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Item 23(h)(1)
Transfer Agency and Service Agreement
dated as of January 1, 2000
between One Group Investment Trust and
State Street Bank and Trust Company
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TRANSFER AGENCY AND SERVICE AGREEMENT
Between
ONE GROUP(R) INVESTMENT TRUST
And
STATE STREET BANK AND TRUST COMPANY
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TABLE OF CONTENTS
PAGE
1. Terms of Appointment and Duties...................................1
2. Fund Participation Agreements.....................................4
3. Fees and Expenses.................................................4
4. Representations and Warranties of the Transfer Agent..............5
5. Representations and Warranties of the Fund........................5
6. Wire Transfer Operating Guidelines................................6
7. Data Access and Proprietary Information...........................8
8. Indemnification..................................................10
9. Standard of Care.................................................11
10. Year 2000........................................................11
11. Confidentiality .................................................11
12. Covenants of the Fund and the Transfer Agent.....................12
13. Termination of Agreement.........................................13
14. Assignment and Third Party Beneficiaries.........................14
15. Subcontractors...................................................15
16. Miscellaneous....................................................15
17. Additional Funds.................................................17
18. Limitations of Liability of the Trustees and Shareholders........17
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1ST day of January, 2000, by and between ONE GROUP(R)
INVESTMENT TRUST, a Massachusetts business trust, having its principal office
and place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund currently offers shares in nine (9) series, such series shall
be named in the attached Schedule A which may be amended by the parties from
time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
SECTION 17, being herein referred to as a "Portfolio", and collectively as the
"Portfolios");
WHEREAS, the Portfolios are available to act as investment vehicles for separate
accounts (the "Separate Accounts") established by insurance companies
("Insurance Companies") for contract owners of variable life insurance policies
and variable annuity contracts ("Variable Insurance Products");
WHEREAS, the Insurance Companies shall maintain separate records for each
Separate Account on their respective record-keeping system, which record shall
reflect all shares (as defined below) purchased and redeemed, including the date
and price for all transactions, and share balances;
WHEREAS, the Insurance Companies shall maintain on behalf of each Separate
Account a single master account with the Transfer Agent ("Omnibus Account") in
each Portfolio and each such account shall be in the name of that Separate
Account, as the record owner of shares (as defined below) owned by such Separate
Account;
WHEREAS, the Omnibus Accounts shall be shareholders as defined below; and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, and agent in connection
with certain other activities, and the Transfer Agent desires to accept such
appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. TERMS OF APPOINTMENT AND DUTIES
1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Fund, on behalf of the Portfolios, hereby
employs and appoints the Transfer Agent to act as, and the Transfer
Agent agrees to act as its transfer agent for the Fund's authorized and
issued shares of beneficial interest, ("Shares"), dividend disbursing
agent and agent in connection with any accumulation, open-account or
similar plan
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provided to the shareholders of each of the respective Portfolios of
the Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("prospectus") of
the Fund on behalf of the applicable Portfolio, including without
limitation any periodic investment plan or periodic withdrawal program.
In accordance with procedures established from time to time by
agreement between the Fund on behalf of each of the Portfolios, as
applicable and the Transfer Agent, the Transfer Agent agrees that it
will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Declaration of Trust
of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian and redemption proceeds to the applicable Separate Account;
(d) In respect to the transactions in items (a), (b) and (c) above, the
Transfer Agent shall execute transactions directly with Insurance
Companies which have entered Fund Participation Agreements with the
Fund as identified by the Fund;
(e) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause to
be paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio, to the
extent such dividends are not required to be reinvested in additional
Portfolio Shares;
(h) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(i) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the Fund
which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. The Transfer Agent shall also provide the Fund
on a regular basis with the total number of Shares which are authorized
and issued and outstanding and shall have no obligation, when recording
the issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the Fund,
provided however, that the Transfer Agent shall
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only record the issuance of Shares to Separate Accounts of Insurance
Companies which have been identified by the Fund as having signed Fund
Participation Agreements with the Fund.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent and dividend disbursing agent, including but not limited
to: maintaining all Shareholder accounts, preparing Shareholder meeting
lists, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing
and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing
activity statements for Shareholders, and providing Shareholder account
information.
