exv10w26



 





Exhibit 10.26




AMENDMENT

for the

FINAL 401(k) / 401(m) REGULATIONS

to the




     BIOMED REALTY, L.P. 401(k) RETIREMENT SAVINGS PLAN



     BIOMED REALTY, L.P., (the “Employer”), hereby amends the BIOMED REALTY,
L.P. 401(k)RETIREMENT SAVINGS PLAN to be effective for the Plan Years beginning after
December 31, 2005 unless otherwise stated below:




	 	1.	 	Paragraph H.3 of Article I is amended to add the following:
	 
	 	 	 	“For Plan Years beginning after December 31, 2005, the twenty-five percent (25%)
contribution stated above shall be reduced to five percent (5%).”
	 
	 	2.	 	Paragraph M.1 of Article I is amended in its entirety to read as follows:
	 
	 	 	 	“1 Qualified Nonelective Employer Contributions.






     Each Eligible Participant shall receive an allocation of Qualified Nonelective
Employer Contributions as provided in Paragraph H.3 of this Article I.




     For each Plan Year, the Employer shall determine the amount of Qualified
Nonelective Employer Contributions to be allocated to the Qualified Nonelective
Employer Contribution Account of the Participants in separately designated
individual allocation groups. For this purpose, each Participant shall be assigned
to his or her own individual allocation group. The allocation of Qualified
Nonelective Employer Contributions within each individual allocation group shall be
based on such individual’s Compensation. Qualified Nonelective Employer
Contributions allocated to any Participant’s individual allocation group shall not
exceed the limitations described in Paragraph E of Article V.”




	 	 	 	3. Paragraph P of Article I is amended to add the following:






     Effective for Plan Years beginning after December 31, 2005, allocation of
Matching Contributions shall be made to the appropriate Matching Contribution
Accounts to Eligible Participants during the Plan Year without regard to any last
day employment or service requirements.



 









 






	4.	 	Effective after December 31, 2005, Paragraph BB of Article I is amended in its
entirety to read as follows:
	 
	 	 	‘BB. Hardship Withdrawals.






     Hardship withdrawals of Elective Contributions shall be allowed. For these
purposes, an ‘event of hardship’ means:




     Payment for (or necessary to obtain) medical care that would be described
under Section 213(d) of the Code determined without regard to whether the expenses
exceed seven and one-half percent (7.5%) of adjusted gross income.




     Costs directly related to the purchase of a principal residence, but not
including mortgage payments, by the Employee.




     Payment of tuition, room and board, and related educational fees for up to the
next 12 months of post-secondary education for the Employee, the Employee’s Spouse,
children or dependents (as defined in Section 152 of the Code, and for taxable
years beginning on or after January 1, 2005 without regard to Sections 152(b)(1),
152(b)(2) and 152 (d)(1)(B) of the Code).




     The need to prevent eviction of the Employee from his or her principal
residence or foreclosure on the mortgage of the Employee’s principal residence.




     Payments for burial or funeral expenses for the Employee’s deceased parent,
Spouse, children or dependents (as defined in Section 152 of the Code, and for
taxable years beginning on or after January 1, 2005 without regard to Section
152(d)(1)(B) of the Code).




     Payments of expenses for the repair of damage to the Employee’s principal
residence that would qualify for the casualty deduction under Section 165 of the
Code (determined without regard to whether the loss exceeds ten percent (10%) of
adjusted gross income).’




	5.	 	Paragraph A.3 of Article II is amended to delete the last three (3) paragraphs
and substitute in their place the following paragraph:






     “Elective Contributions that are treated as catch-up contributions pursuant to
Section 414(v) of the Code because they exceed a statutory limit imposed by Section
401(a)(30), 402(h), 403(b), 408, 415(c) or 457(b)(2) of the Code (without regard to
Section 414(v) or 457((b)(3) of the Code) or an Employer-provided limit stated in
Paragraph H.2 of Article I or J.6 of Article IV (without regard to Section 414(v)
of the Code) are subtracted from the Participant’s Elective Contributions for the
Plan Year for purposes of determining such Participant’s actual deferral ratio.”




	6.	 	Paragraph A.25 of Article II is amended to add subparagraph (f) as follows:






     ”(f) Any catch-up contributions made under Section 414(v) of the Code.”





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	7.	 	Paragraph A.27 of Article II is amended in its entirety to read as follows:






     Eligible Participant means for purposes of computing the Actual
Deferral Percentage, any Employee who is directly or indirectly eligible to make an
election to reduce and defer his or her Compensation under the Plan during all or a
portion of a Plan Year, including (i) any Employee who would be a Participant but
for the failure to make any Elective Contributions or other required contributions;
(ii) any Employee whose eligibility to make Elective Contributions has been
suspended due to a hardship distribution or other distribution, a loan, or an
election not to participate, other than a one-time irrevocable election made no
later than the Employee’s first becoming eligible under the Plan or any plan or
arrangement of the Employer described in Section 219(g)(5)(A) of the Code (whether
or not such other plan or arrangement has terminated) to have contributions equal to
a specified amount or percentage of Compensation (including no amount of
Compensation) made by the Employer to this Plan and any other plan maintained by the
Employer (including plans not yet established) for the duration of the Employee’s
employment; (iii) any Employee who is unable to receive an additional Annual
Addition on account of Sections 415(c)(1) and 415(e) of the Code; and (iv) any
Employee who is unable to make an Elective Contribution because his or her
Compensation is less than a stated dollar amount.




