1
Exhibit (10)(u)
Services (Agency) Agreement
between
Sungard Investment Products, Inc.,
The One Group Services Company
and
One Group Mutual Funds
2
EXPEDITER
MUTUALFUND
SERVICE AGREEMENT
-----------------
This Agreement is entered into as of September 20, 1999 by and among
SunGard Investment Products Inc. ("SunGard"), The One Group Services Company
(the "Company") and the One Group Mutual Funds (the "One Group Funds").
WHEREAS, SunGard owns and maintains a proprietary computer router
system, the Expediter System, which provides for the automated transmission to
certain mutual funds of purchase and redemption orders generated by accounting
software systems connected electronically to the Expediter System; and
WHEREAS, the Company is the distributor for the One Group Funds; and
WHEREAS, SunGard, the Company and the One Group Funds wish to provide
those investment advisers, employee benefit plans, banks, trust companies,
broker-dealers, insurance companies and other financial services entities that
utilize accounting software systems connected electronically to the Expediter
System (the "Participating Customers") with the opportunity to electronically
transmit their orders for the purchase or redemption of One Group Fund shares to
the One Group Funds; and
WHEREAS, SunGard, the Company and the One Group Funds desire that the
Participating Customers' orders for the purchase or redemption of One Group Fund
shares be transmitted through the Expediter System either directly to the One
Group Funds or indirectly to the One Group Funds via another router system; and
WHEREAS, the Company and the One Group Funds wish to appoint SunGard to
provide the automated transmission services described above and to provide
certain related administrative and recordkeeping services to the Participating
Customers which purchase shares of the One Group Funds, and SunGard wishes to
accept such appointment.
NOW, THEREFORE, the parties hereto agree as follows:
1. AVAILABILITY OF ONE GROUP FUND SHARES. The Company agrees to make
shares of the One Group Funds available to each Participating Customer that
utilizes an accounting software system connected electronically to the Expediter
System in providing recordkeeping and/or other administrative services with
respect to the following:
X ERISA Assets Reference Schedule A and Exhibit I
---------
X Banks and Trust Companies - Fiduciary Assets Reference Schedule B and Exhibit 2
---------
X Investment Advisory Assets Reference Schedule B and Exhibit 2
---------
X Trade Order Entry Terminal - All Assets Reference Schedule B and Exhibit 2
---------
3
X Bank Capital Markets - Fixed Income Assets Reference Schedule B and Exhibit 2
-------
X Bank Capital Markets - Equity Assets Reference Schedule B and Exhibit 2
------
X State Governments and Municipalities - Fixed Reference Schedule B and Exhibit 2
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X Income Assets
------
X Insurance Companies - Investment Management Reference Schedule B and Exhibit 2
------ Assets
X Broker-Dealers - All Assets Reference Schedule B and Exhibit 2
------
2. ACCOUNTS. Each Participating Customer that purchases shares of the
One Group Funds for its own account or on an omnibus level on behalf of several
clients may establish a single shareholder account ("Account") in each One Group
Fund in its own name as the record shareholder of such shares. In the
alternative, each Participating Customer that purchases shares of the One Group
Funds on behalf of its clients may establish an Account in each One Group Fund
in the name of each client as the record shareholder of the shares purchased on
such client's behalf, provided that each such record shareholder meets all of
the particular One Group Fund's investment minimums and other requirements.
3. RECORDKEEPING AND ADMINISTRATIVE SERVICES. SunGard shall provide
recordkeeping and administrative services which may include: (i) providing
necessary personnel and facilities to establish and maintain sub-accounts and
records on behalf of the beneficial owners of the Accounts, (ii) recording
beneficial owners' sub-account balances and changes thereto, including debits
and credits to such sub-accounts in the form of cash, dividends and shares of
the One Group Funds, (iii) providing statements to the beneficial owners of the
Accounts, and (iv) transmitting through the Expediter System the Participating
Customers' orders for the purchase and redemption of One Group Fund shares to
the One Group Funds or their designee either directly or indirectly via another
router system.
(a) SunGard may engage one or more third parties to act as its
agent or agents for the purpose of providing the recordkeeping and
administrative services described herein, provided, however, that the
appointment of any such agent shall not relieve SunGard of its
responsibilities or liabilities under this Agreement. Such agents shall
include banks or other service providers that provide recordkeeping and
administrative services. Unless otherwise indicated herein, all
references hereafter to "SunGard" shall include such agents.
(b) Certain of the recordkeeping and administrative services
described herein may be performed by one or more of SunGard's
affiliates in accordance with an agreement between such affiliate(s)
and a Participating Customer regarding the provision of automated
recordkeeping and accounting services or systems; provided, however,
that, except as otherwise provided herein, the provision of any such
services by SunGard's affiliates shall not relieve SunGard of its
responsibilities or liabilities under this Agreement, and, provided,
further, that the provision of such services pursuant to any agreement
between an affiliate and a Participating Customer shall be consistent
with the provision of such services hereunder. Unless otherwise
indicated herein, all references hereafter to "SunGard" shall include
such affiliates.
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(c) SunGard shall perform the recordkeeping and administrative
services described herein in accordance with any applicable conditions
set forth in each One Group Fund's prospectus and shall bear all
expenses of maintaining the facilities and personnel necessary to
perform such services; provided, however, that the One Group Funds
shall (i) maintain federal registration of their shares and comply with
all other applicable federal and state securities laws, rules and
regulations, including, without limitation, all state filing, notice
and fee provisions, and (ii) provide to each shareholder of record, at
their expense, proxy statements, shareholder reports, prospectuses and
all other such materials as are required by the Company, the One Group
Funds or applicable law to be distributed to either the record or the
beneficial owners of shares of the One Group Funds.