(b) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for the Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for the Fund for each business day to the Fund or its
designee no later than 9:00 AM Eastern Time, or such earlier time as
the Fund may reasonably require, on the next business day.
(c) "Blue Sky" Reporting. In the event that the Fund notifies the
Transfer Agent in writing that a Portfolio's Share must be registered
under State Blue Sky laws, the responsibility of the Transfer Agent for
the Fund's Blue Sky State registration status is solely limited to the
initial establishment of transactions subject to Blue Sky compliance by
the Fund and providing a system which will enable the Fund to monitor
the total number of Shares sold in each State.
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of
shares in such accounts through Fund/SERV (Networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with instructions transmitted to and
received by the Transfer Agent by transmission from NSCC on behalf of
Insurance Companies which have been established by, or in accordance
with the instructions of authorized persons, as hereinafter defined, on
the dealer file maintained by the Transfer Agent; (ii) issue
instructions to Fund's banks for the settlement of transactions between
the Fund and NSCC (acting on behalf of its Insurance Company
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participants); (iii) provide account and transaction information from
the affected Fund's records on DST Systems, Inc. computer system TA2000
("TA2000 System") in accordance with NSCC's Networking and Fund/SERV
rules for those broker-dealers; and (iv) maintain Shareholder accounts
on TA2000 System through Networking.
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Fund and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the
Fund or its agent may perform these services on the Fund's behalf.
2. FUND PARTICIPATION AGREEMENTS.
The Fund may enter into Fund Participation Agreements (each, a "Fund
Participation Agreement" collectively, the "Fund Participation
Agreements") with Insurance Companies which intend to use the
Portfolios as investment vehicles for Variable Insurance Products. The
Transfer Agent shall process orders for purchases and redemptions in
accordance with Schedule 2.1 entitled "Fund Participation Procedures",
as may be agreed upon and amended by the Transfer Agent and the Fund
from time to time ("Schedule 2.1")
3. FEES AND EXPENSES
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent an annual
base fee for each cusip as set forth in the attached fee schedule
("Schedule 3.1"). Such fees and out-of-pocket expenses and advances
identified under SECTION 3.2 below may be changed from time to time
subject to mutual written agreement between the Fund and the Transfer
Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under SECTION 3.1
above, the Fund agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses, including but not limited to confirmation
statements, investor statements, postage, forms, telephone, microfilm,
microfiche, fedwire charges, transcripts, records retention, or
advances incurred by the Transfer Agent for the items set out in
Schedule 3.1 attached hereto. In addition, any other expenses incurred
by the Transfer Agent at the request or with the consent of the Fund,
will be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the mailing
date of such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses which are subject to good faith
dispute. In the event of such a dispute, the Fund may only withhold
that portion of the fee or expense subject to the good faith dispute.
The Fund
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shall notify the Transfer Agent in writing within thirty-one (31)
calendar days following the receipt of each billing notice if the Fund
is disputing any amounts in good faith. If the Fund does not provide
such notice of dispute within the required time, the billing notice
will be deemed accepted by the Fund.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
4.6 The Transfer Agent shall maintain at a location other than its normal
location appropriate redundant facilities for operational back-up in
the event of a power failure, disaster or other interruption. The
Transfer Agent shall continuously back up the Fund's files and data,
including the Shareholder and Fund records, and shall store the back-up
files in a secure manner at a location other than its normal location,
so that, in the event of a power failure, disaster or other
interruption at such normal location, the Fund's files and data,
including the Shareholder and Fund records, will be maintained intact
and will enable the Transfer Agent to perform under this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
5.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
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5.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale.