     For purposes of computing the Average Contribution Percentage, “Eligible
Participant” means any Employee who is directly or indirectly eligible to make an
Employee After-Tax Contribution or to receive an allocation of Matching
Contributions, including Matching Contributions derived from forfeitures under the
Plan during all or a portion of a Plan Year including (i) any Employee who is unable
to make an Employee After-Tax Contribution or receive an allocation of Matching
Contributions merely because his Compensation is less than a stated amount; (ii) any
Employee who would be eligible to make Employee After-Tax Contributions or receive
Matching Contributions except for a suspension due to a hardship distribution or
other distribution, a loan or an election not to participate in the Plan, other than
a one-time irrevocable election made no later than the date the Employee first
becomes eligible under the Plan or any plan or arrangement of the Employer described
in Section 219(g)(5)(A) of the Code not to be eligible to make Employee After-Tax
Contributions or receive an allocation of Matching Contributions under the Plan or
any other plan maintained by the Employer (including plans not yet established) for
the duration of the Employee’s employment; (iii) and any Employee who is unable to
receive additional Annual Additions because of Sections 415(c)(1) and 415(e) of the
Code.”



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	8.	 	The last paragraph of Paragraph D.2 of Article IV is amended to read as follows:






     “If provided in Paragraph H.2 of Article I, Employees who are eligible to
make Elective Contributions under this Plan and who have attained age 50 by the
end of the calendar year shall be eligible to make catch-up contributions at
the beginning of the calendar year in accordance with, and subject to the
limitations of, Section 414(v) of the Code. Such catch-up contributions shall not
be taken into account for purposes of the provisions of the Plan implementing the
required limitations of Sections 402(g) and 415(c) of the Code. The Plan shall not
be treated as failing to satisfy the provisions of the Plan implementing the
requirements of Section 401(a)(4), 401(k)(3), 401(k)(11), 410(b), or 416 of the
Code, as applicable, by reason of making of such catch-up contributions. For
purposes of Section 410(b) and the average benefit percentage test under Treasury
Regulation Section 1.410(b)-5, catch-up contributions for the current Plan Year are
disregarded. However, catch-up contributions made to the Plan in prior years are
taken into account for purposes of Section 410(b) and the average benefit test under
Treasury Regulation Section 1.410(b)-5. Those Plan provisions that relate to
Section 1.414(v)-1(a) through (h) of the Treasury Regulations are effective for Plan
Years beginning after December 31, 2003.”




	9.	 	Paragraph D of Article IV is amended to add subparagraph 5:






     “5 Automatic Enrollment. The Employer may elect above to apply the automatic
enrollment provisions. If elected, the following provisions shall apply:




     (a) The Employer shall elect above to apply the automatic enrollment
provisions either to current and future Participants or only to future
Participants hired on or after the automatic enrollment provisions are
effective. If the Employer elects to have these provisions apply to current
and future Participants, then the Employer will apply the automatic
enrollment provisions to current Participants who are deferring at less than
the amount elected above, unless such Participants make an affirmative
election to receive their Compensation in cash.




     (b) After satisfying the Plan’s eligibility requirements, each affected
Participant shall have his or her Compensation automatically reduced by the
percentage elected above and such amount shall be contributed to the Plan.




     (c) Notwithstanding the foregoing, an election by a Participant not to
make Elective Deferrals or to contribute a different percentage may be made
at any time. Such election, if filled when the Participant is hired, or
within a reasonable time before the Compensation payable for the first pay
period is currently made available, shall be effective for the first pay
period and subsequent pay periods until superseded by a subsequent



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Deferral Election, including an election to defer zero Compensation. Elections filed
at a later date shall be effective for payroll periods
beginning in the month next following the date the election is filed
with the Plan.




     (d) If a Participant has Elective Deferrals withheld pursuant to
automatic enrollment and no investment directive has been received by the
Plan, such Participant’s contributions shall be invested in accordance with
Article I and XII of the Plan and the procedures established by the
Committee.




     (e) For current Participants who are deferring at a percentage or
dollar amount less than the amount elected above, the Employer shall, in the
first payroll period after the date of the automatic provisions are
effective, reduce the Participant’s Compensation by the difference between
the Participant’s current Deferral Election and the amount elected above.




     (f) At the time an Employee is hired, the Committee shall provide the
Employee with a notice that explains the automatic enrollment provisions.
This notice shall also explain the Employee’s right to elect to have no
Elective Contributions made to the Plan or to change the amount of his or
her Elective Contributions. Such notice will include the procedure for
exercising the right and the timing for implementation of any such election.




     (g) The Committee shall provide each Participant in the Plan with an
annual notice of his or her Elective Contribution percentage and each
Participant’s right to change the percentage, including the procedure for
exercising these rights and the timing for implementation of any such
election. Prior to a Participant with appropriate guidance as to the
procedures then in effect for the Participant to make alternative elections
referenced above. Each Participant deferring Compensation pursuant to the
automatic enrollment provisions shall be deemed to have consented to an
Elective Deferral contribution in the amount specified by the Employer as
provide above, unless he or she has filed an election to the contrary with
the Committee.




     (h) As stated above, Elective Deferrals made pursuant to the automatic
enrollment provisions shall be treated as either pre-tax Elective
Contributions or Roth Contributions.



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	10.	 	The following sentence is added to the end of the third paragraph of Paragraph
F.4 of Article IV:






     “For Plan Years beginning after December 31, 2006, the notice can only make
references to the relevant portions of an up-to-date summary plan
description in regard to the content requirements of (ii), (iii) and (iv) of
the preceding paragraph.”




	11.	 	Paragraph H of Article IV is amended in its entirety to read as follows:






Limitation on Elective Deferrals.




     “1. Deferral Limit For Catch-Up Contributions. The applicable dollar
limit under Section 402(g)(1)(B) of the Code (as increased under Section
402(g)(7) of the Code, to the extend applicable) shall be further increased
by the applicable dollar catch-up limit as set forth in Section
1.414(v)-1(c)(2) of the Treasury Regulations with respect to eligible
Participants entitled to make catch-up contributions.




