried children who are attending school on a full-time
basis, under twenty-five years of age. If both husband and wife are covered
under the Plan as Employees, either the husband or wife, but not both, may elect
the insurance with respect to children eligible under the definition above.
(i) "Eligible Dependent" means any Dependent who has satisfied the
provisions of Section 3.1.
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(j) "Eligible Employee" means any Employee who has satisfied the
provisions of Section 3.1
(k) "Employee" means any person who is employed by the Employer.
(l) "Employer" means RESOURCE BANCSHARES MORTGAGE GROUP, INC., its
successors, and any other entity which is related to or affiliated with Resource
Bancshares Mortgage Group, Inc. pursuant to Section 267, 414, 707 or 1563 of the
Code.
(m) "Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of its
assets, (b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and the Administrator.
(n) "Investment Manager" means any person, firm or corporation who is a
registered investment adviser under the Investment Advisers Act of 1940, a bank
or an insurance company, and (1) who has the power to manage, acquire, or
dispose of Plan assets, or (2) who acknowledges in writing his fiduciary
responsibility to the Plan.
(o) "Participant" means any Eligible Employee who elects to participate
in the Plan as provided in Section 3.2, and has not for any reason become
ineligible to participate further in the Plan.
(p) "Plan Year" means the Plan's accounting year of twelve (12) months
commencing on January 1 of each year and ending the following December 31.
(q) "Pre-existing Condition" means a physical or mental condition,
regardless of the cause of the condition, for which medical advice, diagnosis,
care or treatment was recommended or received within the six-month period prior
to the Enrollment Date. Genetic information shall not be treated as a
Pre-existing Condition in the absence of a diagnosis of the condition related to
the genetic information. Pregnancy shall not be considered a Pre-existing
Condition hereunder. A newborn child, a child placed for adoption or a
newly-adopted child (under age 18) who begins Dependent Coverage hereunder
within 30 days of birth, placement for adoption or adoption (or who has
creditable coverage from birth, placement for adoption or adoption without a
significant break in coverage) shall not be considered to have any Pre-existing
Conditions.
(r) "Trustee" means the person or persons named as Trustee herein or in
any separate trust forming a part of this Plan, and his, their, or its
successors.
(s) "Trust Fund" means the assets of the Plan and Trust as the same
shall exist from time to time.
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1.2 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.
1.3 HEADINGS
The headings and subheadings of this Agreement have been inserted for
convenience or reference and are to be ignored in any construction of the
provisions hereof.
1.4 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a
uniform, nondiscriminatory manner.
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ARTICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
The Employer, by acting through its board of directors, shall be
empowered to appoint and remove the Trustee and the Administrator from time to
time as it deems necessary for the proper administration of the Plan to assure
that the Plan is being operated for the exclusive benefit of the Participants
and their Beneficiaries in accordance with the terms of this Agreement, the
Code, and the Act.
The Employer shall establish a "funding policy and method", i.e., it
shall determine whether the Plan has a short run need for liquidity (e.g., to
pay benefits) or whether liquidity is a long run goal and investment growth (and
stability of same) is a more current need, or shall appoint a qualified person
to do so. The Employer or its delegate shall communicate such needs and goals to
the Trustee, who shall coordinate such plan needs with its investment policy.
The communication of such a "funding policy and method" shall not, however,
constitute a directive to the Trustee as to investment of the Trust Funds. Such
"funding policy and method" shall be considered with the objectives of this Plan
and with the requirements of Title I of the Act.
The Employer may in its discretion appoint an Investment Manager to
manage all or a designated portion of the assets of the Plan. In such event, the
Trustee shall follow the directive of the Investment Manager in investing the
assets of the Plan managed by the Investment Manager.
The Employer shall periodically review the performance of any Fiduciary
or other person to whom duties have been delegated or allocated by it under the
provisions of this Plan or pursuant to procedures established hereunder. This
requirement may be satisfied by formal periodic review by the Employer or by a
qualified person specifically designated by the Employer, through day-to-day
conduct and evaluation, or through other appropriate ways.
