Exhibit (m)(32)
AGENCY TRADING AGREEMENT
This Agreement is made as of the 1st day of November 2002 between (1)
National Financial Services LLC ("NFS") and (2) One Group Mutual Funds (the
"Trust") and One Group Dealer Services, Inc. (together "Fund/Agent"),
WITNESSETH:
WHEREAS: Fund/Agent and NFS either have executed a form of distribution,
service or operating agreement ("Services Agreement") or have developed
unwritten trading procedures (`Procedures") pursuant to which NFS transmits to
Fund/Agent orders for the purchase, redemption or exchange of Fund shares, as
identified in such Services Agreement or Procedures, on behalf of customers of
NFS ("Orders"); and
WHEREAS: Fund/Agent desires that NFS serve as limited agent to accept
orders for the purchase, exchange and redemption of shares of the Funds
("Shares") by certain employee benefit plans ("Plans");
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Appointment of NFS. Fund/Agent hereby appoints NFS as its agent for
the sole and limited purpose of accepting purchase, exchange or redemption
orders for Shares purchased, exchanged or redeemed by the Plans ("Orders"). NFS
hereby accepts its appointment on the terms and conditions set forth herein.
Notwithstanding anything in this Agreement to the contrary, NFS shall not be
acting as agent for Fund/Agent in any manner whatsoever, except in accepting
such Orders.
2. Appointment of Agent. NFS may appoint a third party as its Agent
("NFS' Agent") for the purpose of receiving Orders on behalf of NFS. Such Orders
received by NFS' Agent shall be deemed received by NFS, and accordingly by
Fund/Agent, simultaneously.
3. Orders and Acceptance. NFS, as agent of Fund/Agent, shall accept on
behalf of the Plans, Orders for the purchase, exchange or redemption of Shares
of the Funds. If such Orders are received by NFS or NFS' Agent prior to the
close of trading on the New York Stock Exchange (the "Close of Trading") on a
day the New York Stock Exchange is open for business (a "Business Day") or such
other time as designated in writing to NFS by Fund/Agent, they shall be treated
as having been received by Fund/Agent on such Business Day ("Trade Date").
4. Trade Reporting
Based on Orders accepted by NFS or NFS' Agent prior to Close of Trading on the
prior Business Day, NFS will provide to Fund/Agent either summarized trading
instructions for the net purchase or net redemption of Shares of the Funds or
detailed trading instructions by 9:00 a.m. ET, or other mutually agreed upon
time, each Business Day following Trade Date ("TD + 1"). NFS may provide
summarized and/or detailed trading instructions via facsimile, other mutually
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acceptable ad hoc process, or in accordance with practices of, and agreement
with, the National Securities Clearing Corporation's ("NSCC") procedures
concerning orders of shares to funds or their agents, through the NSCC Defined
Contribution Clearance and Settlement System (the "DCC&S" System). When using
DCC&S, NFS will provide both summarized and detailed trading instructions to
Fund/Agent on TD+1 via Fund/SERV transmission or other such trade order process
as agreed to in the Services Agreement or Procedures by NFS and Fund/Agent. In
any case, such instructions shall be effected at the public offering price, or
such other price as may apply to the transaction, of the Shares of the
respective Fund calculated as of the Close of Trading on the Business Day on
which the Order was accepted by NFS or NFS' Agent.
5. Settlement. Settlement for trades placed through Fund/SERV (either
DCC&S or non-DCC&S platforms), will follow the guidelines and operational
procedures set forth by the NSCC and the Securities Industry Automation
Corporation ("SIAC"). For trades placed in any other manner including facsimile
or other mutually acceptable ad hoc process, settlement shall be made for the
aggregate net purchase or redemption for each Fund on "TD + 1" by wire transfer
in accordance with the operational procedures set forth in the Services
Agreement or Procedures.
6. Representations by NFS. NFS represents that:
(a) it has full power and authority to enter into and perform this
Agreement;
(b) it is registered as a broker/dealer pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(c) it will promptly notify Fund/Agent in the event that NFS is for
any reason unable to perform any of its obligations under this Agreement;
(d) it will comply with all applicable laws, rules and regulations as
it pertains to money laundering including but not limited to the USA Patriot
Act.
7. Representations of Fund/Agent. Fund/Agent represents that:
(a) it has full power and authority to enter into and perform this
Agreement and is duly authorized to appoint NFS as agent for the Fund and to
authorize NFS to designate further agents;
(b) it will promptly notify NFS in the event that it is for any reason
unable to perform any of its obligations under this Agreement.
8. Indemnification. Each party shall indemnify and hold harmless the
other, and the other's affiliates, agents, control persons, and employees, from
any claim, demand, loss, expense, or cause of action resulting from (a) the
misconduct or negligence, as measured by industry standards, of the indemnifying
party or its affiliates, agents, control persons, or employees in carrying out
their obligations under this Agreement, or (b) breach at any time of its
representations hereunder by the indemnifying party. Such indemnification will
survive the termination of this Agreement.
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9. Termination of Agreement. This Agreement may be terminated at any time
by either party upon ninety (90) days written notice to the other party.
Notwithstanding the foregoing, this Agreement may be terminated immediately upon
a material breach by either party not cured within thirty (30) days after notice
from the other. The provisions of Section 8 shall survive any termination of
this Agreement.
10. Notices. Unless otherwise specified, all notices and other
communications hereunder shall be in writing and shall be hand delivered or
mailed by certified mail to the other party at the following address or such
other address as each party may give notice to the other:
If to Fund/Agent:
One Group Dealer Services, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx
If to NFS: With a copy to:
National Financial Services LLC Fidelity Investments
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 00 Xxxxxxxxxx Xx. X0X
One World Financial Center, Tower A Boston, MA 02109-3614
Xxx Xxxx, XX 00000 Attn: Xxxxx Xxxx
Attn: Xxx Xxxxx
Mutual Funds, MZ NY5C
11. Amendment, Assignment and Other Matters. This Agreement may not be
amended except by a writing signed by each of the parties hereto. This Agreement
shall not be assigned, except to affiliates, by either party without the written
consent of the other party. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. The headings in this Agreement are for
reference only and shall not affect the interpretation or construction of this
Agreement. This Agreement, including any Exhibits attached hereto, and including
the Services Agreement or Procedures, contains the entire agreement of the
parties as to the subject matter hereof and supersedes any prior agreements,
written or oral. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without giving effect to the
principles of conflicts of law thereof.
12. Business Trust. The names "One Group Mutual Funds" and "Trustees of
the One Group Mutual Funds" refer respectively to the Trust created and the
Declaration of Trust dated May 23, 1985, as amended and restated February 18,
1999, to which reference is hereby made and a copy of which is on file at the
office of the Secretary of the Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "One Group Mutual Funds" entered into in the name
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or on behalf thereof by any of the Trustees, representatives or agents are made
not individually, but in such capacities, and are not binding upon any of the
Trustees, Shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and all persons dealing with any series of Shares of
the Trust must look solely to the assets of the Trust belonging to such series
for the enforcement of any claims against the Trust
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
One Group Mutual Funds National Financial Services LLC
By: /s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
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Title: Vice President & Treasurer Title: Senior Vice President
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Date: 10/30/02 Date: 11/12/02
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One Group Dealer Services, Inc.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title. President & CEO
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Date: 12/31/02
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