     2. Deferral Limit For Multiple Plans. The preceding paragraph applies
without regard to whether the applicable Employer plan (within the meaning
of Section 414(v)(6) of the Code) treats the Elective Deferrals as catch-up
contributions. Thus, a catch-up eligible Participant who makes Elective
Deferrals under applicable employer plans of two (2) or more Employers that
in total exceed the applicable dollar amount under Section 402(g)(1) of the
Code by an amount that does not exceed the applicable dollar catch-up limit
under either plan may exclude the Elective Deferrals from gross income, even
if neither applicable Employer plan treats those Elective Deferrals as
catch-up contributions.




     3. Adjustments in Deferral Limits. For taxable years beginning after
December 31, 2006, the limitations under Sections 402(g), Section
408(p)(2)(A)(ii) and 414(v) of the Code shall be adjusted at the same time
and in the same manner as Section 415(d) of the Code, except the base period
taken into account shall be the calendar quarter beginning July 1, 2005, and
any increase under this Paragraph H which is not a multiple of $500 shall be
rounded to the next lowest multiple of $500.”



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	12.	 	Paragraph J.2 of Article IV is amended to read as follows:






“2. Determination of Corrective Distributions.




     (a) The determination of corrective distributions shall be made as
follows:




     Step 1. The Committee shall calculate the dollar amount of Excess
Contributions for each affected Highly Compensated Employee in
accordance with Section 401(k)(8)(B) of the Code and Section
1.401(k)-1(f)(2) of the Treasury Regulations.




     Step 2. The Committee shall determine the total of the dollar amounts
calculated in step 1 (“total Excess Contributions”).




     Step 3. The Elective Contributions of the Highly Compensate Employee
with the highest dollar amount of Elective Contributions shall be reduced by
the amount required to cause such Highly Compensated Employee’s Elective
Contributions to equal the dollar amount of the Elective Contributions of
the Highly Compensated Employee with the next highest dollar amount of
Elective Contributions. This amount is then distributed to the Highly
Compensated Employee with the highest dollar amount of Excess Contributions.
However, if a lesser reduction, when added to the total dollar amount
already described under this step, would equal the total Excess
Contributions, the lesser reduction amount is distributed.




     Step 4. If the total amount distributed is less than the total Excess
Contributions, step 3 is repeated.




     If the above distributions are made, the cash or deferred arrangement
is treated as meeting the non-discrimination test of Section 401(k)(3) of
the Code regardless of whether the Actual Deferral Percentage, if
recalculated after such distributions, would satisfy Section 401(k)(3) of
the Code.




     (b) Notwithstanding subparagraph (a) above, if the Plan fails the
Actual Deferral Percentage limitation the amount to be refunded to a
Participant who is eligible to make catch-up contributions pursuant to
Paragraph D of this Article IV is first offset by the amount of the dollar
catch-up limit. The catch-up amount due to the Actual Deferral Percentage
limitation is calculated after the Actual Deferral Percentage limitation has
been determined for the Plan Year. Amounts eligible for disbursement under
Section 401(k)(8) or 408(k)(6)(C) of the Code must be re-categorized as
catch-up contributions up to the dollar catch-up limit of Section
414(v)(2)(B) of the Code. However, Elective Contributions



Page 7









 






that are not
distributed because they are re-categorized as catch-up contributions are
still considered to be Excess Contributions for purposes of Section
401(k)(8) of the Code. Thus, Matching Contributions with respect to such
Elective Contributions are permitted to be forfeited pursuant to Section
411(a)(3)(E) of the Code and Paragraph K of Article X provided that catch-up
contributions are not matched pursuant to Article I of the Plan.




     (c) For purposes of determining the maximum amount of permitted
catch-up contributions for a catch-up eligible Participant, the
determination of whether an Elective Contribution is a catch-up contribution
is made as of the last day of the Plan Year (or in the case of Section 415
of the Code, as of the last day of the Limitation Year), except that, with
respect to Elective Contributions in excess of an applicable limit that is
tested on the basis of the taxable year or calendar year (such as the limit
of Section 401(a)(30) of the Code on Elective Deferrals), the determination
of whether such Elective Contributions are treated as catch-up contributions
is made at the time they are deferred.”




	13.	 	Paragraph J.4 of Article IV is amended in its entirety to read as follows:






     “4. Additional Requirements. Qualified Nonelective Employer
Contributions and Qualified Matching Contributions which are treated as Elective
Contributions must satisfy the following additional requirements:




     (a) The Nonelective Employer Contributions, including Qualified
Nonelective Employer Contributions, must satisfy the requirements of Section
401(a)(4) of the Code and Section 1.401(a)(4)-1(b)(2) of the Treasury
Regulations.




     (b) The Nonelective Employer Contributions, excluding Qualified
Nonelective Employer Contributions treated as Elective Contributions for
purposes of the Actual Deferral Percentage limitation and Qualified
Nonelective Employer Contributions treated as Matching Contributions for
purposes of the Contribution Percentage limitation, must satisfy the
requirements of Section 401(a)(4) of the Code and Section
1.401(a)(4)-1(b)(2) of the Treasury Regulations.




     (c) If the Employer is applying the special rule for employer-wide
plans in Section 1.414(r)-1(c)(2)(ii) of the Treasury Regulations with
respect to a cash or deferred arrangement, the determination of whether the
Qualified Nonelective Employer Contributions satisfy the requirements of
subparagraphs (a) and (b) of this Paragraph J.4 must be made on an
employer-wide basis regardless of whether the plans to which the Qualified
Nonelective Employer Contributions are made are



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satisfying the requirements
of Section 410(b) of the Code on an employer-wide basis. Conversely, in the
case of an employer that is treated as operating qualified separate lines of
business, and does not apply the special rule for employer-wide plans in
Section 1.414(r)-1(c)(2)(ii) of the Treasury Regulations with respect to a
cash or deferred arrangement, then the determination of whether the
Qualified Nonelective Employer Contributions satisfy the requirements of
this subparagraphs (a) and (b) of this Paragraph J.4 is not permitted to be
made on an
employer-wide basis regardless of whether the plans to which the
Qualified Nonelective Employer Contributions are made satisfy the
requirements of Section 410(b) of the Code on that basis.