The Employer may establish a special account whose assets will be
separate and not commingled with the Employer's other assets (the "Separate
Account"). The Employer shall designate a person to be charged with
administering the Separate Account and shall notify the Administrator of such
designation. In the event benefits are paid on behalf of retired Participants
and their Dependents under the Plan, the Separate Account shall be the sole
source of payment of benefits for retired Participants and their Dependents.
2.2 ASSIGNMENT AND DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall appoint one or more Administrators. Any person, or
group of persons, including, but not limited to, the directors, shareholders,
officers, and Employees of the Employer, shall be eligible to serve as an
Administrator. Any person so appointed shall signify his acceptance by filing
written acceptance with the Employer. An Administrator may resign by delivering
his written resignation to the Employer or be removed by the Employer by
delivery of written notice of
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removal, to take effect at a date specified therein, or upon delivery to the
Administrator if no date is specified.
The Employer, upon the resignation or removal of an Administrator,
shall promptly designate in writing a successor to this position. If the
Employer does not appoint an Administrator, the Senior Vice President of Human
Resources of the Employer shall function as the Administrator.
2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed as Administrator, the
responsibilities of each Administrator may be specified by the Employer and
accepted in writing by each Administrator. In the event that no such delegation
is made by the Employer, the Administrators may allocate the responsibilities
among themselves, in which event the Administrator shall notify the Employer and
the Trustee in writing of such action and specify the responsibilities of each
Administrator. The Trustee thereafter shall accept and rely upon any documents
executed by the appropriate Administrator until such time as the Employer or the
Administrators file with the Trustee a written revocation of such designation.
2.4 POWERS, DUTIES AND RESPONSIBILITIES
The primary responsibility of the Administrator is to administer the
Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Administrator shall administer
the Plan in accordance with its terms and shall have the power in its sole
discretion to determine all questions arising in connection with the
administration, interpretation, and application of the Plan. Any such
determination by the Administrator shall be conclusive and binding upon all
persons. The Administrator may correct any defect, supply any information, or
reconcile any inconsistency in such manner and to such extent as shall be deemed
necessary or advisable to carry out the purpose of this Agreement; provided
however, that any interpretation or construction shall be done in a
nondiscriminatory manner and shall be consistent with the intent that the Plan
shall continue to be deemed a qualifying plan under the terms of Section
501(c)(9) of the Code as amended from time to time, and shall comply with the
terms of the Act and all regulations issued pursuant thereto. The administrator
shall have all powers necessary or appropriate to accomplish his duties under
this Plan.
The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) to determine all questions relating to the eligibility of
Employees to participate or continue to participate
(b) to compute, certify, and direct the Trustee or, if
applicable, the person charged with administering the Separate
Account (described in Section 2.1 of the Plan) with respect to
the amount and kind of benefits to which any Participant shall
be entitled hereunder;
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(c) to authorize and direct the Trustee or, if applicable, the
person charged with administering, the Separate Account
(described in Section 2.1 of the Plan) with respect to all
nondiscretionary or otherwise directed disbursements for the
Trust or, if applicable, the Separate Account;
(d) to maintain all necessary records for the administration
of the Plan;
(e) to interpret the provisions of the Plan and to make and
publish such rules for regulation of the Plan as are
consistent with the terms hereof;
(f) to determine the size and type of any insurance contract
to be purchased from any insurer, and to designate the insurer
from which such Contract shall be purchased;
(g) to compute and certify to the Employer and to the Trustee
from time to time the sums of money necessary or desirable to
be contributed to the Trust Fund and to compute and certify to
the Employer and the person charged with administering the
Separate Account (described in Section 2.1) from time to time
the sums of money necessary or desirable to be contributed to
the Separate Account;
(h) to consult with the Employer and the Trustee regarding the
short and long-term liquidity needs of the Plan in order that
the Trustee can exercise any investment discretion in a manner
designed to accomplish specific objectives;
(i) to assist any Participant or Beneficiary regarding his
rights, benefits, or elections available under the Plan; and
(j) to communicate to Employees, Participants and their
Beneficiaries a summary plan description outlining the
provisions of the Plan as required under Title I of the Act.
2.5 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and shall
keep all other books of account, records, and other data that may be necessary
for proper administration of the Plan and shall be responsible for supplying all
information and reports to the Internal Revenue Service, Department of Labor,
Participants, Beneficiaries and others as required by law.
