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EXHIBIT g(2)
CUSTODY, RECORDKEEPING AND ADMINISTRATIVE SERVICES
AGREEMENT
THIS AGREEMENT is made this 23rd day of April, 2000, 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"), SUNSTONE FINANCIAL GROUP, INC., a Wisconsin corporation, having its
principal office and place of business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000 ("Sunstone"), and E-XXXXXX FUNDS, a Delaware business
trust, having its principal office and place of business at 000 Xxxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "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 Sunstone 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 the Fund and Sunstone 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
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apply) and the right of the 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 the Fund to terminate
such custodianship in accordance with the terms of the
Account Agreements and this Agreement.
3. Sunstone 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 Sunstone 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 Sunstone 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
Sunstone and the Bank, which approval shall not be
unreasonably withheld.
b. Any approvals by Sunstone or the Bank under Section 5(a)
shall constitute only Sunstone'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 Sunstone against any losses arising out of its or
their reliance thereon.
6. Sunstone 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 Sunstone as authorized
persons to execute such signatures and endorsements. The Bank
shall promptly transmit, properly endorsed, to Sunstone any
monies, checks or other property received by the Bank as custodian
for investment for the Accounts.
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7. Sunstone shall collect all fees charged to the Accounts. Sunstone
shall remit to the Bank a portion (as specified in Appendix C
hereto) of the fees described in Appendix C hereto which are
collected by Sunstone as compensation for its services hereunder.
Sunstone shall retain the balance as compensation for its services
performed under this Agreement. Sunstone may from time to time,
after receipt of approval from the Fund, change such fee schedule;
provided, however, no such revision may reduce the compensation to
be remitted to the Bank without the Bank's prior approval. 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 Sunstone and
the Bank.
8. Sunstone shall furnish to the Bank a quarterly report consisting
of the number of Accounts and their aggregate market value as of
the end of each quarter. Sunstone shall also provide the Bank with
a shareholder list from time to time as the Bank may reasonably
request and the Fund hereby authorizes Sunstone to furnish such
reports.
9. The Bank and Sunstone acknowledge the proprietary and confidential
nature of the Fund's list of shareholders, and hereby agree not to
disclose to any other person the names of such shareholders
without prior written permission from the Fund, except where such
disclosure is required by the Code or other law or where the Bank
or Sunstone 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.
10. Sunstone and the Fund agree to fully protect the Bank in relying
upon the respective duties and responsibilities of Sunstone and
the 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 Sunstone
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 Sunstone 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.
11. The Bank agrees to fully protect the Fund and Sunstone 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 Sunstone and save and hold each
harmless from and against any and all claims, damages (including
reasonable
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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 Sunstone 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 (i) the respective negligence, bad faith or
willful misconduct of the Fund or Sunstone, or (ii) the
preparation and keeping current of the Account Documents or the
Related Documents. The Fund and Sunstone 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 Sunstone.
12. No provision of this Agreement shall modify or supersede any
provision of the Transfer Agency Agreements executed by Sunstone
and the Fund.
13. This Agreement may be terminated at any time by mutual consent of
the Bank, Sunstone, and the Fund, or upon sixty (60) days' written
notice to each of the other parties by any party. Upon
termination, the Bank and Sunstone shall transfer the records of
the Account as directed by the Fund. 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 Sunstone and the 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.
14. 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.
15. 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: Xxxxxxx X. Xxxx
If to Sunstone: Sunstone Financial Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
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If to Fund: e-xxxxxx Funds
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxx Xxxxxxxx
16. This Agreement shall be governed by the laws of the State of
Wisconsin.
17. 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
SUNSTONE FINANCIAL GROUP, INC.
By:
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Title:
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Attest:
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Secretary
E-XXXXXX FUNDS
By:
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Title:
---------------------------------
Attest:
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Secretary
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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, Sunstone 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.
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APPENDIX C
FEES
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:
FEES: Annual maintenance fee: $12.50 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.
PERCENTAGE TO BANK: 25% of the foregoing fees collected by Sunstone.