     (d) Qualified Nonelective Employer Contributions and Qualified Matching
Contributions made for the Plan Year must satisfy the allocation
requirements of Elective Contributions.




     (e) The plan that takes Qualified Nonelective Employer Contributions
and Qualified Matching Contributions into account in determining whether
Elective Contributions satisfy the Actual Deferral Percentage limitation
must have the same Plan Year as the plan or plans to which the Qualified
Matching Contributions and Qualified Nonelective Employer Contributions were
made. If the Plan Year is changed to satisfy this requirement, such
contributions may be taken into account during the Short Plan Year only if
they could have been taken into account under the Actual Deferred Percentage
limitation for a plan with the same Short Plan Year.




     (f) If the Employer has elected to apply the prior year testing method
to calculate the Actual Deferral Percentage limitation, Qualified Matching
Contributions or Qualified Nonelective Employer Contributions must be made
no later than twelve (12) months following the last day of the Plan Year
preceding the current Plan Year to satisfy the Actual Deferral Percentage
limitation. If the Employer has elected to apply the current year testing
method to calculate the Actual Deferral Percentage limitation, Qualified
Matching Contributions or Qualified Nonelective Employer Contributions must
be made no later than twelve (12) months following the close of the current
Plan Year to satisfy the Actual Deferral limitation.




     (g) Effective as stated in Article I, Qualified Nonelective Employer
Contributions cannot be taken into account for a Plan Year for a Non-Highly
Compensated Participant to the extent such contributions exceed the product
of that Non-Highly Compensated Participant’s Compensation and the greater of
(i) five percent (5%) or (ii) two (2) times the Plan’s representative
contribution rate. Any Qualified Nonelective Employer Contribution taken
into account under the Contribution



Page 9









 






Percentage limitation under Paragraph L
of Article X (including the determination of the representative contribution
rate for purposes Section 1.401(m)-2(a)(6)(v)(B) of the Treasury
Regulations), is not taken into account for purposes of this Paragraph J.4
(including the determination of the representative contribution rate under
this subparagraph J.4(g)).




     For purposes of this subparagraph J.4(g) the Plan’s representative
contribution rate is the lowest applicable contribution rate of any eligible
Non-Highly Compensated Participant among a group of eligible Non-highly
Compensated Participants that consists of half of all eligible Non-Highly
Compensated Participants for the Plan Year (or, if greater, the lowest
applicable contribution rate of any eligible Non Highly Compensated
Participant in the group of all eligible Non-Highly Compensated Participant
for the Plan Year and who is employed by the Employer on the last day of the
Plan Year).




     The applicable contribution rate for an eligible Non-Highly Compensated
Participant is the sum of the Qualified Matching Contributions taken into
account under this Paragraph J.4 for the eligible Non-Highly Compensated
Participant for the Plan Year and the Qualified Nonelective Employer
Contributions made for that eligible Non-Highly Compensated Participant for
the Plan Year, divided by that eligible Non-Highly Compensated Participant’s
Compensation for such Plan Year.




     Notwithstanding this subparagraph J.4(g), Qualified Nonelective
Employer Contributions that are made in connection with an employee’s
obligation to pay prevailing wages under the Davis-Bacon Act, the Service
Contract Act of 1965 or similar legislation, can be taken into account for a
Plan Year to the extent such contributions do not exceed ten percent (10%)
of such Non-Highly Compensated Participant’s Compensation.




     (h) Qualified Matching Contributions satisfy this Paragraph J.4 only to
the extent that such Qualified Matching Contributions are Matching
Contributions that are not precluded from being taken into account under the
Contribution Percentage limitation for the Plan Year under the rules of
Section 1.401(m)-2(a)(5)(ii) of the Treasury Regulations.




     (i) Qualified Matching Contributions and Qualified Nonelective Employer
Contributions can not be taken into account under this Paragraph J.4 to the
extent such contributions are taken into account for purposes of satisfying
any other Actual Deferral Percentage limitation, Contribution Percentage
limitation, or the requirements of Sections 1.401(k)-3, 1.401(m)-3 or
1.401(k)-4 of the Treasury Regulations.”



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	14.	 	Paragraph R of Article IV is amended in its entirety to read as follows:






“R. Aggregation of Employer’s Plans.




     1. In General. Elective Contributions that are made under two (2) or
more plans of the Employer that are aggregated for purposes of
Section 401(a)(4) or Section 410(b) of the Code, other than Section
410(b)(2)(A)(ii) of the Code, are to be treated as made under a single plan
and if two (2) or more plans are permissibly aggregated for purposes of
Section 401(k) of the Code, the aggregated plans must satisfy Sections
401(a)(4), 401(k) and 410(b) of the Code as though such aggregated plans
were a single plan. Whenever a Highly Compensated Employee is eligible
under two (2) or more plans of the Employer which are subject to Section
401(k) of the Code, in calculating the Actual Deferral Percentage
limitation, the actual deferral ratio of such Highly Compensated Employee
will be determined by treating all such plans in which such Highly
Compensated Employee is an Eligible Participant as a single plan.