2.6 APPOINTMENT OF ADVISORS
The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists and advisers, and other persons
as the Administrator or the Trustee deems necessary or desirable in connection
with the administration of this Plan.
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2.7 INFORMATION FROM EMPLOYER
To enable the Administrator to perform his functions, the Employer
shall supply full and timely information to the Administrator on all matters
relating to the retirement, death disability, or termination of employment, of
all Participants and such other pertinent facts as the Administrator may
require; and the Administrator shall advise the Trustee of such of the foregoing
facts as may be pertinent to the Trustee's duties under the Plan. The
Administrator may rely upon such information as is supplied by the Employer and
shall have no duty or responsibility to verify such information.
2.8 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund unless
paid by the Employer. Such expenses shall include any expenses incident to the
functioning of the Administrator, including, but not limited to, fees of
accountants, counsel, and other specialists, and other costs of administering
the Plan. Until paid, the expenses shall constitute a liability of the Trust
Fund. However, the Employer may reimburse the Trust for any administration
expense incurred pursuant to the above. Any administration expense paid to the
Trust as a reimbursement shall not be considered as an Employer contribution.
2.9 MAJORITY ACTIONS
Except where there has been an allocation and delegation of
administrative authority pursuant to Section 2.3, if there shall be more than
one Administrator, they shall act by a majority of their number, but may
authorize one or more of them to sign all papers on their behalf.
2.10 ACTION BY EMPLOYER
Whenever the Employer under the terms of this Agreement is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by an officer duly authorized by its board of directors.
2.11 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2) the
Administrator, (3) the Trustee and (4) any Investment Manager appointed
hereunder. The named Fiduciaries shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given them under this
Agreement.
In general, the Employer, acting through its board of directors, shall
have the sole responsibility for making the contributions provided for under
Section 6.1; and shall have the sole authority to appoint and remove the
Trustee, the Administrator and any Investment Manager which may be provided for
under this Agreement; to formulate the Plan's "funding policy and method"; and
to amend or terminate, in whole or in part, this Agreement.
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The Administrator shall have the sole responsibility for the
Administration of this Agreement, which responsibility is specifically described
in this Agreement.
The Trustee shall have the sole responsibility of management of the
assets held under the Trust, except those assets the management of which has
been assigned to an Investment Manager, who shall be solely responsible for the
management of the assets assigned to it, all as specifically provided in this
Agreement.
Each named Fiduciary may rely upon any such direction, information or
action of another named Fiduciary as being proper under this Agreement, and is
not required under this Agreement to inquire into the propriety of any such
direction, information or action. It is intended under this Agreement that each
named Fiduciary shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under this Agreement. No named
Fiduciary guarantees the Trust Fund in any manner against investment loss or
depreciation in asset value. Any person or group may serve in more than one
Fiduciary capacity.
2.12 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, 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.
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ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Employee who is a regular full time Employee of the Employer and
who is regularly scheduled to work at least thirty (30) hours per week for the
Employer and who is a participant of the class or classes of Employees eligible
for coverage under the Benefit Schedules shall be eligible to participate in the
Plan on the later of the effective date of the Plan or after the date the
Employee completes 60 days of service with the Employer (or such other period
contained in the applicable Benefit Schedules).
An Employee is eligible for benefits with respect to Dependents on the
date he becomes eligible for benefits with respect to himself if he has an
eligible Dependent or Dependents, as defined above, on that date; otherwise on
the date the Employee acquires an eligible Dependent or Dependents.
3.2 EFFECTIVE DATE OF PARTICIPATION
With regard to benefits inuring directly to the Employee, participation
will commence on the date Employee becomes eligible as provided above if the
Employee completed the necessary enrollment form prior to such date.
Participation will commence on the date the Employee completes the necessary
enrollment form, if the enrollment form is completed within one month of the
date the Employee becomes eligible. Participation will commence on the first day
of the succeeding Plan Year if the enrollment form is completed more than one
moth after the date the Employee becomes eligible or during an open enrollment
period.