(d) The Company or the One Group Funds shall notify SunGard in
writing at least sixty (60) days in advance of any termination of this
Agreement with respect to any particular One Group Fund. Furthermore,
the Company or the One Group Funds shall notify SunGard as soon as
practicable if the offer or sale of shares of a One Group Fund in any
state or other jurisdiction within the United States of America is
suspended or restricted, or if the Company or the One Group Funds wish
to prevent SunGard from transmitting, or continuing to transmit,
purchase orders on behalf of Participating Customers who reside in a
particular state or other jurisdiction.
4. USE OF EXPEDITER SYSTEM. SunGard shall utilize the Expediter System
to transmit to the One Group Funds or their designee, either directly or
indirectly via another router system, orders from the Participating Customers
for the purchase and redemption of shares of the One Group Funds per Account in
each One Group Fund. In this regard, SunGard shall (i) provide and maintain the
Expediter System and all related software in order to link the Participating
Customers' accounting software with the One Group Funds or their designee; (ii)
train representatives of the One Group Funds or their designee in the use of the
Expediter System and any related software; (iii) make all upgrades of the
software available to the One Group Funds or their designee; and (iv) monitor
the use of the Expediter System and any related software to ensure accurate and
timely transmission of data. Orders for the purchase or redemption of shares of
the One Group Funds shall be processed in accordance with the Operating
Procedures attached hereto as follows:
Source of Orders Exhibit
---------------- -------
ERISA Assets 1
Non-ERISA Assets 2
The Operating Procedures may be amended or modified from time to time by
delivery of revised Exhibit(s) 1 and/or 2 to the One Group Funds. SunGard shall
make a good faith effort to give the One Group Funds not less than thirty (30)
days prior written notice of any changes in the Operating Procedures.
5. Records. Each party or its designee shall maintain and preserve all
records as required by law to be maintained and preserved in connection with the
provision by SunGard of services pursuant to this Agreement and in making shares
of the One Group Funds available to the Participating Customers.
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6. Fees.
(a) In consideration of the services and facilities to be
provided by SunGard pursuant to this Agreement, SunGard Investment
Products Inc. shall be entitled to receive the fees identified on the
Schedules attached hereto as follows:
Source of Orders Schedule
---------------- --------
ERISA Assets A
Non-ERISA Assets: B
All parties agree that the payments referred to herein are for
recordkeeping and administrative services only and are not for legal,
investment advisory or distribution services.
(b) The parties hereto agree and understand that, to the
extent the fees payable to SunGard Investment Products Inc. hereunder
are to be paid solely through a plan (a "12b-1 Plan") adopted by a One
Group Fund pursuant to Rule 12b-1 under the Investment Company Act of
1940, as amended (the " 1940 Act"), such fees shall be paid only so
long as that One Group Fund's 12b-1 Plan and this Agreement are in
effect. The rate of fees indicated on Schedules A and/or B may change
at any time with respect to a particular One Group Fund or Funds at the
discretion of the One Group Funds or the Funds' board of trustees, as
is consistent with the terms of, and the law governing, 12b-1 Plans;
provided, however, that the Company or the One Group Funds shall
provide SunGard Investment Products Inc. with reasonable advance notice
of any change in the rate of fees, and provided, further, that SunGard
Investment Products Inc. may, at its option, terminate this Agreement
with respect to a One Group Fund or Funds as of the effective date of
such change in the rate of fees.
7. REPRESENTATIONS AND WARRANTIES. Each party represents that it is
free to enter into this Agreement and that by doing so it will not breach or
otherwise impair any other agreement or understanding with any other person,
corporation or other entity.
(a) SunGard Investment Products Inc. further represents,
warrants and covenants to the Company and the One Group Funds that:
(i) it has full power and authority under
applicable law, and has taken all action
necessary, to enter into and perform this
Agreement;
(ii) it is registered as a transfer agent
pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended (the " 1934
Act");
(iii) it owns, or has the right to offer, the
Expediter System as described in this
Agreement;
(iv) the execution, delivery and performance by
SunGard Investment Products Inc. of this
Agreement will not violate any provision of
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current law, including, without limitation,
the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the
"Code") and federal and state securities
laws, or any order, rule or regulation of
any court or governmental or regulatory
body; and
(v) it shall adhere at all times to the
Operating Procedures set forth in Exhibits 1
and 2 attached hereto (as the same may be
amended from time to time in accordance with
Section 4 above) in performing its duties
and obligations hereunder.
(b) The One Group Funds further represent, warrant and
covenant to SunGard that:
(i) they have full power and authority under
applicable law, and have taken all action
necessary, to enter into and perform this
Agreement;
(ii) each One Group Fund is registered as an
investment company under the 1940 Act or a
separate series thereof, and its shares are
registered under the Securities Act of 1933,
as amended (the "Securities Act");
(iii) each of the One Group Funds shall comply
with all state law requirements, including,
without limitation, all filing, notice and
fee provisions, applicable to the offer and
sale of shares of the One Group Funds;
(iv) the execution, delivery and performance by
the One Group Funds of this Agreement will
not violate any provision of current federal
and state securities laws, or any order,
rule or regulation of any court or
governmental or regulatory body;
(v) the board of directors or trustees of each
One Group Fund has approved (or shall ratify
within a reasonable period of time following
the execution of this Agreement) and shall
approve annually throughout the term of this
Agreement the authorization hereunder of
SunGard to receive purchase and redemption
orders on the One Group Funds' behalf for
purposes of Rule 22c-1 under the 1940 Act;
(vi) each of the One Group Funds shall include
the following or equivalent disclosure in
its prospectus(es):
(a) that the One Group Fund has authorized
shareholder servicing agents (including,
without limitation, investment advisors,
brokers, banks, employee benefit or
retirement
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plan sponsors and other intermediaries)
to receive purchase and redemption
orders on the Fund's behalf,
(b) that the One Group Fund will be deemed
to have received a purchase or
redemption order when the shareholder
servicing agent receives the order; and
(c) that orders will be priced at the One
Group Fund's net asset value next
computed after the orders are received
by the shareholder servicing agent and
(vii) each of the One Group Funds shall adhere at
all times to the Operating Procedures set
forth in Exhibits 1 and 2 attached hereto
(as the same may be amended from time to
time in accordance with Section 4 above) in
performing its duties and obligations
hereunder.
