Exhibit (h)(51)
Recordkeeping Agreement for Defined Contribution Plans
dated as of November 21, 2002 between Xxxxxx Associates LLC
and One Group Mutual Funds.
Recordkeeping Agreement
For Defined Contribution Plans
Agreement made as of the 21st day of November 2002, by and among Xxxxxx
Associates LLC ("Xxxxxx") and One Group Mutual Funds ("Fund Company" or
"Trust").
Witnesseth
Whereas: Fund Company is an open-end, management investment company
registered under the Investment Company Act of 1940, as amended (the "Act"),
consisting of those series identified on Schedule A attached hereto, as such
Schedule may be amended from time to time by the parties hereto (the "Funds");
Whereas: Fund Company desires that Xxxxxx serve as recordkeeper to receive
and transmit as agent of the Funds instructions and confirmations in connection
with purchase and redemption of shares of the Funds by those certain employee
benefit, profit-sharing and retirement plans for which Xxxxxx now performs or
intends to perform administrative and recordkeeping services ("Plans") when,
with respect to the Fund Company, each Plan maintains with the Fund Company's
transfer agent ("Transfer Agent") a single master shareholder account
Now, Therefore, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Appointment of Xxxxxx. Fund Company hereby appoints Xxxxxx as
recordkeeper with respect to shares of the Funds purchased and held by Plans,
and Xxxxxx accepts such appointment, on the terms set forth herein. Fund Company
or its designee will furnish Xxxxxx, for each Fund, with: (1) confirmed net
asset values calculated as of the close of trading (currently 4:00 p.m. New York
time) on the New York Stock Exchange (the "Close of Trading") on each business
day that the New York Stock Exchange is open for business (each a "Business
Day"), (2) shareholder income and capital gain dividend information as it
arises, and (3) in the case of income Funds, the daily accrual for interest rate
factor (mil rate). Fund Company or its designee shall use its best efforts to
provide such information to Xxxxxx by 6:00 p.m. New York time. As recordkeeper
for the Funds, Xxxxxx shall, on behalf of the Fund Company, receive from Plans
for acceptance as of the Close of Trading on each Business Day (based upon the
Plans' receipt of instructions from participants of the Plans prior to the
Closing of Trading on such Business Days): (a) orders for the purchase of shares
of the Funds and (b) redemption requests and redemption directions with respect
to shares of the Funds held by Plans (both (a) and (b) herein being hereinafter
referred to as "Instructions"). Xxxxxx shall be deemed the agent of the Fund
Company 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 Xxxxxx nor
any person to which Xxxxxx may delegate any of its duties hereunder shall be or
hold itself out as an agent of the Transfer Agent or the Fund Company.
2. Fund Receipt of Instructions. Xxxxxx shall, via facsimile or other means
as the parties may agree, to send Instructions to the Transfer Agent for receipt
by Fund Company by a time no later than 9:30 a.m. (New York Time) on each next
following Business Day; provided, however, that such Instructions will be
recognized as having been received on behalf of the Funds by Xxxxxx as agent for
the Funds as of the Close of Trading on such previous Business Day; provided
further,
Xxxxxx Associates 1 SUBTRAN\SUBTRANSFER.DOC
however, that Xxxxxx received such Instructions prior to the Close of Trading on
the previous Business Day. For Instructions sent electronically, the Transfer
Agent, on behalf of the Funds, shall electronically send a confirmation to
Xxxxxx of its receipt of the Instructions within 180 minutes of its receipt
thereof. For Instructions sent via facsimile, Xxxxxx'x receipt of a report from
the facsimile machine that the Instructions were transmitted successfully shall
serve as confirmation of Fund Company's receipt of such Instructions.
3. Representations of Xxxxxx. Xxxxxx represents that:
(a) it has full power and authority to enter into and perform this
Agreement;
(b) it is registered as a transfer agent pursuant to Section 17A of
the Securities Exchange Act of 1934, as amended (the "1934 Act");
(c) the arrangements provided for in this Agreement will be disclosed
to the Plans through their representatives;
(d) it will comply with all applicable requirements of laws, rules and
regulations of governmental or self-regulatory authorities having
jurisdiction for the acts and duties of Xxxxxx under this Agreement;
(e) it will only forward to Transfer Agent for purchase or redemption
as of the Close of Trading on each Business Day Instructions it
receives prior to the Close of Trading on such day; and
(f) it will promptly notify Fund Company in the event that Xxxxxx is
for any reason unable to perform any of its obligations under this
Agreement.