With regard to benefits inuring to Dependents, participation will
commence on the following dates provided that the Eligible Employee has
completed the necessary enrollment form electing coverage for all Eligible
Dependents and provided the Employee is covered on the date the benefits with
respect to Dependents are to become effective:
(a) the date the Employee becomes eligible for benefits with
respect to a Dependent or Dependents if the enrollment form is received by the
Employer on or prior to such date;
(b) the date of marriage, birth of child, or the Participant
becomes responsible for a Dependent, if the Administrator is notified within 31
days of the applicable event;
(c) on the first day of the succeeding Plan Year, if the
Administrator is notified after 31 days of the applicable date of marriage,
birth of child, or the Participant becomes responsible for a Dependent;
(d) in the case of coverage pursuant to a qualified medical
child support order, the date on which the Administrator determines the order is
a qualified medical child support order
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or, if earlier, the date the Administrator determines that coverage should
become effective pursuant to the qualified medical child support order.
If the Employee's coverage is not in effect on the date the coverage
with respect to a Dependent or Dependents would otherwise become effective, the
Employee's coverage with respect to the Dependent or Dependents will become
effective on the date the Employee's coverage becomes effective.
The effective date of the Employee's coverage with respect to a
Dependent who is confined in a hospital on the date such coverage would
otherwise become effective will be deferred until the day following the date the
Dependent is discharged from the hospital. This provision shall not apply to a
newborn child who is hospitalized on the date the child become eligible as a
Dependent provided the child is born while the Employee is insured with respect
to Dependents.
3.3 REQUIREMENTS OF HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT OF 1996.
Special Enrollees. Notwithstanding the requirements of Section 3.2, the
following special participation rules shall apply to Special Enrollees (as
hereinafter described in items (a) and (b) below):
(a) If an otherwise eligible Employee or Dependent declined coverage
under the Plan at the time of initial eligibility, and stated in writing at that
time that coverage was declined because of other health coverage but that other
health coverage is subsequently lost, and that person makes application for
coverage hereunder within 30 days of the loss of other health coverage, such
individual shall be a Special Enrollee provided such person: (1) lost the
alternative health coverage as a result of loss of eligibility for the coverage
(including as a result of legal separation, divorce, death, termination of
employment, or reduction in the number of hours of employment, but not including
an increase in cost of the other coverage or reduction in benefits of the other
coverage); (2) employer contributions toward such other coverage were
terminated; or (3) if the eligible Employee or Dependent was covered under a
COBRA continuation provision and the COBRA continuation period has been
exhausted.
(b) An otherwise eligible Employee who is not covered by the Plan, an
otherwise eligible Employee and Dependent who are not covered by the Plan or a
Participant's Dependent who is not otherwise covered by the Plan may apply for
coverage under the Plan as a result of the acquisition of a new Dependent by the
Employee or Participant through marriage, birth, adoption or placement for
adoption and shall be a Special Enrollee provided such person is properly
enrolled as a Participant or Dependent of the Participant within thirty (30)
days of the acquisition of the new Dependent.
Participation Date of Special Enrollees. Coverage for a Special Enrollee who is
a newborn child, a child placed for adoption or an adopted child shall begin as
of the date of the birth, placement for adoption or adoption. Coverage for a
Special Enrollee, other than for a newborn, a child placed for adoption or a
newly adopted child, shall begin as of the first day of the calendar month
following
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the enrollment request.
Pre-existing Conditions. The following rules shall apply to claims incurred with
respect to pre-existing conditions:
(a) Claims resulting from Pre-existing Conditions, as defined in the
Plan, are excluded from coverage under the Plan for a period of twelve (12)
months from the Enrollment Date of the Participant or Dependent where the
Participant or Dependent enrolls for coverage under the Plan when first
eligible. The Plan shall reduce the period of exclusion by those periods of
prior Creditable Coverage which the covered person served under prior qualifying
medical benefit programs when evidence of the prior Creditable Coverage is
submitted and the Plan shall notify the covered person as to the date that the
Pre-existing Condition exclusion period shall end.
(b) For purposes of this Plan, the term "Creditable Coverage" includes
only those coverages required to be included as such under Section 701 of the
Act and shall exclude those coverages that are permitted to be excluded under
Section 701(c) of the Act.
