Exhibit (h)(49)
Recordkeeping Agreement dated as of January 1, 2002 between one Group
Administrative Services, Inc. and One Group Mutual Funds.
RECORDKEEPING AGREEMENT
AGREEMENT made as of January 1, 2002 by and between One Group
Administrative Services, Inc. ("Recordkeeper") and One Group Mutual Funds (the
"Trust").
WHEREAS, the Trust desires to enter into a Recordkeeping Agreement
pursuant to which the Trust will retain the Recordkeeper or its designee to
perform certain recordkeeping and accounting services and functions with respect
to transactions in Trust shares ("shares") made by investment portfolios
("Portfolios") underlying certain qualified tuition plans ("Tuition Plans") on
behalf of individuals participating in the Tuition Plans ("Plan
Participant(s)"), and with respect to holdings of shares maintained by or on
behalf of such Portfolios, when with respect to the Trust such Tuition Plans
maintain with the Trust's transfer agent ("Transfer Agent") a single master
shareholder account; and
NOW, THEREFORE, in consideration of the following premises and mutual
covenants, the parties agree as follows:
1. Services Provided by the Recordkeeper
When and to the extent requested by the Trust, the Recordkeeper agrees
to perform recordkeeping and account services and functions with respect to
transactions in shares made by Portfolios, and with respect to holding of shares
maintained by Portfolios, when with respect to the Trust, the Tuition Plan
maintains with the Transfer Agent a single master shareholder account, the
Recordkeeper will provide the following services:
A. Maintain separate records for each Portfolio and Plan Participant
reflecting shares purchased, redeemed and exchanged on behalf of such
Portfolio, and outstanding share balances owned by such Portfolio.
B. Prepare and transmit to the Tuition Plan and/or its Portfolios
periodic account statements indicating the number of shares of the
Trust owned by or for the benefit of the Portfolios and purchases,
redemptions and exchanges made by such Portfolios.
C. With respect to the Tuition Plan, aggregate all purchase, redemption
and exchange orders made by or on behalf of the Portfolios and transmit
instructions based on such aggregate orders ("Instructions") to the
Transfer Agent for acceptance.
D. Provide to the Trust, the Transfer Agent and/or other parties
designated by them such other information relating to transactions in
and holdings of shares by or on behalf of the Portfolios as is
reasonably requested.
E. As agreed upon with the Trust, deliver or arrange for the delivery
of appropriate documentation in connection with orders.
2. Appointment as Agent For Limited Purpose
The Recordkeeper shall be deemed the agent of the Trust for the sole
and limited purpose of receiving purchase, redemption and exchange orders from
the Tuition Plan and/or the Portfolios and transmitting corresponding
instructions to the Transfer Agent. Except as provided specifically herein,
neither the Trust nor any person to which the Trust may delegate any of its
duties hereunder shall be or hold itself out as an agent of the Transfer Agent
or the Trust.
3. Representations of Recordkeeper
The Recordkeeper agrees, represents and warrants that:
A. It will forward Instructions within such time periods and to such
parties as are specified by the Trust, the Transfer Agent, the Trust's
prospectuses and applicable law and regulation.
B. At all times during the term of this contract, the Recordkeeper will
maintain errors and omissions coverage in an amount not less than
$1,000,000 per occurrence, and in the aggregate. A certificate of
insurance evidencing such coverage will be provided by the Recordkeeper
to One Group Mutual Funds as soon as is practicable after commencement
of this Agreement.
4 Records and Reporting
The Recordkeeper 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 Trust or the Transfer Agent, the Recordkeeper will
provide copies of historical records relating to transactions involving the
Trust and the Portfolios; written communications regarding the Trust to or from
the Portfolios or Plan Participants; and other materials relating to the
provision of services by the Recordkeeper under this Agreement. The Recordkeeper
will comply with any reasonable request for such information and documents made
by the Trust, or its board of Trustees or any governmental body or
self-regulatory organization. The Recordkeeper agrees that, with respect to the
Tuition Plans to which it is providing services under this Agreement, the
Recordkeeper will permit the Trust, 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 the
Recordkeeper. Notwithstanding anything herein to the contrary, the Recordkeeper
shall not be required to provide the names and addresses of Plan Participants to
the Transfer Agent or the Trust, unless applicable law or regulation otherwise
requires.