4. Representations of Fund Company. Fund Company represents that:
(a) it has full power and authority to enter into and perform this
Agreement and is duly authorized to appoint Xxxxxx as recordkeeper for
the Funds; and
(b) it will promptly notify Xxxxxx in the event that it is for any
reason unable to perform any of its obligations under this Agreement.
5. Confidentiality; Security. Fund Company: (a) shall keep confidential
by using the same care and discretion it uses with respect to its own
confidential property and trade secrets, (b) shall not without the express prior
written consent of Xxxxxx (which shall be deemed given hereby with respect to
the Funds and their representatives, to the extent necessary or appropriate for
the proper operation of the Funds, and to any governmental body or
self-regulatory organization, to the extent required to comply with legal
requirements and lawful requests) make or permit disclosure of, and (c) shall
use reasonable care to cause others to which it makes permitted disclosure to
keep confidential: (i) all proprietary data, software, processes, information
and documentation provided by Xxxxxx or relating to any of the Plans (including
the identity of the Plans and information regarding Participants) ("Proprietary
Information") and (ii) the provisions of this Agreement. Each party hereby
irrevocably authorizes the other to act in accordance with and rely upon
Instructions and notices received by it from the other. Each party acknowledges
that it is its own responsibility to assure that only its authorized persons use
its respective internal systems on its behalf; provided,
Xxxxxx Associates 2 SUBTRAN\SUBTRANSFER.DOC
however, that each party shall only be liable hereunder for use of its system by
unauthorized persons who have obtained access thereto as a result of the bad
faith or willful misconduct of such party or any of its officers or employees.
6. Warranties; Liability for Data Transmission. Notwithstanding anything
else in this Agreement to the contrary, Xxxxxx shall have no liability to Fund
Company for any losses, damages, injuries, claims, cost or expenses arising as a
result of a delay, omission or error in the transmission of an Instruction, for
machine or computer breakdown or malfunction, interruption or malfunction of
communication facilities, labor difficulties or any other similar or dissimilar
acts of God, which are beyond Xxxxxx'x reasonable control.
7. Price Errors. Fund Company will follow its internal policies to
determine whether an adjustment is necessary to correct any error in the
computation of the net asset value per share for any Fund.
(a) Notification. If an adjustment is required to correct any error in
the computation of the net asset value of shares ("Price Error"), Fund
Company or its designee shall notify Xxxxxx as soon as practicable
after discovering the Price Error. Notice may be made via facsimile or
via direct or indirect systems access and shall state the incorrect
price, the correct price and, to the extent communicated to the Fund's
other shareholders, the reason for the price change.
(b) Underpayments. If a Price Error causes a Plan to receive less than
the amount to which it would otherwise have been entitled prior to a
price adjustment, Xxxxxx shall make adjustments to accurately reflect
the number of shares held by the Plan.
(c) Overpayments. If a Price Error causes a Plan to receive more than
the amount to which it otherwise would have been entitled, Xxxxxx,
when requested by Fund Company, will make a good faith attempt to
collect such excess amount from the affected Plan. Absent Xxxxxx'x
failure to make such a good faith attempt, however, Xxxxxx will in no
event be liable to any of the parties for any such amounts if, prior
to notice from Fund Company of a price adjustment, such amounts were
distributed to the Plan.
(d) Expenses. If a Price Error causes Xxxxxx to make adjustments to
the accounts for the Plans, Fund Company will reimburse Xxxxxx for all
reasonable costs and expenses (including reasonable hourly
compensation for any personnel utilized by Xxxxxx in making such
adjustments) incurred by Xxxxxx in making such adjustments and agreed
upon by Fund Company prior to Xxxxxx incurring such costs and
expenses.