(c) The Company further represents, warrants and covenants
to SunGard that:
(i) it has full power and authority under
applicable law, and has taken all action
necessary, to enter into and perform this
Agreement,
(ii) it shall ensure that each of the One Group
Funds complies with all state law
requirements, including, without limitation,
all filing, notice and fee provisions,
applicable to the offer and sale of shares
of the One Group Funds;
(iii) the execution, delivery and performance by
the Company of this Agreement will not
violate any provision of current federal and
state securities laws, or any order, rule or
regulation of any court or governmental or
regulatory body; and
(iv) the Company shall adhere at all times to the
Operating Procedures set forth in Exhibits 1
and 2 attached hereto (as the same may be
amended from time to time in accordance with
Section 4 above) in performing its duties
and obligations hereunder
8. REPRESENTATIONS CONCERNING THE COMPANY AND THE ONE GROUP FUND.
SunGard shall not make any representations about the Company or the One Group
Funds except to the extent such representations are contained in a One Group
Fund's current prospectus, statement of additional information or sales
literature, or as is otherwise authorized by the Company or the One Group Funds
in writing. The Company and the One Group Funds hereby authorize SunGard to
include the names of the One Group Funds on a list of representative investment
choices provided to potential and existing Participating Customers.
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9. PROTECTION OF PROPRIETARY INFORMATION.
(a) The term "Proprietary Information" shall mean any software, and all
parts, copies and modifications thereof, and any other information,
documentation, source codes or proprietary data relating to the Expediter System
or any related software, in whatever form, received by the Company or the One
Group Funds from SunGard. "Proprietary Information" does not include information
or data which is rightfully in the possession of the Company or the One Group
Funds prior to its receipt from SunGard without any obligation of
confidentiality or which, without any fault of the Company or the One Group
Funds is or becomes available in the public domain.
(b) The Company and the One Group Funds agree that any Proprietary
Information provided to the Company or the One Group Funds by SunGard is
proprietary to SunGard and shall at all times remain the sole property of
SunGard. SunGard shall retain all title, copyright, patent and other proprietary
rights to all Proprietary Information and to all copies thereof
(c) The Company and the One Group Funds acknowledge that the
Proprietary Information is confidential and constitutes a valuable asset of
SunGard. The Company and the One Group Funds shall hold the Proprietary
Information strictly confidential. The Company and the One Group Funds shall
limit the use of, and access to, all Proprietary Information to their employees
whose use of or access to the Proprietary Information is necessary for their
business and the performance of the Company's and the One Group Funds' duties
and obligations under this Agreement. The Company and the One Group Funds shall,
by all appropriate means, prevent unauthorized disclosure, publication, display
or use of any Proprietary Information. Neither the Company nor the One Group
Funds shall remove any copyright, proprietary rights or confidentiality notice
included in or affixed to any Proprietary Information and shall reproduce all
such notices on any copies of Proprietary Information which they shall make.
(d) Within five (5) business days after the termination of this
Agreement for any reason, the Company and the One Group Funds shall return to
SunGard all Proprietary Information and all copies thereof in the possession,
custody or control of the Company or the One Group Funds, and shall destroy or
render unusable all other Proprietary Information and copies thereof which for
any reason cannot be delivered to SunGard. In such event, an executive officer
or other authorized representative of the Company shall certify in writing that
all Proprietary Information has been delivered to SunGard or destroyed and that
the use of the Proprietary Information has been discontinued by the Company and
the One Group Funds.
(e) SunGard shall treat any trade secret, technical, business or
confidential information or material received by SunGard from the Company or the
One Group Funds ("Confidential Information"), including, without limitation,
financial information, proposed new products, business or marketing strategies,
plans or techniques, new communication methods, sales or volume reports,
shareholder or customer lists, dealer lists, or prospective investor lists
pertaining to or owned by the Company or the One Group Funds, in the same manner
as the Proprietary Information is to be treated by the Company
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and the One Group Funds under this Agreement. "Confidential
Information" does not include information or data which is rightfully
in SunGard's possession prior to its receipt from the Company or the
One Group Funds without any obligation of confidentiality or which,
without any fault of SunGard, is or becomes available in the public
domain.
10. ABSENCE OF AGENCY RELATIONSHIP. Except as otherwise specifically
provided in the Exhibits hereto in connection with SunGard's status as agent of
the One Group Funds for the purpose of receiving, on the One Group Funds'
behalf, orders for the purchase or redemption of One Group Fund shares in
accordance with Rule 22c-1 under the 1940 Act, SunGard shall not hold itself out
to the public or engage in any activity as an agent for the Company or the One
Group Funds, or as a distributor of the One Group Funds.
11. LIABILITY.
(a) No party to this Agreement shall be liable for any error
of judgment or for any loss suffered by any other party to this
Agreement with respect to services performed or to be performed under
this Agreement, except a loss resulting from (i) intentional
misconduct, bad faith or negligence on the part of such party in
performing its duties and obligations hereunder, or (ii) any material
breach by such party of any provision of this Agreement, including,
without limitation, any representation, warranty or covenant made in
this Agreement; provided, however, that, except with respect to
breaches of Sections 6 or 9 hereof as to which no limit shall apply,
the total liability of either the Company, jointly and severally with
the One Group Funds, or SunGard with respect to claims for damages
arising under this Agreement, whether at law or in equity, during any
calendar year shall be limited to direct damages, and shall not,
during any calendar year, exceed an amount equal to the greater of (i)
$ 100,000, or (ii) the aggregate fees actually paid by the Company or
the One Group Funds to SunGard Investment Products Inc. pursuant to
this Agreement during the calendar year preceding such claims.