5.6 At this time, no state securities laws filings are required by the
Fund. In the event that state securities law filings are required, the
Fund shall make appropriate state securities law filings and will
continue to make filings with respect to all Shares of the Fund being
offered for sale.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM
COMMERCIAL CODE
6.1 The Transfer Agent is authorized to promptly debit the appropriate Fund
account(s) upon the receipt of a payment order in compliance with the
selected security procedure (the "Security Procedure") chosen for funds
transfer and in the amount of money that the Transfer Agent has been
instructed to transfer. The Transfer Agent shall execute payment orders
in compliance with the Security Procedure and with the Fund
instructions on the execution date provided that such payment order is
received by the customary deadline for processing such a request,
unless the payment order specifies a later time. All payment orders and
communications received after this the customary deadline will be
deemed to have been received the next business day.
6.2 The Fund acknowledges that the Security Procedure it has designated on
the Fund Selection Form was selected by the Fund from security
procedures offered by the Transfer Agent. The Fund shall restrict
access to confidential information relating to the Security Procedure
to authorized persons as communicated to the Transfer Agent in writing.
The Fund must notify the Transfer Agent immediately if it has reason to
believe unauthorized persons may have obtained access to such
information or of any change in the Fund's authorized personnel. The
Transfer Agent shall verify the authenticity of all Fund instructions
according to the Security Procedure.
6.3 The Transfer Agent shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the
account number, the account number shall take precedence and govern.
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6.4 The Transfer Agent reserves the right to decline to process or delay
the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
reasonable judgement, to exceed any volume, aggregate dollar, network,
time, credit or similar limits which are applicable to the Transfer
Agent; or (c) if the Transfer Agent, in good faith, is unable to
satisfy itself that the transaction has been properly authorized.
6.5 The Transfer Agent shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received in
compliance with the Security Procedure provided that such requests are
received in a timely manner affording the Transfer Agent reasonable
opportunity to act. However, the Transfer Agent assumes no liability if
the request for amendment or cancellation cannot be satisfied.
6.6 The Transfer Agent shall assume no responsibility for failure to detect
any erroneous payment order provided that the Transfer Agent complies
with the payment order instructions as received and the Transfer Agent
complies with the Security Procedure. The Security Procedure is
established for the purpose of authenticating payment orders only and
not for the detection of errors in payment orders.
6.7 The Transfer Agent shall assume no responsibility for lost interest
with respect to the refundable amount of any unauthorized payment
order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Transfer
Agent of the acceptance of such payment order. In no event (including
failure to execute a payment order) shall the Transfer Agent be liable
for special, indirect or consequential damages, even if advised of the
possibility of such damages.
6.8 When the Fund initiates or receives Automated Clearing House credit and
debit entries pursuant to these guidelines and the rules of the
National Automated Clearing House Association and the New England
Clearing House Association, the Transfer Agent will act as an
Originating Depository Financial Institution and/or receiving
depository Financial Institution, as the case may be, with respect to
such entries. Credits given by the Transfer Agent with respect to an
ACH credit entry are provisional until the Transfer Agent receives
final settlement for such entry from the Federal Reserve Bank. If the
Transfer Agent does not receive such final settlement, the Fund agrees
that the Transfer Agent shall receive a refund of the amount credited
to the Fund in connection with such entry, and the party making payment
to the Fund via such entry shall not be deemed to have paid the amount
of the entry.
6.9 Confirmation of Transfer Agent's execution of payment orders shall
ordinarily be provided within twenty four (24) hours notice of which
may be delivered through the Transfer Agent's proprietary information
systems, or by facsimile or call-back. Fund must report any objections
to the execution of an order within thirty (30) days.