8. Information Regarding Plans. Xxxxxx shall transmit to Transfer Agent
or the Funds (or to any agent designated by either of them) such information
concerning Plans (including participants in the Plans) as shall reasonably be
necessary for Transfer Agent to provide the services contemplated by this
Agreement and as any Fund shall reasonably conclude is necessary to enable the
Funds to comply with applicable state Blue Sky laws.
9. Compensation of Xxxxxx. In consideration for providing the services
under this Agreement, Fund Company shall pay Xxxxxx the fee set forth in
Schedule B attached hereto.
Xxxxxx Associates 3 SUBTRAN\SUBTRANSFER.DOC
10. Indemnification. Except with respect to matters excluded from liability
pursuant to paragraphs 5, 6 or 7 hereof or this paragraph 10, each of Fund
Company and Xxxxxx (an "Indemnitor") shall indemnify and hold harmless the
other, and its respective officers, directors, partners, trustees, shareholders
and agents ("Indemnitees"), against any claims or liabilities suffered by all or
any of such Indemnitees to the extent arising out of any negligent act of
commission or omission by the responsible Indemnitor relating to this Agreement
or the services rendered hereunder, including reasonable legal fees and other
out-of-pocket costs of defending against any such claim or liability.
11. Non-Solicitation. Fund Company agrees on behalf of itself and its
affiliates that during the course of this Agreement, it will not attempt to
deprive Xxxxxx of business opportunities or existing business by providing
information to competitors of Xxxxxx or its affiliates concerning Xxxxxx'x or
its affiliates business plans, marketing efforts, existing relationships with
plan sponsors, or proposals for business that they have outstanding with plan
sponsors (other than information that a competitor has already obtained from
another source or is generally known within the industry).
12. Records and Reporting. Xxxxxx 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,
Xxxxxx will provide copies of historical records relating to transactions
involving the Fund Company and participants; written communications regarding
the Fund Company to or from participants; and other materials relating to the
provision of services by Xxxxxx under this Agreement. Xxxxxx will comply with
any reasonable request for such information and documents made by the Fund
Company, or its board of Trustees or any governmental body or self-regulatory
organization. Xxxxxx agrees that, with respect to the Plans regarding which it
is providing services under this Agreement, Xxxxxx will permit the Fund Company,
the Transfer Agent, or their representatives to have reasonable access to its
personnel and records in order to facilitate the monitoring of the quality of
the services provided by Xxxxxx. Notwithstanding anything herein to the
contrary, Xxxxxx shall not be required to provide the names and addresses of
participants to the Transfer Agent or the Fund Company, unless applicable law or
regulation otherwise requires.
13. Non-Exclusivity. Fund Company acknowledges and agrees that Xxxxxx may
enter into agreements similar to this Agreement with organizations other than
Fund Company. Xxxxxx acknowledges and agrees that, except as set forth in this
paragraph 13, nothing contained herein shall prohibit Fund Company from entering
into similar agreements with organizations other than Xxxxxx.
14. Term of Agreement. This Agreement shall become effective as of the date
first set forth above. It shall continue in effect for an initial term of one
year and thereafter from year to year after its initial term until terminated in
accordance with the provisions hereof. This Agreement may be terminated at any
time after its initial term by either party upon ninety days written notice to
the other party. Notwithstanding the foregoing, this Agreement shall be
terminated immediately upon either: (i) a material breach by either party not
cured within the shorter of a reasonable time or 30 days after notice from the
other, or (ii), with regard to any single Plan, upon termination of services
from either party to such Plan. Upon the termination of this Agreement for any
reason, Xxxxxx and Fund Company shall return to the other party all copies of
all Proprietary Information which are in the possession or control of Xxxxxx and
Fund Company or any party, including, without limitation, affiliates of either
party to which were distributed such Proprietary Information, although this
provision shall not apply to any information, records or material which either
Xxxxxx or Fund Company is required to retain pursuant to applicable laws and
regulations. The provisions of paragraph 10 and this paragraph 14 shall survive
any termination of this Agreement. In the event that
Xxxxxx Associates 4 SUBTRAN\SUBTRANSFER.DOC
this Agreement terminates, and Xxxxxx continues to provide administrative and
recordkeeping services of the nature provided for herein to any Plan which
continues to invest in the Funds, the compensation provided for in paragraph 9
herein shall continue.