     For purposes of this Paragraph R, the term plan means a plan within the
meaning of Section 1.410(b)-7(a) and (b) of the Treasury Regulations, after
application of the mandatory disaggregation rules of Section 1.410(b)-7(c)
of the Treasury Regulations and the permissive aggregation rules of Section
1.410(b)-7(d) of the Treasury Regulations, as modified by Paragraph R.4 of
this Article IV. Thus, if two (2) plans are treated as a single plan
pursuant to the permissive aggregation rules of Section 1.410(b)-7(d) of the
Treasury Regulations, then such plans are treated as a single plan for
purposes of Sections 401(k) and 401(m) of the Code.




     2. Plans with Inconsistent 401(k) Testing Methods. In applying the
permissive aggregation rules of Section 1.410(b)-7(d) of the Treasury
Regulations, an Employer may not aggregate plans within the meaning of
Section 1.410(b)-7(b)-7(b) of the Treasury Regulations that apply
inconsistent testing methods. Thus, a plan that applies the current year
testing method may not be aggregated with another plan of the Employer that
applies the prior year testing method. Similarly, an Employer may not
aggregate a plan using the safe harbor provisions of Section 401(k)(12) of
the Code and another plan that is required to be tested under Section
401(k)(3) of the Code.




     3. Disaggregation of Plans and Separate Testing. If a cash or deferred
arrangement is included in a plan within the meaning of Section
1.410(b)-7(b) of the Treasury Regulations that is mandatorily




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disaggregated
under Section 410(b) of the Code (as modified by Paragraph R.4 of this
Article IV), the cash or deferred arrangement must be disaggregated in a
consistent manner. Thus, in case of an Employer that is treated as operating
qualified separate lines of business under Section 414(r) of the Code, if
eligible Employees under a cash or deferred arrangement that are in more
than one qualified separate line of business, only those Employees within
each qualified separate line of business may be taken into account in
determining whether each disaggregated portion of the plan complies with the
requirements of Section 401(k) of the Code,
unless the Employer is applying the special rule for employer-wide
plans in Section 1.414(r)-1(c)(2)(ii) of the Treasury Regulations with
respect to the plan. Similarly, if a cash or deferred arrangement under
which Employees are permitted to participate before they have completed the
minimum age and service requirements of Section 410(a)(1) of the Code
applies Section 410(b)(4)(B) of the Code for determining whether the plan
complies with Section 410(b)(1) of the Code, then the arrangement must be
treated as two separate arrangements, one comprising all eligible employees
who have met the age and service requirements of Section 410(a)(1) of the
Code and one comprising all eligible Employees who have not met the age and
service requirements of Section 410(a)(1) of the Code unless the Plan uses
the rule that allows for the aggregation of all eligible Employees
regardless of age and service.




          Restructuring under Section 1.401(a)(4)-9(c) of the Treasury
Regulations may not be used to satisfy the requirements of Section 401(k) of
the Code.




     4. Certain Disaggregation Rules Not Applicable. The mandatory
disaggregation rules relating to Section 401(k) plans and Section 401(m)
plans set forth in Section 1.410(b)-7(c)(1) of the Treasury Regulations and
an employee stock ownership plan and non-employee stock ownership plan
portions of a plan set forth in Section 1.410(b)-7(c)(2) of the Treasury
Regulations shall not apply for purposes of this Paragraph R. Accordingly,
notwithstanding Section 1.410(b)-7(d)(2) of the Treasury Regulations, an
employee stock ownership plan and a non-employee stock ownership plan which
are different plans (within the meaning of Section 1.410(b)-7(b)) of the
Treasury Regulations) are permitted to be aggregated for purposes of Section
401(k) of the Code.




     5. Permissive aggregation of collective bargaining units.
Notwithstanding the general rule under Section 410(b) of the Code and
Section 1.410(b)-7(c) of the Treasury Regulations, a plan that benefits
Employees that are covered by a collective bargaining agreement and
Employees who are not included in the collective bargaining unit are treated
as comprising separate plans. An Employer can treat two or more separate
collective bargaining units as a single collective bargaining unit



Page 12









 







for
purposes of this Paragraph R.5 and this Article IV, provided that the
combination of units are determined on a basis that is reasonably consistent
from year to year.




     6. Multiemployer plan. Notwithstanding Section 1.410(b)-7(c)(4)(ii)(C)
of the Treasury Regulations, the portion of the plan that is maintained
pursuant to a collective bargaining agreement (within the meaning of Section
1.413-1(a)(2)) of the Treasury Regulations) is treated as a single plan
maintained by a Single Employer that employs all the
Employees benefiting under the same benefit computation formula and
covered pursuant to that collective bargaining agreement. The rules of
Paragraph R.5 of this Article IV (including the permissive aggregation of
collective bargaining units) apply to the resulting deemed single plan in
the same manner as if the Plan was a Single Employer Plan. The
noncollectively bargained portion of the plan is treated as maintained by
one or more Employers, depending on whether the noncollectively bargaining
unit employees who benefit under the plan are employed by one or more
Employers.




     7. Safe-Harbor Contributions. The rules regarding aggregation and
disaggregation of cash or deferred arrangements and plans shall also apply
for purposes of Sections 401(k)(12) and 401(m)(11) of the Code. The
anti-discrimination test under Section 401(k)(3) of the Code shall apply to
Employees who are eligible to make Elective Contributions but not yet
eligible to receive Safe Harbor Matching Contributions or Safe Harbor
Nonelective Employer Contributions.”




15. Effective for Plan Years beginning after December 31, 2003, Paragraphs S and T
are added to Article IV to read as follows:




“S. Universal Availability Requirements of Catch-Up Contributions.