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7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Transfer Agent as
part of the Fund's ability to access certain Fund-related data
("Customer Data") maintained by the Transfer Agent on databases under
the control and ownership of the Transfer Agent or other third party
("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of
substantial value to the Transfer Agent or other third party. In no
event shall Proprietary Information be deemed Customer Data. The Fund
agrees to treat all Proprietary Information as proprietary to the
Transfer Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as may be
provided hereunder or except when the failure to disclose may subject
the Fund to civil or criminal contempt proceeding or is required by
law. Without limiting the foregoing, the Fund agrees for itself and its
employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's computers,
or (ii) solely from equipment at the location agreed to between the
Fund and the Transfer Agent and (iii) solely in accordance with the
Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted to
any other computer terminal or other device except as expressly
permitted by the Transfer Agent (such permission not to be unreasonably
withheld);
(e) Allow the Fund to have access only to those authorized transactions
as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's expense the rights of the Transfer
Agent in Proprietary Information at common law, under federal copyright
law and under other federal or state law.
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7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by a
written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest
of the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would
be extremely difficult to determine. Accordingly, the parties agree
that, in addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the Proprietary
Information in breach of this Agreement, the Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive
relief, or other equitable relief against the continuance of such
breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data
and the Fund agrees to make no claim against the Transfer Agent arising
out of the contents of such third-party data, including, but not
limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER
PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY
DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to:
(i) effect the transfer or movement of cash or Shares; or (ii) transmit
Shareholder information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Transfer Agent from time to
time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this SECTION 7. The obligations of this
Section shall survive any earlier termination of this Agreement.
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8. INDEMNIFICATION
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (i)
any information, records, documents, data, stock certificates or
services, which are received by the Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the Fund,
and which have been prepared, maintained or performed by the Fund or
any other person or firm on behalf of the Fund including but not
limited to any previous transfer agent or registrar; (ii) any
instructions or requests of the Fund or any of its officers; (iii) any
instructions or opinions of legal counsel with respect to any matter
arising in connection with the services to be performed by the Transfer
Agent under this Agreement which are provided to the Transfer Agent
after consultation with such legal counsel; or (iv) any paper or
document, reasonably believed to be genuine, authentic, or signed by
the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination or
ruling by any federal or any state agency with respect to the offer or
sale of such Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account at the
Custodian maintained by the Transfer Agent;
(f) Upon the Fund's request entering into any agreements required by
the National Securities Clearing Corporation for the transmission of
Fund or Shareholder data through the NSCC clearing systems; or
(g) The overdraw of the Funds' demand deposit accounts at the Custodian
maintained by the Transfer Agent due to late payment or no payment for
Shares purchased by (i) Shareholders or (ii) agents of either
Shareholders or the Fund.
8.2 In order that the indemnification provisions contained in this SECTION
8 shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Transfer
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Agent, the Transfer Agent shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Transfer Agent in the defense of such claim or to
defend against said claim in its own name or in the name of the
Transfer Agent. The Transfer Agent shall in no case confess any claim
or make any compromise in any case in which the Fund may be required to
indemnify the Transfer Agent except with the Fund's prior written
consent.
9. STANDARD OF CARE
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless said
errors are caused by its negligence, bad faith, or willful misconduct
or that of its employees or agents. The parties agree that any encoding
or payment processing errors shall be governed by the above and the
Fund agrees as between the Fund and the Transfer Agent that the
Standard of Care created under Section 4-209 of the Uniform Commercial
Code is superseded by SECTION 9 of this Agreement.
10. YEAR 2000
The Transfer Agent will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the available
technology to offer products that are Year 2000 ready, including, but
not limited to, century recognition of dates, calculations that
correctly compute same century and multi century formulas and date
values, and interface values that reflect the date issues arising
between now and the next one-hundred years, and if any changes are
required, the Transfer Agent will make the changes to its products in a
commercially reasonable time frame and will require third-party
suppliers to do likewise; provided if such changes are required as a
result of problems other than problems associated solely with the
Transfer Agent's systems utilized under this Agreement, such changes
will be made at a price agreed upon by the parties based only upon the
Fund's pro rata share of such costs and fees spread out over all of the
Transfer Agent's affected customers. Notwithstanding the foregoing, if
any such changes are required pursuant to SECTION 10 of this Agreement
solely because of the Transfer Agent's systems utilized under this
Agreement to perform the Transfer Agent's services hereunder, the Fund
will not be required to pay a fee or out-of-pocket expenses to the
Transfer Agent for such changes.