(c) If a claim for benefits under the Plan is denied or reduced by
operation of this provision, the Employee or Dependent shall be entitled to
appeal that decision and may provide additional evidence of prior Creditable
Coverage pursuant to the normal procedure of the Plan for the appeal of any
other coverage decision of the Plan.
Rules of Construction. In the event of a conflict between this section or any
other provision of the Plan and Sections 701 through 733 of the Act or Sections
9801 through 9833 of the Code, Sections 701 through 733 of the Act and Sections
9801 through 9833 of the Code shall control and this section shall be deemed to
contain the controlling provisions from Sections 701 through 733 of the Act and
Sections 9801 through 9833 of the Code.
3.4 DETERMINATION OF ELIGIBILITY
The Administrator shall determine in its sole discretion the
eligibility of each Employee for participation in the Plan based upon
information furnished by the Employer. Such determination shall be conclusive
and binding upon all persons, as long as the same is made in accordance with
this Agreement and the Act.
3.5 OMISSION OF A PARTICIPANT
If, in any Plan Year, any person who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by the Employer for the year has been made,
the Employer shall make a subsequent contribution with respect to the omitted
Participant in the amount which the said Employer would have contributed with
respect to him had he not been omitted. Such contribution shall be made
regardless of whether it is deductible in whole or in part in any taxable year,
under applicable provisions of the Internal Revenue Code by such Employer.
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3.6 INCLUSION OF INELIGIBLE PERSON
If, in any Plan Year, any person who should not have been included as a
Participant in the Plan is erroneously included and discovery of such incorrect
inclusion is not made until after a contribution for the year has been made, the
Employer shall not be entitled to recover the contribution made with respect to
the ineligible person regardless of whether a deduction is allowable with
respect to such contribution. In such event, the amount contributed with respect
to the ineligible person shall be used to provide Participants with the benefits
set forth in the Plan.
3.7 NONDISCRIMINATION REQUIREMENTS
All other provisions of this Plan and the Benefit Schedules
notwithstanding, each class of benefits provided hereunder must not be provided
in a discriminatory manner in favor of highly compensated individuals as defined
by Section 505(b)(5) of the Code.
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ARTICLE IV
BENEFITS
4.1 SICK AND ACCIDENT BENEFITS
Participants: In the event of a Participant's illness or personal
injury, such Participant shall be entitled to receive each Plan Year a sick and
accident benefit equal to the amount provided in the Benefit Schedules.
Dependents: In the event of an Eligible Dependent's illness or personal
injury, such Eligible Dependent shall be entitled to receive each Plan Year a
sick and accident benefit equal to the amount provided in the Benefit Schedules.
4.2 DESIGNATION OF BENEFICIARY
If death benefits are provided by this Plan, each Participant may
designate in writing a Beneficiary of his own choosing, and may, in addition,
name a Contingent Beneficiary. Such designation shall be made in a form
satisfactory to the Administrator. Any participant may at any time revoke his
designation of Beneficiary by filing written notice of such revocation or change
with the Administrator. In the event of death of the designated Beneficiary
prior to the death of the Participant, the Contingent Beneficiary shall be
entitled to receive such benefit. In the event no Beneficiary or Contingent
Beneficiary is surviving at the time any payment is to be made, then such
payment shall be made to such Participant's spouse, if living, or if there is no
spouse living, to the Participant's issue, per stirpes, or if neither the
Participant's spouse nor any of his issue are living, then to such Participant's
estate.
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ARTICLE V
CLAIMS PROCEDURE
5.1 FILING OF CLAIM
If the Benefit Schedule contains a procedure for filing for a claim for
benefits provided under the Benefit Schedule, the Participant or Beneficiary
shall submit or have submitted a claim in accordance with the procedure in the
applicable Benefit Schedule.
If the Benefit Schedule does not contain a procedure for filing for a
claim for benefits provided under the Benefit Schedule, the Participant or his
Beneficiary shall submit or have submitted a written notice of claim with 20
days after the date of loss, or as soon as possible, followed by a written proof
of loss within 90 days after the date of loss, or as soon as possible, including
an attached billing of the hospital, physician or other provider of services, to
the Plan Administrator or to such other person designated by the Plan
Administrator to handle such claims.
