Exhibit (h)(45)
Agency Services Agreement dated as of August 2, 2002
between One Group Mutual Funds and Xxxxxx Fiduciary Trust Company
ONE GROUP MUTUAL FUNDS
AGENCY SERVICES AGREEMENT
THIS AGENCY SERVICES AGREEMENT is made as of the 2nd day of August, 2002,
by and between One Group Mutual Funds, a registered investment company under the
Investment Company Act of 1940 (the "1940 Act") with its principal office at
0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000-0000 (the "Trust") and Xxxxxx Fiduciary
Trust Company, a Massachusetts trust company with its principal office at Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("PFTC").
WHEREAS, PFTC has agreed to provide certain administrative and
recordkeeping services as agent for certain employee benefit plans, profit
sharing plans, and retirement plans (the "Plans") for certain portfolios of the
Trust (the "Funds"), and is a transfer agent registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Appointment of PFTC. The Trust hereby appoints PFTC as an agent for the
Trust for the sole purpose of accepting orders for the purchase, and
requests for redemption, of the authorized and issued shares of beneficial
interest or common stock of the Funds (the "Shares") purchased, held or
redeemed by a Plan (collectively referred to as "Instructions"). PFTC
accepts such appointment and agrees to render the services herein set forth
for the compensation herein provided.
2. Duties of the Parties.
2.01 PFTC shall perform the following services:
(a) Receive from the Plans orders for the purchase of Shares by the
close of regular trading on the New York Stock Exchange (the
"Close of Trading") each business day that the New York Stock
Exchange is open for business ("Business Day"), transmit such
orders to the Transfer Agent, a designated agent of the Trust,
for acceptance on such Business Day and promptly deliver or
instruct the Plans (or the Plans' Trustee(s) as the case may be)
to deliver payment and appropriate documentation therefor to
Transfer Agent for acceptance;
(b) Receive from the Plans by the Close of Trading each Business Day
redemption requests and redemption directions, transmit such
requests and directions to the Transfer Agent and deliver
appropriate documentation therefor to Transfer Agent, in each
case for acceptance on such Business Day; and
(c) As instructed, maintain adequate records related to, and advise
Transfer Agent as to, the foregoing. To the extent required under
the 1940 Act and rules thereunder, PFTC agrees that such records
maintained by it will be preserved, maintained and made available
in accordance with the provisions of the 1940 Act and rules
thereunder, and copies or, if required, originals, will be
surrendered promptly. Subject to the foregoing, records
surrendered hereunder shall be in machine readable or optical
disk form. This provision shall survive the termination of this
Agreement.
2.02 PFTC shall maintain adequate offices, personnel and computer and other
equipment to perform the services contemplated by this Agreement. PFTC
shall notify the Trust promptly in the event that it becomes unable
for any reason to perform the services contemplated by, or any other
of its obligations under, this Agreement.
2.03 The parties hereto shall take all steps necessary to ensure that the
arrangements provided for in this Agreement are properly disclosed to
the Plans.
2.04 In accordance with procedures established from time to time by
agreement of the parties hereto, the Trust shall instruct the Transfer
Agent to furnish to PFTC, for each Fund, no later than 6:30 p.m.
Eastern Time on each Business Day as appropriate:
(a) Net asset value information as of the Close of Trading each
Business Day when such information is used for crediting
accounts; and
(b) Dividend and capital gains distribution information, as it
arises, when such information is used for crediting accounts; and
(c) Daily accrual for interest rate factor (mil rate) information
with respect to Funds which declare dividends daily, when such
information is used for crediting accounts.
(d) In addition, the Transfer Agent will transmit daily net asset
value information and daily accrual for interest rate factor (mil
rate) information as of the Close of Trading each Business Day to
PFTC via the NSCC's Mutual Fund Profile System ("MFPS") no later
than 7:30 p.m. Eastern Time on each Business Day.
2.05 (a) Orders derived from, and in amounts equal to, Instructions
received by PFTC prior to the Close of Trading on any Business
Day ("Day 1") shall be transmitted to PFTC via the Fund/SERV
system to the Transfer Agent no later than 5:00 a.m. Eastern Time
on the next Business Day ("Day 2"). Such trades will be effected
at the net asset value of each Fund's shares calculated as of the
Close of Trading on Day 1 subject to the terms of such Fund's
prospectus. In the event of an error or delay with respect to the
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transmittal of such orders by PFTC, PFTC may resubmit such order
to the Transfer Agent via the Fund/SERV system on the Business
Day following Day 2 and Transfer Agent shall effect such trade as
of the original placement date.