     1. General Rule. If the Employer maintains a plan that offers catch-up
contributions and that is otherwise subject to Section 401(a)(4) of the Code
(including a plan that is subject to Section 401(a)(4) of the Code pursuant
to Section 403(b)(12) of the Code), such plan will not satisfy the
requirements of Section 401(a)(4) of the Code unless all catch-up eligible
Participants who participate under any plan maintained by the Employer are
provided with an effective opportunity to make the same dollar amount of
catch-up contributions. A plan fails to provide an effective opportunity to
make catch-up contributions if it has an applicable limit (e.g., an
Employer-provided limit) that applies to a catch-up eligible Participant and
does not permit the Participant to make Elective Deferrals in excess of that
limit. An applicable Employer plan does not fail to satisfy the universal
availability requirement of this



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Paragraph S solely because an
Employer-provided limit does not apply to all Employees or different limits
apply to different groups of Employees as permitted by Section
1.414(v)-1(b)(2)(i) of the Treasury Regulations. However, a plan may not
provide lower Employer-provided limits for catch-up eligible Participants.




     2. Payroll Period Exception. An applicable Employer plan does not fail
to satisfy the universal availability requirement of this Paragraph S merely
because the plan allows Participants to defer an
amount equal to a specified percentage of Compensation for each payroll
period and for each payroll period permits each catch up eligible
Participant to defer a pro-rata share of the applicable catch-up limit in
addition to that amount.




     3. Cash Availability Exception. An Employer plan does not fail to
satisfy the universal availability requirement of this Paragraph S merely
because it restricts the Elective Deferrals of any Employee (including a
catch-up eligible Participant) to amounts available after other withholding
from the Employee’s pay (e.g., after deduction of all applicable income and
employment taxes). For this purpose, an Employer-provided limit of 75% of
Compensation or higher will be treated as limiting Employees to amounts
available after other withholdings.




     4. Class Exclusion Exception. An applicable employer does not fail to
satisfy the universal availability requirement of this Paragraph S merely
because Employees described in Section 410(b)(3) of the Code are not
provided the opportunity to make catch-up contributions.




     5. Exception for Certain Types of Plans. An applicable Employer plan
does not fail to satisfy the universal availability requirement merely
because another applicable Employer plan that is a Section 457 eligible
governmental plan does not provide for catch-up contributions to the extent
set forth in Sections 414(v)(6)(C) and 457(b)(3).




     6. Acquisition and Disposition Exception. If an applicable Employer
plan satisfies the universal availability requirement of this Paragraph S
before an acquisition or disposition described in Section 1.410(b)-2(f) of
the Treasury Regulations and would fail to satisfy the universal
availability requirement of this Paragraph because of such acquisition or
disposition, then the applicable Employer plan shall continue to be treated
as satisfying the universal availability requirement through the end of the
transition period described under Section 410(b)(6)(C)(ii) of the Code.



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T. Multiple Plan Limits on Catch-Up Contributions.




     1. General Rule. For purposes of Paragraph H of this Article IV, all
applicable Employer plans, other than Section 457 eligible governmental
plans, maintained by the same Employer are treated as one plan and all
Section 457 eligible governmental plans maintained by the same Employer are
treated as one plan. Thus, the total amount of catch-up contributions under
all applicable Employer plans of an Employer (other than Section 457
eligible governmental plans) is limited to the
applicable dollar catch-up limit for the relevant taxable year and the
total amount of catch-up contributions for all Section 457 eligible
governmental plans of an Employer is limited to the applicable dollar
catch-up limit for the relevant taxable year.




     2. Coordination of Employer-Provided Limits within Plans. An
applicable Employer plan is permitted to allow a catch-up eligible
Participant to defer in excess of an Employer-provided limit under that plan
without regard to whether Elective Deferrals made by the Participant have
been treated as catch-up contributions for the taxable year under another
applicable Employer plan aggregated with such plan under this Paragraph T.
However, to the extent Elective Deferrals under another plan maintained by
the Employer have already been treated as catch-up contributions during the
taxable year, the Elective Deferrals under the plan may be treated as
catch-up contributions only up to the amount remaining under the catch-up
limit for the taxable year. Any other Elective Deferrals that exceed the
Employer-provided limit must satisfy the benefits, rights and features
current and effective availability requirements of Section 1.401(a)(4)-4 of
the Treasury Regulations to the extent that the contributions are not
catch-up contributions. Elective Deferrals in excess of the
Employer-provided limit are taken into account under the Actual Deferral
Percentage limitation to the extent they are not catch-up contributions.




     3. Allocation Rules. If a catch-up eligible Participant makes
additional Elective Deferrals in excess of an applicable limit described in
Paragraph H of this Article IV under more than one applicable Employer plan
under which Elective Deferrals in excess of an applicable limit are treated
as catch-up contributions is permitted to be determined in any manner that
is not inconsistent with the manner in which such amounts were actually
deferred under the applicable plan.”


16. Effective for Plan Years beginning on and after December 31, 2003, Paragraph C.8
is added to Article VIII as follows:




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     “8. Catch-Up Contributions. Catch-up contributions made in accordance with
Section 414(v) of the Code with respect to the current Plan Year are not taken into
account for purposes of top-heavy testing under Section 416 of the Code. However,
catch-up contributions made to the Plan in prior years are taken into account in
determining whether the Plan is top-heavy under Section 416 of the Code.”




	17.	 	The following paragraph is added to Paragraph J of Article X as follows:






     “For Plan Years in which Final Treasury Regulations under 401(k) are effective
but no later than Plan Years beginning after December 31, 2005, gap period income
can only be excluded as permitted under Section 1.401(k)(2)(b) of the Treasury
Regulations. The income allowable to Excess Aggregate Contributions resulting from
the recharacterization of Elective Contributions shall be determined and distributed
as if such recharacterized Elective Contributions had been distributed as Excess
Contributions. If gap period income is required to be allocated pursuant to Section
1.401(k)-2(b)(2) of the Treasury Regulations, the Committee may determine the income
allocable to Excess Aggregated Contributions consistent with the requirements of
Section 1.401(k)-2(b)(2) of the Treasury Regulations.”