Notwithstanding anything herein to the contrary and without regard to
the limitations on liability contained in the preceding sentence,
SunGard Investment Products Inc. agrees to indemnify and hold harmless
the Company and the One Group Funds against any losses (or actions in
respect thereof) to the extent that SunGard Investment Products Inc.
is in fact indemnified for such losses in connection with an agreement
between a Participating Customer and SunGard Investment Products Inc.
pertaining to the Expediter System.
(b) Under no circumstances shall any party to this Agreement
be liable to another party or any other person, regardless of the form
of action, for lost revenues or profits, loss of business or goodwill,
investment or market losses, or any indirect or consequential damages
of any nature, whether or not foreseeable.
(c) No party to this Agreement shall be liable for, nor shall
any party be considered in breach of this Agreement due to, any
failure to perform its obligations hereunder as a result of a cause
beyond its control, including, without limitation, an action by any
military, civil or regulatory authority, a change in any law or
regulation, a fire, flood, earthquake, storm or similar act of God, a
disruption or outage of communications, power or other utility, a
labor problem, the unavailability of supplies, an equipment
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September 15, 1999 One Group 2
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malfunction, or any other cause, whether similar or dissimilar to any
of the foregoing, which could not have been prevented by such party
with reasonable care.
12. INDEMNIFICATION.
(a) Subject to the limitations on liability set forth in
Section 11 above, SunGard Investment Products Inc. agrees to indemnify
and hold harmless the Company and the One Group Funds and their
respective directors or trustees, officers, employees, agents and each
person, if any, who controls them within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses
("Losses") to which an indemnitee may become subject insofar as those
Losses (or actions in respect thereof) arise out of or are based upon
(i) SunGard's intentional misconduct, bad faith or negligence in
performing its duties and obligations under this Agreement, or (ii) any
material breach by SunGard of any material provision of this Agreement,
including, without limitation, any representation, warranty or covenant
made in this Agreement; and shall reimburse the indemnitees for any
legal or other expenses reasonably incurred, as incurred, by them in
connection with investigating or defending against such Losses.
(b) Notwithstanding anything herein to the contrary and
without regard to the limitations on liability set forth in Section 11
above, SunGard Investment Products Inc. shall defend, indemnify and/or
settle, at its own expense, any action brought against the Company or
the One Group Funds to the extent it is based on a claim that the
Expediter System infringes in a material respect any United States
patent or copyright or any trade secret or other proprietary right of
any third party, provided that: (i) the Company or the One Group Funds
give written notice to SunGard within ten (10) days after any
applicable infringement claim is initiated against the Company or the
One Group Funds; (ii) SunGard has sole control of the defense and of
any negotiations for settlement of any such claim; (iii) the Company or
the One Group Funds provide SunGard with reasonable nonmonetary
assistance, information and authority necessary to perform the above;
and (iv) such claim does not arise from an unauthorized or improper use
of the Expediter System, or from the use of a superseded or modified
release of the Expediter System, or by the use, operation or
combination of the Expediter System as provided by SunGard with
programs, data, equipment or materials not provided by SunGard, if such
infringement would have been avoided by the proper use of the Expediter
System for the purpose and in the manner specifically authorized by
this Agreement, or by the use of the current or unmodified release of
the Expediter System, or from the use of the Expediter System without
such programs, data, equipment or other materials. If any applicable
infringement claim is initiated, or in SunGard's sole opinion is likely
to be initiated, then SunGard shall have the option, at its expense, to
modify or replace all or the infringing part of the Expediter System so
that it is no longer infringing, provided that the System functionality
does not change in any material adverse respect, or procure for the
Company and the One Group Funds the right to continue using the
infringing part of the Expediter System. The foregoing states the
entire liability of SunGard with respect to any claim of infringement
regarding the Expediter System.
(c) Subject to the limitations on liability contained in
Section 11 above, the Company and the One Group Funds, jointly and
severally, agree to indemnify and hold
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September 15, 1999 One Group 2
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harmless SunGard and each of its directors, officers, employees, agents
and each person, if any, who controls SunGard within the meaning of the
Securities Act against any Losses to which an indemnitee may become
subject insofar as those Losses (or actions in respect thereof) arise
out of or are based upon (i) the Company's or the One Group Funds'
intentional misconduct, bad faith or negligence in performing their
duties and obligations under this Agreement, or (ii) any material
breach by the Company or the One Group Funds of any material provision
of this Agreement, including, without limitation, any representation,
warranty or covenant made in this Agreement; and shall reimburse the
indemnitees for any legal or other expenses reasonably incurred, as
incurred, by them in connection with investigating or defending against
such Losses.
(d) Without regard to the limitations on liability set forth
in Section 11 above, the Company and the One Group Funds, jointly and
severally, agree to indemnify and hold harmless SunGard and its
directors, officers, employees, agents and each person, if any, who
controls it within the meaning of the Securities Act against any Losses
to which an indemnitee may become subject insofar as those Losses (or
actions in respect thereof) arise out of or are based upon (i) any
error in the pricing or confirmation information provided by the
Company or the One Group Funds (or their designee), electronically or
otherwise, to SunGard pursuant to the Operating Procedures, which
erroneous pricing or confirmation information SunGard, acting in good
faith, in fact transmitted through the Expediter System precisely as
received from the Company or the One Group Funds (or their designee),
or (ii) any misstatement or alleged misstatement of a material fact
contained in a prospectus relating to any One Group Fund, the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
any other violation of federal or state securities laws, and shall
reimburse the indemnitees for any legal or other expenses reasonably
incurred, as incurred, by them in connection with investigating or
defending against such Losses.
