M&T Bank HSA Custodial Deposit Agreement and Investment Addendum

Transcription

1 M&T Bank HSA Custodial Deposit Agreement and Investment Addendum NOTICE OF ARBITRATION AGREEMENT A separate Arbitration Agreement that starts on page 36 applies to all of these agreements. You should read the Arbitration Agreement. It will govern how you or we resolve any dispute that you or we have in connection with your HSA. It also describes how you may reject the Arbitration Agreement if you wish. Document Page # Health Saving Account Custodial Account Agreement 2-6 Disclosure Statement 6-7 Deposit Account Agreement 8-25 Funds Availability Disclosure 26 Health Saving Account Non-Deposit Investment Addendum M&T HSA Internet Banking Agreement Arbitration Agreement M&T Consumer Information Policy Document Updated as of January 25,

2 HEALTH SAVINGS CUSTODIAL ACCOUNT AGREEMENT Form 5305-C under section 223(a) of the Internal Revenue Code. FORM (December 2011) The account owner named on the application is establishing this health savings account (HSA) exclusively for the purpose of paying or reimbursing qualified medical expenses of the account owner, his or her spouse, and dependents. The account owner represents that, unless this account is used solely to make rollover contributions, he or she is eligible to contribute to this HSA; specifically, that he or she: (1) is covered under a high deductible health plan (HDHP), (2) is not also covered by any other health plan that is not an HDHP (with certain exceptions for plans providing preventive care and limited types of permitted insurance and permitted coverage), (3) is not enrolled in Medicare, and (4) cannot be claimed as a dependent on another person s tax return. The account owner has assigned the custodial account the sum indicated on the application. The account owner and the custodian make the following agreement: ARTICLE I 1. The custodian will accept additional cash contributions for the tax year made by the account owner or on behalf of the account owner (by an employer, family member, or any other person). No contributions will be accepted by the custodian for any account owner that exceeds the maximum amount for family coverage plus the catch-up contribution. 2. Contributions for any tax year may be made at any time before the deadline for filing the account owner s federal income tax return for that year (without extensions). 3. Rollover contributions from an HSA or an Archer medical savings account (Archer MSA) (unless prohibited under this agreement) need not be in cash and are not subject to the maximum annual contribution limit set forth in Article II. 4. Qualified HSA distributions from a health flexible spending arrangement or health reimbursement arrangement must be completed in a trustee-to-trustee transfer and are not subject to the maximum annual contribution limit set forth in Article II. 5. Qualified HSA funding distributions from an individual retirement account must be completed in a trustee-to-trustee transfer and are subject to the maximum annual contribution limit set forth in Article II. ARTICLE II 1. For calendar year 2011, the maximum annual contribution limit for an account owner with single coverage is $3,050. This amount increases to $3,100 in For calendar year 2011, the maximum annual contribution limit for an account owner with family coverage is $6,150. This amount increases to $6,250 in These limits are subject to cost-of-living adjustments after Contributions to Archer MSAs or other HSAs count toward the maximum annual contribution limit to this HSA. 3. For calendar year 2009 and later years, an additional $1,000 catch-up contribution may be made for an account owner who is at least age 55 or older and not enrolled in Medicare. 4. Contributions in excess of the maximum annual contribution limit are subject to an excise tax. However, the catch-up contributions are not subject to an excise tax. ARTICLE III It is the responsibility of the account owner to determine whether contributions to this HSA have exceeded the maximum annual contribution limit described in Article II. If contributions to this HSA exceed the maximum annual contribution limit, the account owner shall notify the custodian that there exist excess contributions to the HSA. It is the 2 responsibility of the account owner to request the withdrawal of the excess contribution and any net income attributable to such excess contribution. ARTICLE IV The account owner s interest in the balance in this custodial account is nonforfeitable. ARTICLE V 1. No part of the custodial funds in this account may be invested in life insurance contracts or in collectibles as defined in section 408(m). 2. The assets of this account may not be commingled with other property except in a common custodial fund or common investment fund. 3. Neither the account owner nor the custodian will engage in any prohibited transaction with respect to this account (such as borrowing or pledging the account or engaging in any other prohibited transaction as defined in section 4975). ARTICLE VI 1. Distributions of funds from this HSA may be made upon the direction of the account owner. 2. Distributions from this HSA that are used exclusively to pay or reimburse qualified medical expenses of the account owner, his or her spouse, or dependents are tax-free. However, distributions that are not used for qualified medical expenses are included in the account owner s gross income and are subject to an additional 10 percent tax on that amount. The additional 20 percent tax does not apply if the distribution is made after the account owner s death, disability, or reaching age The custodian is not required to determine whether the distribution is for the payment or reimbursement of qualified medical expenses. Only the account owner is responsible for substantiating that the distribution is for qualified medical expenses and must maintain records sufficient to show, if required, that the distribution is tax-free. ARTICLE VII If the account owner dies before the entire interest in the account is distributed, the entire account will be disposed of as follows: 1. If the beneficiary is the account owner s spouse, the HSA will become the spouse s HSA as of the date of death. 2. If the beneficiary is not the account owner s spouse, the HSA will cease to be an HSA as of the date of death. If the beneficiary is the account owner s estate, the fair market value of the account as of the date of death is taxable on the account owner s final return. For other beneficiaries, the fair market value of the account is taxable to that person in the tax year that includes such date. ARTICLE VIII 1. The account owner agrees to provide the custodian with information necessary for the custodian to prepare any report or return required by the IRS. 2. The custodian agrees to prepare and submit any report or return as prescribed by the IRS. ARTICLE IX Notwithstanding any other article that may be added or incorporated in this agreement, the provisions of Articles I through VIII and this sentence are controlling. Any additional article in this agreement that is inconsistent with section 223 or IRS published guidance will be void.

3 ARTICLE X This agreement will be amended from time to time to comply with the provisions of the Code or IRS published guidance. Other amendments may be made with the consent of the persons whose signatures appear on the application. ARTICLE XI Definitions In this part of this agreement (Article XI), the words you and your mean the account owner. The words we, us, and our mean the custodian. The word Code means the Internal Revenue Code, and regulations means the Treasury regulations Representations and Responsibilities You represent and warrant to us that any information you have given or will give us with respect to this agreement is complete and accurate. Further, you agree that any directions you give us or action you take will be proper under this agreement, and that we are entitled to rely upon any such information or directions. If we fail to receive directions from you regarding any transaction, if we receive ambiguous directions regarding any transaction, or if we, in good faith, believe that any transaction requested is in dispute, we reserve the right to take no action until further clarification acceptable to us is received from you or the appropriate government or judicial authority. We will not be responsible for losses of any kind that may result from your directions to us or your actions or failures to act, and you agree to reimburse us for any loss we may incur as a result of such directions, actions, or failures to act. We will not be responsible for any penalties, taxes, judgments, or expenses you incur in connection with your HSA. We have no duty to determine whether your contributions or distributions comply with the Code, regulations, rulings, or this agreement. We have the right to require you to provide, on a form provided by or acceptable to us, proof or certification that you are eligible to contribute to this HSA, including, but not limited to, proof or certification that you are covered by an HDHP. In no event will we be responsible to determine if contributions made by your employer to your HSA meet the requirements for comparable contributions, the rules of which are set forth in the Code and IRS published guidance. We may permit you to appoint, through written notice acceptable to us, an authorized agent to act on your behalf with respect to this agreement (e.g., attorney-in-fact, executor, administrator, investment manager), but we have no duty to determine the validity of such appointment or any instrument appointing such authorized agent. In addition, we may allow you to designate an authorized signer to perform various limited transactions on your HSA as specified in a form provided by or acceptable to us. We may rely upon this designation until such time, if any, that we receive a written revocation of the authorization. We will not be responsible for losses of any kind that may result from directions, actions, or failures to act by your authorized agent and/or authorized signer, and you agree to reimburse us for any loss we may incur as a result of such directions, actions, or failures to act by your authorized agent and/or authorized signer. You will have 60 days after you receive any documents, statements, or other information from us to notify us in writing of any errors or inaccuracies reflected in these documents, statements, or other information. If you do not notify us within 60 days, the documents, statements, or other information will be deemed correct and accurate, and we will have no further liability or obligation for such documents, statements, other information, or the transactions described therein. By performing services under this agreement, we are acting as your agent. You acknowledge and agree that nothing in this agreement 3 will be construed as conferring fiduciary status upon us. We will not be required to perform any additional services unless specifically agreed to under the terms and conditions of this agreement, or as required under the Code and the regulations promulgated thereunder with respect to HSAs. You agree to indemnify and hold us harmless for any and all claims, actions, proceedings, damages, judgments, liabilities, costs, and expenses, including attorney s fees arising from or in connection with this agreement. To the extent written instructions or notices are required under this agreement, we may accept or provide such information in any other form permitted by the Code or applicable regulations including, but not limited to, electronic communication Disclosure of Account Information We may use agents and/or subcontractors to assist in administering your HSA. We may release nonpublic personal information regarding your HSA to such providers as necessary to provide the products and services made available under this agreement, and to evaluate our business operations and analyze potential product, service, or process improvements Service Fees We have the right to charge an annual service fee or other designated fees (e.g., a transfer, rollover, or termination fee) for maintaining your HSA. In addition, we have the right to be reimbursed for all reasonable expenses, including legal expenses, we incur in connection with the administration of your HSA. We may charge you separately for any fees or expenses, or we may deduct the amount of the fees or expenses from the assets in your HSA at our discretion. We reserve the right to charge any additional fee after giving you 30 days notice. Fees such as subtransfer agent fees or commissions may be paid to us by third parties for assistance in performing certain transactions with respect to this HSA. Any brokerage commissions attributable to the assets in your HSA will be charged to your HSA. You cannot reimburse your HSA for those commissions Investment of Amounts in the HSA You have exclusive responsibility for and control over the investment of the assets of your HSA. All transactions will be subject to any and all restrictions or limitations, direct or indirect, that are imposed by our charter, articles of incorporation, or bylaws; any and all applicable federal and state laws and regulations; the rules, regulations, customs and usages of any exchange, market or clearing house where the transaction is executed; our policies and practices; and this agreement. We will have no discretion to direct any investment in your HSA. We assume no responsibility for rendering investment advice with respect to your HSA, nor will we offer any opinion or judgment to you on matters concerning the value or suitability of any investment or proposed investment for your HSA. In the absence of instructions from you, or if your instructions are not in a form acceptable to us, we will have the right to hold any uninvested amounts in cash, and we will have no responsibility to invest uninvested cash unless and until directed by you. We will not exercise the voting rights and other shareholder rights with respect to investments in your HSA unless you provide timely written directions acceptable to us. You will select the investment for your HSA assets from those investments that we are authorized by our charter, articles of incorporation, or bylaws to offer and do in fact offer for HSAs (e.g., term share accounts, passbook accounts, certificates of deposit, money market accounts.)