5.2 DENIAL OF CLAIM
If the Benefit Schedule contains a procedure for filing for a claim for
benefits under the Benefit Schedule and a procedure addressing the denial of
claims filed pursuant to such procedures, the procedure contained in the Benefit
Schedule will apply to the denial of claims for benefits under the Benefit
Schedule.
If the Benefit Schedule does not contain a procedure for filing a claim
for benefits provided under the Benefit Schedule or does not contain a procedure
addressing the denial of claims filed pursuant to such procedures, the
Administrator shall furnish the Participant or Beneficiary with written notice
of the denial of any claim (in whole or part) within ninety (90) days of the
date of the original claim was filed. The notice of denial shall provide (1) the
reason for denial, (2) specific reference to pertinent Plan provisions on which
the denial is based, (3) a description of any additional information needed to
perfect the claim and an explanation of which such information is necessary, and
(4) an explanation of the Plan's claim procedure.
5.3 REVIEW OF CLAIM DENIAL
If the Benefit Schedule contains a procedure for reviewing the denial
of a claim for benefits under the Benefit Schedule, the procedure contained in
the Benefit Schedule will apply to the review of denial claims for benefits
under the Benefit Schedule.
If the Benefit Schedule does not contain a procedure for reviewing the
denial of a claim for benefits under the Benefit Schedule, the Participant or
Beneficiary shall have sixty (60) days from receipt of a denial notice in which
to make written application for review by the Administrator. The Participant or
Beneficiary may request that the review be in the nature of a hearing. The
Participant or Beneficiary shall have the rights (1) to representation, (2) to
review
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pertinent documents, and (3) to submit comments in writing. The Plan
Administrator shall issue a decision on such review within sixty (60) days after
receipt of an application for review as provided in Section 5.3, unless special
circumstances, such as a review of the claim by a Peer Review Board, require an
extension of time, in which case an additional sixty (60) days will be allowed.
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ARTICLE VI
CONTRIBUTIONS AND VALUATIONS
6.1 EMPLOYER CONTRIBUTIONS
The Employer shall pay to the Trustee from time to time such amounts in
cash or property as the Employer shall determine to be necessary to provide the
benefits for Participants and their Dependents under the Plan determined by the
application of accepted actuarial methods and assumptions. In establishing the
liabilities under the Plan and contributions thereto, the actuary will use
methods and assumptions as will reasonably reflect the cost of the benefits The
method of funding should be consistent with Plan objectives.
6.2 PARTICIPANT CONTRIBUTIONS
Each Participant shall pay to the Trustee such amounts as may be
required under the Plan and in accordance with a uniform, non-discriminatory
procedure established by the Employer.
6.3 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each last day of the
Plan Year, and at such other date or dates deemed necessary by the
Administrator, herein called "valuation date", to determine the net worth of the
assets comprising the Trust Fund as it exists on the valuation date prior to
taking into consideration any contribution for that Plan Year. In determining
such net worth, the Trustee shall value the assets comprising the Trust Fund at
their fair market value as of the valuation date and shall deduct all expenses
for which the Trustee has not yet obtained reimbursement from the Employer or
the Trust Fund
6.4 METHOD OF VALUATION
The Plan assets are to be valued on the basis of any reasonable method
of valuation that takes into account fair market value pursuant to regulations
prescribed by the Secretary of Treasury. In determining the fair market value of
securities held in the Trust Fund which are listed on a registered stock
exchange, the Administrator shall direct the Trustee to value the same at the
prices they were last traded on such exchange preceding the close of business on
the valuation date. If such securities were not traded on the valuation date, or
if the exchange on which they are traded was not open for business on the
valuation date then the securities shall be valued at the prices at which they
were last traded prior to the valuation date. Any unlisted security held in the
Trust Fund shall be valued at its bid price next preceding the close of business
on the valuation date, which bid price shall be obtained from a registered
broker or an investment banker. In determining the fair market value of assets
other than securities for which trading or bid prices can be obtained, the
Trustee may appraise such assets itself, or in its discretion, employ one or
more appraisers for that purpose and rely on the values established by such
appraiser or appraisers.