5. Ability to Provide Services
The Recordkeeper agrees to notify the Trust promptly if for any reason it is
unable to perform its obligations under this Agreement.
6. Compensation
A In consideration of performance of the services by the Recordkeeper
hereunder, the Trust will compensate the Recordkeeper $18 per Plan
Participant or as the Trust and the Recordkeeper may agree from
time-to-time in writing.
B. The Recordkeeper will permit the Trust and their representatives
(including counsel and independent accounts) with reasonable access to
its records to enable the Trust to verify that the Recordkeeper's
charges hereunder comply with the provisions of this Agreement. Such
access shall include, but not be limited to, up to four on-site
inspections of the Recordkeeper's records each calendar year.
7. Indemnification
The Recordkeeper shall indemnify and hold harmless the Trust from and
against any and all losses and liabilities that it may incur, including without
limitation reasonable attorneys' fees, expenses and costs arising out of or
related to the performance or non-performance by the Recordkeeper of its
responsibilities under this Agreement, excluding, however, any such claims,
suits, loss, damage or costs caused by, contributed to or arising from any
non-compliance by the Trust with its obligations under this Agreement, as to
which the Trust shall indemnify, hold harmless and defend the Recordkeeper on
the same basis as set forth above.
8 Termination
This Agreement may be terminated at any time by either parry hereto
upon ninety (90) days written notice to the other. The provisions of paragraphs
4 and 7 shall continue in full force and effect after termination of this
Agreement.
9. Authority
The execution and delivery of this Agreement has been authorized by the
Trustees, and this Agreement has been signed and delivered by an authorized
officer of the Trust, acting as such, and neither such authorization by the
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
the Trust's Agreement and Declaration of Trust.
10. Confidentiality.
In the course of processing and/or servicing shareholder transactions,
Recordkeeper or its affiliates may acquire access to shareholder information or
consumer information generally (collectively, "Customer Information") including,
but not limited to, nonpublic personal information such as a Plan Participant's
name, address, telephone number, account relationships, account balances and
account histories. All information, including Customer Information, obtained in
processing and/or servicing transactions shall be considered confidential
("Confidential Information").
A. Limitation on reuse. Recordkeeper shall not disclose such
Confidential Information to any other person or entity, except as
permitted under 17 C.F.R. 248.11, or use such Confidential Information
other than as necessary, in the ordinary course of business:
1. to effect or administer a shareholder transaction;
2. as authorized or requested by a shareholder; or
3. as required or permitted by any provision of Regulation S-P.
Recordkeeper shall not directly or through an affiliate, disclose an
account number or similar form of access number or access code for an
account for use in telemarketing, direct mail marketing, or marketing
through electronic mail, except as permitted in Section 248.12 of
Regulation S-P.
11. Subcontractors
The Recordkeeper may, without further consent on the part of the Trust,
subcontract for the performance hereof with a duly registered transfer agent;
provided, however, that the Recordkeeper shall be fully responsible to the
Trust for the acts and omissions of the transfer agent as it is for its own acts
and omissions.
12. Miscellaneous
This Agreement represents the entire Agreement between the parties with
regard to the matters described herein and may not be modified or amended except
by written instrument executed by all parties. This Agreement may not be
assigned by either party hereto without the prior written consent of the other
parties. This Agreement is made and shall be construed under the laws of the
State of Ohio. This Agreement supersedes all previous agreements and
understandings between the parties with respect to its subject matter. If any
provision of the Agreement shall be held or made invalid by a statute, rule,
regulation, decision of a tribunal or otherwise, the remainder of the Agreement
shall not be affected thereby.
The names `One Group Mutual Funds' and `Trustees of the 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 HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
ONE GROUP MUTUAL FUNDS
By: /s/ Xxxx X. Xxxxxx
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Title: President
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ONE GROUP ADMINISTRATIVES SERVICES, INC. (Recordkeeper)
By: /s/ Xxxxxx X. Xxxxx
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Title: Chief Operating Officer
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