4 11.06 Beneficiaries If you die before you receive all of the amounts in your HSA, payments from your HSA will be made to your beneficiaries. We have no obligation to pay to your beneficiaries until such time we are notified of your death by receiving a valid death certificate. You may designate one or more persons or entities as beneficiary of your HSA. This designation can only be made on a form provided by or acceptable to us, and it will only be effective when it is filed with us during your lifetime. Each beneficiary designation you file with us will cancel all previous designations. The consent of your beneficiaries will not be required for you to revoke a beneficiary designation. If you have designated both primary and contingent beneficiaries and no primary beneficiary survives you, the contingent beneficiaries will acquire the designated share of your HSA. If you do not designate a beneficiary or if all of your primary and contingent beneficiaries predecease you, your estate will be the beneficiary. If your surviving spouse acquires the interest in this HSA by reason of being the beneficiary at your death, this HSA (or in accordance with rules established by the IRS, the relevant portion thereof) will be treated as if the surviving spouse is the account owner. If the beneficiary is not your spouse, the HSA (or in accordance with rules established by the IRS, the relevant portion thereof) will cease to be an HSA as of the date of your death. Upon learning of your death, we may, in our complete and sole discretion, make a final distribution to a beneficiary (other than your spouse) of his or her interest in the HSA. This distribution may be made without the beneficiary s consent and may be placed in an interest-bearing (or similar) account that we choose Termination of Agreement, Resignation, or Removal of Custodian Either party may terminate this agreement at any time by giving written notice to the other. We can resign as custodian at any time effective 30 days after we send written notice of our resignation to you. Upon receipt of that notice, you must make arrangements to transfer your HSA to another financial organization. If you do not complete a transfer of your HSA within 30 days from the date we send the notice to you, we have the right to transfer your HSA assets to a successor HSA trustee or custodian that we choose in our sole discretion, or we may pay your HSA to you in a single sum. We will not be liable for any actions or failures to act on the part of any successor trustee or custodian, nor for any tax consequences you may incur that result from the transfer or distribution of your assets pursuant to this section. If this agreement is terminated, we may charge to your HSA a reasonable amount of money that we believe is necessary to cover any associated costs, including but not limited to, one or more of the following. Any fees, expenses, or taxes chargeable against your HSA Any penalties or surrender charges associated with the early withdrawal of any savings instrument or other investment in your HSA If we are a nonbank custodian required to comply with Regulations section (e) and we fail to do so or we are not keeping the records, making the returns, or sending the statements as are required by forms or regulations, the IRS may require us to substitute another trustee or custodian. We may establish a policy requiring distribution of the entire balance of your HSA to you in cash or property if the balance of your HSA drops below the minimum balance required under the applicable investment or policy established Successor Custodian If our organization changes its name, reorganizes, merges with another organization (or comes under the control of any federal or state agency), or if our entire organization (or any portion that includes your HSA) is bought by another organization, that organization (or agency) will automatically become the trustee or custodian of your HSA, but only if it is the type of organization authorized to serve as an HSA trustee or custodian Withdrawals or Transfers All requests for withdrawal or transfer will be in writing on a form provided by or acceptable to us. The method of distribution must be specified in writing or in any other method acceptable to us. The tax identification number of the recipient must be provided to us before we are obligated to make a distribution. Withdrawals will be subject to all applicable tax and other laws and regulations, including but not limited to possible early distribution penalty taxes, surrender charges, and withholding requirements. We may allow the return of mistaken distributions if there is clear and convincing evidence that the amounts distributed from the HSA were because of a mistake of fact due to reasonable cause. In determining whether this standard has been met, we may rely on your representation that the distribution was, in fact, a mistake. In no event will we restrict HSA distributions to pay or reimburse only your qualified medical expenses. We may, however, on a case-by-case basis or as a matter of policy, place reasonable restrictions on both the frequency and the minimum amount of distributions from the HSA. We may establish a policy whereby having a zero balance in your HSA may not cause the HSA to be closed. At our discretion, future contributions may be made to the HSA until you instruct us to close the HSA Transfers from Other Plans We can receive amounts transferred to this HSA from the trustee or custodian of another HSA. In addition, we can accept rollovers of an eligible amount from an Archer MSA. We reserve the right not to accept any transfer or rollover Liquidation of Assets We have the right to liquidate assets in your HSA if necessary to make distributions or to pay fees, expenses, taxes, penalties, or surrender charges properly chargeable against your HSA. If you fail to direct us as to which assets to liquidate, we will decide, in our complete and sole discretion, and you agree to not hold us liable for any adverse consequences that result from our decision Restrictions on the Fund Neither you nor any beneficiary may sell, transfer, or pledge any interest in your HSA in any manner whatsoever, except as provided by law or this agreement. The assets in your HSA will not be responsible for the debts, contracts, or torts of any person entitled to distributions under this agreement If any part of this agreement is held to be illegal or invalid, the remaining parts will not be affected. Neither your nor our failure to enforce at any time or for any period of time any of the provisions of this agreement will be construed as a waiver of such provisions or your right or our right thereafter to enforce each and every such provision. 4