(e) If any third party threatens to commence or commences any
action for which one party (the "Indemnifying Party") may be required
to indemnify another person hereunder (the "Indemnified Party"), the
Indemnified Party shall promptly give notice thereof to the
Indemnifying Party. The Indemnifying Party shall be entitled, at its
own expense and without limiting its obligations to indemnify the
Indemnified Party, to assume control of the defense of such action with
counsel selected by the Indemnifying Party which counsel shall be
reasonably satisfactory to the Indemnified Party. If the Indemnifying
Party assumes the control of the defense, the Indemnified Party may
participate in the defense of such claim at its own expense. Without
the prior written consent of the Indemnified Party, which consent shall
not be unreasonably withheld, the Indemnifying Party may not settle or
compromise the liability of the Indemnified Party in such action or
consent to or permit the entry of any judgment in respect thereof
unless in connection with such settlement, compromise or consent each
Indemnified Party receives from such claimant an unconditional release
from all liability in respect of such claim.
TERMINATION. Each party may terminate this Agreement on sixty (60) days
prior written notice to the other parties; provided, however, that (i) any such
termination shall not affect the One Group Funds'
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September 15, 1999 One Group 2
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(or its designee's) obligation to ensure that the Accounts are maintained in
each One Group Fund in the names of each record owner as originally designated
and (ii) after termination by the Company or the One Group Funds, no fee shall
be due with respect to any shares of the One Group Funds that are purchased and
held by the Accounts after the date of termination, except that the Company and
the One Group Funds shall be obligated to continue to pay SunGard Investment
Products Inc. the fees as set forth in the Schedules attached hereto as to
shares of the One Group Funds held by the Accounts as of the date of termination
for so long as such shares continue to be held by the Accounts and SunGard
continues to provide services to such Accounts as contemplated by this
Agreement-, provided, however, that, in the event that the Company is terminated
as distributor for the One Group Funds or otherwise ceases to act as distributor
for the One Group Funds, such payment obligation shall immediately cease. In
such event, such payments shall be made by the One Group Funds or the successor
distributor that is appointed by the One Group Funds. This Agreement shall
remain in effect to the extent necessary for each party to perform its
obligations with respect to shares of the One Group Funds for which a fee
continues to be due subsequent to such termination. It is understood that the
Company or the One Group Funds may terminate this Agreement with respect to any
particular One Group Fund only upon sixty (60) days prior written notice to
SunGard. It is further understood that if a Participating Customer states in
writing that SunGard may no longer perform the services contemplated by this
Agreement, then this Agreement shall terminate with respect to such
Participating Customer, and its related Accounts, sixty (60) days after receipt
of such notice by SunGard.
14. MISCELLANEOUS.
(a) It is understood that the parties hereto may perform
similar or identical services for others, and may enter into other
agreements with third parties governing similar arrangements without
first obtaining the consent of the other parties hereto.
(b) This Agreement, including the Schedules and Exhibits
attached hereto, contains the entire agreement among the parties with
respect to the services contemplated, and no provision may be waived,
changed or amended except in a writing signed by the parties hereto
and approved by the disinterested trustees of the One Group Funds.
(c) The duties or obligations specified herein may not be
assigned by any party hereto without the prior written consent of the
other parties to this Agreement.
(d) This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
(e) The terms of Sections 5, 9, 11 and 12 hereof shall
survive the termination of this Agreement.
(f) This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the state of
Illinois, without regard to its principles of conflicts of laws.
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(g) All notices, consents, and other communications provided for in
this Agreement to be given by one party to the other parties will be deemed
validly given, if in writing and delivered personally or sent by express
delivery or certified mail, return receipt requested, or confirmed facsimile
transmission, to the address or facsimile numbers provided below.
(h) This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which together shall be deemed one and the
same instrument.
(i) 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 May 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 and 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 12-
September 15, 1999 One Group 2
14
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE ONE GROUP SERVICES COMPANY SUNGARD INVESTMENT PRODUCTS
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------------- ---------------------------
Name: Xxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Title: President President
Address:
0000 Xxxxxxx Xxxxxxx 00 Xxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxx X0 Xxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Phone ( ) Phone: (000) 000-0000
-----------------------
Fax: ( ) Fax: (000) 000-0000
-------------------------
ONE GROUP MUTUAL FUNDS
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Address:
0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxx X0
Xxxxxxxx, XX 00000
Phone ( )
------------------------
Fax: ( )
------------------------
-13 -
September 15, 1999 One Group 2
15
SCHEDULE A
FEES PAYABLE IN CONNECTION WITH THE TRANSMISSION OF ORDERS ON BEHALF OF
ERISA ASSETS
Orders for the purchase or redemption of shares may be transmitted on behalf of
ERISA assets with respect to each One Group Fund listed below in exchange for
the following fees:
1. SERVICE FEE. With respect to the average daily net asset value of all
Account balances in each One Group Fund for the preceding month, the
fee payable to SunGard Investment Products Inc. shall equal:
The Administrative Fee Factor (as defined below for each One Group Fund)
multiplied by
the number of days in the current month / 365
multiplied by
the total average net asset value of Account balances in the One Group Fund
for the preceding month.
The Company or the One Group Funds shall calculate the amount of each
monthly payment and shall deliver to SunGard Investment Products Inc. a
monthly statement showing the calculation of the amount payable to
SunGard Investment Products Inc. for the preceding month. Payment to
SunGard Investment Products Inc. shall occur within thirty (30) days
following the end of each month.
