Exhibit (h)(51)
Recordkeeping and Sub-Transfer Agency Services Agreement dated April 4, 2002
between One Group Mutual Funds, Banc One Investment Advisors Corporation and
Transamerica Life Insurance and Annuity Company.
RECORDKEEPING AND SUB-TRANSFER AGENCY SERVICES AGREEMENT
This Agreement is made as of April 4, 2002, between One Group Mutual Funds
("Trust"), Banc One Investment Advisors Corporation and Transamerica Life
Insurance and Annuity Company, a North Carolina Corporation ("Company").
WHEREAS, the terms and conditions of this Agreement pertain to Company's
transactions in shares of Trust ("Shares"), which Company will enter into on
behalf of one or more of its Separate Accounts that will hold Shares as
underlying investments ("Separate Account" or "Separate Accounts"), and to
transactions in the shares of the Separate Accounts ("Separate Account Shares")
by employee benefit and/or welfare plans ("Plan" or "Plans"); and,
WHEREAS, Company sells Separate Account Shares to Plans, which hold them as
investments in connection with providing retirement and/or welfare benefits to
individuals who are Plan participants ("Participant" or "Participants"); and,
WHEREAS, Company will execute orders for purchases, redemptions and/or
exchanges of Shares in connection with the Plans' purchases, redemptions and/or
exchanges of Separate Account Shares; and,
WHEREAS, Trust desires to have Company perform certain recordkeeping,
communication, administrative and other services in regard to the Shares and the
Plans, which Company will perform pursuant to the terms and conditions set forth
herein; and,
WHEREAS, Trust and Company agree to transact business in the manner
provided for herein;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Representations and Warranties.
Company agrees, represents and warrants that:
a. It is a corporation duly organized under the laws of North
Carolina and, with regard to the services that it will perform
hereunder, is exempt from registration with the SEC as a transfer
agent. Furthermore, Company represents and warrants that it has
the requisite authority to enter into this Agreement and to carry
out the services required of it hereunder. And, Company
represents and warrants that the execution and delivery of this
Agreement and its performance of the services provided for
hereunder have been duly authorized by all necessary corporate
action on the part of Company, and this Agreement constitutes the
valid and binding obligation of Company.
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b. It is not a fiduciary of any of the Plans as that term is defined
in Section (21) of the Employment Retirement Income Security Act
of 1974, as amended ("ERISA"), and in Section 4975 of the
Internal Revenue Code of 1986, as amended ("Code"), and Company's
receipt of any fees from Trust, and the corresponding reduction
of fees payable to Company by any of the Plans (or by their
sponsors), will not constitute prohibited transactions for
purposes of Title I of ERISA and Section 4975 of the Code.
c. At all times during the term of this Agreement, Company will
maintain errors and omission insurance coverage in an amount not
less than $1,000,000 per occurrence and in the aggregate. Company
will provide a certificate of insurance or other evidence of
insurance coverage to Trust that is acceptable to Trust as soon
as practicable after Company receives from it a written request
for such certificate or other evidence of insurance.
2. Services.
During the term of this Agreement, Company shall perform recordkeeping
and other administrative services in connection with Company's purchases,
redemptions, exchanges and/or holding of Shares that relate to or arise from the
Plans' purchases, redemptions, exchanges and/or holding of Separate Account
Shares. In particular, Company will:
a. Aggregate all orders that the Plans submit to Company for
purchases, redemptions and/or exchanges of Separate Account
Shares and calculate the corresponding number of Shares that
Company will have to purchase, redeem and/or exchange in
connection therewith.
b. Place orders with Trust for purchases, redemptions and/or
exchanges of Shares in the amounts calculated as described in
subparagraph a above as soon as reasonably possible after
receiving orders from the Plans for purchases, redemptions and/or
exchanges of Separate Account Shares.
c. Provide to Trust, its transfer agent ("Transfer Agent") and/or
other parties designated by them such information relating to
Company's transactions in and holding of Shares and the Plans'
transactions in and holding of Separate Account Shares as they
may request from time to time, but only to the extent that
Company is allowed to disclose such information under applicable
laws or regulations and under agreements that Company has with
the Plans.
d. As agreed upon with Trust, deliver or arrange for the delivery of
appropriate documentation in connection with orders for
purchases, redemptions and/or exchanges of Shares.
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3. Records and Reporting
Company 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 Trust, Trust's Board of Trustees or the Transfer Agent,
Company will provide copies of historical records relating to transactions
involving Trust and Participants, written communications regarding Trust to or
from Participants, and other materials relating to Company's provision of
services under this Agreement, but only to the extent that Company is allowed to
disclose such information and documents under applicable laws or regulations and
under agreements that Company has with the Plans. In addition, Company will
comply with any reasonable request for such information and documents that is
made by any governmental body or self-regulatory organization, to the extent
that Company is required to do so by applicable laws or regulations. Company
further agrees that, with respect to the Plans, Company will permit Trust, the
Transfer Agent, and/or their duly authorized representatives to have reasonable
access to Company's personnel and records in order to facilitate the monitoring
of the quality of Company's performance of services under this Agreement, but
only to the extent that Company is allowed to disclose such information and
records under applicable laws or regulations and under agreements that Company
has with the Plans. In any event, Company shall not be required to provide the
names and addresses of Participants to Trust, the Transfer Agent or their
representatives unless required by applicable laws or regulations.