5 ARTICLE XII NOTICE OF ARBITRATION AGREEMENT A separate Arbitration Agreement applies to this Agreement. You should read the Arbitration Agreement. It will govern how you or we resolve any dispute that we have in connection with this Agreement or your HSA. It also describes how you may reject this Arbitration Agreement if you wish In this part of this Agreement (Article XII), the words you and your mean the Account Owner. The Account Owner is the person who establishes the custodial account. The words we, us and our mean the Custodian. The word Code means the Internal Revenue Code, and Regulations means the Treasury Regulations. To the extent any of the provisions of this Article XII conflict with the provisions of Articles I through XI, the provisions of this Article XII control All contributions must be made in cash and must be transmitted to us pursuant to procedures we establish from time to time This Agreement will be amended from time to time to comply with the provisions of the Code and IRS published guidance. We may amend this Agreement in any respect at any time (including retroactively), without your consent to comply with the provisions of the Code, or with any other applicable law as in effect from time to time. You will be deemed to have consented to any other amendment unless you notify us of your objection to the amendment within 30 calendar days from the date that we notify you of the amendment Any instruction, notice or communication regarding this Agreement and/or the HSA we are required or permitted to give you (or any other intended recipient) will be considered effective when we mail it by regular mail to your last address that we have in our records or make it available to you electronically by display on our website or by to your address we have in our records. Any instruction, notice or communication you give to us must be in writing and sent by certified or registered United States mail, return receipt requested, postage prepaid to M&T Bank Health Savings Account Servicing, P.O. Box 2032, Milwaukee, WI , or such changed address of which we notify you pursuant to this Agreement. Any instruction, notice or communication given to us will be effective after we receive it at this address and have a reasonable time to act. You must notify us as provided above of any change of your mailing address or address In the absence of investment instructions from you, or if your instructions are not in a form acceptable to us, your HSA assets will be invested in a M&T Bank HSA Deposit Account If you designate more than one primary or contingent beneficiary, but do not specify the percentages to which such beneficiaries are entitled, payment of your HSA will be made to the surviving primary or contingent beneficiaries, as applicable, in equal shares. Unless specified to the contrary on our form, if a primary or contingent beneficiary predeceases you, the portion of your HSA to which the deceased beneficiary is otherwise entitled will be divided equally among the surviving primary or contingent beneficiaries, as applicable. Unless specified to the contrary on our form, payment of your HSA will be made to your contingent beneficiary(ies) only if no primary beneficiary(ies) is living at the time of your death. To the extent permitted by applicable law, if a beneficiary does not predecease you, but dies before receiving the entire amount of his portion of your HSA, his interest in your HSA will be paid to his successor beneficiary(ies), provided that his successor beneficiary(ies) was properly designated on our form and the form was received by us prior to his death. If your beneficiary 5 failed to properly designate a successor beneficiary in accordance with the preceding sentence, or if he is not permitted by applicable law to designate a beneficiary, distribution will be made to his estate You will make all withdrawals from the HSA in accordance with the Code, this Agreement and all other applicable laws This Agreement and your and our duties and obligations shall be construed, administered and enforced according to (1) the law of the state of New York, the jurisdiction in which your HSA is domiciled, without regard to the law of any other state or other jurisdiction, except as superseded by federal law or statute, and (2) to the extent applicable, federal law. ACH entries also are governed by the ACH Rules In the event that your HSA is inactive or dormant for the period specified by applicable state law, we may close your HSA and cancel all debit cards that access your M&T Bank HSA Deposit Account(s) without notifying you. At such time, should any applicable law or regulation require that funds in your HSA be escheated to a state or other governmental body or agency, we shall send such funds to such state, governmental body or agency without notifying you We may tape record any telephone conversations you have with us regarding your HSA By opening your HSA, you request one or more benefits debit or prepaid cards to be issued to you and/or your designees to access HSA funds. GENERAL INSTRUCTIONS Section references are to the Internal Revenue Code. WHAT S NEW Additional Tax Increased For tax years beginning after December 31, 2010, the additional tax on distributions not used for qualified medical expenses increases from 10 percent to 20 percent. PURPOSE OF FORM Form 5305-C is a model custodial account agreement that has been approved by the IRS. An HSA is established after the form is fully executed by both the account owner and the custodian. The form can be completed at any time during the tax year. This account must be created in the United States for the exclusive benefit of the account owner. Do not file Form 5305-C with the IRS. Instead, keep it with your records. For more information on HSAs, see Notice , I.R.B. 269, Notice , I.R.B. 196, Pub. 969, Health Savings Accounts and Other Tax-Favored Health Plans, and other IRS published guidance. DEFINITIONS Identifying Number The account owner s Social Security number will serve as the identification number of this HSA. For married persons, each spouse who is eligible to open an HSA and wants to contribute to an HSA must establish his or her own account. An employer identification number (EIN) is required for an HSA for which a return is filed to report unrelated business taxable income. An EIN is also required for a common fund created for HSAs. High Deductible Health Plan (HDHP) For calendar year 2011, an HDHP for self-only coverage has a minimum annual deductible of $1,200 and an annual out-of-pocket maximum (deductibles, co-payments, and other amounts, but not premiums) of $5,950. In 2012, the $1,200 minimum annual deductible remains the same and the annual out-of-pocket maximum increases to $6,050. For calendar year 2011, an HDHP for family coverage has a minimum annual deductible of $2,400 and an

6 annual out-of-pocket maximum of $11,900. In 2012, the $2,400 minimum annual deductible remains the same and the annual out-ofpocket maximum increases to $12,100. These limits are subject to costof-living adjustments after Self-Only Coverage and Family Coverage Under an HDHP Family coverage means coverage that is not self-only coverage. Qualified Medical Expenses Qualified medical expenses are amounts paid for medical care as defined in section 213(d) for the account owner, his or her spouse, or dependents (as defined in section 152) but only to the extent that such amounts are not compensated for by insurance or otherwise. With certain exceptions, health insurance premiums are not qualified medical expenses. Custodian A custodian of an HSA must be a bank, an insurance company, a person previously approved by the IRS to be a custodian of an individual retirement account (IRA) or Archer MSA, or any other person approved by the IRS. DISCLOSURE STATEMENT SPECIFIC INSTRUCTIONS Article XI Article XI and any that follow it may incorporate additional provisions that are agreed to by the account owner and custodian. The additional provisions may include, for example, definitions, restrictions on rollover contributions from HSAs or Archer MSAs (requiring a rollover not later than 60 days after receipt of a distribution and limited to one rollover during a one-year period), investment powers, voting rights, exculpatory provisions, amendment and termination, removal of custodian, custodian s fees, state law requirements, treatment of excess contributions, distribution procedures (including frequency or minimum dollar amount), use of debit, credit, or stored-value cards, return of mistaken distributions, and descriptions of prohibited transactions. Attach additional pages if necessary. REQUIREMENTS OF AN HSA A. Cash Contributions Your contribution must be in cash, unless it is a rollover contribution. B. Maximum Contribution The total amount that may be contributed to your HSA for any taxable year is the sum of the limits determined separately for each month. The determination for each month is based on whether, as of the first day of such month, you are eligible to contribute and whether you have self-only or family coverage under a high deductible health plan (HDHP). If you have self-only coverage, the maximum monthly contribution is 1/12 of $3,100 (for 2012). If you have family coverage, the maximum monthly contribution is 1/12 of $6,250 (for 2012). These 2012 limits are subject to cost-of-living increases. In addition, if you have attained age 55 before the close of the taxable year, the annual contribution limit is increased by an additional amount not to exceed $1,000 each year. The annual limit is decreased by aggregate contributions made to an Archer MSA and by any qualified HSA funding distributions from an IRA deposited into the HSA. If you become HSA-eligible after the beginning of the year, you may make a full year s contribution up to the statutory contribution limit as long as you maintain eligibility during the testing period. The testing period begins the last month of the initial eligibility year and ends at the end of the 12-month period following that month. If you do not remain eligible during the testing period, you must include in your gross income the contributions made for the months that you were not otherwise eligible and pay a 10 percent penalty tax on the amount. C. Contribution Eligibility You are an eligible individual for any month if you (1) are covered under an HDHP on the first day of such month; (2) are not also covered by any other health plan that is not an HDHP and that provides coverage for any benefit covered under the HDHP (with limited exceptions); (3) are not enrolled in Medicare; and (4) are not eligible to be claimed as a dependent on another person s tax return. In general, an HDHP is a health plan that satisfies certain requirements with respect to deductibles and out-of-pocket expenses. Specifically, an HDHP has an annual deductible of at least $1,200 (for 2012) for self-only coverage and at least $2,400 (for 2012) for family coverage. In addition, the sum of the annual out-of-pocket expenses required to be paid (deductibles, copayments, and amounts other than premiums) cannot exceed $6,050 (for 2012) for self-only coverage and $12,100 (for 2012) for family coverage. All of these dollar amounts may be adjusted annually for cost-of-living increases. D. Nonforfeitability Your interest in your HSA is nonforfeitable. 6 E. Eligible Custodians The custodian of your HSA must be a bank, savings and loan association, credit union, or a person or entity approved by the Secretary of the Treasury. F. Commingling Assets The assets of your HSA cannot be commingled with other property except in a common custodial fund or common investment fund. G. Life Insurance No portion of your HSA may be invested in life insurance contracts. INCOME TAX CONSEQUENCES OF ESTABLISHING AN HSA A. HSA Deductibility If you are eligible to contribute to your HSA for any month during the taxable year, amounts contributed to your HSA are deductible in determining adjusted gross income up to the maximum contribution limits discussed above. The deduction is allowed regardless of whether you itemize deductions. Employer contributions to your HSA are excludable from your gross income and you cannot deduct such amounts on your tax return as HSA contributions. B. Contribution Deadline The deadline for making an HSA contribution is your tax return due date (not including extensions). You may designate a contribution as a contribution for the preceding taxable year in a manner acceptable to us. For example, if you are a calendar-year taxpayer and you make your HSA contribution on or before your tax filing deadline, your contribution is considered to have been made for the previous tax year if you designate it as such. C. Excess Contributions An excess contribution is any amount that is contributed to your HSA that exceeds the amount that you are eligible to contribute. If the excess is not corrected timely, an additional penalty tax of six percent will be imposed upon the excess amount. The procedure for correcting an excess is determined by the timeliness of the correction as identified below. 1. Removal Before Your Tax Filing Deadline. An excess contribution may be corrected by withdrawing the excess amount, along with the earnings attributable to the excess, before your tax filing deadline, including extensions, for the year for which the excess contribution was made. An excess withdrawn under this method is not taxable to you, but you must include the earnings attributable to the excess in your taxable income in the year in which the contribution was made. The six percent excess contribution penalty tax will be avoided.