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ARTICLE VII
CESSATION OF BENEFITS
7.1 BENEFITS FOR PARTICIPANTS
A Participant shall cease to be eligible for benefits under the Plan
upon the occurrence of the earliest of the following events:
(a) the Participant no longer meets the eligibility requirements set
forth in Section 3.1;
(b) the Participant voluntarily elects to discontinue his Participation
in the Plan;
(c) insurance with respect to the Participant terminates pursuant to
the terms of the Policy;
(d) the date the Plan ceases or the date the Plan ceases for the class
of Employees to which the Participant belongs;
(e) the first Sunday following the date active employment with the
Employer ceases, except as provided in the Benefit Schedules.
7.2 BENEFITS FOR DEPENDENTS
A Dependent shall cease to be eligible for benefits under the Plan as
of the earlier of the date on which he loses his status as a Dependent or on the
date benefits with respect to such dependent terminates under the terms of the
Plan.
7.3 CONVERSION OF POLICIES
Any policies in effect pursuant to this Plan may contain a provision
which shall permit, upon payment of an additional conversion premium, the
conversion (without medical examination) of the policy to provide individual
coverage upon termination of eligibility for coverage under this Plan.
7.4 CONTINUATION OF COVERAGE
If coverage has ended due to the occurrence of a qualifying event
within the meaning of Section 603 of the Act, each Participant or qualified
beneficiary is eligible for Continued Coverage.
Continued Coverage is conditioned on timely election to the
Administrator for such coverage and timely payment of continuation coverage
premium. The Administrator shall mail the first payment date notice and any
notice announcing a change in the continuation coverage premium to a Participant
or qualified beneficiary. No other premium notices will be sent. Each
Participant or qualified beneficiary is responsible for timely payment of
premiums.
(A) As soon as practical after receipt of the election, the
Administrator shall send a
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premium notice for the continuation coverage premium for the
first payment date. The notice shall notify the Participant or
qualified beneficiary (1) of the continuation coverage premium
due on the first payment date; (2) the monthly continuation
coverage premium due on the first day of each succeeding
month; (3) that no other premium notices will be sent; (4)
that each participant is responsible for timely payment of
premiums; and (5) that failure to make timely premium payments
will result in termination of Continued Coverage.
(B) In no event will the first continuation coverage premium be
due prior to 45 days after the day on which the Participant or
qualified beneficiary makes the initial election for
continuation coverage. However, at the election of the former
Employee or qualified beneficiary, continuation coverage
premiums may be made prior to the first payment date.
(C) All continuation coverage premiums which have accumulated
between the time the Participant loses coverage and the first
payment date plus the continuation coverage premium for the
succeeding month must be paid on the first payment date.
If a Participant ceases to be an Eligible Employee and fails to elect
Continued Coverage within 60 days of his termination or reduction in hours, or
if a Participant becomes ineligible to receive Continued Coverage by reason of a
Disqualifying Event, participation in the Plan shall terminate. In the event of
a conflict between this section and Sections 601 through 609 of the Act or
Section 4980B of the Code, Section 601 through 609 of the Act and Section 4980B
of the Code shall control and this section shall be deemed to contain the
controlling provisions from Sections 601 through 609 of the Act and Section
4980B of the Code.
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ARTICLE VIII
DISTRIBUTION OF BENEFITS
8.1 DISTRIBUTION OF BENEFITS
The Administrator in his sole discretion shall direct the Trustee or,
if applicable, the person charged with administering the Separate Account
(described in Section 2.1 of the Plan) to distribute to a Participant or his
Beneficiaries any amount to which he is entitled under the Plan pursuant to the
method of payment provided in the Benefit Schedules of, if no method of payment
is provided in the Benefit Schedules, as determined by the Administrator.
8.2 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, the Administrator
may, in the Administrator's sole discretion, direct that such distribution be
paid to the legal guardian, or if none, to a parent of such Beneficiary or a
responsible adult with whom the Beneficiary maintains his residence, or to the
custodian for such Beneficiary under the Uniform Gift to Minors Act if such is
permitted by the laws of the state in which said Beneficiary resides. Such a
payment to the legal guardian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
8.3 LOCATION OF A PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to a
Participant or his Beneficiary hereunder shall, at the expiration of five (5)
years after it shall become payable, remain unpaid solely by reason of the
inability of the Administrator, after sending a registered letter, return
receipt requested, to the last known address, and after further diligent effort,
to ascertain the whereabouts of such Participant or his Beneficiary, the amount
so distributable shall remain in the Trust, or, if applicable, the Separate
Account (described in Section 2.1 of the Plan), to be used as part of the
general Trust Fund or Separate Account.
