EXHIBIT (H)(3)
RETIREMENT PLAN
AGREEMENT
THIS AGREEMENT is made this 4th day of March, 2003, by and between UMB
BANK, N.A., a national banking association, having its principal office and
place of business at 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (the
"Bank"), UMB FUND SERVICES, INC., a Wisconsin corporation, having its principal
office and place of business at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx,
Xxxxxxxxx 00000 ("UMBFS"), and LIFETIME ACHIEVEMENT FUND, INC., having its
principal office and place of business at 00000 Xxxx Xxxxx Xxxx, Xxxxx, Xxxxxxxx
00000 ("Fund").
WHEREAS, the Fund offers or intends to offer to its shareholders and
potential shareholders one or more retirement or similar plans described in
Appendix A hereto and as such is the sponsor of custodial accounts ("Accounts")
pursuant to Custodial Agreements (the "Account Agreements");
WHEREAS, the Fund wishes to appoint the Bank as the custodian for the
Accounts, and the Bank is willing to accept appointment as custodian for the
Accounts, on the terms and conditions set forth herein; and
WHEREAS, the Fund and the Bank desire UMBFS to perform, in its capacity as
transfer agent for the Fund, certain administrative and recordkeeping duties
relative to the Accounts.
NOW, THEREFORE, the parties to this Agreement agree to the following:
1. The Bank represents to Fund and UMBFS that it is, and as long as the
Accounts and this Agreement are in effect will be, qualified to act
as custodian under all applicable provisions of the Internal Revenue
Code of 1986, as amended (the "Code") and all other applicable laws,
rules and regulations.
2. The Fund hereby appoints the Bank and the Bank hereby accepts
appointment as custodian for the Accounts. The Bank agrees to act as
custodian for the Accounts subject to the terms hereof, and of each
of the Account Agreements.
a. The Bank understands and agrees that from time to time the Fund
may propose amendments to the Account Agreements, whether to
comply with then-current provisions of the Code or otherwise,
and such amendments shall take effect subject to the provisions
of the Account Agreements and subject to the Bank's rights
thereunder. The rights of the Fund to propose amendments from
time to time shall not affect the Bank's responsibilities as
provided herein.
b. The appointment of the Bank as custodian hereunder is subject
to (i) the terms of the respective Account Agreements; (ii)
this Agreement (which shall govern in case of any
inconsistency between the terms of this Agreement and any of
the Account Agreements or to the extent the respective
Account Agreements do not apply) and the right of Fund
hereunder to terminate the appointment of the Bank as
custodian under the Account Agreements and to name a
successor custodian at any time and from time to time on
written notice to the Bank; and (iii) the rights of the Bank
and of Fund to terminate such custodianship in accordance
with the terms of the Account Agreements and this Agreement.
3. UMBFS hereby agrees to diligently perform the administrative and
recordkeeping services described in Appendix B with respect to the
Accounts. It is understood that it is not the responsibility of any
party hereunder to perform tests and/or monitor and enforce any
contribution or benefit limitations or distribution requirements
imposed by the Code, such responsibility being that of the party
adopting the Account Agreement.
4. The parties acknowledge and agree that UMBFS and the Bank will not
serve as "plan administrator" (as defined by the Employee Retirement
Income Security Act of 1974, as amended) of any Account or in any
other administrative capacity or other capacity except as transfer
agent and custodian, respectively, thereof.
5. The responsibilities for preparing and keeping current the documents
related to the Account Agreements shall be as follows:
a. The Fund shall provide UMBFS with final forms of (i) Account
Agreements, disclosure statements and similar documents
("Account Documents") and (ii) application forms, transfer
forms, beneficiary designation forms and similar documents
("Related Documents"), and shall keep such Account Documents and
Related Documents current by providing timely any necessary
amendments, modifications and supplements thereto. The use of
any Account Documents and Related Documents shall be subject to
the advance approval of UMBFS and the Bank, which approval shall
not be unreasonably withheld.
b. Any approvals by UMBFS or the Bank under Section 5(a) shall
constitute only UMBFS's or the Bank's consent to use any such
materials and not the approval of the contents or the effect
thereof. The Fund shall bear full responsibility for the Account
Documents and the Related Documents and the compliance thereof
with all applicable laws, rules and regulations, as amended from
time to time, and shall fully protect, indemnify and hold
harmless the Bank and UMBFS against any losses arising out of
its or their reliance thereon.
6. UMBFS is hereby authorized to sign any Account Agreement or
application for an account by and on behalf of the Bank as custodian,
or endorse any check or draft or other item payable to the Bank by
and on behalf of the Bank as custodian, and to designate an employee
or employees of UMBFS as authorized persons to execute such
signatures and endorsements. The Bank shall promptly transmit,
properly endorsed, to UMBFS any monies, checks or other property
received by the Bank as custodian for investment for the Accounts.
7. UMBFS shall collect and retain all fees charged to the Accounts
including those as compensation for its services hereunder. UMBFS may
from time to time, after receipt of approval from the Fund, change
such fee schedule. The Bank authorizes the distribution on its behalf
of any revised fee schedule to existing and prospective Account
holders. In the event the Fund determines to waive all or a portion
of any related Account fees, the Fund shall continue to be
responsible for arranging for payment of all Account related fees to
UMBFS.
8. The Bank acknowledges the proprietary and confidential nature of
Fund's list of shareholders, and hereby agrees not to disclose to any
other person the names of such shareholders without prior written
permission from Fund, except where such disclosure is required by the
Code or other law or where the Bank may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when subject to
governmental or regulatory audit or investigation.