7 2. Removal After Your Tax Filing Deadline. If you are correcting an excess contribution after your tax filing deadline, including extensions, remove only the amount of the excess contribution. The six percent excess contribution penalty tax will be imposed on the excess contribution for each year it remains in the HSA. 3. Carry Forward to a Subsequent Year. If you do not withdraw the excess contribution, you may carry forward the contribution for a subsequent tax year. To do so, you under-contribute for that tax year and carry the excess contribution amount forward to that year on your tax return. The six percent excess contribution penalty tax will be imposed on the excess amount for each year that it remains as an excess contribution at the end of the year. You must file IRS Form 5329 along with your income tax return to report and remit any additional penalty taxes to the IRS. D. Tax-Deferred Earnings The investment earnings of your HSA are not subject to federal income tax until distributions are made (or, in certain instances, when distributions are deemed to be made). E. Taxation of Distributions Distributions taken from your HSA to pay for qualified medical expenses or to reimburse you for qualified medical expenses that you already paid are excluded from your gross income. Qualified medical expenses are amounts you pay for medical care (as defined in Internal Revenue Code Section (IRC Sec.) 213(d)) for yourself, your spouse, and your dependents (as defined in IRC Sec. 152), but only to the extent that such amounts are incurred after the HSA was established and are not covered by insurance or otherwise. For a general description of qualified medical expenses, refer to IRS Publication 502, Medical and Dental Expenses, available at Distributions made for purposes other than qualified medical expenses are included in your gross income and are subject to an additional 20 percent penalty tax. This additional 20 percent penalty tax will apply unless a distribution is made on account of (1) attainment of age 65, (2) death, or (3) disability. Withdrawals from your HSA are not subject to federal income tax withholding. F. Rollovers Your HSA may be rolled over to another HSA of yours or may receive rollover contributions, provided that all of the applicable rollover rules are followed. Rollover is a term used to describe a taxfree movement of cash or other property between any of your HSAs. The general rollover rules are summarized below. These transactions are often complex. If you have any questions regarding a rollover, please see a competent tax advisor. 1. HSA or Archer MSA to HSA Rollovers. Assets distributed from your HSA may be rolled over to an HSA of yours if the requirements of IRC Sec. 223(f)(5) are met. A proper HSA to HSA rollover is completed if all or part of the distribution is rolled over not later than 60 days after the distribution is received. You may make only one rollover contribution to an HSA during a 12-month period. Assets distributed from your Archer MSA also may be rolled over to your HSA. A proper Archer MSA to HSA rollover is completed if all or part of the distribution is rolled over not later than 60 days after the distribution is received. 2. Written Election. At the time you make a rollover to an HSA, you must designate in writing to the custodian your election to treat that contribution as a rollover. Once made, the rollover election is irrevocable. G. Qualified HSA Funding Distributions If you are eligible to contribute to an HSA, you may be eligible to take a one-time, tax-free HSA funding distribution from your IRA and directly deposit it to your HSA. The amount of the qualified HSA funding distribution may not exceed the maximum HSA contribution limit in effect for the type of HDHP coverage (i.e., self-only or family coverage) that you have at the time of the deposit, and counts toward your HSA contribution limit for that year. If you do not remain HSA-eligible (for reasons other than death or disability) for 12 months following the transaction, the amount of the transaction is subject to taxation and a 10 percent penalty tax. For further detailed information, see IRS Publication 969, Health Savings Accounts and Other Tax-Favored Health Plans. H. Beneficiary Issues If you die and your beneficiary is your spouse, your HSA (or the relevant portion thereof) will become your spouse s HSA as of the date of your death. If your beneficiary is not your spouse, the HSA (or the relevant portion thereof) will cease to be an HSA as of the date of your death. If the beneficiary is your estate, the fair market value of the account as of your date of death is taxable on your final tax return. For other beneficiaries, the fair market value of the account is taxable to that beneficiary in the tax year that includes the date of death. LIMITATIONS AND RESTRICTIONS A. Deduction of Rollovers and Transfers A deduction is not allowed for rollover or transfer contributions. B. Prohibited Transactions If you or your beneficiary engage in a prohibited transaction with your HSA, as described in IRC Sec. 4975, your HSA will lose its tax-exempt status and you must include the value of your account in your gross income for that taxable year. Overdrawing your HSA is considered a prohibited transaction. C. Pledging If you pledge any portion of your HSA as collateral for a loan, the amount so pledged will be treated as a distribution and will be included in your gross income for that year. OTHER A. IRS Plan Approval The agreement used to establish this HSA has been approved by the IRS. The IRS approval is a determination only as to form. It is not an endorsement of the plan in operation or of the investments offered. B. Important Information About Procedures for Opening a New Account To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial organizations to obtain, verify, and record information that identifies each person who opens an account. Therefore, when you open an HSA, you are required to provide your name, residential address, date of birth, and identification number. We may require other information that will allow us to identify you. 7

8 MANUFACTURERS AND TRADERS TRUST COMPANY HSA DEPOSIT ACCOUNT AGREEMENT The account owner named on the Health Savings Account application is establishing an Health Savings Account ( HSA ) with Manufacturers and Traders Trust Company, One M&T Plaza, Buffalo, New York 14203, as custodian ( we, us, our, ours and M&T Bank ) exclusively for the purpose of paying or reimbursing qualified medical expenses of the account owner, his or her spouse and dependents and is asking for one or more benefits debit or prepaid cards to be issued to access HSA funds. For purposes of this Agreement, account owner, you and yours is the individual in whose name the HSA is opened and any spouse beneficiary upon the death of the account owner. This Agreement governs the terms and conditions of the M&T Bank HSA Deposit Account into which HSA contributions will be deposited. NOTICE OF ARBITRATION AGREEMENT A separate Arbitration Agreement applies to this Agreement. You should read the Arbitration Agreement. It will govern how you or we resolve any dispute that you or we have in connection with this Agreement or your HSA. It also describes how you may reject the Arbitration Agreement if you wish. These definitions apply to this Agreement: account means the M&T Bank HSA Deposit Account into which HSA assets are invested. ATM is an automated teller machine. Card means the benefits debit or prepaid card or cards that may be issued to access your account. Some Cards also may access your flexible spending account, health reimbursement arrangement, dependent care account and/or your transit/parking benefits account (together with your HSA, your Benefit Plans ) as described in a separate cardholder agreement you will be provided ( Cardholder Agreement. ). Debit Item is any item, electronic funds transfer entry or other transmission or document, including Automated Clearing House ( ACH ) entries and Card transactions, by which a withdrawal, transfer or other transaction can be made or can be attempted to be made from your account. electronic facilities are any means of electronic communication through which you may communicate instructions to make transfers to or from your account using your Card (e.g., ATM s, Internet.) entry or entries means an order or request through the ACH network for the transfer of money to or the withdrawal of money from the account. item means any money, check, draft, bill of exchange, acceptance, note, other promise or order for payment. Plan Administrator means your employer or an agent for your Plan Sponsor to assist in the administration of your Benefit Plans. Sponsor means your employer or the association that is sponsoring your Benefit Plans. MINIMUM OPENING DEPOSIT OF ACCOUNT: $0.00 RATE INFORMATION: Interest rate may change daily, is not tied to any index and is set at our discretion. Annual percentage yield may change daily. If the balance available to earn interest as of the end of that day is: 8

