Exhibit (h)(86)
Recordkeeping Agreement dated as of November 11, 2002
between Security Trust Company and One Group Mutual Funds.
RECORDKEEPING AGREEMENT
AGREEMENT made as of November 11, 2002 by and between Security Trust
Company ("Recordkeeper") and One Group Mutual Funds (the "Trust"). For purposes
of this agreement the term "Recordkeeper" shall mean "Recordkeeper or its
designee."
WHEREAS, the Trust desires to enter into a Sub Transfer Agency Agreement
pursuant to which the Trust will retain the Recordkeeper or its designee to
perform certain Recordkeeping and accounting services and functions with respect
to transactions in Trust shares ("Shares") made by or on behalf of participants
in non-qualified deferred compensation plans sponsored by the respective
participant's employer and obtained through Bank One Corporation or any of its
affiliates or subsidiaries (the "Plans"), and with respect to holdings of Shares
maintained by or on behalf of such employers and participants, when with respect
to the Trust such Plans each maintain with the Trust's transfer agent ("Transfer
Agent") a single master shareholder account; and
NOW, THEREFORE, in consideration of the following premises and mutual
covenants, the parties agree as follows:
1. Services Provided by The Recordkeeper
When and to the extent requested by the Trust, the Recordkeeper agrees to
perform recordkeeping and account services and functions with respect to
transactions in Shares made by or on behalf of participants in the Plans
("Participants"), and with respect to holding of Shares maintained by or on
behalf of Participants, when with respect to the Trust the Plans each maintain
with the Transfer Agent Plan level shareholder accounts. To the extent
requested, the Recordkeeper will provide the following services:
A. Maintain separate records for each Participant reflecting Shares
purchased, redeemed and exchanged on behalf of such Participant and
outstanding balances of Shares owned by or for the benefit of such
Participant.
B. Prepare and transmit to each Plan and/or its Participants periodic
account statements indicating the number of shares of the Trust owned by or
for the benefit of Participants and purchases, redemptions and exchanges
made on behalf of Participants.
C. With respect to each Plan, aggregate all purchase, redemption and
exchange orders made by or on behalf of the Plan's Participants and
transmit instructions based on such aggregate orders ("Instructions") to
the Transfer Agent for acceptance.
D. Provide to the Trust, the Transfer Agent and/or other parties designated
by them such other information relating to transactions in and holdings of
Shares by or on behalf of Participants as is reasonably requested.
E. As agreed upon with the Trust, deliver or arrange for the delivery of
appropriate documentation in connection with orders.
2. Appointment as Agent For Limited Purpose
The Recordkeeper shall be deemed the agent of the Trust for the sole and
limited purpose of receiving purchase, redemption and exchange orders from
Participants and transmitting corresponding instructions to the Transfer Agent.
Except as provided specifically herein, neither the Recordkeeper nor any person
to which the Trust may delegate any of its duties hereunder shall be or hold
itself out as an agent of the Transfer Agent or the Trust.
3. Representations of Recordkeeper
The Recordkeeper agrees, represents and warrants that:
A. It will forward Instructions within such time periods and to such
parties as are specified by the Trust, the Transfer Agent, the Trust's
prospectuses and applicable law and regulation.
B. If and to the extent required under applicable federal and state
securities laws and regulations, it is duly registered pursuant to such
laws and regulations, it is not a "fiduciary" of any Plan as such term
defined in Section 3(21) of the Employment Retirement Income Security Act
of 1974, as amended ("ERISA"), and Section 4975 the Internal Revenue Code
of 1986, amended (the "Code"): and the receipt of any fees by it from the
Trust, and the corresponding reduction of fees payable to the Recordkeeper
by the Plan (or by the P1an sponsor, according to Recordkeeper's agreement
with the Plan) will not constitute a "prohibited transaction" for purposes
of Title I of ERISA and Section 4975 of the Code.
C. At all times during the term of this contract, the Recordkeeper will
maintain errors and omissions coverage in an amount not less than
$1,000,000 per occurrence, and in the aggregate. A certificate of insurance
evidencing such coverage will be provided by the Recordkeeper to One Group
Mutual Funds as soon as is practicable after commencement of this
Agreement.
