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SelectBENEFIT New Account Package ADMINISTRATIVE SERVICES AGENCY AGREEMENT
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1.9. TAX RETURNS. Agent shall maintain information necessary to complete
federal and state tax returns such as IRS Form 1 099-R relating to
participant distributions and shall provide such forms as required.
However, Agent shall have no duty or responsibility to advise the
Principal, participants, former participants or beneficiaries on the tax
consequences of a distribution or the advisability of various optional
methods of distribution.
1.10. ADMINISTRATION. Agent shall coordinate and consult closely with the
Principal and its attorney(s) and accountant(s), as requested, to
facilitate proper, timely and efficient administration of the Plan.
1.11. OTHER PLANS. Agent shall have no responsibility whatsoever with regard
to any other qualified or non-qualified Plans maintained by the
Principal other than the Plan named above. Agent shall have no duty to
determine combined plan limitations with respect to the IRC, ERISA and
regulations thereunder such as Annual Additions or maximum allowable
participant loans. Agent will perform its duties under this Agreement as
though the Principal maintained only the single Plan.
1.12. DELEGATION OF DUTIES. Agent may perform any of its duties under this
Agreement through its delegated subcontractors. However, nothing in this
Paragraph 1.12 shall relieve the Agent of its duties as described in
this Agreement.
1.13. GENERAL. Agent shall perform its duties in a prudent and professional
manner in accordance with normal standards and practices in the
recordkeeping field. Agent shall correct at no cost to the Principal
inaccurate reports caused solely by the Agent's error. The above
notwithstanding, nothing contained in this Agreement shall be construed
to impose upon the Agent any duty or responsibility other than the
ministerial functions described above.
SECTION II
PRINCIPAL'S DUTIES
2.1. AUTHORIZED REPRESENTATIVES. Principal shall furnish the Agent a listing
in writing indicating the person or persons who are authorized to act in
its behalf in connection with this Agreement. Until receipt of written
notice to the contrary, the Agent shall be entitled to rely conclusively
on any such listing and on any communication or notice which purports to
have been signed by said duly appointed representative of the Principal,
as the case may be, and which purports to have been authorized by the
Principal.
2.2. INFORMATION FOR AGENT. Principal shall furnish to the Agent any and all
information the Agent shall request to perform its duties under this
Agreement. Principal shall furnish all data in a format and electronic
medium acceptable to the Agent. Principal agrees to pay the Agent the
compensation described in the Fee Schedule in the event additional work,
including gathering data and information, data input, auditing,
balancing and or calculating is necessary due to the Principal's failure
to provide such information in the form and manner requested. Principal
acknowledges that if any services are required to be repeated due to
incorrect or incomplete information from the Principal that additional
fees will be payable for such services. Principal further agrees that it
will extend scheduled deadlines, if necessary, in the event that it has
failed to furnish the information requested.
2.3. DELIVERY. Principal shall deliver to the Agent requested data and
information in sufficient time to allow the Agent to perform its duties.
Principal agrees to reimburse the Agent at cost for any special delivery
or other premium mailing expenses it may request the Agent to utilize.
2.4. VERIFICATION. Principal shall carefully verify all information, reports
and governmental forms prepared by the Agent prior to use and shall
notify the Agent promptly within thirty (30) days of any errors or
omissions.
2.5. NOTIFICATION OF CHANGES. Principal shall promptly notify the Agent of
any changes to the Plan no later than Thirty (30) days prior to the
effective date. Principal shall promptly notify the Agent of any
participant change including but not limited to termination of
employment, change of name address or social security number,
reinstatement of employment.
2.6. COMPLIANCE WITH ERISA. Principal shall act as or appoint a "Plan
Administrator" as that term is described in Section 3(16)(A) of ERISA.
Under no circumstances shall the Agent be deemed to act in the capacity
of Plan Administrator. Principal shall have the primary responsibility
for ensuring that the form and content of all Plan records, including
those maintained by the Agent under this Agreement, comply with the
requirements of ERISA, the IRC, and all applicable regulations.
Principal shall have the sole responsibility for performing all duties
imposed on it by the Plan documents, ERISA, the IRC, and applicable
regulations. Agent shall have no responsibility for any funding
deficiency or penalties thereon required by the terms of the Plan,
ERISA, or the IRC.
SECTION III
PARTICIPANT ACCESS TO RECORDS
3.1. PARTICIPANT RECORDS. Unless specified otherwise by the Principal, a Plan
participant shall have access to all information related to such
participant's account held by the Agent. Any such Participant may
request such information in accordance with uniform, nondiscriminatory
rules established by the Principal and agreed to by the Agent.