9 1. Less than $2,500, the interest rate paid on the entire balance available to earn interest will be.25% with an annual percentage yield of.25%. 2. At least $2,500 but less than $10,000, the interest rate paid on the entire balance available to earn interest will be.495% with an annual percentage yield of.50%*. 3. At least $10,000 but less than $25,000, the interest rate paid on the entire balance available to earn interest will be.748% with an annual percentage yield of.75%*. 4. At least $25,000 but less than $50,000, the interest rate paid on the entire balance available to earn interest will be.995% with an annual percentage yield of 1.00%*. 5. At least $50,000 but less than $100,000, the interest rate paid on the entire balance available to earn interest will be 1.24% with an annual percentage yield of 1.25%*. 6. At least $100,000, the interest rate paid on the entire balance available to earn interest will be 1.985% with an annual percentage yield of 2.00%*. ACCRUAL OF INTEREST ON NONCASH DEPOSITS: Interest begins to accrue on a noncash item (for example, a check) deposited in the account on the business day we receive credit for the item. COMPOUNDING AND CREDITING: Interest will accrue daily using the daily balance method, under which we apply 1/365 of the interest rate for that day to the balance available to earn interest as of the end of that day. Interest will be compounded daily and will be credited to your account at the end of the day on the last day of each monthly interest payment cycle. If you close your account before interest is credited, you will not receive the accrued interest. SERVICE FEES AND MINIMUM BALANCE TO AVOID SERVICE FEES: 1. $2.00 service charge for each monthly service charge cycle. 2. $5.00 for each monthly service charge cycle if you have elected paper statements. MONTHLY INTEREST PAYMENT CYCLE AND MONTHLY SERVICE CHARGE CYCLE: In general, the beginning and ending dates of each monthly interest payment cycle and each monthly service charge cycle depend upon the account opening date and will cover a period of 30 days, with the first monthly interest payment cycle and monthly service charge cycle generally beginning on the date of account opening and each monthly interest payment cycle and monthly service charge cycle thereafter beginning on the date next following the ending date of the previous monthly interest payment cycle and monthly service charge cycle. ADDITIONAL FEES: See separate schedule of fees. BALANCE AVAILABLE TO EARN INTEREST: As of any time during any day will consist of: 1. All money previously deposited in and credited to the account, but not yet withdrawn from and charged against the account, plus 2. All interest earned on money in the account before that day, but not yet credited to the account, plus 3. All interest earned on money in the account, and credited to the account before that day, minus 4. All noncash items (for example, checks) that were deposited in the account and for which we have not yet received credit, and minus 5. All money in the account upon which we ve placed a hold. METHOD OF PAYMENT OF INTEREST: By crediting the account. The annual percentage yield is a hypothetical rate that assumes that the interest rate will not change although in fact it may change daily after the date shown above. 9

10 Making Deposits You can make deposits only by electronic transfers of money through the ACH or our Internet Banking from other deposit accounts or from other organizations or in any other manner we permit. You must make proper arrangements with us for electronic transfers of money through the ACH. We can accept deposits from any source. We can refuse or limit the amount of any deposit for any reason. We will not send you any special notice of receipt of deposits to your account. The credits will appear on your statement. We may process items, entries and other payments received for deposit to your account through processing entities such as clearinghouses, Federal Reserve Banks, associations and other entities, subject to their rules, regulations, operating circulars, agreements and procedures ( Processing Rules ). Unless prohibited by applicable law, you authorize us, at any time without notice to you, to deduct from your account the amount of (1) any loss, expense or charge we incur in collecting funds from a deposited entry or item, (2) any item, entry or other payment that is returned to us for any reason, including under applicable Processing Rules, and (3) any loss we incur relating to any item, entry, payment or deposit that we must return, including a loss relating to any single or recurring deposit of funds. You further agree to reimburse us immediately for any such amounts. We also have the right to reverse any erroneous debit or credit to your account. Verification of Deposits We accept deposits of checks and other noncash items subject to later confirmation that the checks and noncash items actually have been received and are in the amounts shown on the deposit slip. Collection of Checks and Other Items All checks must be on forms we provide or approve. We can charge your account for the amount of the item if we cannot collect the money or if any claim is raised against us. We will not have to obtain a protest covering the check or other item. You will be responsible for, and agree to indemnify us and hold us harmless from, any liability, loss or expense (including reasonable attorneys fees) arising from a deposited item that is returned to us, even after it is initially paid, for an alleged breach of warranty or other reason not caused by us, including a claim of forged or unauthorized endorsement, a claim of alteration, or a claim that a remotely created check (a check that does not bear a signature applied, or purported to be applied, by the person on whose account the check is drawn) is not authorized. Business Days Our business days are Monday through Friday, excluding federal holidays. Crediting Deposits Deposits will be credited to your account either the day of deposit, or our next business day if the deposit is made on a Saturday, Sunday, federal holiday, or any other day after 2:30 p.m. Availability for Withdrawal Money deposited in your account cannot be withdrawn before the money is credited and available for withdrawal. Funds will be available for withdrawal in accordance with the section of this Agreement entitled When Deposits are Available for Withdrawal. Making Withdrawals Withdrawals from your account can be made: 1. At any electronic facility that honors your Card; 2. From any financial institution that honors your Card; 3. By check; 4. By automatic transfer of money through the ACH to any organization with which proper arrangements for the transfer exist when the withdrawal is made; or 5. In any other manner we permit. Withdrawals from your account will be reported to the IRS as normal distributions from your HSA, unless the withdrawal is on account of disability, death or is a return of excess contributions. Withdrawals that are not used to pay for qualified medical 10

11 expenses may be included in your gross income for tax purposes and may be subject to an additional penalty tax. We have no duty to review your withdrawals to determine if they are used for qualified medical purposes. You must submit an HSA withdrawal form directly to us for a withdrawal that is on account of disability or death or is for a return of excess contributions. When you send us an HSA withdrawal form, we will send you a check. Notices of Withdrawal We can require you to give us written notice of the date and amount of any intended withdrawal from your account at least 7 days before the date the intended withdrawal will be made. Refusal to Allow Withdrawal Under certain circumstances, we can refuse to allow a withdrawal from your account. For example, we can refuse to allow a withdrawal from your account if (1) we require you to give us written notice of the date and amount of the withdrawal at least 7 days before the date the withdrawal will be made and we have not received the notice, (2) the withdrawal exceeds the amount available for withdrawal, (3) there is a dispute concerning your account, (4) we receive a notice not to allow the withdrawal from you or someone else authorized to notify us not to do so, (5) the withdrawal would consist of money we have been ordered to pay to or hold for someone else, or (6) we have not received any document or identification we require or applicable law requires in connection with the withdrawal. Charging Withdrawals Withdrawals will be charged against your account either the day of withdrawal, or our next business day if the withdrawal is made on a Saturday, Sunday or federal holiday, or on any other day after 2:30 p.m. Acting for You and Powers of Attorney The account owner may authorize another person to make any deposit in or order any withdrawal from your account or to do any other thing concerning it, for example, make deposits in your account by automatic transfers. The authority must be given in a document satisfactory to us. We can require the person to whom the authority is given to sign a document for our records. Until the authority is revoked by you or someone else entitled to do so and we receive and have a reasonable time to act on a written notice of the revocation, we can assume without question that the person to whom the authority is given is authorized to make or order any deposit in or withdrawal from your account or to do any other thing concerning it specified in the document giving the authority. In the absence of a law that says otherwise, we can, for any reason, refuse to honor a power of attorney submitted to us. We can refuse to execute any instructions given to us by your agent or attorney-in-fact if we believe in our sole discretion that such instructions are inconsistent with or are not within the grant of authority you gave to your agent in your power of attorney. Automatic Transfer We can be authorized to make any deposit in your account by electronically transferring money through the ACH (1) from any other deposit account with us, (2) from your deposit accounts with other financial institutions, or (3) from any organization (for example, a governmental body or your employer), in all cases after proper arrangements for the transfer are made in documents satisfactory to us. You may cancel our authority to make future deposits in your account by electronic transfer by notifying us. The cancellation will not take effect until we receive the notice and have a reasonable time to act on it, and, until the cancellation takes effect, we can assume without question that we have the authority. We may cancel any obligation to make future deposits in your account by electronic transfer by notifying you. The cancellation will take effect when we send or deliver the notice to you, unless we tell you in the notice that it will take effect later. Signatures and Identification Your signature or that of someone else authorized to sign a check written on your account will be the only signature required. When anyone seeks to make or order any withdrawal from your account, we can require proof satisfactory to us of his or her identity. Also, we can require proof satisfactory to us that any signature on any check written on your account or any withdrawal form for your account is authentic. Card Your Card may be issued by M&T Bank or it may be issued by another financial institution. If the Card is issued by M&T Bank, it will be a M&T Visa debit card. In either case, its use will be governed by a separate Cardholder Agreement. Each time you use your Card, you authorize the card issuer to deduct the amount of the transaction and any applicable fees from the 11