	18.	 	Paragraph L of Article X is amended in its entirety to read as follows:






     “L. Additional Qualified Nonelective Employer Contributions. Rather
than returning Excess Aggregate Contributions, the Committee, in its sole
discretion, may make additional Qualified Nonelective Employer Contributions or may
apply Elective Contributions to satisfy the Contribution Percentage limitation
provided that the Qualified Nonelective Employer Contributions and Elective
Contributions that will be treated as Matching Contributions are made with respect
to Employees who are Eligible Participants under the Plan.




     1. Conditions for Additional QNECs. Qualified Nonelective Employer
Contributions will be treated as Matching Contributions only if the
additional requirements described below are satisfied:




     (a) The Nonelective Employer Contributions including Qualified
Nonelective Employer Contributions treated as Matching Contributions
shall satisfy Section 401(a)(4) of the Code and Section
1.401(a)(4)-1(b)(2) of the Treasury Regulations.




     (b) The Nonelective Employer Contributions excluding Qualified
Nonelective Employer Contributions treated as Matching Contributions
for the Contribution Percentage



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limitation and Qualified Nonelective
Employer Contributions treated as Elective Contributions for the
Actual Deferral Percentage limitation shall satisfy Section
401(a)(4) of the Code and Section 1.401(a)(4)-1(b)(2) of the
Treasury Regulations.




     (c) If the Employer is applying the special rule for
employer-wide plans in Section 1.414(r)-1(c)(2)(ii) of the Treasury
Regulations with respect to a cash or deferred arrangement, the
determination of whether the Qualified Nonelective Employer
Contributions satisfy the requirements of
subparagraphs (a) and (b) of this Paragraph L must be made on
an employer-wide basis regardless of whether the plans to which the
Qualified Nonelective Employer Contributions are made are satisfying
the requirements of Section 410(b) of the Code on an employer-wide
basis. Conversely, in the case of an employer that is treated as
operating qualified separate lines of business, and does not apply
the special rule for employer-wide plans in Section
1.414(r)-1(c)(2)(ii) of the Treasury Regulations with respect to a
cash or deferred arrangement, then the determination of whether the
Qualified Nonelective Employer Contributions satisfy the
requirements of subparagraphs (a) and (b) of this Paragraph L is not
permitted to be made on an employer-wide basis regardless of whether
the plans to which the Qualified Nonelective Employer Contributions
are made are satisfying the requirements of Section 410(b) of the
Code on that basis.




     (d) The Elective Contributions including those treated as
Matching Contributions for purposes of the Contribution Percentage
limitation shall satisfy Section 401(k)(3) of the Code.




     (e) Qualified Nonelective Employer Contributions shall be
allocated to the Employee within the Plan Year, and the Elective
Contributions shall relate to Compensation for the Plan Year or
Compensation that would have been received within 21/2 months after
the Plan Year and are allocated within the Plan Year.




     (f) The plan which treats Qualified Nonelective Employer
Contributions and Elective Contributions as Matching Contributions
and the plan to which the Qualified Nonelective Employer
Contributions and Elective Contributions are made must have the same
Plan Year. If the Plan Year is changed to satisfy this requirement,
such contributions may be taken into account during the Short Plan
Years only if they could have been taken into account under the
Contribution Percentage limitation for a plan with the same Short
Plan Year.



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     (g) If the Employer has elected to apply the prior year testing
method to calculate the Contribution Percentage limitation,
Qualified Nonelective Employer Contributions must be made no later
than twelve (12) months following the last day of the Plan Year
preceding the current Plan Year to satisfy the Contribution
Percentage limitation. If the Employer has elected to apply the
current year testing method to calculate the Contribution Percentage
limitation, Qualified Nonelective Employer Contributions must be
made no later than twelve (12)
months following the close of the current Plan Year to satisfy
the Contribution Percentage limitation.




     (h) Effective as stated in Article I, Qualified Nonelective
Employer Contributions cannot be taken into account for a Plan Year
for a Non-Highly Compensated Participant to the extent such
contributions exceed the product of that Non-Highly Compensated
Participant’s Compensation and the greater of (i) five percent (5%)
or (ii) two (2) times the Plan’s representative contribution rate.
Any Qualified Nonelective Employer Contribution taken into account
under the Actual Deferral Percentage limitation under Paragraph J.4
of Article IV (including the determination of the representative
contribution rate for purposes Section 1.401(k)-2(a)(6)(iv)(B) of
the Treasury Regulations), is not taken into account for purposes of
this Paragraph L (including the determination of the representative
contribution rate for purposes of this subparagraph (h)).




     For purposes of this subparagraph (h), the Plan’s
representative contribution rate is the lowest applicable
contribution rate of any eligible Non-Highly Compensated Participant
among a group of eligible Non-highly Compensated Participants that
consists of half of all eligible Non-Highly Compensated Participants
for the Plan Year (or, if greater, the lowest applicable
contribution rate of any eligible Non Highly Compensated Participant
in the group of all eligible Non-Highly Compensated Participant for
the Plan Year and who is employed by the Employer on the last day of
the Plan Year).




     The applicable contribution rate for an eligible Non-Highly
Compensated Participant is the sum of the Matching Contributions
taken into account under this Paragraph L for the eligible
Non-Highly Compensated Participant for the Plan Year and the
Qualified Nonelective Employer Contributions made for that eligible
Non-Highly Compensated Participant for the Plan Year, divided by
that eligible Non-Highly Compensated Participant’s Compensation for
such Plan Year.