15. Notices. All notices and other communications hereunder (other than
information required to be provided from Fund Company to Xxxxxx pursuant to
paragraph 1) shall be in writing and shall be hand delivered or mailed by
certified mail or overnight courier to the other party at the following address
or such other address as each party may give notice to the other:
If to Xxxxxx:
000 Xxxx Xxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
If to Fund Company:
(post office address)
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
(overnight delivery address)
0000 Xxxxxxx Xxxxxxx, Xxxxx 0-X/X/X, XX0-0000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
16. Amendment, Assignment and Other Matters. This Agreement may not be
amended except by a writing signed by each party to the Agreement. This
Agreement shall not be assigned 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 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 State of
Illinois, without giving effect to the principles of conflicts of law thereof.
17. Anti-Money Laundering. Xxxxxx will comply with all applicable laws and
regulations aimed at preventing, detecting, and reporting money laundering and
suspicious transactions and will (but only to the extent consistent with
applicable law) 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.
Xxxxxx will (but only to the extent consistent with applicable law) take all
steps necessary and appropriate to provide the Fund Company with any requested
information about investors and accounts in the event that the Fund Company
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,
Xxxxxx Associates 5 SUBTRAN\SUBTRANSFER.DOC
Xxxxxx will notify the Fund Company of any concerns that Xxxxxx may have in
connection with any investor in the context of relevant anti-money laundering
legislation/regulations.
18. Miscellaneous. 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.
In Witness Whereof, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxx Associates LLC One Group Mutual Funds
By: /s/ XX Xxxxxxxx III By: /s/ Xxxx X. Xxxxxx
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Title: Secretary Title: President
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Xxxxxx Associates 6 SUBTRAN\SUBTRANSFER.DOC
Schedule A
List of Funds
State
FUND Class A Class I Qualification *
---- ------- ------- ---------------
1. Small Cap Growth X X All
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2. Small Cap Value X X All
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3. Mid Cap Growth X X All
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4. Mid Cap Value X X All
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5. Diversified Mid Cap X X All
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6. Large Cap Growth X X All
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7. Large Cap Value X X All
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8. Equity Income X X All
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9. Diversified Equity X X All
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10. Balanced X X All
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11. Equity Index X X All
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12. Market Expansion Index X X All
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13. International Equity Index X X All
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14. Diversified International X X All
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15. Health Sciences X X All
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16. Ultra Short-Term Bond X X All
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17. Short-Term Bond X X All
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18. Intermediate Bond X X All
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19. Bond X X All
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20. Income Bond X X All
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21. Government Bond X X All
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22. Treasury & Agency X X All
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23. High Yield Bond X X All
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34. Investor Growth X X All
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35. Investor Growth & Income X X All
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36. Investor Balanced X X All
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37. Investor Conservative Growth X X All
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38. Prime Money Market X X All
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39. U.S. Treasury Securities Money Market X X All
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40. U.S. Government Securities Money Market X X All
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41. Institutional Prime Money Market X All
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42. Treasury Only Money Market X All
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43. Government Money Market X All
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44. Technology X X All
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45. Mortgage-Backed Securities X X Note 1
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* All = All 50 states plus Washington, D.C. and Puerto Rico
Xxxxxx Associates 7 SUBTRAN\SUBTRANSFER.DOC
* State Qualification Notes
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Class A Class I
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Note 1 Mortgage-Backed Securities All except DC & PR AK, AL, AR, CA, CO,
CT, DE, FL, GA, GU,
HI, ID, IL, IN, KS, KY,
MA, MI, MN, MS, NC,
NE, NJ, NY, NV, OH, OR,
PA, RI, SC, UT, VA,
VI, WI, WY
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Xxxxxx Associates 8 SUBTRAN\SUBTRANSFER.DOC
Schedule B
Fund Company shall pay a fee to Xxxxxx, calculated daily and paid monthly in
arrears equal to 0.10% for A shares and 0.20% for I shares per annum of the
daily net asset value of the total number of the applicable shares of each Fund
held by Plans, up to a maximum of $18.00 per account.
Xxxxxx Associates 9 SUBTRAN\SUBTRANSFER.DOC