12 available balance(s) in your account or other Benefit Plan account, as determined by your Plan Administrator. If your Card is issued by another financial institution, and the transaction is to be deducted from your account, you authorize us to pay these amounts to the other financial institution. You authorize us to disclose information about you and the account to the other financial institution, the Sponsor and the Plan Administrator where it is necessary to effect transactions or administer the account or your HSA in accordance with this Agreement. Periodic statements for your account will reflect Card transactions. If your Card may be used with your account and other Benefit Plan accounts, the Cardholder Agreement will explain who establishes the rules governing how Card transactions are deducted from your Benefit Plans and who to contact if you believe a Card transaction was deducted from the wrong Benefit Plan account. We are not responsible for and have no liability in connection with Cards issued by other financial institutions or transactions conducted with such Cards. If your Card is issued by another financial institution, you agree to indemnify and hold us, our directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments and expenses, including attorney fees, arising out of or in any way connected with the Card and Card transactions. Information About Transactions Made With Your M&T Visa debit card and Authorization Holds When are funds deducted from my account when I use my M&T Visa debit card? You authorize us to deduct the total amount of any transaction made using your M&T Visa debit card (plus related fees) from your account any time after you make the transaction. In addition to ATM transactions, (if available), you may initiate transactions with your M&T Visa debit card in two basic ways using your PIN through the STAR network or using the Visa network without the use of your PIN. Transactions made at ATM s using your PIN through the Star network are usually, but not always, fully processed and deducted from your account on the business day that you make the transaction. Transactions authorized through the Visa network usually involve two steps to complete: first, a merchant s authorization request and then a subsequent settlement (i.e., payment) of the transaction. Due to this two-step process, it may take longer for Visa transaction (non-pin transactions) to be sent to us for final settlement than it takes to complete transactions made using your PIN. Despite the two-step process, we are authorized to promptly reduce your account s available balance for the authorized amount of transactions processed through the Visa network as described in the following sections. What is an Authorization Hold? An Authorization Hold is a temporary reduction to the amount of your available balance based on a M&T Visa debit card transaction authorized at a merchant s request. When do we apply an Authorization Hold? When you make a transaction using a M&T Visa debit card, the merchant may request authorization for the transaction. If the transaction is authorized, we will generally place an Authorization Hold on your available balance based upon network rules and the information specified in the merchant s request. The amount of the actual Debit Item we later receive for settlement (i.e., payment) may be more or less than the amount of the Authorization Hold specified in the original authorization request. We are entitled to rely upon the information contained in the merchant s authorization request and shall have no liability for doing so, despite any difference between the amount of the Authorization Hold and the actual amount of the Debit Item. Although we generally place an Authorization Hold as described above, in certain circumstances we may elect not to do so. For example, if it appears to us that a merchant may have made an error (e.g., requesting authorization for the same transaction twice) we may not place an Authorization Hold because we suspect, although we cannot know for certain, that the amount of the authorization request or requests may differ from the amount of the actual Debit Item and we do not want to hold too large an amount. Although we try to avoid holding too large an amount, there may still be instances in which the Debit Item is never sent for settlement or the amount of the Debit Item settled is less than the amount we hold. Our objective is to reduce the situations in which an Authorization Hold exceeds the amount of the actual Debit Item; however, due to the way debit card transactions are processed, we cannot completely eliminate the possibility that such situations may arise. 12

13 How long does an Authorization Hold remain on an Account? In accordance with network rules, which may change from time to time, we generally retain each Authorization Hold during the day for up to 3 business days. However, we remove the Authorization Hold each night while we process Debit Items, fees and other transactions that are to be paid from your account. This allows any available funds that were subject to the Authorization Hold to be used to pay any Debit Item, fee or other payment from your Account. If the Debit Item that gave rise to the Authorization Hold is not submitted for payment during that night s processing, we reapply the Authorization Hold after we have finished processing the other debits from your account. As a result, your available balance throughout the next day will again be reduced to reflect that the pending debit card transaction is still outstanding. If the pending debit card transaction that gave rise to the Authorization Hold is not submitted for payment by the end of the third business day, the Authorization Hold expires and is not reapplied. Even though the Authorization Hold has expired, we will pay that transaction from your account if it is later sent to us for payment. Does an Authorization Hold ensure that you have sufficient available funds to cover the amount of your M&T Visa debit card transaction? No. While it is in effect, an Authorization Hold reduces the available balance in your account. However, it does not reserve funds to be used exclusively to pay the particular M&T Visa debit card transaction when the merchant actually sends it for settlement. In some cases, funds that were subject to an Authorization Hold may be used to pay other Debit Items or fees. In addition, in certain cases, an Authorization Hold may exceed the amount of available funds in your account (i.e., we may authorize the transaction when you do not have sufficient available funds in your account). In this case, the Authorization Hold will reduce your available balance to a negative amount or increase an already negative balance to a larger negative amount. Note, however, we do not charge a fee for an Authorization Hold that reduces your balances to a negative amount or further reduces a negative balance. As described below, we determine whether to charge overdraft and insufficient funds fees based on your available balance at the time the Debit Item is actually posted to, and processed for payment from, your account not based on your available balance at the time we place an Authorization Hold. What is the impact of an Authorization Hold? We generally determine whether to approve or authorize transactions from your account based on the available funds in your account. While funds in your account are subject to an Authorization Hold, those funds are not available to approve or authorize other Debit Items. For example, we will not consider funds subject to an Authorization Hold as available when considering whether to allow you to initiate additional transactions of which we are aware, such as transfers and bill payments using Internet Banking or your ATM. However, as noted above, these funds will be made available to pay Debit Items, fees and other transactions that are processed for payment from your account at the end of each business day. How do these rules apply to Cards issued by other financial institutions? Authorization Holds are also applied when you use a Card issued by another financial institution, but may be applied differently than as described above. Please see your Cardholder Agreement for more details. Order in Which We Post and Pay Debit Items and Most Fees After posting credits to your account, we post (that is, process for payment and record against your account) Debit Items received for payment from your account on a given business day in a particular order based upon the types and sizes of the Debit Items. We do not post Debit Items in chronological order based on when you made the transactions or when we received notice of the transactions. At the end of each business day, we post (that is, process for payment) Debit Items received for payment from your account on that business day in three groups based upon the type of Debit Item. First, we post any bill payments made through our Internet Banking, then any ATM withdrawals and purchases and cash advances through use of your Card, then ACH entries, and then checks presented to us for payment. Within each group, we post and, to the extent there are available funds in your account, pay each Debit Item in high to low dollar order (that is, in descending dollar amount from the largest to the smallest). We post most fees and charges you have incurred in connection with your account on the business day they are incurred, generally after we have posted that day s Debit Items. We may change these policies at any time. If we do so, we will provide you with notice to the extent and in the manner required by applicable law. 13

14 Insufficient Available Funds at Posting When we post a Debit Item for payment from your account, we will examine your account balance to determine whether you have sufficient available funds to pay the Debit Item at that time. For purposes of this determination, we assume that all Debit Items posted before the Debit Item in question will be paid and we deduct the amount of all such Debit Items from your account balance, whether or not such Debit Items are ultimately paid or returned. A Debit Item is posted against insufficient available funds if the amount of the Debit Item exceeds the account s available balance at the time that we post it. If a Debit Item is posted against insufficient available funds, we will also consider every subsequent Debit Item posted that day to be posted against insufficient available funds without regard to whether we ultimately pay or return the Debit Item in question, or pay or return any other Debit Item posted against insufficient available funds prior to the Debit Item in question. Paying or Returning Debit Items and Overdrafts and Closing Account We will review your account balance only once for purposes of determining whether your account contains sufficient available funds to pay a Debit Item. We will pay a Debit Item if, at the time that we process it for payment, your account contains sufficient available funds to do so. If your account does not contain sufficient available funds to pay the Debit Item, normally we will return the Debit Item. Sometimes, we can t prevent a Debit Item from overdrawing your account. If we pay any Debit Item that overdraws your account, we will notify you promptly and tell you how much money you must deposit to cover the overdraft. You must immediately pay us the amount of the overdraft. You agree that we may use deposits made to your account to pay overdraft balances. You should be aware that such payments will be treated by the IRS as contributions to your HSA and could cause your annual contribution to your HSA to exceed IRS limits. We are not liable to you or anyone else if any overdraft violates tax law or subjects you to penalties. You are responsible to monitor your annual contributions, to withdraw excess contributions and to pay any penalties you incur. If your account balance falls to or below $0, we will deny future withdrawal requests. Insufficient Funds Fees We will charge you an insufficient funds (NSF) fee for each Debit Item posted against insufficient available funds. We will charge this insufficient funds fee whether we pay or return the Debit Item. Stale, Postdated or Restricted Checks Unless a check is subject to a timely and validly placed and maintained stop payment order, we can, but will not have to, pay any check written on your account even if the check: 1. Is dated more than 6 months before the date it is presented to us for payment; 2. Is dated after the date it is presented to us for payment (referred to as a postdated check ); or 3. Bears a restrictive legend (such as void if not paid within 30 days or not good for more than $100 ) that would be violated by our paying the check. If you wish to prevent a check from being paid until or after a certain date, you may place, maintain and release a stop payment on the check in accordance with the section of this Agreement entitled Stopping Payment of Check. If you successfully place and maintain a stop payment order with respect to the check, we will not pay the check until you release such stop payment order or such stop payment order expires. This means that if you want us to pay such a check only on or after a certain date, you must follow our procedures to maintain the stop payment order until such date and to release it as of such date. You are solely responsible for placing, monitoring and releasing the stop payment order at the appropriate times. We have no responsibility or liability for placing, monitoring or releasing stop payment orders except as you direct in accordance with our procedures. We also have no liability for any claims arising from or relating to your use of a stop payment order to attempt to control when a check is paid. Standard of Care You acknowledge that modern check processing is automated and agree that our duty of ordinary care in check processing is satisfied if we have regular routine procedures for identifying unauthorized check transactions (which may, but need not, include procedures for verifying check signatures) and we follow those procedures. You agree that we do not fail to exercise 14

