1
Exhibit (h)(38)
Late Order Processing Agreement
dated April 6, 2000
between
Security Trust Company and One Group Mutual Funds
189
2
LATE ORDER PROCESSING AGREEMENT
AGREEMENT made as of April 6, 2000, by and between Security Trust Company
("Trust Co.") and The One Group(R)(the "Fund Company").
WHEREAS, the Trust Co. and the Fund Company have entered into an Agency
Agreement, which is incorporated herein by reference, under which the Fund
Company will retain the Trust Co. to perform certain recordkeeping and
accounting services and functions with respect to transactions in shares of
series ("Funds") of the Fund Company made by or on behalf of participants in
certain employee pension benefit plans as that term is defined in Section 3(2)A)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("Plans");
WHEREAS, pursuant to the Agency Agreement, the Trust Co. has been deemed the
agent of the Fund Company for the limited purpose of receiving instructions
("Instructions") in proper form from participants, beneficiaries or plan
sponsors (collectively, "Participants") from which are derived orders ("Orders")
for the purchase, redemption and exchange of Fund shares; and
WHEREAS, the Trust Co. is responsible for transmitting such Orders to the Fund
Company's transfer agent.
NOW THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the parties hereto agree as follows:
1. PROVISION OF NET ASSET VALUE. The Fund Company or its designee shall
furnish the Trust Co. with the confirmed net asset value ("NAV")
information as of the close of trading on the New York Stock Exchange
(generally, 4:00 p.m., Eastern Time ("ET")) ("Market Close") on any day
that the Fund Company is open for business ("Business Day"), and
dividend and capital gains information as it arises. The Fund Company
or its designee shall use its best efforts to provide such information
by 6:30 p.m., ET on each Business Day.
2. THE TRUST CO.S RECEIPT AND TRANSMISSION OF ORDERS.
a) As provided in the Agency Agreement, the TRUST CO. will
aggregate all purchase, redemption and exchange Instructions
made by or on behalf of Plan Participants and communicate to
the Fund Company an aggregate purchase, redemption or exchange
Order.
b) The TRUST CO. agrees that (i) Orders derived from Participant
Instructions received by the TRUST CO. prior to the Market
Close on any Business Day of the Fund Company, as defined in
the Fund Company's registration statement, ("Day 1") will be
electronically transmitted to the Fund Company by 5:00 a.m.,
ET on the next Business Day (such Orders are referred to as
"Day 1 Trades"); and (ii) orders derived from Instructions
received by the TRUST CO. after the Market Close ("Day 2
Trades") on Day 1 will be electronically transmitted to the
Fund Company on the next Business Day following Day 1 ("Day
2").
190
3
c) If the TRUST CO. cannot electronically transmit Day 1 Trades
by 5:00 a.m. on Day 2, the TRUST CO. will transmit such Orders
by facsimile prior to the Market Open (generally 7:00 a.m.) on
Day 2.
3. PRICING OF ORDERS. The Fund Company agrees that Day 1 Trades will be
effected at the NAV calculated as of the Market Close on Day 1,
provided that such trades are received by the Fund Company by 5:00
a.m., ET on Day 2 or prior to 7:00 a.m. on Day 2; and Day 2 Trades will
be effected at the NAV calculated as of the Market Close on Day 2,
provided they are received by the Fund Company by 5:00 a.m., ET on Day
3 or prior to 7:00 a.m. on Day 3. The Fund Company agrees that,
consistent with the foregoing, Day 1 Trades will have been received by
the Fund Company prior to the Market Close on Day 1, and Day 2 trades
will have been received by the Fund Company prior to the Market Close
on Day 2 for all purposes, including, without limitation, effecting
distributions.
4. CONFIRMATIONS. The Fund Company will send a confirmation of each
Business Day's Order via electronic transmission or facsimile by the
Market Close on Day 2 for Day 1 Trades received by 5:00 a.m. on Day 2.
5. ROLE OF THE TRUST CO.. The parties acknowledge and agree that, except
as specifically provided in this Agreement and for the sole and limited
purposes set forth herein, the Trust Co. acts as agent for the Plans in
connection with the effectuation of Orders subject to this Agreement.
The parties agree that the Trust Co. is not an agent of the Fund
Company other than as provided herein and in the Agency Agreement.