4 Records and Reporting
The Recordkeeper will maintain and preserve all records as required by law
in connection with its provision of services under this Agreement. Upon the
reasonable request of the Funds or the Transfer Agent, the Recordkeeper will
provide copies of historical records relating to transactions involving the
Trust and Participants; written communications regarding the Trust to or from
Participants; and other materials relating to the provision of services by the
Recordkeeper under this Agreement. The Recordkeeper will comply with any
reasonable request for such information and documents made by the Trust, or its
board of Trustees or any governmental body or self-regulatory organization. The
Recordkeeper agrees that, with respect to the Plans regarding which it is
providing services under this Agreement, the Recordkeeper will permit the Trust,
the Transfer Agent, or their representatives to have reasonable access to its
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personnel and records in order to facilitate the monitoring of the quality of
the services provided by the Recordkeeper. Notwithstanding anything herein to
the contrary, the Recordkeeper shall not be required to provide the names and
addresses of Participants to the Transfer Agent or the Trust, unless applicable
law or regulation otherwise requires.
5. Ability to Provide Services
The Recordkeeper agrees to notify the Trust promptly if for any reason it is
unable to perform its obligations under this Agreement.
6. Compensation
A. In consideration of performance of the services by the Recordkeeper
hereunder, the Trust will compensate the Recordkeeper an amount equal on an
annual basis to 0.15% of the daily assets of the Trust in the Plan, up to a
maximum of the equivalent of $18.00 per participant account.
B. The Recordkeeper will permit the Trust and their representatives
(including counsel and independent accounts) with reasonable access to
its records to enable the Trust to verify that the Recordkeeper's
charges hereunder comply with the provisions of this Agreement. Such
access shall include, but not be limited to, up to four on-site
inspections of the Recordkeeper's records each calendar year.
C. The Recordkeeper shall calculate the compensation due under this
section 6 at the end of each quarter and shall send an invoice
therefor to the Trust. Each invoice shall be accompanied by a
statement setting forth the calculation of such compensation amount.
7. Indemnification
The Recordkeeper shall indemnify and hold harmless the Trust from and
against any and all losses and liabilities that it may incur, including without
limitation reasonable attorneys' fees, expenses and costs arising out of or
related to the performance or non-performance of the Recordkeeper of its
responsibilities under this Agreement, excluding, however, any such claims,
suits, loss, damage or costs caused by, contributed to or arising from any
non-compliance by the Trust with its obligations under this Agreement, as to
which the Trust as pertinent, shall indemnify, hold harmless and defend the
Recordkeeper on the same basis as set forth above.
8. Termination
This Agreement may be terminated at any time by either party hereto upon
ninety (90) days written notice to the other. The provisions of paragraphs 4 and
7 shall continue in full force and effect after termination of this Agreement.
9. Anti-Money Laundering
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The Recordkeeper will comply with all applicable laws and regulations aimed
at preventing, detecting, and reporting money laundering and suspicious
transactions and will take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices, to (i) obtain,
verify, and retain information with regard to investor identification and source
of investor funds, and (ii) to maintain records of all investor transactions.
The Recordkeeper will (but only to the extent consistent with applicable law)
take all steps necessary and appropriate to provide One Group with any requested
information about investors and accounts in the event that One Group shall
request such information due to an inquiry or investigation by any law
enforcement, regulatory, or administrative authority. To the extent permitted by
applicable law and regulations, the Recordkeeper will notify One Group of any
concerns that the Recordkeeper may have in connection with any investor in the
context of relevant anti-money laundering legislation/regulations.
10. Limitation of Liability of the Trustees and Shareholders
The names `One Group Mutual Funds' and `Trustees of 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 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.
11. Miscellaneous
This Agreement represents the entire Agreement between the parties with
regard to the matters described herein and may not be modified or amended except
by written instrument executed by both parties. This Agreement may not be
assigned by either party hereto without the prior written consent of the other
party. This Agreement is made and shall be construed under the laws of the State
of Ohio. This Agreement supersedes all previous agreements and understandings
between the parties with respect to its subject matter. If any provision of the
Agreement shall be held or made invalid by a statute, rule, regulation, decision
of a tribunal or otherwise, the remainder of the Agreement shall not be affected
thereby.
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IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
ONE GROUP MUTUAL FUNDS
By: /s/ Xxxxxx X. Xxxxx
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Title: Treasurer
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SECURITY TRUST COMPANY (Recordkeeper)
By: /s/ XXXXX
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Title: VP
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