15 ordinary care in paying a check drawn on your account solely because our procedures do not provide for a sight-review by us of checks or provide for such sight-review in the case of checks above an established threshold amount or on a sample basis. You further recognize that automated check processing procedures rely primarily on information encoded onto each check in magnetic ink and agree that, in paying any check drawn on your account, we may properly disregard all information on the check (including any legend or language written on the check that restricts or imposes conditions on its payment) other than the identity of the drawee bank, the amount of the check and any other information encoded onto the check in magnetic ink according to generally accepted banking standards, whether or not that information is consistent with other information included on the check. We may properly refuse to pay any item drawn on your account that is presented to us for payment, if, at the time of presentment, we perform a sight-review of the item and we are unable to read or distinguish any information contained on the item necessary to determine the amount for which the item is written or whether the item is your authorized item, or if we, in our sole judgment, have reason to doubt the item s authenticity. You agree that our return without payment of any such item does not constitute a wrongful dishonor of the item by us and that we shall have no liability to you on account thereof. Stopping Payment of Check You can order us not to pay or certify any check written on your account even if the check was signed by someone else. We will not have to follow the order unless the order includes: 1. The exact account number of your account; 2. The exact amount, date and number (if any) of the check; 3. The name, exactly as it appears on the check, of everyone to whose order the check is payable; and 4. The name, exactly as it appears on the check, of everyone who signed the check. We will not have to follow the order until we have had a reasonable time to record it against your account. The order will cease to be effective 6 months after the date it is recorded against your account unless it is renewed. The order can be given orally (for example, by telephone). We will send a written confirmation of the order recorded by us which will remain effective unless canceled in writing by you. A stop payment order can be renewed for 6 months at a time. Any renewal of the order must be done in writing and must be received by us in a reasonable time for us to record it against your account before the previous order ceases to be effective. The renewal will take effect on the date it is recorded against your account and will cease to be effective 6 months after that date. You can cancel any order not to pay or certify a check written on your account even if the order was given by someone else. We will not have to follow the cancellation unless it is in writing and until we have had a reasonable time to record it against your account. We will try in good faith: 1. Not to pay or certify any check written on your account that we have been properly ordered not to pay or certify; and 2. To pay or certify any check written on your account for which an order not to pay or certify has been properly canceled. We may be responsible if we fail to exercise ordinary care to: 1. Avoid paying or certifying any check written on your account that we have been properly ordered not to pay or certify; or 2. Follow the proper cancellation of any order not to pay or certify a check written on your account. We will have exercised that ordinary care if: 1. We act in good faith; and 15

16 2. We have a reasonable system for communicating orders of that type and cancellations of orders of that type to our employees who would be likely to receive the check, and we reasonably follow the system as a matter of routine. We shall not be responsible for paying any check written on your account, even if we have been properly ordered not to pay the check, if: 1. Our payment of the check discharges a debt you owe that you had a legal obligation to pay; or 2. We pay the check upon our receipt of a notice of its presentment in the form of an ACH debit entry to your account in cases where the ACH debit entry relates to a check that is electronically represented for payment after its return for insufficient or uncollected funds, or to a check you have issued and sent through the United States mail or delivered to a drop box to a merchant or other vendor in payment for goods or services that, in accordance with prior notice provided to you by the merchant or other vendor and pursuant to the Rules of the National Automated Clearing House Association (the ACH Rules ), such merchant or other vendor converted to an ACH debit entry for electronic presentment against your account, unless (i) you notify us, within 15 days from the date we send or deliver your statement on which the ACH debit entry appears, that, at the time the ACH debit entry was recorded against your account, the check to which it relates was subject to an existing stop payment order, and we do not recredit your account for the amount of such check promptly upon our receipt of such notification, or (ii) we are able to recover the amount of the check from the financial institution that transmitted the ACH debit entry to us. For rules for stopping payment on certain electronic banking transactions, see the section of this Agreement entitled Electronic Transfers, your Cardholder Agreement and our M&T HSA Internet Banking Agreement. Your Account For internal bank operating purposes, your account consists of two subaccounts: an interest-bearing checking subaccount and a savings subaccount. For all other purposes, your account is treated as a single account. Both subaccounts pay an identical interest rate and annual percentage yield on account balances. The statement for the account and any record of the account at an ATM will reflect the account as a single account and will not reflect the subaccounts in any way. All terms and conditions of this Agreement apply to your account as a whole without reference to the subaccounts, except as provided in this section. For internal bank operating purposes, all checks and other debits against your account are paid from, and all deposits to your account are credited to, the checking subaccount. At various times during each calendar month, if the checking subaccount balance exceeds a threshold amount set by us, all funds in excess of the threshold amount may be transferred to the savings subaccount. We also make transfers from the available funds in the savings subaccount to the checking subaccount as needed to pay checks and other debits presented against the account. On the sixth transfer from the savings subaccount in a calendar month, the entire balance of the savings subaccount is transferred to the checking subaccount for the remainder of the calendar month. These transfers to and from the checking subaccount will be the only transactions on the savings subaccount. Because the subaccounts are for internal bank operating purposes only, you cannot access the savings subaccount directly. These bankinitiated transfers between the subaccounts are not shown on the statement for the account and are not subject to any fees. Preauthorized Debits If you voluntarily give information about your account (such as our routing number and your account number) to a person who is seeking to sell you goods or services and you do not physically deliver a check to that person, any debit to your account initiated by the person to whom you gave the information shall be deemed to be authorized by you. Electronic Presentment of Checks We may pay any item drawn on your account and debit your account accordingly on the day that an item is presented for payment by electronic or other means, or at an earlier time if the bank at which the item was deposited electronically provides us with information identifying the item, including our routing number, the account number, the sequence number of the item and amount of the item. We may determine the balance of your account for purposes of deciding whether to dishonor an item for insufficient available funds at any time between such presentment or receipt of information and the time of return of the item. We must make this determination only one time regardless of whether the available funds in the account vary during this period. 16

17 Liabilities and Expenses You must pay any liability or expense we incur in connection with any deposit in or withdrawal from your account or any other thing concerning your account. For example, if we hire an attorney to defend or enforce any of our rights with respect to your account or to perform any other legal service in connection with it, you must pay us the attorney s fee and all legal expenses we pay in connection with the defense, enforcement or other legal service. Changes in Fees We can at any time establish a new fee or change an existing fee applicable to your account. If we establish a new fee or increase an existing fee applicable to your account, we will send or deliver to you any notice of the new fee or increase that applicable law requires us to send or deliver to you. If applicable law does not require us to send or deliver any notice of the new fee or increase to you, we will either send or deliver a notice of it to you or post a notice of it in our banking offices before the date it takes effect. We will not have to notify you if we decrease or eliminate an existing fee applicable to your account, except as otherwise provided by law. We can charge your account for the amount of any fee applicable to it. We will not be liable if we do so and, as a result, we do not allow or make any withdrawal from your account. Closing Account If your account balance falls below $0 and deposits are not made within 30 days to return your account to a positive balance, we may close your HSA. We also can close your account at any other time for any reason in our sole discretion. If we close your account, we will send or deliver to you a notice of the closing and charge your account for all applicable fees and other charges. We will not be liable if, after we close your account, we do not allow or make any deposit in or withdrawal from it. Statements, Notices and Changes of Address We will deliver a statement for your account to you approximately once a month. Whenever any statement for your account is available, we will send to the most recent address you have provided to us a notice that the statement and images of your paid checks are available to you at our website. Except when applicable law requires otherwise, this notice will be the only notice we send to you about the availability of the statement and check images at the website. You acknowledge that the notice will constitute delivery of the statement and check images, whether or not you view or print such statement or check images. You may request paper statements (in addition to electronic statements) for an additional charge. Any paper statement will be sent to your current mailing address shown in our records concerning your account. We do not return cancelled checks. We also will mail you reduced images of the fronts and backs of paid checks as part of your paper statement if you request them and agree to pay the additional charge. We can send the statement and images of paid checks by regular mail. Any notice concerning this Agreement or your account we send you may be sent to your current mailing address shown in our records concerning your account or to your address. If your mailing address changes, you must promptly notify us in writing of the new address. Any notice you give us concerning this Agreement must be given in writing to M&T Health Savings Account Servicing, P.O. Box 2032, Milwaukee, WI, Please note that notice transmitted to us at any address other than the address indicated in this section, including but not limited to any address or web-site, will not be valid notice. Statements There may be limits on how much time you will have to do certain things if you suspect that we made an error with respect to your account during the period covered by any statement for it we send or deliver to you (for example, by failing to credit to it any money deposited in it). Unless the suspected error involves electronic fund transfers to or from your account, the limits are as follows: 1. You must notify us in writing of the suspected error in time for us to receive the notice within 14 days after the date we mail (paper statements) or deliver (electronic statements) the statement to you and make images of your paid checks available to you. If you do not do so, you will lose any right to make any claim against us based on the suspected error. 2. If you sue us because of the suspected error, you must do so within 1 year after the date we mail (paper statements) or deliver (electronic statements) the statement to you and make images of your paid checks available to you even if you notify us of the suspected error as required by this section and even if you sue us in connection with any lawsuit we bring against you. 17