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ARTICLE X
AMENDMENTS AND TERMINATION
9.1 AMENDMENTS
The Employer shall have the right at any time and from time to time
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 or
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 term of such amendment if the
trust provisions contained herein are a part of this Agreement.
9.2 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 interest 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 payment to similarly situated Participants or
their Beneficiaries or in disproportionate payment 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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IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
EMPLOYER:
RESOURCE BANCSHARES MORTGAGE
GROUP, INC.
WITNESS: By: ______________________________________
- ------------------------------
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, N.A.
WITNESS: By: ______________________________________
- ------------------------------
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VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST
FOR THE EMPLOYEES OF
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
27
TABLE OF CONTENTS
Page
----
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 MEMBER'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 CONTRIBUTION 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 14
6.2 TERMINATION 14
6.3 MERGER OR CONSOLIDATION 15
ARTICLE VII
MISCELLANEOUS
7.1 ALIENATION 16
7.2 CONSTRUCTION OF AGREEMENT 16
7.3 GENDER AND NUMBER 16
7.4 LEGAL ACTION 17
7.5 PROHIBITION AGAINST DIVERSION OF FUNDS 17
7.6 BONDING 17
7.7 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE 17
7.8 INSURER'S PROTECTIVE CLAUSE 17
7.9 RECEIPT AND RELEASE FOR PAYMENTS 18
7.10 HEADINGS 18
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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 December, 1998, by
and between RESOURCE BANCSHARES MORTGAGE GROUP, INC. (herein referred to as the
"Employer") and FIRST UNION NATIONAL BANK of NORTH CAROLINA, N.A. (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 Members 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. All of 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 MEMBER'S RIGHTS
This Plan shall not be deemed to constitute a contract between the
Employer and any Member or to be a consideration or an inducement for the
employment of any Member or Employee. Nothing contained in this Plan shall be
deemed to give any Member 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
Member of Employee at any time regardless of the effect which such discharge
shall have upon him as a Member 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 (herein referred to as the "Administrator"), 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 Members or, in the event of their death, if
applicable, to their 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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35
(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 their 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 their 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;
(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
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36
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 Member or their Contracts 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 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
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37
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 Members
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 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
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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. An
individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from this Plan. 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 later of the Anniversary Date or
receipt of the Employer's contribution for 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. 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.
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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 direct the
Trustee to engage on behalf of all Participants 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 leases 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 three
percent (3%) of Plan assets.
All auditing and accounting fees shall be an expense of and may, at the
election of the Administrator, be paid from the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply
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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 Fiscal Year during which he served as Trustee.
This statement shall be either (i) included as part of the annual statement of
account for the Fiscal 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 Fiscal 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 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 Members 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 if the
trust provisions contained herein are a part of this Agreement.
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 Members or their Beneficiaries as soon as the
Trustee deems it to be in the best interests of the
Members 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 Members 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 Members
or their Beneficiaries, be applied to provide such
Members 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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6.3 MERGER OR CONSOLIDATION
This Plan and Trust may be merged or consolidated with, or its assets
and/or liabilities may be transferred to any other Plan and Trust only if the
benefits which would be received by a Member or his Beneficiary of this Plan, in
the event of a termination of the Plan immediately after such transfer, merger
or consolidation, are at least equal to the benefits the Member or his
Beneficiary would have received if the Plan had terminated immediately before
the transfer, merger or consolidation.
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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 Member 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 Member 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 Member 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 Member 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 Member'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.
7.4 LEGAL ACTION
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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 Members 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 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
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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 Member, his legal representative, Beneficiary, or to
any guardian or committee appointed for such Member 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 Member, 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:_______________________________
- -------------------------
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, N.A.
----------------------------------
WITNESS: By:________________________________
- -------------------------
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