3.2. ALLOCATION TO INVESTMENT OPTIONS. Unless specified otherwise by the
Principal, a Participant may direct the Agent to establish or modify the
investment option allocation percentages with respect to his or her own
account. The Agent shall effect such directives only to the extent that
such investment elections comply with the terms of the Plan and that
such funds are available for investment.
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Plan Name: Xxxxxx International, Inc. Retirement Savings Plan
Union Bank of California
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SelectBENEFIT New Account Package ADMINISTRATIVE SERVICES AGENCY AGREEMENT
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3.3. INVESTMENT TRANSFERS. Unless specified otherwise by the Principal, a
Participant may direct the Agent to effect transfers between investment
funds established under the Plan for his or her own account. The Agent
shall effect such transfers only to the extent that such transfers
comply with the terms of the Plan and that such funds are available for
investment.
3.4. INITIATION OF PARTICIPANT LOAN. Unless specified otherwise by the
Principal, a participant may request the Agent to provide information
regarding a loan from the Plan. Based upon information reasonably
available from participant records, the Agent shall provide information
regarding the maximum available loan amount under the provisions of the
Plan and ERISA. At the request of the Participant, the Agent shall
initiate participant loan documentation for review and approval by the
Principal. Agent shall be entitled to fees for such documentation
without regard to approval or denial of such loan request.
3.5. TRANSACTION VERIFICATION. The Agent shall, upon receipt of a directive
from a Participant in appropriate form and conformity to Plan
provisions, provide a directing Participant with a verification of
transaction.
3.6. EXPENSES. The Agent may, at the direction of the Principal, charge any
or all expenses related to the directive of a Participant to the account
of such directing Participant.
3.7. SECURITY. The Agent shall take reasonable measures to assure the
security and privacy of participant records. No individual shall have
the right to access such records without the express authority of the
Principal. The Agent shall in no event knowingly provide information
related to participant records to other than the Principal, its
authorized delegate or to a Participant with respect to his or her own
account or accounts.
SECTION IV
GENERAL PROVISIONS
4.1. RETURN OF CONTRIBUTIONS. Contributions may be returned to the Principal
if and when the contribution amount made to the applicable trust fund
does not, at the sole determination of the Agent, correspond to the
contribution allocation details provided by the Principal.
4.2. FEES. The Agent shall be entitled to compensation and expenses in
accordance with the terms of the Fee Schedule as mutually agreed to from
time to time. Such compensation and expenses shall be paid by Principal
within 30 days of receipt of billing from Agent, but in the event the
Principal fails to pay as agreed, Principal may direct, if permitted by
law, that the unpaid fees shall be charged against such assets. The
Principal shall be obliged to pay the amount of the Agent's costs
incurred in charging the trust fund for all fees not paid on a timely
basis. The Agent reserves the right to revise any fees contained in the
Fee Schedule upon 30 days advance written notice to the Principal.
4.3. RECORDING OF CONVERSATION. Principal acknowledges that Agent may
establish procedures for tape recording telephone conversations with
participants for accuracy.
4.4. DISCRETIONARY AUTHORITY. Notwithstanding any provision of this
Agreement, the Agent shall not have any obligation to monitor, control
or in any way exercise any powers or discretion in the handling or
disposition of any Plan assets.
4.5. DISASTER RECOVERY. In the event of a natural disaster, power failure,
mechanical difficulties with information storage and retrieval systems
or other events not attributable to negligence or wilful misconduct of
the Agent, its agents or subcontractors, the Agent's sole obligation
will be to use reasonable efforts to reconstruct any affected records or
reports at its own expense. In the event of any such circumstance beyond
the control of the Agent, the duties of the Agent hereunder are subject
to appropriate adjustment and/or extension of time.
4.6. TERM OF AGREEMENT. This Agreement shall be effective as of the date of
the acceptance of this Agreement by the Agent. It shall continue to be
effective until it is terminated by either party by a written notice
given not less than sixty (60) days prior to the end of the last
reporting period for which such services will be performed.
Notwithstanding the foregoing, the Agent shall have the right to
terminate this Agreement immediately in the event that the Agent
determines, in its sole discretion that it is unable to effectively
perform its duties, due to (a) the failure or refusal of the Principal
to furnish information requested and deemed necessary by the Agent (b)
the adoption of any amendment to the Plan which impairs the ability of
the Agent to perform its duties or (c) the termination of Plan custodial
services by Union Bank of California.