(b) To the extent that such orders are not transmitted to the
Transfer Agent via the Fund/SERV system, such orders shall be
transmitted via facsimile to the Transfer Agent by 9:30 a.m.
Eastern Time on the next Business Day. Such trades shall be
effected at the net asset value of each Fund's shares calculated
as of the Close of Trading on Day 1 subject to the terms of such
Fund's prospectus.
2.06 PFTC agrees that all books, records, information and data pertaining
to the business of the Transfer Agent which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement
shall remain confidential and shall not be voluntarily disclosed to
any other person, except as may be required by law.
2.07 PFTC shall maintain or provide for redundant facilities and shall
maintain or provide for backup files of its records maintained
hereunder and shall store such back-up files in a secure off-premises
location, so that in the event of a power failure or other
interruption of whatever cause at the location of its records such
records are maintained intact and transactions can be processed at
another location.
2.08 The parties hereto shall furnish to each other such information as may
reasonably be requested (including without limitation periodic
certifications confirming the provision of the services described
herein), and will otherwise cooperate with each other (including
without limitation any auditors designated by the Trust) in connection
with reports to the Trust's Board of Trustees concerning this
Agreement and the monies paid or payable pursuant hereto, as well as
any other reports or filings that may be required by law.
2.09 The parties hereto shall comply with federal and state securities laws
and regulations thereunder in connection with their responsibilities
under this Agreement.
2.10 In accordance with the procedures established from time to time by
agreement of the parties hereto, the Trust shall cause the Transfer
Agent to promptly furnish to PFTC in the frequency requested, for each
Fund:
(a) Copies of prospectuses, financial statements, reports or other
materials relating to each Fund, and updates of such materials,
in the quantity requested by PFTC as such updates become
available; and
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(b) Performance data for each Fund, including without limitation
total return and current yield information computed in accordance
with applicable regulations and other performance information as
PFTC may reasonably request.
(c) Such copies and performance data as described in subsections (a)
and (b) above (collectively "Fund Information") may be received
by PFTC through electronic means or in disk format. PFTC is
authorized to distribute such Information to the Plan and plan
participants via Internet, other electronic means or hard copy as
long as it complies with SEC rules and regulations regarding
electronic delivery applicable to such distribution.
(d) With respect to the Fund Information received electronically or
in disk format, PFTC represents, warrants and covenants that it
shall not alter in any way such Fund Information provided by the
Trust and shall promptly make available updated Fund Information
after PFTC receives such Fund Information from the Trust in the
format specified in subsection (c) above. The Trust represents,
warrants and covenants that Fund Information shall be promptly
delivered electronically or in disk format to PFTC.
2.11 Purchases and sales of the Funds are subject to the terms of the
Funds' prospectuses.
2.12 The Trust hereby authorizes PFTC, for purposes of section 2.10
concerning the transmission of performance data, to utilize Lipper
Analytical Services in reporting the performance of the Fund(s).
2.13 On each Business Day for which PFTC has transmitted orders for
purchases, exchanges or redemptions for a Plan, Transfer Agent shall
send to PFTC via the Fund/SERV system, verification of such purchases,
exchanges or redemptions or notification of the rejection of such
orders ("Confirmations"). Such Confirmations shall include the total
number of Shares of each Fund held by a Plan following such purchases,
exchanges or redemptions. Transfer Agent shall submit, in a timely
manner, such Confirmations to the Fund/SERV system in order for PFTC
to receive no later than 11:00 a.m. Eastern Time the next Business
Day.
2.14 (a) In the event there are purchase and redemption orders
received by the Transfer Agent within the time limits set forth
above on any Business Day for any Fund, settlement shall occur
consistent with the requirements of the Fund/SERV system.
(b) For those purchase orders not transmitted via the Fund/SERV
system, PFTC shall make payment to the Trust or its designated
agent in federal funds no later than the close of the Fedwire
system on the Business Day
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following the day on which the Instructions are treated as having
been received by the Trust pursuant to this Agreement.
