401k SH plan with fixed match and LD Rule

[Guest mainer]

Safe Harbor 401k plan has basic match and an additional fixed match. The add'l match has a last day rule and was not amended prior to the beginning of their 2006 plan year. Can this be amended and still have reliance on the ADP/ACP safe harbor? Unless they've blown the SH, seems like there are 2 options...

Amend the plan to retroactively eliminate the fixed match? Since no one has accrued a benefit and you are amending during the year to comply with final regs, is this ok? Does plan continue to be safe harbor as long as the basic SH match is still made? I'm having a hard time with this - seems like you can't have it both ways... ie can't have a SH plan w/ a LD rule, and then say that you can remove the add'l match because of the LD rule.

Or - is it possible to rely on the safe harbor if you operate properly and sign the amendment removing the LD rule prior to year end? This seems safer to me. Thanks!