6. BOOKS AND RECORDS. To the extent required by the Investment Company Act
of 1940 (the "1940 Act"), as amended, and the rules thereunder, all
records maintained by the Trust Co. hereunder are the property of the
Fund Company and will be preserved, maintained and made available in
accordance with the 1940 Act and the rules thereunder. Copies, or if
required, originals, of such records shall be surrendered promptly to
the Fund Company and its agents (or independent accountants) upon
request. This Section 6 shall survive termination of this Agreement.
7. REPRESENTATIONS OF THE PARTIES.
Each party represents and warrants to the other party that:
(a) It is duly organized, validly existing and in good standing
under the laws of its state of organization or incorporation;
(b) It has legal power and authority to carry on its business, and
is registered or licensed as required, in each jurisdiction
where it conducts its business;
(c) The Fund Company is duly registered as a registered investment
company under the Investment Company Act of 1940 and the Trust
Co. is duly registered as a transfer agent under Section 17A
of the Securities Exchange Act of 1934.
8. VERIFICATION. Each party shall, as soon as practicable after
notification that a report, notification or other information has been
transmitted by the other party via facsimile or other electronic
transmission, confirm the receipt of such report, notification or other
191
4
information. Such confirmation shall be in oral, written or electronic
format. In the absence of such confirmation, a party to whom the
transmission was sent shall not be held liable for any failure to act
in accordance with the transmission, and absent evidence to the
contrary, the sending party may not claim that the transmission was
received by the other party. Each party shall promptly notify the other
of any errors, omission or interruptions in, or delay or unavailability
of, any such transmission as promptly as possible.
9. LIMITATION OF LIABILITY. The Trust Co. shall not be liable to the Fund
Company for any loss or damage, including counsel fees and court costs,
whether or not resulting from its acts or omissions to act hereunder or
otherwise hereunder, unless the loss or damage arises out of the Trust
Co.'s own bad faith, willful misfeasance, negligence or from its
reckless disregard of its obligations and duties.
The Fund Company shall not be liable to the Trust Co. for any loss or
damage, including counsel fees and court costs, whether or not
resulting from its acts or omissions to act hereunder or otherwise
hereunder, unless the loss or damage arises out of the Fund Company's
own bad faith, willful misfeasance, negligence or from its reckless
disregard of its obligations and duties.
10. TERMINATION. The Fund Company will provide the Trust Co. with ninety
(90) days prior written notice if purchase Orders may no longer be
effected in accordance with this Agreement. Such termination shall not
affect the remaining provisions of this Agreement and redemption Orders
shall continue to be effected. Either party may terminate this
Agreement upon ninety (90) day's prior written agreement to the Fund -
Company.
11. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties, supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, and shall not be
modified or amended except by a writing signed by both parties.
12. NOTICES. Unless otherwise specified, all notices and other
communications shall be in writing and shall be duly given if hand
delivered, delivered by facsimile with written confirmation, or mailed
by first class mail to the following addresses:
If to the Fund Company:
----------------------
The One Group
Attn: Xxxx Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
192
5
13. SEVERABILITY. If any provision of this Agreement are held or made
invalid by a statute, rule, regulation , decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected and,
to this extent, the provisions of this Agreement shall be deemed to be
severable.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
state of Ohio, except as such laws are superseded by or preempted by
any Federal law.
15. ASSIGNMENT. This Agreement may not be assigned by either party without
the prior written consent of the other party.
16. DISPUTE RESOLUTION AND ARBITRATION. Any controversy or claim arising
out of or relating to this Agreement, or the breach of the same which
gives rise to a remedy at law, shall be settled through consultation
and negotiation in good faith and a spirit of mutual cooperation.
However, if those attempts fail, the parties agree that any
misunderstandings or disputes arising from this Agreement shall be
decided by arbitration which shall be conducted, upon request by either
party, before three (3) arbitrators (unless both parties agree on one
(1) arbitrator) designated by the American Arbitration Association (the
"AAA"), in accordance with the terms of the Commercial Arbitration
Rules of the AAA, and, to the maximum extent applicable, the United
States Arbitration Act (Title 9 of the United States Code), or if such
Act is not applicable, any substantially equivalent Ohio state law. The
parties further agree that the arbitrator(s) will decide which party
must bear the expenses of the arbitration proceedings. The arbitration
will take place in Columbus, Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date set forth above.
THE ONE GROUP SECURITY TRUST CO.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxx Xxxxxx
-------------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxx Xxxxxx
------------------------------- -----------------------------
Title: Vice President Title: Manger
---------------------------- ---------------------------
193
