1
Exhibit (h)(37)
Late Order Processing Agreement
between
American General (VALIC) Retirement Services Co.
and
One Group Mutual Funds
2
LATE ORDER PROCESSING AGREEMENT
AGREEMENT made as of ___________________, by and between American General
Retirement Services Co. ("Company") and the One Group (the "Trust").
WHEREAS, the Company and the Trust have entered into an Agency Agreement, which
is incorporated herein by reference, under which the Trust will retain the
Company to perform certain recordkeeping and accounting services and functions
with respect to transactions in shares of series ("Funds") of the Trust 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, the Company will act as the agent 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 Company is responsible for transmitting such Orders to the Trust'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 Trust or its designee shall
furnish the Company 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 Trust is open for business
("Business Day"), and dividend and capital gains information
as it arises. The Trust or its designee shall use its best
efforts to provide such information by 6:30p.m., ET on each
Business Day.
2. THE COMPANY'S RECEIPT AND TRANSMISSION OF ORDERS.
a) The Company will aggregate all purchase, redemption
and exchange instructions made by or on behalf of
Plan Participants and communicate to the Fund Company
as aggregate Purchase, redemption or exchange Order
for each fund as described in the Agency Agreement.
b) The Company agrees that (i) Orders derived from
Participant Instructions received by the Company
prior to the Market Close on any Business Day of the
Trust, as defined in the Trust'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 Company after the Market
Close ("Day 2 Trades") on Day 1 will be
electronically transmitted to the Trust on the next
Business Day following Day 1 ("Day 2").
185
3
c) If the Company cannot electronically transmit Day 1
Trades by 5:00 a.m. on Day 2, the company 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 Trust
electronically by 5:00 a.m., ET on Day 2 or faxed 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 electronically by the Trust by 5:00 a.m., ET on
day 3 or faxed prior to 7:00 a.m. on Day 3. The Trust agrees
that, consistent with the foregoing, Day 1 Trades will have
been received by the Trust prior to the Market Close on Day 2
for all purposes, including, without limitation, effecting
distributions.
4. CONFIRMATIONS. The Trust will send a confirmation of each
Business Day's Order via electronic transmission by the Market
Close on Day 2 for Day 1 Trades received by 5:00 a.m. on Day 2
or via facsimile by the Market Close on Day 2 for Day Trades
received by 7:00 a.m. on Day 2.
5. ROLE OF THE COMPANY. The parties acknowledge and agree that,
except as specifically provided in this Agreement and for the
sole and limited purposes set forth herein, the Company acts
as agent for the Plans in connection with the effectuation of
orders subject to this Agreement. The parties agree that the
Company is not an agent of the Trust 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 Company
hereunder are the property of the Trust 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 Trust and
its agents (or independent accountants) upon request. This
Section 6 shall survive termination of this Agreement.
7. REPRESENTATION 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 Trust is duly registered as a registered
investment company under the Investment Company Act
of 1940.
186
4
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 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 or, any such transmission as promptly as
possible.
9. LIMITATION OF LIABILITY. The Company shall not be liable to
the Trust 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 Company's own bad faith,
willful misfeasance, negligence or from its reckless disregard
of its obligations and duties.
The Trust shall not be liable to the 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 of
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 Trust will provide the Company with sixty
(60) days prior written notice if purchase Orders may no
longer be effected in accordance with the Agreement. Such
termination shall not affect the remaining provisions of this
Agreement and redemption Orders shall continue to be effected.
Either party may terminate the Agreement upon sixty (60) days
prior written agreement to the Trust.
11. ENTIRE AGREEMENT. This Agreement represents the entire Late
Order Processing 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 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 Trust:
One Group
Attn: Xxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
187
5
If to the Company:
American General Retirement Services Co.
Attn: Xxxx Xxxxxxx, L13-10
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
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 misunderstanding or disputes
arising form 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.
One Group American General Retirement Services Co.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
------------------------------------- ---------------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx Xxxxxxx
----------------------------------- -------------------------------------------
Title: President Title: Vice President
----------------------------------- -----------------------------------------
188