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     Notwithstanding this subparagraph (h), Qualified Nonelective
Employer Contributions that are made in connection with an
Employer’s obligation to pay prevailing wages under the Davis-Bacon
Act, Service Contract of 1965 or similar legislation, can be taken
into account for a Plan Year to the extent such contributions do not
exceed ten percent (10%) of the Non-Highly Compensated Participant’s
Compensation.




     2. Qualified Nonelective Employer Contributions Not Taken Into Account.
Qualified Nonelective Employer Contributions can not be taken into account
under this Paragraph L to the extent such contributions are taken into
account for purposes of satisfying any other Actual Deferral Percentage
limitation, Contribution Percentage limitation, or the requirements of
Sections 1.401(k)-3, 1.401(m)-3 or 1.401(k)-4 of the Treasury Regulations.




	19.	 	Paragraph P of Article X is amended in its entirety to read as follows:






“P Aggregation Rules for Section 401(m) Contributions.




     1. In General. If the Employer maintains two (2) or more plans to
which Employee After-Tax Contributions or Matching Contributions are made,
then the plans may be considered as a single plan for purposes of
determining whether or not such plans satisfy Sections 401(a)(4), 401(m) or
410(b) of the Code, other than Section 410(b)(2)(A) of the Code. In such
case, the aggregated plans must satisfy the Contribution Percentage
limitation with respect to the amount of the Employee After-Tax
Contributions and Matching Contributions and additionally must satisfy
Sections 401(a)(4) and 410(b) of the Code as though such aggregated plans
were a single plan. Whenever a Highly Compensated Employee is eligible
under two (2) or more plans of the Employer which are subject to Section
401(m) of the Code, in calculating the Contribution Percentage limitation,
the actual contribution ratio of such Highly Compensated Employee will be
determined by treating all such plans in which such Highly Compensated
Employee is an Eligible Participant as a single plan.




     For purposes of this Paragraph P, the term plan means a plan within the
meaning of Section 1.410(b)-7(a) and (b) of the Treasury Regulations, after
application of the mandatory disaggregation rules of Section 1.410(b)-7(c)
of the Treasury Regulations and the permissive aggregation rules of Section
1.410(b)-7(d) of the Treasury Regulations, as modified by Paragraph P.4 of
this Article X. Thus, if two (2) plans are treated as a single plan
pursuant to the permissive aggregation rules of



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Section 1.410(b)-7(d) of the
Treasury Regulations, then such plans are treated as a single plan for
purposes of Sections 401(k) and 401(m) of the Code.




     2. Plans with Inconsistent 401(k) Testing Methods. In applying the
permissive aggregation rules of Section 1.410(b)-7(d) of the Treasury
Regulations, an Employer may not aggregate plans within the meaning of
Section 1.410(b)-7(b)-7(b) of the Treasury Regulations that apply
inconsistent testing methods. Thus, a plan that applies the current
year testing method may not be aggregated with another plan of the
Employer that applies the prior year testing method. Similarly, an Employer
may not aggregate a plan using the safe harbor provisions of Section
401(m)(11) of the Code and another plan that is required to be tested under
Section 401(m)(2) of the Code.




     3. Disaggregation of Plans and Separate Testing. If Employee
After-Tax Contributions or Matching Contributions are included in a plan
within the meaning of Section 1.410(b)-7(b) of the Treasury Regulations that
is mandatorily disaggregated under Section 410(b) of the Code (as modified
by Paragraph P.4 of this Article X), the Employee After-Tax Contributions or
Matching Contributions must be disaggregated in a consistent manner. Thus,
in case of an Employer that is treated as operating qualified separate lines
of business under Section 414(r) of the Code, if eligible Employees under a
plan which provides for Employee After-Tax Contributions or Matching
Contributions are in more than one qualified separate line of business, only
those Employees within each qualified separate line of business may be taken
into account in determining whether each disaggregated portion of the plan
complies with the requirements of Section 401(m) of the Code, unless the
Employer is applying the special rule for employer-wide plans in Section
1.414(r)-1(c)(2)(ii) of the Treasury Regulations with respect to the plan.
Similarly, if a plan provides for Employee After-Tax Contributions or
Matching Contributions under which Employees are permitted to participate
before they have completed the minimum age and service requirements of
Section 410(a)(1) of the Code applies Section 410(b)(4)(B) of the Code for
determining whether the plan complies with Section 410(b)(1) of the Code,
then the plan must be treated as two separate plans, one comprising all
eligible employees who have met the age and service requirements of Section
410(a)(1) of the Code and one comprising all eligible Employees who have not
met the age and service requirements of Section 410(a)(1) of the Code unless
the Plan uses the rule that allows for the aggregation of all eligible
Employees regardless of age and service.




     Restructuring under Section 1.401(a)(4)-9(c) of the Treasury
Regulations may not be used to satisfy the requirements of Section 401(m) of
the Code.




	 	20.	 	Certain Disaggregation Rules Not Applicable.






     The mandatory disaggregation rules relating to Section 401(k) plans and Section
401(m) plans set forth in Section 1.410(b)-7(c)(1) of the Treasury Regulations and
an employee stock ownership plan and non-employee stock ownership plan portions of a
plan set forth in Section 1.410(b)-7(c)(2) of the Treasury Regulations shall not
apply
for purposes of this Paragraph P. Accordingly, notwithstanding Section
1.410(b)-7(d)(2) of the Treasury Regulations, an employee stock ownership plan and a
non-employee stock ownership plan which are different plans (within the meaning of
Section 1.410(b)-7(b)) of the Treasury Regulations) are permitted to be aggregated
for purposes of Section 401(m) of the Code.”


IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed by its duly
represented officer, this 18th day of December, 2006.




	 	 	 	 	 
	 	EMPLOYER:

 	 
	 	By:  	/s/ GARY A. KREITZER
 	 
	 	 	Gary A. Kreitzer 	 
	 	 	Executive Vice President 	 
	 




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