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11. CONFIDENTIALITY
11.1 The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other
business organization, any customers' lists, trade secrets, cost
figures and projections, profit figures and projections, or any other
secret or confidential information whatsoever, whether of the Transfer
Agent or of the Fund, used or gained by the Transfer Agent or the Fund
during performance under this Agreement. The Fund and the Transfer
Agent further covenant and agree to retain all such knowledge and
information acquired during and after the term of this Agreement
respecting such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the Transfer
Agent or the Fund and their successors and assigns. In the event of
breach of the foregoing by either party, the remedies provided by
SECTION 7.3 shall be available to the party whose confidential
information is disclosed. The above prohibition of disclosure shall not
apply to the extent that the Transfer Agent must disclose such data to
its sub-contractor or Fund agent for purposes of providing services
under this Agreement.
11.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records
of Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the
Transfer Agent will notify the Fund in advance of disclosure and to
secure instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right, however,
to exhibit the Shareholder records to any person whenever it is advised
by counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person or if required by law or court
order.
12. COVENANTS OF THE FUND AND THE TRANSFER AGENT
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12.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
12.2 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
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12.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable.
To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Transfer Agent agrees
that all such records prepared or maintained by the Transfer Agent
relating to the services to be performed by the Transfer Agent
hereunder are the property of the Fund and will be preserved,
maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
13. TERMINATION OF AGREEMENT
13.1 Term. The initial term of this Agreement (the "Initial Term") shall be
one year from the date first stated above unless terminated pursuant to
the provisions of this SECTION 13. Unless a terminating party gives
written notice to the other party one hundred and twenty (120) days
before the expiration of the Initial Term this Agreement will renew
automatically from year to year ("Renewal Term"). One hundred and
twenty (120) days before the expiration of the Initial Term or a
Renewal Term the parties to this Agreement will agree upon a Fee
Schedule for the upcoming Renewal Term.
13.2 Early Termination. Notwithstanding anything contained in this Agreement
to the contrary, should the Fund desire to move any of its services
provided by the Transfer Agent hereunder to a successor service
provider prior to the expiration of the then current Initial or Renewal
Term, or without the required notice period, the Transfer Agent shall
make a good faith effort to facilitate the conversion on such prior
date, however, there can be no guarantee that the Transfer Agent will
be able to facilitate a conversion of services on such prior date. In
connection with the foregoing, should services be converted to a
successor service provider, or if the Fund is liquidated or its assets
merged or purchased or the like with another entity which does not
utilize the services of the Transfer Agent, the fees payable to the
Transfer Agent shall be calculated as if the services had remained with
the Transfer Agent until the expiration of the then current Initial or
Renewal Term and calculated at the asset and/or Shareholder account
levels, as the case may be, on the date notice of termination was given
to the Transfer Agent, and the payment of fees to the Transfer Agent as
set forth herein shall be accelerated to the date prior to the
conversion or termination of services. SECTION 13.2 shall not apply if
the Transfer Agent is terminated for cause under SECTION 13.7 of this
Agreement.
13.3 Expiration of Term. After the expiration of the Initial Term or Renewal
Term whichever currently in effect, should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs
associated with the movement of records and material will be borne by
the Fund. Additionally, the Transfer Agent reserves the right to charge
for any other reasonable expenses associated with such termination.
Payment of such expenses or costs shall be in accordance with SECTION
3.4 of this Agreement and reported to Fund for approval in advance for
amounts greater than $5,000.00.
