FIRST Defined Contribution
MERCANTILE Administrative Service
TRUST Agreement
Schedule B
This Agreement is between Monterey Pasta Company (the "Employer") and
Central Trust Company, Inc. d/b/a First Mercantile Trust Administrative
Services, a wholly owner subsidiary of FMT Holding Co., (hereinafter
referred to as "FMT") and will become effective on 1/4/99 and shall
remain in effect from plan year to plan year unless changed or
terminated in writing by FMT or the Employer.
It is understood and agreed by the Employer that it is the
responsibility of the Employer to provide FMT with accurate and timely
information on all matters relating to the operation of the Plan.
I. Plan Administrator
The Employer agrees to assume the duties and responsibilities as Plan
Administrator or to appoint a Plan Administrator other than FMT and
agrees to indemnify and hold FMT (and it affiliates) harmless from any
claims arising out of the Plan Administrator's failure to perform its
duties.
II. Administration and Reporting
FMT agrees to function as the Contract Administrator for the Plan. FMT
does not render investment advice and is not the Plan Administrator, or
acts as legal adviser with regard to the Plan. The Employer agrees to
seek the advice of counsel, as the Employer deems necessary, as to
matters that might arise regarding the adoption and/or operation of the
plan.
While FMT performs numerous edit checks on the data provided by the
employer, it is agreed and understood that the Employers is ultimately
responsible for the accuracy of the data supplied.
As Contract Administrator, FMT agrees to provide the following:
A. Installation
1. A Document Questionnaire with current options available for the Plan
for completion by the Employer.
2. A Prototype or Volume Submitter Plan Options Document with Adoption
Agreement, completed in accordance with the Employer's instructions.
3. One Summary Plan Description
4. Personalized Enrollment Materials.
5. A Services Guide including forms for the administration of the Plan.
B. Administration
1. Annually performed the Actual Deferral Percentage Test (the "ADP
TEST") to determine whether the average rate for the highly
compensated employees is within the prescribed proportions to the
average deferral rate for the non-highly-compensated employees. The
Employer will be notified in the event that the Plan fails the ADP
Test.
2. Annually perform the Actual Contributed Percentage Test (the "ACP
Test") to determine whether the average contribution rare for the
highly compensated employees is within the prescribed proportions to
the average contribution rate for the non-highly compensated
employees. The Employer will be notified in the event that the Plan
fails the ACP Test.
3. Annually calculate the vested percentage of each participant's
account.
4. Maintain records for each participant's account of the amount
eligible for hardship withdrawals
5. Annually test to verify compliance with any and all of the following
sections of the Internal Revenue Code: 401(a) (26), 410(b), 402(g)
415, 404.
6. Prepare annual financial statements for the Employer that reflect all
financial transactions of the Plan and its participants.
7. Prepare Form 5500 Series (i.e., 5500, 5500-C/R, Schedule A and
Schedule P) and all schedules.
8. Annually allocate contributions, earnings, forfeitures and any other
activity which alters the value of plan assets.
9. Annually determine eligibility for participation, benefits or
contributions, forfeitures and allocation of earnings.
10.Calculate benefit payment processing (Termination, Age 70 1/2,
Hardship, Loans, etc.)
11.Prepare Trustee Letter
12.Prepare Summary Annual Report
13.Prepare Form 1099-R for distributions made during the year, as
processed by FMT. It is the Employer's responsibility to distribute
these forms to the participant.
III. Fees
The Schedules of Fees, attached, reflects the charges for the services
specified in this Agreement. Any changes in the Schedule of Fees will
be communicated to the Employer in writing at least 90 days prior to the
effective date of such change.
If FMT receives inaccurate information from the Employer which requires
reprocessing or correction of any allocations, valuations, distributions,
participant statement or their reports, FMT reserves the right to charge
the Employer its prevailing rates (as contained in the attached Schedule
of Fees) on a time-and-charge basis for the additional administrative
services necessary to correct such errors. FMT will not be responsible
for any such added costs incurred as a result of inaccurate or untimely
information provided by the employer. The Schedule of Fees does not
include investment-related commissions or direct express associated with
the services provided by FMT, e.g., travel expenses, special printing,
shipping, Federal Express or similar special delivery charges (if
requested). All such additional expenses and services must have prior
written approval of the Employer or the Plan Administrator.
In the event that the Employer fails to pay administrative fees in
accordance with the invoice payment provisions, it will hold FMT
harmless in the event that such failure results in the suspension or
cessation of administrative services by FMT. The Employer and/or Plan
Administrator is/are responsible for the prudent and timely activities
associated or connected with the ongoing administration of the Plan.
IV. MISCELLANEOUS
1. Assignability. This Agreement is not assignable by either party
hereto without the prior written consent of the other party, such
consent no to be unreasonably withheld.
2. Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors,
survivors, administrators and assigns.
3. Modification. This Agreement may be amended or modified only by the
written consent of the parties.
4. Severability. If any one or more of the provision of this Agreement
shall for any reason, be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement
shall be enforced as if such illegal or invalid provision had not
been contained herein.
5. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by certified United States mail, postage
prepaid, return receipt requested, and such notice shall be effective
when mailed. Notices shall be given to the respective parties at the
addresses listed below or at any other address, as may from time to
time be designated by the party in writing delivered to the other
party hereto.
6. Headings. All headings used herein are for the ease of reference
only and in no way shall be construed as interpreting, decreasing or
enlarging the provisions of this Agreement.
7. Entire Understanding. This Agreement constitutes and contains the
entire understanding between the parties and supersedes all prior
oral or written statements dealing with the subject matter herein.
8. Applicable Law: Forum. The law of the State of Tennessee shall govern
this Agreement in all respects, including but not limited to the
construction and enforcement thereof. All disputes, actions, or
controversies arising out of or related to this Agreement or any
relationship created hereby between the parties shall be brought in
court of competent jurisdiction in Shelby County, Tennessee. Plan
Sponsor further agrees to pay all expenses, legal or otherwise,
including court costs and attorney fees incurred by FMT in collecting
any fee or other money due FMT under this Agreement.
9. Transition. Upon termination of the Agreement, FMT shall as soon
as administratively feasible following receipt of Plan Sponsor's
written request, provide at Plan Sponsor's actual cost such
information as may be required by the Plan Sponsor to assure a
continuation of the services being performed under the Agreement
either by the Plan Sponsor or a successor to FMT.
V. Termination of Services
Either party may terminate this Agreement by giving the other party
written notice at least 90 days in advance if the effective date of such
termination, except that any termination by FMT shall be based upon
breach of contract by the Employer. Such notice from the Employer must
also include the name and address of the new administrator and, if
appropriate the name(s) of the Successor Trustee(s). In the event this
Agreement is terminated prior to the end of a plan year, then the
administrative and trust accounting fees due for such partial year shall
be equal to the fee for the full plan year divided by 12 and then
multiplied by the number of months, including any partial month, during
which this Agreement was in effect for such partial year.
VI. Acknowledgment
The Employer acknowledges that it has consulted, to the extent the
employer deems necessary, with legal and tax advisers. Solely the
provisions of this Agreement will govern the actions of FMT. FMT shall
not be required to review any actions taken by the Employer or the Plan
Administrator and shall be fully protected in taking, permitting or
omitting any actions on the basis of the Employer's action. FMT shall
incur no liability or responsibility for acting at the direction of the
Plan Administrator.
Employer Name: Monterey Pasta Company
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
(Authorized Individual)
Title: Chief Financial Officer
Date: 12/15/98
First Mercantile Trust
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