(c) For those redemption orders not transmitted via the Fund/SERV
system, the Trust shall make payment in federal funds no later
than the close of the Fedwire system on the Business Day
following the day on which the Instructions are treated as having
been received by the Trust pursuant to this Agreement.
2.15 The Transfer Agent will transmit to PFTC via the NETWORKING system
those Networking activity files reflecting all account activity
including but not limited to closing account balance, purchases,
redemptions, capital gains, dividends, price and share adjustments.
Such files must be received by PFTC on the Business Day following Day
2.
2.16 In the case of Instructions which constitute a purchase order
originating from the redemption of shares of either Bank One common
stock ("Bank One Purchase Orders") or Textron, Inc. common stock
("Textron Purchase Orders"), settlement shall occur by PFTC initiating
to the Trust a wire transfer by 1:00 p.m. Eastern Time on the third
successive Business Day ("T+3") following PFTC's communication of such
Instructions to the Trust in accordance with and within those time
frames and procedures currently agreed upon between the parties.
3. Compensation. For the services which PFTC shall render to the Trust under
this Agreement, the Trust will pay to PFTC a fee on a quarterly basis, at
the rate or rates as set forth in Schedule A.
4. Representations and Warranties.
4.01 Each party represents and warrants to the other parties 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 and the registrations are and will remain
in full force and effect during the term of this Agreement;
(c) It is empowered by its charter and bylaws and under applicable
law to enter into and perform this Agreement; and
(d) All requisite actions have been taken to authorize it to enter
into and to perform this Agreement.
4.02 In addition, PFTC represents and warrants to the Trust that:
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(a) It is duly registered as a transfer agent under section 17A of
the Exchange Act; and
(b) It maintains and knows of no reason why it cannot or will not
during the term hereof maintain adequate offices, personnel and
computer and other equipment to perform the services contemplated
by this Agreement.
4.03 In addition, the Trust represents and warrants that it is registered
as an investment company under the 1940 Act.
5. Indemnification.
5.01 Each party (an "Indemnitor") agrees to indemnify and hold harmless
each other party, their respective trustees or directors, officers,
agents, employees and each person, if any, who controls them within
the meaning of the Securities Act of 1933 ("1933 Act") (collectively,
"Indemnified Parties"), against any losses, claims, damages,
liabilities or expenses (including any legal or other expenses
reasonably incurred by them in connection with investigating or
defending such loss, claim or action) to which an Indemnified Party
may become subject insofar as those losses, claims, damages,
liabilities or expenses (or actions in respect thereof), arise out of
or are based upon (a) any negligent act or omission by an Indemnitor
or its agents relating to the performance of its obligations under
this Agreement; (b) any breach by the Indemnitor of its
representations or warranties contained in this Agreement; (c) the
Indemnitor's failure to comply with any of the terms of this
Agreement; or (d) the acceptance by any Indemnified Party of any
transaction or account maintenance information from the Indemnitor
with respect to the Plans or their assets. Each party represents and
warrants that at all times it has sufficient financial resources,
whether through a fidelity bond or otherwise, to meet all of its
indemnification obligations arising under this Agreement.
Notwithstanding the foregoing, there shall be no indemnification
obligation between the parties arising out of the failure of any Plan
to provide good funds for the settlement of any transaction authorized
by a Plan.
5.02 In order that the indemnification provisions contained herein shall
apply, upon the assertion of a claim or loss for which a party may be
required to indemnify the other, the party seeking indemnification
shall promptly notify the other parties of such assertion or loss and
shall keep the others advised with respect to all developments
concerning such claim. An Indemnitor shall have the option to assume
the defense of a claim at its expense, or to participate at its
expense with the party or parties seeking indemnification in the
defense of such claim. The party seeking indemnification shall in no
case confess any claim or make any
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compromise in any case in which the other parties may be required to
indemnify it except with the other party's prior written consent.
5.03 The obligations of the parties hereto under this Section 5 shall
survive the termination of this Agreement.
6. Acknowledgments. PFTC acknowledges that the Trust, as a registered
investment company under the 1940 Act, is subject to the provisions of the
1940 Act and regulations thereunder, and that the offer and sale of its
shares are subject to the provisions of federal and state laws and
regulations applicable to the offer and sale of securities. The Trust
acknowledges that PFTC is not responsible for the Trust's compliance with
such laws and regulations.