4. Ability to Perform Services.
Company agrees to notify Trust promptly if for any reason Company is
unable to perform its obligations under this Agreement.
5. Fees.
Trust shall pay Company fees ("Fees") for its performance of Services
hereunder, which will be calculated and paid as provided in Schedule 1 attached
hereto. Fees will be paid solely for recordkeeping, administrative and other
services provided by Company and shall not constitute payment in any manner for
investment advisory, trustee, or custodial services.
6. Indemnification.
a. Company shall indemnify and hold harmless Trust, its trustees,
officers and employees from and against any and all losses,
claims, damages, liabilities and expenses (including, but not
limited to, reasonable attorney's fees) incurred by any of them
and arising as a result of: (i) any breach by Company of any
representation, warranty, covenant or agreement contained in this
Agreement or any law or regulation; or (ii) Company's willful
misconduct or negligence in the performance of, or failure to
perform, its obligations under this Agreement, except to the
extent the losses are a result of the negligence, willful
misconduct, or breach of this Agreement by Trust.
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b. Trust shall indemnify and hold harmless Company, its directors,
officers, employees and agents against any and all losses,
claims, damages, liabilities, and expenses (including, but not
limited to reasonable attorney's fees) to which Company may
become subject as a result of Trust's willful misconduct or
negligence in the performance of, or failure to perform, its
obligation's under this Agreement, except to the extent the
losses are a result of the negligence, willful misconduct, or
breach of this Agreement by Company.
c. In any event, no party shall be liable for any special,
consequential or incidental damages.
7. Role of Company.
The parties acknowledge and agree that Company's services under this
Agreement are recordkeeping, administrative and related services only and are
not the services of an underwriter or a principal underwriter within the meaning
of the Securities Act of 1933, as amended, or the Investment Company Act of
1940.
8. Notices.
All notices required under this Agreement must be in writing and
delivered either personally or via first class mail. Such notices will be deemed
to be received as of the date of actual receipt, or three (3) days after
deposit, first class postage prepaid, in the United States Mail, whichever is
earlier.
All such notices shall be made:
if to Company, to: Transamerica Life Insurance and Annuity Company
Attn: Xxxxx Xxxxxx
0000 Xx. Xxxxx Xx.
Xxx Xxxxxxx, XX 00000
if to Trust, to: One Group Mutual Funds
Attn: Xxxxxx Xxxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000-0000
9. Nonexclusivity.
Each Party acknowledges that the other may enter into agreements,
similar to this one, with other parties, for the performance of services similar
to those to be provided under this Agreement, unless otherwise agreed to in
writing by the parties.
10. Assignability.
This Agreement may not be assigned by Company or Trust without the
other party's consent. Any attempted assignment in contravention hereof shall be
null and void.
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11. Schedules.
All Schedules attached to this Agreement (as they may be amended from
time to time) are, by this reference, incorporated in and made a part of this
Agreement.
12. Entire Agreement - Amendment.
This Agreement (including the Schedules attached hereto), constitutes
the entire agreement between the parties with regard to the subject matter
herein, and supersedes any and all agreements, representations and warranties,
whether written or oral, made prior to the execution of this Agreement. This
Agreement and the Schedules attached hereto may be amended only by a writing
signed by each party to this Agreement. If any provision of this Agreement shall
be rendered invalid by any statute, rule, regulation, decision of any tribunal
or otherwise, then the parties intend that to the greatest possible the
remaining provisions hereof shall remain in full force and effect.
13. Governing Law.
This Agreement will be governed by, and interpreted under, the laws of
the State of North Carolina, as applied to contracts entered into and to be
performed entirely within that state, without reference to choice of law
statutes or principals of conflicts of law.
14. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
instrument.
15. Termination.
a. This Agreement may be terminated at any time by Company or Trust
upon sixty (60) days prior written notice to the other party.
b. Notwithstanding the foregoing, this Agreement may be terminated
immediately at the option of Trust::
i. as to any fund of the Trust ("Fund") upon the termination of
Banc One Investment Advisor as the investment advisor to
such Fund; or,
ii. upon the termination of any plan of distribution ("Rule
12b-1 Plan") adopted and maintained by any Fund that has a
Rule 12b-1 Plan in effect as of the effective date of this
Agreement.
c. Upon termination of this Agreement as to any Fund, Trust will no
longer be obligated to pay the portion of the Fees that were
attributable to shares of that Fund.
d. The provisions of Section 8 and 16 shall continue in full force
and effect notwithstanding the termination of this Agreement.
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16. Limitation of Liability of Trustees and Shareholders.
The names 'One Group Mutual Funds' and 'Trustees of the One Group
Mutual Funds' refer respectively to 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 Trustees, representatives or agents are made not individually,
but in such capacities, and are not binding upon any of Trustees, Shareholders
or representatives of Trust personally, but bind only the assets of Trust, and
all persons dealing with any series of Shares of Trust must look solely to the
assets of Trust belonging to such series for the enforcement of any claims
against Trust.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Agreement.
One Group Mutal Funds: Company:
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
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Xxxxxx X. Xxxxx Xxxxx Xxxxxx
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Print Name Print Name
Treasurer VP Product Development
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Title Title
Banc One Investment Advisors Corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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Print Name
Senior Managing Director
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Title
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