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13.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
13.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the
meaning of SECTION 3.4 of this Agreement; provided, however, the
Transfer Agent shall provide a ten (10) day notice hereunder before
termination under SECTION 13.5.
13.6 Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b)
an action is commenced by or against the other party under Title 11 of
the United States Code or a receiver, conservator or similar officer is
appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
13.7 Cause. If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder, and such default
has a material effect on the other party, then the nondefaulting party
may give notice to the defaulting party specifying the nature of the
default in sufficient detail to permit the defaulting party to identify
and cure such default. If the defaulting party fails to cure such
default within thirty (30) days of receipt of such notice, or within
such longer period of time as the parties may agree is necessary for
such cure, then the nondefaulting party may terminate this Agreement
upon notice of not less than thirty (30) days to the defaulting party.
14. ASSIGNMENT AND THIRD PARTY BENEFICIARIES.
14.1 Except as provided in SECTION 15.1 below neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility
under this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in
this Agreement to anyone other than the Transfer Agent and the Fund,
and the duties and responsibilities undertaken pursuant to this
Agreement shall be for the sole and exclusive benefit of the Transfer
Agent and the Fund. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
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14.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in SECTION 15.1 neither party shall make any commitments with
third parties that are binding on the other party without the other
party's prior written consent.
15. SUBCONTRACTORS
15.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial
Data Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended, (ii) a BFDS subsidiary
duly registered as a transfer agent or (iii) a BFDS affiliate duly
registered as a transfer agent; provided, however, that the Transfer
Agent shall be fully responsible to the Fund for the acts and omissions
of BFDS or its subsidiary or affiliate as it is for its own acts and
omissions.
15.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as by way of
example and not limitation, Airborne Services, Federal Express, United
Parcel Service, the U.S. Mails, the NSCC and telecommunication
companies, provided, if the Transfer Agent selected such company, the
Transfer Agent shall have exercised due care in selecting the same.
16. MISCELLANEOUS
16.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
16.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
16.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
16.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision of
this Agreement or for any consequential damages arising out of any act
or failure to act hereunder.
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16.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or protections
of proprietary rights and trade secrets shall survive for a period of
three years after the termination of this Agreement.
16.6 Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
16.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
16.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the other
party shall be construed as a waiver of any succeeding breach of the
same or of any other covenant or condition.
16.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
16.10 Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
16.11. Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether
or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and
that any enlargement, facsimile or further reproduction shall likewise
be admissible in evidence.
16.12 Notices. All notices and other communications as required or permitted
hereunder shall be: (a) by facsimile followed by mail or (b) in writing
and sent by first class mail, postage prepaid, addressed as follows or
to such other address or addresses of which the respective party shall
have notified the other.
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(i) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Fund, to:
One Group(R)Investment Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Shares in
addition to the attached Schedule A with respect to which it desires to
have the Transfer Agent render services as transfer agent under the
terms hereof, it shall so notify the Transfer Agent in writing, and if
the Transfer Agent agrees in writing to provide such services, such
series of Shares shall become a Portfolio hereunder.
18. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
The names "One Group(R) Investment Trust" and "Trustees of One Group(R)
Investment Trust" 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 June 7, 1993 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(R) Investment Trust
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
ONE GROUP(R)INVESTMENT TRUST
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Vice Chairman
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------
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SCHEDULE A
One Group(R) Investment Trust Bond PortfoliO
One Group(R) Investment Trust Government Bond PortfoliO
One Group(R) Investment Trust Balanced Portfolio
One Group(R) Investment Trust Large Cap Growth PortfoliO
One Group(R) Investment Trust Equity Index Portfolio
One Group(R) Investment Trust Diversified Equity PortfoliO
One Group(R) Investment Trust Mid Cap Growth Portfolio
One Group(R) Investment Trust Diversified Mid Cap PortfoliO
One Group(R) Investment Trust Mid Cap Value Portfolio
ONE GROUP(R)INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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SCHEDULE 2.1
FUND PARTICIPATION PROCEDURES
Dated January 1, 2000
1. On each Business Day, the Insurance Companies designated by the Fund
shall receive, on behalf of and as agent of the Fund(s), Instructions
(as hereinafter defined) from the Separate Accounts. Instructions shall
mean as to each Portfolio (i) orders by a Separate Account for the
purchases of Shares, and (ii) requests by a Separate Account for the
redemption of Shares; in each case based on the Separate Account's
receipt of purchase orders and redemption requests by contract owners
in proper form by the time required by the term of the variable
insurance product, but not later than the time of day at which the net
asset value of a Portfolio is calculated, as described from time to
time in that Portfolio's prospectus. Each Business Day on which the
Insurance Company receives Instructions shall be a "Trade Date".