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
-------------- ---------
One Group Balanced OGASX 681937470 A .0025 Monthly
One Group Balanced HLBAX 681937488 I .0005 Monthly
One Group Large Cap Growth OLGAX 681937249 A .0025 Quarterly
One Group Large Cap Growth SEEGX 681937256 I .0005 Quarterly
One Group Large Cap Value OLVAX 681937876 A .0025 Quarterly
One Group Large Cap Value HLQVX 681937884 I .0005 Quarterly
One Group Mid Cap Growth OSGIX 681937728 A .0025 Quarterly
One Group Mid Cap Growth HLGEX 681937736 I .0005 Quarterly
One Group International Equity Index OEIAX 681937561 A .0025 Annually
One Group International Equity Index OIEAX 681937579 I .0005 Annually
One Group Mid Cap Value OGDIX 681937751 A .0025 Quarterly
One Group Mid Cap Value HLDEX 681937769 I .0005 Quarterly
One Group Equity Index OGEAX 681937827 A .0025 Quarterly
One Group Equity Index HLEIX 681937835 I .0005 Quarterly
One Group Equity Income OIEIX 681937785 A .0025 Monthly
One Group Equity Income HLIEX 681937793 I .0005 Monthly
- 14-
September 15, 1999 One Group 2
16
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
-------------- ----------
One Group Diversified Equity PAVGX 681939815 A .0025 Quarterly
One Group Diversified Equity OGVFX 681939781 I .0005 Quarterly
One Group Small Cap Growth PGSGX 681939849 A .0025 Quarterly
One Group Small Cap Growth OGGFX 681939823 I .0005 Quarterly
One Group Small Cap Value PSOAX 00000X000 A .0025 Quarterly
One Group Small Cap Value PSOPX 00000X000 I .0005 Quarterly
One Group Diversified Mid Cap PECAX 6823 IN701 A .0025 Quarterly
One Group Diversified Mid Cap WOOPX 6823IN875 I .0005 Quarterly
One Group Diversified International PGIEX 00000X000 A .0025 Quarterly
One Group Diversified International WOIEX 6823IN834 I .0005 Quarterly
One Group Market Expansion Index N/A 6823IN826 A .0025 Quarterly
One Group Market Expansion Index PGMIX 6823IN784 I .0005 Quarterly
One Group Investor Growth ONGAX 681939674 A .0025 Quarterly
One Group Investor Growth ONIFX 681939658 I .0005 Quarterly
One Group Investor Growth & Income ONGIX 681939617 A .0025 Quarterly
One Group Investor Growth & Income ONGFX 681939583 I .0005 Quarterly
One Group Investor Conservative OICAX 681939641 A .0025 Quarterly
Growth
One Group Investor Conservative ONCFX 681939625 I .0005 Quarterly
Growth
One Group Investor Balanced OGIAX 681939575 A .0025 Monthly
One Group Investor Balanced OIBFX 681939559 I .0005 Monthly
One Group Intermediate Bond OGBAX 681937264 A .0025 Daily
One Group Intermediate Bond SEIFX 681937272 I .0005 Daily
One Group Government Bond OGGAX 681937330 A .0025 Daily
One Group Government Bond HLGAX 681937348 I .0005 Daily
One Group Short-Term Bond OGLVX 681937629 A .0025 Daily
One Group Short-Term Bond HLLVX 681937637 I .0005 Daily
One Group Income Bond ONIAX 681937652 A .0025 Daily
One Group Income Bond HLIPX 681937660 I .0005 Daily
One Group Ultra Short-Term Bond ONUAX 681937314 A .0025 Daily
One Group Ultra Short-Term Bond HLGFX 681937322 I .0005 Daily
- 15 -
September 15, 1999 One Group 2
17
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
---------- --------
One Group High Yield Bond OHYAX 6823IN107 A .0025 Daily
One Group High Yield Bond OHYFX 6823IN131 I .0005 Daily
One Group Treasury & Agency OTABX 681939526 A .0025 Daily
One Group Treasury & Agency OGTFX 681939492 I .0005 Daily
One Group Bond Fund PGBOX 6823IN776 A .0025 Daily
One Group Bond Fund WOBDX 6823IN743 I .0005 Daily
2. SUB-ACCOUNTING FEE. The fee payable to SunGard Investment Products Inc.
shall equal ten dollars ($10.00) per year per each beneficial owner of
an Account in each One Group Fund listed in Item 1 above for any part
of the subject year. SunGard shall calculate the amount of the
aggregate annual payment and shall deliver to the Company or the one
Group Funds an annual statement showing the calculation of the annual
amounts payable to SunGard Investment Products Inc. Payment to SunGard
Investment Products Inc. shall occur within thirty (30) days following
the end of each year.
- 16-
September 15, 1999 One Group 2
18
SCHEDULE B
FEES PAYABLE IN CONNECTION WITH THE TRANSMISSION OF ORDERS ON BEHALF OF
NON-ERISA ASSETS
Orders for the purchase or redemption of shares may be transmitted on behalf of
non-ERISA assets with respect to each One Group Fund listed below in exchange
for the following fees:
With respect to the average daily net asset value of all Account
balances in each One Group Fund for the preceding month, the fee
payable to SunGard Investment Products Inc. shall equal:
The Administrative Fee Factor (as defined below for each One Group Fund)
multiplied by
the number of days in the current month / 365
multiplied by
the total average net asset value of Account balances in the One Group Fund
for the preceding month.
The Company or the One Group Funds shall calculate the amount of each
monthly payment and shall deliver to SunGard Investment Products Inc. a
monthly statement showing the calculation of the amount payable to
SunGard Investment Products Inc. for the preceding month. Payment to
SunGard Investment Products Inc. shall occur within thirty (30) days
following the end of each month.