4.7. INDEMNITY. In consideration of Agent's agreement to provide the services
described in this Agreement Principal agrees to indemnify and hold Agent
harmless, in its capacity as a recordkeeper under this Agreement, from
any liabilities, costs, claims, and expenses (including reasonable
attorney's fees) incurred by or imposed upon the Agent, its employees
and officers, as a result of Agent's performance of its duties in
reliance upon information provided to it by the Principal and its
authorized delegates. Principal agrees to hold Agent harmless and
indemnify it against any and all losses, claims, liabilities, penalties
and damages including any consequences resulting from late filings of
governmental forms, late reporting to participants or any inability on
the part of the Agent to perform its duties under this Agreement arising
out of the Principal's failure to supply timely, complete and accurate
information in a format acceptable to Agent. Notwithstanding the above,
Principal shall not indemnify and hold Agent harmless for any
liabilities, cost, claims, and expenses (including attorneys' fees)
caused by the negligence or willful misconduct of Agent. In addition,
the Principal agrees to hold the Agent harmless from any liability
arising from any errors pre-existing in any Plan records which occurred
prior to the effective date of this Agreement. Moreover. Principal
agrees to relieve the Agent of any duty to audit or review past records
of previous recordkeepers or Plan Administrators to determine if such
errors have occurred.
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Plan Name: Xxxxxx International, Inc. Retirement Savings Plan
Union Bank of California
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SelectBENEFIT New Account Package ADMINISTRATIVE SERVICES AGENCY AGREEMENT
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4.8. HEADINGS. Headings of Articles and Paragraphs in this Agreement are
included for convenience of reference only and are not to be considered
in the interpretation or construction of any provision of this
Agreement.
4.9. WHOLE AGREEMENT. This Agreement along with the attached Fee Schedule
contains the entire agreement between the parties and no representation
or statement not expressly included in this Agreement shall be binding
on the parties. This Agreement may be modified only by an instrument in
writing signed by the parties.
4.10. APPLICABLE LAW. This Agreement shall be construed in accordance with the
provisions of the laws of the State of California.
4.11. ARBITRATION AND MEDIATION. If a dispute arises out of or relates to this
Agreement, or the performance or breach thereof, the parties agree first
to try in good faith to settle the dispute by mediation under the
Commercial Mediation Rules of the American Arbitration Association.
Thereafter, any remaining unresolved controversy or claim arising out of
or relating to this Agreement, or the performance or breach thereof,
shall be decided by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and
the California Code Civil Procedure Sections 1280, et seq. The sole
arbitrator shall be a retired or former judge associated with the
American Arbitration Association. The arbitrator may consolidate any
arbitration under this Agreement with any related arbitration. Judgement
upon any award rendered by the arbitrator shall be final and may be
entered in any court having jurisdiction. Each party shall bear its own
costs, attorney's fees and its share of arbitration fees. The Alternate
Dispute Resolution Agreement in this Agreement does not constitute a
waiver of the parties' rights to a judicial forum in instances where
arbitration would be void under applicable law, and does not preclude
Bank from exercising its right to interplead the funds of the Account at
the cost of the Account.
The Principal hereby consents to and grants authority to the Agent to provide
information to Plan participants and to effect directions of Plan participants
in a uniform, nondiscriminatory manner. The Principal agrees to inform the Agent
of any changes to the policies and procedures related to providing information
to Plan participants.
UNION BANK OF CALIFORNIA
XXXXXXXX X. XXXXXXX VICE PRESIDENT AND MANAGER
--------------------------------- -------------------------------------
Name of Authorized Signer Title
for Union Bank of California
/s/ XXXXXXXX X. XXXXXXX 2/26/98
--------------------------------- -------------------------------------
Signature of Authorized Signer Date
for Union Bank of California
PLAN SPONSOR
XXXXXX X. XXXXXXX CHIEF FINANCIAL OFFICER
--------------------------------- -------------------------------------
Name of Authorized Signer Title
for Plan Sponsor
/s/ XXXXXX X. XXXXXXX 2/26/98
--------------------------------- -------------------------------------
Signature of Authorized Signer Date
for Plan Sponsor
THIS AGREEMENT IS NOT EFFECTIVE UNTIL
APPROVED AND ACCEPTED BY THE AGENT,
UNION BANK OF CALIFORNIA.
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Plan Name: Xxxxxx International, Inc. Retirement Savings Plan
Union Bank of California
