Exhibit 23(g)(6)
CUSTODY, RECORDKEEPING AND ADMINISTRATIVE SERVICES
AGREEMENT
THIS AGREEMENT is made this 9th day of March, 2001, 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 Xxxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxx, Xxxxxxxxx 00000 ("Sunstone"), and The Oberweis Funds, a Massachusetts
business trust, having its principal office and place of business at 000 Xxx
Xxxxx Xxxxx, Xxxxx Xxxxxx, 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 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 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 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. 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,
except that the Fund shall not indemnify or hold harmless the Bank or Sunstone
against any losses arising out of its or their reliance on Account Documents or
Related Documents to the extent Account Documents or Related Documents are
modified to comply with the Bank's or Sunstone's right of approval defined in
paragraph 5 (a) above.
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
2
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.
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 Bank with a shareholder list from time to
time as 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 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 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 Fund agree to fully protect the Bank in relying upon the
respective duties and responsibilities of Sunstone 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 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 the
part of the Bank.
11. The Bank agrees to fully protect 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 attorneys' fees), costs, expenses, losses, judgments,
3
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, 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. 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 Fund.
13. This Agreement may be terminated at any time by mutual consent of the
Bank, Sunstone, and Fund, or upon ninety (90) 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 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 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 Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
4
If to Fund: The Oberweis Funds
000 Xxx Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
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: /s/ Xxxxxxx X. Xxxx
--------------------------
Title: Senior Vice President
--------------------------
Attest: /s/ Xxxxx X. Xxxxxx
-----------------------
Secretary
SUNSTONE FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Title: Senior Vice President
-------------------------
Attest: /s/ Xxxx Xxxxxxxxx
-----------------------
Senior Vice President
THE OBERWEIS FUNDS
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Executive Vice President
-------------------------
Attest: /s/ Xxxxxx X. XxXxxx
-----------------------
Secretary
5
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 (Traditional IRAs, Xxxx IRAs, Xxxx Conversion IRAs, Rollover IRAs and
Simplified Employee Pension Plans known as SEP-IRAs).
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.
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.