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
---------- --------
One Group Balanced OGASX 681937470 A .0025 Monthly
One Group Balanced HLBAX 681937488 I .0005 Monthly
One Group Large Cap Growth OLGAX 681937249 A .0025 Quarterly
One Group Large Cap Growth SEEGX 681937256 I .0005 Quarterly
One Group Large Cap Value OLVAX 681937876 A .0025 Quarterly
One Group Large Cap Value HLQVX 681937884 I .0005 Quarterly
One Group Mid Cap Growth OSGIX 681937728 A .0025 Quarterly
One Group Mid Cap Growth HLGEX 681937736 I .0005 Quarterly
One Group International Equity Index OEIAX 681937561 A .0025 Annually
One Group International Equity Index OIEAX 681937579 I .0005 Annually
One Group Mid Cap Value OGDIX 681937751 A .0025 Quarterly
One Group Mid Cap Value HLDEX 681937769 I .0005 Quarterly
One Group Equity Index OGEAX 681937827 A .0025 Quarterly
One Group Equity Index HLEIX 681937835 I .0005 Quarterly
One Group Equity Income OIEIX 681937785 A .0025 Monthly
One Group Equity Income HLIEX 681937793 I .0005 Monthly
- 17-
September 15, 1999 One Group 2
19
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
---------- --------
One Group Diversified Equity PAVGX 681939815 A .0025 Quarterly
One Group Diversified Equity OGVFX 681939781 I .0005 Quarterly
One Group Small Cap Growth PGSGX 681939849 A .0025 Quarterly
One Group Small Cap Growth OGGFX 681939823 I .0005 Quarterly
One Group Small Cap Value PSOAX 6823IN305 A .0025 Quarterly
One Group Small Cap Value PSOPX 6823IN602 I .0005 Quarterly
One Group Diversified Mid Cap PECAX 6823IN701 A .0025 Quarterly
One Group Diversified Mid Cap WOOPX 00000X000 I 0005 Quarterly
One Group Diversified International PGIEX 6823IN867 A .0025 Quarterly
One Group Diversified International WOIEX 6823IN834 I .0005 Quarterly
One Group Market Expansion Index N/A 00000X000 A .0025 Quarterly
One Group Market Expansion Index PGMIX 00000X000 I .0005 Quarterly
One Group Investor Growth ONGAX 681939674 A .0025 Quarterly
One Group Investor Growth ONIFX 681939658 I .0005 Quarterly
One Group Investor Growth & Income ONGIX 681939617 A .0025 Quarterly
One Group Investor Growth & Income ONGFX 681939583 I .0005 Quarterly
One Group Investor Conservative OICAX 681939641 A .0025 Quarterly
Growth
One Group Investor Conservative ONCFX 681939625 I .0005 Quarterly
Growth
One Group Investor Balanced OGIAX 681939575 A .0025 Monthly
One Group Investor Balanced OIBFX 681939559 I .0005 Monthly
One Group Intermediate Bond OGBAX 681937264 A .0025 Daily
One Group Intermediate Bond SEIFX 681937272 I .0005 Daily
One Group Government Bond OGGAX 681937330 A .0025 Daily
One Group Government Bond HLGAX 681937348 I .0005 Daily
One Group Short-Term Bond OGLVX 681937629 A .0025 Daily
One Group Short-Term Bond HLLVX 681937637 I .0005 Daily
One Group Income Bond ONIAX 681937652 A .0025 Daily
One Group Income Bond HLIPX 681937660 I .0005 Daily
One Group Ultra Short-Term Bond ONUAX 681937314 A .0025 Daily
One Group Ultra Short-Term Bond HLGFX 681937322 I .0005 Daily
-18-
September 15, 1999 One Group 2
20
FUND TICKER CUSIP CLASS ADMINISTRATIVE DIVIDEND
---- ------ ----- ----- FEE FACTOR SCHEDULE
---------- --------
One Group High Yield Bond OHYAX 6823 IN 107 A .0025 Daily
One Group High Yield Bond OHYFX 6823IN131 I .0005 Daily
One Group Treasury & Agency OTABX 681939526 A .0025 Daily
One Group Treasury & Agency OGTFX 681939492 I .0005 Daily
One Group Bond Fund PGBOX 6823 IN776 A .0025 Daily
One Group Bond Fund WOBDX 00000X000 I .0005 Daily
- 19-
September 15, 1999 One Group 2
21
EXHIBIT I
Operating procedures with respect to ERISA assets
-------------------------------------------------
1. The One Group Funds or their designee shall furnish to SunGard with
respect to each One Group Fund (a) net asset value information (determined in
accordance with all applicable securities laws, rules and regulations) as of the
close of regular trading on the New York Stock Exchange (usually 4:00 P.M.
Eastern Time) or as of such other time as set forth in each One Group Fund's
prospectus ("Close of Trading") on each business day that the New York Stock
Exchange is open for business ("Business Day"), (b) dividend and capital gains
information as it arises, and (c) in the case of income funds, the daily accrual
for interest rate factor (mil rate). The One Group Funds or their designee shall
provide such information for each One Group Fund to SunGard by means of computer
file transmission by 7:00 P.M. Eastern Time on each Business Day.
2. SunGard shall, on behalf of the One Group Funds, receive from
Participating Customers for processing prior to the Close of Trading on each
Business Day: (1) orders for the purchase of shares of the One Group Funds, and
(2) redemption requests with respect to shares of the One Group Funds held in
the Accounts ("Instructions"). SunGard shall, upon its receipt of any such
Instructions, confirm such receipt with the Participating Customers.
3. SunGard shall communicate to the One Group Funds or their designee
by 9:00 A.M. Eastern Time on each Business Day, by means of computer file
transmission, a report of the trading activity for the most recent Business Day
for each Account in any of the One Group Funds. The number of shares to be
purchased or redeemed shall be determined based upon the net asset value at the
Close of Trading on the most recent Business Day.