7. Duration and Termination of Agreement. This Agreement will become effective
as of the date hereof and may be terminated by each party upon ninety (90)
days written notice to the other parties. This Agreement shall terminate
immediately upon written notice to the other parties in the event that:
(a) PFTC becomes unable for any reason to perform the services
contemplated by this Agreement;
(b) The Trust ceases to offer investment alternatives under the
Plans; or
(c) At any time, the authorizations, licenses, qualifications or
registrations required to be maintained by PFTC in connection
with the performance of its duties hereunder shall lapse or cease
to remain in full force and effect.
Upon termination of this Agreement, each party shall return to the other
parties all copies of confidential or proprietary materials or information
receive from such other parties hereunder other than materials or
information required to be retained by such party under applicable laws or
regulations. The obligations of the parties under this section shall
survive the termination of this Agreement.
8. Assignment. Neither this Agreement nor any rights of obligations hereunder
may be assigned or delegated by either party without the written consent of
the other parties. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
9. Notices. Notices hereunder shall be in writing, shall be delivered
personally, sent by certified mail (return receipt requested), or sent by
facsimile machine in accordance with procedures established by agreement of
the parties hereto, and shall be addressed to a party either at his address
below or at a changed address specified by it in a notice to the other
parties hereto:
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One Group Mutual Funds
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
ATTN: Xxxx X. Xxxxxx
DCPA
Level 1
Location 33
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
ATTN: Xxxxxxxx X. Xxxx, Managing Director
10. Amendment. This Agreement may be amended or modified only by a written
agreement executed by the parties.
11. Trust Liability. The names "One Group Mutual Funds" and "Trustees of One
Group Mutual Funds" refer, respectively, to the trust created and the
trustees, as trustees, but not individually or personally, acting from time
to time under a Declaration of Trust dated as of Xxxx 23, 1985 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
claim against the Trust.
12. Governing Law. This Agreement shall be constructed and the provisions
thereof interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts.
13. Headings. Paragraph headings in this Agreement are included for convenience
or reference only and are not to be used to construe or interpret this
Agreement.
14. Money Laundering. Each party agrees to establish and maintain policies and
procedures required by federal, state or local law to detect and prevent
money laundering, and each party shall cooperate with the other to the
extent required by law to facilitate implementation of each other's
anti-money laundering program.
15. Privacy of Non-Public Personal Information. Each party hereto agrees to
establish and maintain policies and procedures designed to insure the
confidentiality of non public personal information, as the term is defined
under federal law including, but not limited to, the Xxxxx-Xxxxx-Xxxxxx
Act, as it may be amended, and any regulations promulgated
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thereunder ("Non-Public Personal Information"). Each party hereto agrees
that any Non-Public Personal Information that may be disclosed by a party
hereunder is disclosed for the specific purpose of permitting the other
party to perform the services set forth in this Agreement. Each party
agrees that, with respect to such information, it will comply with
applicable federal regulations promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
applicable to such party, and that it will not disclose any Non-Public
Personal Information received in connection with this Agreement to any
other party, except to the extent required to carry out the services set
forth in this Agreement or as otherwise permitted by law. This provision
shall survive termination of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written. This Agreement is intended
to set forth the rights, duties and responsibilities between the Trust and
PFTC with respect to the matters covered herein. Nothing contained in the
Agreement is intended to convey rights to any third parties, such as Plans,
Plan participants or the Transfer Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXX FIDUCIARY TRUST COMPANY ONE GROUP MUTUAL FUNDS
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------- ---------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxx
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Title: Senior Vice President - Xxxxxx Title: President
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Fiduciary Trust Company
Date: 11/19/02 Date: 11/13/02
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10/24/02
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SCHEDULE A
FEES AND EXPENSES
The fees referred to in Section 3 of this Agreement shall be as follows:
Effective July 1, 2002, the fee shall be paid by the Trust and will be
equivalent on an annual basis to the lesser of $18 per participant account
per mutual fund or 0.20% of the average daily net assets of the mutual
funds attributable to the Plans. The calculation is computed and paid on a
quarterly basis.
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