2. On the next succeeding Business Day following the Trade Date on which
the Insurance Companies accepted Instructions for the purchase and
redemption of Shares, (TD+1), each Insurance Company shall notify the
Transfer Agent of the net amount of such purchases or redemptions, as
the case may be, for each of the Separate Accounts. In the case of net
purchases by any Separate Account, each Insurance Company shall
transmit the aggregate purchase price for Shares by wire transfer to
the Transfer Agent on (TD+1). The Transfer Agent shall promptly notify
the Fund's administrator in the event that the Transfer Agent does not
receive the aggregate purchase amount for Shares by 2:00 p.m. Eastern
Time on (TD+1) and act in accordance with instructions received from
the Fund. In the case of net redemptions by any Separate Account, each
Insurance Company shall instruct the Transfer Agent to transmit the
aggregate redemption proceeds for Shares by wire transfer to the
Separate Accounts on (TD+1).
3. The Transfer Agent shall process orders for purchases and redemptions
if such orders are received by the Transfer Agent by 10:00 a.m. Eastern
Time. In the event that such orders are received after 10:00 a.m., the
Transfer Agent shall promptly notify the Fund's administrator and act
in accordance with instructions received from the Fund. All proceeds
for redemptions shall be transmitted by the Transfer Agent to the
applicable Separate Account so that such proceeds are received no later
than 2:00 p.m. Eastern Time.
ONE GROUP(R)INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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SCHEDULE 3.1
FEES
Dated: January 1, 2000 through December 31, 2002.
ANNUAL SERVICE FEES: Fees are billable on a monthly basis at the rate of 1/12 of
the annual fee.
Cusip Base Fee $6,000.00
OVERDRAFTS: Overdrafts in the Fund's demand deposit accounts at the Custodian
maintained by the Transfer Agent shall be subject to a charge of 50 basis points
the ("Overdraft Charge") over the Federal Funds Effective Rate in effect at the
relevant time of reference thereto, that appears on the Bloomberg Page BTMM, as
quoted by ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, as of 9:30 a.m. (New York time), as the "Federal
Funds Ask Rate" or if unavailable, by any other federal funds broker of
recognized standing as determined by the Custodian, when such overdrafts occur.
Upon payment of the Overdraft Charge to the Transfer Agent, the Transfer Agent
shall forward such funds to the Custodian; it being understood that the Fund
shall not be required to pay any additional overdraft charges to the Custodian
under this Agreement.
These fees will be subject to an annual Cost of Living Adjustment based on the
Consumer Price Index for Urban Wage Earners and Clerical Workers, for the Boston
area, as published bimonthly by the United States Department of Labor
Statistics, or, in the event that publication of such Index is terminated, any
successor or substitute index, appropriately adjusted, acceptable to both
parties.
OUT-OF-POCKET EXPENSES: Out-of-Pocket expenses include, but are not limited to:
confirmation statements, Investor Statements, postage, forms, audio response,
telephone, records retention, fed wire charges, transcripts, micro film, micro
fiche, and expenses incurred at the specific direction of the Fund.
ONE GROUP(R)INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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