18 We make images of your paid checks available to you when we post them at our website or make them available in paper at your request, for an additional charge, whether or not you request them. For limits on how much time you may have to do certain things if you suspect that we made an error with respect to certain electronic banking transactions, see the section of this Agreement entitled Electronic Transfers, our M&T HSA Internet Banking Agreement and your Cardholder Agreement. Abandoned Funds Charges If your account becomes inactive, to the extent permitted by applicable law, we may charge your account for (i) an allocated share of such advertising expenses that we may incur in connection with the publication of any notice that your account will be turned over to a state or other governmental authority as abandoned property, (ii) the postal cost of any notice that we are required to send to you by registered or certified mail, return receipt requested, or by any other means of delivery, to inform you that your account will be turned over to a state or other governmental authority as abandoned property, and (iii) such other amount as shall reimburse us for the handling and processing cost associated with the turnover of your account to a state or other governmental authority as abandoned property. Changes No change in this Agreement can be made except in a writing signed by us. We can change this Agreement at any time. If the change adversely affects you, we will send or deliver to you any notice of the change that applicable law requires us to send or deliver to you. If applicable law does not require us to send or deliver any notice of the change to you, we will either send or deliver a notice of it to you or post a notice of it in our banking offices before it takes effect. No Notice or Loss of Rights We can exercise, give up, fail to exercise or delay exercising any of our rights with respect to you or your account without notifying you. By exercising, failing to exercise or delaying the exercise of any of the rights, we will not lose it or any other of the rights. By giving up any of the rights on any occasion, we will not lose it on any other occasion or lose any other of the rights. Giving Up of Rights None of our rights with respect to you or your account can be given up by us except in a writing signed by us. No Transfer of Rights You cannot transfer any of your rights with respect to your account to anyone else. Any transfer of any of the rights will be void. Reasonable Time to Act A reasonable time for us to act on any notice, order or other communication or document will not end until at least the close of business on our first banking day following our banking day we receive the notice, order or other communication or document. Our Liability Except as otherwise provided by applicable law, you agree that: 1. If we do not property complete a transaction according to this Agreement, we will not be liable for losses or damages in excess of the amount of the transaction. 2. We will not be liable if circumstances beyond our control prevent the transaction or if the funds in your account are or may be subject to legal process or other claim. 3. We will not be liable for any consequential damages. You are responsible for the condition of a check or other item when you issue it. If a check or item is returned or payment is delayed as a result of any writing or marking that you or a prior indorser placed on the front or back of the check or item, you will be responsible for any cost and liabilities in connection with such return or delay. 18

19 Electronic Transfers Electronic transfer generally means any transfer of funds to or from your account that is begun through an electronic terminal, telephone, computer or magnetic tape other than: (a) a wire transfer of funds; (b) a transfer of funds we initiate under an agreement between you and us providing that we will transfer funds without individual request from you: (i) between your account and another deposit account you (or you and someone else) or a member of your family (alone or with someone else) has with us; or (ii) between your account and one of our own accounts; (c) a transfer made using your Card or the access device associated with your Card (these transfers are subject to the terms of your Cardholder Agreement); or (d) a transfer that is initiated using our Internet Banking services (these transfers are subject to the terms of our M&T HSA Internet Banking Agreement.) This section of the Agreement applies only to electronic transfers. Types of Electronic Transfers Types of electronic transfers that can be made involving your account include the following: 1. Direct deposit of funds to your account; 2. Electronic transfers of funds from your account to third parties; and 3. Electronic check conversions (i.e., when you authorize a merchant or other payee to make a one-time electronic transfer from your account using information from your check to pay for purchases or to pay bills). Preauthorized payments; stop payment fee. Many preauthorized electronic transfers are effected through the ACH network. If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can call us at to find out whether or not the deposit has been made. 1. Right to stop payment and procedure for doing so. If you have told us in advance to make regular payments out of your account, you can cancel the authority and stop all future payments by (a) calling us at or (b) writing to us at M&T Health Savings Account Servicing, PO Box 2032, Milwaukee, WI We will not have to treat the cancellation as effective until 3 of our business days after the date we receive it. If you call, we may require you to confirm your request in writing and get it to us within 14 days after you call. However, even if we do not receive the confirmation during the 14 days, we can continue to follow the cancellation even though it is no longer binding on us. You must confirm to us that you have notified the person to whom the series of transfers was to be made of the cancellation and provide a copy of that notice to us. We will be liable for damages you suffer as a result of our failure to comply with the cancellation at any time it is binding on us. If you have arranged with us to make electronic transfers from your account, you can order us to stop any one of the transfers. You can do so by (a) calling us at or (b) writing to us at M&T Health Savings Account Servicing, PO Box 2032, Milwaukee, WI , in time for us to receive the order at least 3 of our business days before the date the transfer is scheduled to be made. If you telephone the order to us, we can require you to get a written confirmation of it to us within 14 days after the date you telephone it to us. In that case, the order will cease to be binding on us 14 days after the date it was telephoned to us unless we receive the written confirmation during the 14 days. However, even if we do not receive the confirmation during the 14 days, we can continue to follow the order even though it is no longer binding on us. While we are following the order, we can, but we will not have to, allow any other electronic transfer from the account to the person to whom the transfer was to be made. We will be liable for damages you suffer as a result of our failure to comply with the order at any time it is binding on us. 2. Notice of varying amounts. If these regular payments may vary in amount, the person you are going to pay will tell you, at least 10 days before each payment, when it will be made and how much it will be. (You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set). 19

20 Liability for Failure to Make Electronic Transfers With some exceptions, we will be liable to the extent provided by applicable law for damages you suffer as a result of our failure to make an electronic transfer on time and in the correct amount according to any agreement between you and us concerning the transfer. Examples of exceptions to our liability are as follows: 1. The transfer is to be made from your account and through no fault of ours the amount of the transfer exceeds the balance available for withdrawal from the account; 2. The transfer is to be made from your account and money in the account is subject to a court order restricting its removal from the account or is the subject of a dispute; 3. An occurrence beyond our control (such as a fire or flood) prevents the transfer despite our exercise of reasonable care to prevent the occurrence and our exercise of diligence to make the transfer despite the occurrence; 4. A technical malfunction known to you at the time the transfer should have been made prevents the transfer; or 5. Our failure to make the transfer is justified by any provision of any agreement between you and us concerning your account or by applicable law. Notice of Unauthorized Electronic Transfer If you believe that any electronic transfer may have been or may be made without your authorization, you must contact us at once. You can do so by telephoning M&T Health Savings Account Servicing at or by writing to M&T Health Savings Account Servicing, P.O. Box 2032, Milwaukee, WI, Liability for Unauthorized Electronic Transfers If any statement for your account we send or deliver to you shows any electronic transfer made without your authorization or any error in the account and you do not report the transfer or error to us within 60 days after the date we send or deliver the statement to you, you will have to bear the loss of money taken from the account after the end of those 60 days if we can show that the loss would not have occurred except for your failure to report the transfer or error to us. For a good reason (such as a long trip or hospital stay by you), we will extend those 60 days a reasonable time. Disclosure In the regular course of our business, we will disclose information about your account or any transaction involving the account in accordance with the M&T Bank Corporation Consumer Information Policy. In Case of Errors or Questions About Your Electronic Transfers Telephone us at or write us at M&T Health Savings Account Servicing, P.O. Box 2032, Milwaukee, WI as soon as you can, if you think your statement is wrong or if you need more information about an electronic transfer listed on the statement. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared. 1. Tell us your name and account number. 2. Describe the error or the electronic transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information. 3. Tell us the dollar amount of the suspected error. If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days. Please note that any notice transmitted to M&T Bank at any address other than the address indicated in this section, including but not limited to any address or web site, will not constitute valid notice. We will tell you the results of our investigation within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will recredit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to 20