4. In the event that the One Group Funds or their designee receives
the trading information described in the preceding paragraph after 9:00 A.M.
Eastern Time on a Business Day, the One Group Funds or their designee shall use
best efforts to enter Account orders at the net asset value at the Close of
Trading on the most recent Business Day, but if the One Group Fund or their
designee is unable to do so, the transaction shall be entered at the net asset
value next determined after the One Group Funds or their designee receives the
trading information.
5. (a) The One Group Funds or their designee shall send to SunGard via
computer file transmission a verification of each Business Day's (1) net
purchase or net redemption transactions, as the case may be, (2) income
transactions generated by the One Group Fund(s), and (3) current investment
positions per Account for each affected One Group Fund by the Close of Trading
on the next Business Day.
(b) The One Group Funds or their designee shall send to
SunGard via computer file transmission a statement indicating the investment
positions of each Account in each One Group Fund as of the last Business Day of
each month within two (2) Business Days thereafter.
6. In the event there is a net purchase or a net redemption for an
Account in any One Group Fund on any Business Day, SunGard shall provide such
information to the affected
-20-
September 15, 1999 One Group 2
22
Participating Customers for purposes of effecting wire payments to, or receiving
wire payments from, the One Group Funds, as the case may be.
7. Subject to SunGard's compliance with these Operating Procedures,
SunGard shall be considered a limited agent of the One Group Funds for the
purpose of receiving, on the One Group Funds' behalf, orders for the purchase
and redemption of One Group Fund shares. The Business Day on which Instructions
are received in proper form by SunGard from Participating Customers by the Close
of Trading shall be the date as of which shares of the One Group Funds shall be
purchased and redeemed as a result of such Instructions, provided that the One
Group Funds or their designee receives the trading information relating thereto
in accordance with paragraph 3 of these Operating Procedures. Instructions
received in proper form by SunGard from Participating Customers after the Close
of Trading on any given Business Day shall be treated as if received on the next
following Business Day. Dividends and capital gains distributions shall be
issued in additional shares of the applicable One Group Fund at net asset value
in accordance with each One Group Fund's then current prospectus.
-21-
September 15, 1999 One Group 2
23
EXHIBIT 2
Operating procedures with respect to non-ERISA assets
-----------------------------------------------------
1. The One Group Funds or their designee shall furnish SunGard with
respect to each One Group Fund (1) net asset value information (determined in
accordance with all applicable securities laws, rules and regulations) as of the
close of regular trading on the New York Stock Exchange (usually 4:00 P.M.
Eastern Time) or as of such other time as set forth in each One Group Fund's
prospectus ("Close of Trading") on each business day that the New York Stock
Exchange is open for business ("Business Day"), (2) dividend and capital gains
information as it arises, and (3) in the case of income funds, the daily accrual
for interest rate factor (mil rate). The One Group Funds or their designee shall
provide such information for each One Group Fund to SunGard by means of computer
file transmission by 7:00 P.M. Eastern Time on each Business Day.
2. SunGard shall, on behalf of the One Group Funds, receive from
Participating Customers before the Close of Trading (or, if earlier, individual
One Group Fund cutoff time as set forth in a One Group Fund's prospectus ("Fund
Network Cutoff Time")) on any Business Day net orders for the purchase or
redemption of One Group Fund shares held (or to be held) in the Accounts
("Instructions"). SunGard shall, upon its receipt of any such Instructions,
confirm such receipt with the Participating Customers.
3. SunGard shall then communicate to the One Group Funds or their
designee by 9:00 A.M. Eastern Time on each Business Day, by means of computer
file transmission, a report of the trading activity for the most recent Business
Day for each Account in any of the One Group Funds. The number of shares to be
purchased or redeemed shall be determined based upon the net asset value at the
Close of Trading on the most recent Business Day.
4. (a) The One Group Funds or their designee shall send to SunGard via
computer file transmission a verification of each Business Day's (1) net
purchase or net redemption transactions, as the case may be, (2) income
transactions generated by the One Group Fund(s), and (3) current investment
positions per Account for each affected One Group Fund by:
(i) 12:00 noon Eastern Time on the next Business
Day for NAV funds and P.M. money market
funds, or
(ii) one hour after receipt of the report of the
trading activity for A.M. money market
funds.
(b) The One Group Funds or their designee shall send to
SunGard via computer file transmission a statement indicating the investment
positions of each Account in each One Group Fund as of the last Business Day of
each month within two (2) Business Days thereafter.
5. In the event there is a net purchase or a net redemption for an
Account in any One Group Fund on any Business Day, SunGard shall provide such
information to the affected Participating
-22-
September 15, 1999 One Group 2
24
Customers for purposes of effecting wire payments to, or receiving wire payments
from, the One Group Funds, as the case may be.
6. Subject to SunGard's compliance with these Operating Procedures,
SunGard shall be considered a limited agent of the One Group Funds for the
purpose of receiving, on the One Group Funds' behalf, orders for the purchase
and redemption of One Group Fund shares. The Business Day on which Instructions
are received in proper form by SunGard from Participating Customers by the Close
of Trading (or Fund Network Cutoff Time, if earlier) shall be the date as of
which shares of the One Group Funds shall be purchased and redeemed as a result
of such Instructions, provided that the One Group Funds or their designee
receives the trading information relating thereto in accordance with paragraph 3
of these Operating Procedures. Instructions received in proper form by SunGard
from Participating Customers after the Close of Trading or Fund Network Cutoff
Time on any given Business Day shall be treated as if received on the next
following Business Day. Dividends and capital gains distributions shall be
issued in additional shares of the applicable One Group Fund at net asset value
in accordance with each One Group Fund's then current prospectus.
- 23 -
September 15, 1999 One Group 2