9. UMBFS and Fund agree to fully protect the Bank in relying upon the
respective duties and responsibilities of UMBFS and Fund under the
Account Agreements and this Agreement, and agree that each will
fully indemnify the Bank and save and hold the Bank harmless from
and against any and all claims, damages (including reasonable
attorneys' fees), costs, expenses, losses, judgments, taxes
(including penalties and interest thereon), or liabilities of any
nature whatsoever resulting from or arising out of their respective
duties and responsibilities under the Account Agreements and this
Agreement; provided however, neither UMBFS nor the Fund is required
to protect, indemnify or hold the Bank harmless for any claims,
damages (including reasonable attorneys' fees), costs, expenses,
losses, judgments, taxes or liabilities arising out of, resulting
from, or in connection with the negligence, bad faith or willful
misconduct of the Bank. The Bank may reasonably rely on the actions
or inactions of UMBFS or the Fund in performing their respective
duties under this Agreement and such reasonable reliance shall not
be deemed negligence on part of the Bank.
10. The Bank agrees to fully protect Fund and UMBFS in relying upon the
Bank's duties and responsibilities with respect to the Account
Agreements and this Agreement, and agrees that it will fully
indemnify the Fund and UMBFS and save and hold each harmless from and
against any and all claims, damages (including reasonable attorneys'
fees), costs, expenses, losses, judgments, taxes (including penalties
and interest thereon), or liabilities of any nature whatsoever
resulting from or arising out of its duties and responsibilities
under the Account Agreements and this Agreement; provided however,
the Bank is not required to protect, indemnify or hold the Fund or
UMBFS harmless for any claims, damages, costs, expenses, losses,
judgments, taxes or liabilities arising out of, resulting from, or in
connection with (i) the respective negligence, bad faith or willful
misconduct of the Fund or UMBFS, or (ii) the preparation and keeping
current of the Account Documents or the Related Documents. Fund and
UMBFS may reasonably rely on the actions or inactions of the Bank in
performing its duties under this Agreement and such reasonable
reliance shall not be deemed negligence on the part of the Fund or
UMBFS.
11. No provision of this Agreement shall modify or supersede any
provision of the Transfer Agent Agreement executed by UMBFS and Fund
and in the event the agreements conflict with respect to any matter,
the terms of the Transfer Agent Agreement shall control.
12. This Agreement may be terminated at any time by mutual consent of the
Bank, UMBFS, and Fund, or upon sixty (60) days' written notice to
each of the other parties by any party. Upon termination, the Bank
and UMBFS shall transfer the records of the Accounts as directed by
Fund in the form maintained by the parties. In the absence of such
designation by the Fund, the Fund shall upon the date specified in
the notice of termination of this Agreement and delivery of the
records maintained hereunder, assume full responsibility hereunder
and UMBFS and Bank shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement. Anything herein to the
contrary notwithstanding, the protective covenants and indemnities
provided by this Agreement shall survive the termination of the
Agreement and shall continue in effect with respect to any and all
matters arising (or alleged by any third party to have occurred,
whether by way of act or default) during the existence of the
Agreement.
13. No modification or amendment of this Agreement shall be valid or
binding on the parties unless made in writing and signed on behalf of
each of the parties by their respective duly authorized officers or
representatives.
14. Notices shall be communicated by first class mail, or by such other
means as the parties may agree, to the persons and addresses
specified below or to such other persons and addresses as the parties
may specify in writing.
If to Bank: UMB Bank, N.A.
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
If to Fund: Lifetime Achievement Fund, Inc.
00000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attn: President
15. This Agreement shall be governed by the laws of the State of
Wisconsin.
16. This Agreement may be executed in any number of counterparts, and by
the parties hereto on separate counterparts, each of which when so
executed shall be deemed an original and all of which when taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers under authority of their respective
Boards as of the day and year first above written.
UMB BANK, N.A.,
By:
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Title:
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Attest:
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Secretary
UMB FUND SERVICES, INC.
By:
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Title:
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Attest:
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Secretary
LIFETIME ACHIEVEMENT FUND, INC.
By:
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Title:
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Attest:
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Secretary
APPENDIX A
PLANS
Individual Retirement Accounts that are offered by the Fund under the
provisions of Sections 408, 403(b) and/or 530 of the Code, and the regulations
promulgated thereunder:
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APPENDIX B
SERVICES
Pursuant to the Agreement, UMBFS shall:
a. Receive, allocate to the appropriate Account, and invest
pursuant to the governing Account Agreement, all contributions
made thereunder, in accordance with the written instructions of
the duly authorized directing authority;
b. Reinvest for each Account all dividends and capital gains or
other distributions payable on the shares credited thereto;
c. Maintain and reconcile Account records and investment
transaction records;
d. Furnish to each Account grantor (with respect to each grantor's
individual Account), promptly after the end of each calendar
year, a statement of such grantor's account showing:
i. The net asset value of all full and fractional shares as
of the first and last business days of the calendar year,
ii. Contributions to and distributions from the account during
the calendar year, and
iii. Earnings reinvested in the account during the calendar
year.
e. Furnish to each Account grantor (with respect to each grantor's
individual Account) a confirmation of each transaction in
accordance with the terms of the Fund's then current
prospectus;
f. Make distributions from Accounts, including withholding and
remittance of federal tax, in accordance with the provisions of
the Account Agreements and relevant provisions of the Code;
g. Furnish information returns and reports to each Account grantor
(with respect to each grantor's individual Account) and to the
Internal Revenue Service as may be required by the Code; and
h. Other such functions as all of the parties may agree to from
time to time.
APPENDIX C
FEES
FEES: Annual maintenance fee: $10 per account. The annual maintenance
fee will be deducted from shareholder accounts unless otherwise paid by
or on behalf of the shareholder typically during the fourth quarter of
each calendar year.
