Exhibit (h)(57)
Trust Fund/SERV Agreement and Supplement to Trust Fund/SERV Agreement
dated as of November 22, 2002 between MFS Heritage Trust Company, MFS Retirement
Services, Inc., One Group Dealer Services, Inc. and One Group Mutual Funds.
1/14/97
Trust Fund/SERV Agreement
AGREEMENT entered into by and between "Fund Agent" with its principal place of
business in Columbus, Ohio and "Trust Entity" with its principal place of
business in Manchester, New Hampshire.
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
Funds shall mean, as applicable, (i) the Fund Agent, or (ii) the open-end
investment companies for which the Fund Agent serves as investment adviser,
administrator, principal underwriter, distributor and/or transfer agent.
Client-shareholders shall mean those clients of the Trust Entity who have
entered into agreement with the Trust Entity and who maintain an interest in an
account with the Funds registered in the name of the Trust Entity.
Trust Entity shall mean a Trust Company or Trust Department of a Commercial Bank
which acts in a fiduciary capacity on behalf of the Client-shareholders.
Fund Agent is (i) an investment advisor to or administrator for the Funds, (ii)
the principal underwriter or distributor for the Funds, or (iii) the transfer
agent for the Funds.
WHEREAS, the Trust Entity, possesses the authority to act on behalf of its
client-shareholders of the Funds ("Client-shareholders");
WHEREAS, the Trust Entity and either the Funds or the Funds' principal
underwriter or other agent ("Underwriter") are members of the National
Securities Clearing Corporation ("NSCC") or otherwise have access to the NSCC's
Fund/SERV system;
WHEREAS, Fund/SERV permits the transmission of Shareholder trade and
registration data between the Trust Entity and the Funds;
WHEREAS, the Fund Agent and the Trust Entity desire to participate in Fund/SERV
with each other;
WHEREAS, this Agreement shall inure to the benefit of and shall be binding upon
the undersigned and each such entity shall be either the Fund Agent or Trust
Entity for purposes of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, the Fund Agent and the Trust Entity hereby
agree as follows:
I. OBLIGATIONS OF THE FUND AGENT
1. Transactions Subject to Fund/SERV. On each business day that the New York
Stock Exchange is open for business on which the Funds determine their per share
net asset values ("Business Day"), the Fund Agent shall accept, and effect
changes in its records upon receipt of purchase, redemption, exchanges, and
registration instructions from the Trust Entity electronically through Fund/SERV
("Instructions") without supporting documentation from the Client-shareholder in
accordance with the terms and conditions set forth in the Statement of Operating
Procedures attached hereto as Appendix 1. On each Business Day, the Fund Agent
shall accept for processing any Instructions from the Trust Entity and shall
process such Instructions in a timely manner.
2. Performance of Duties. The Fund Agent shall perform any and all duties,
functions, procedures and responsibilities assigned to it under this agreement
and as otherwise established by the NSCC. The Fund Agent shall maintain
facilities, equipment and skilled personnel sufficient to perform the foregoing
activities and to otherwise comply with the terms of this Agreement. The Fund
Agent shall conduct each of the foregoing activities in a competent manner and
in compliance with (a) all applicable laws, rules and regulations, including
NSCC rules and procedures relating to Fund/SERV; (b) the then current
prospectuses and statements of additional information of the Funds; and (c) any
provision relating to Fund/SERV in any agreement between the Fund Agent and the
Underwriter that would affect the Fund Agent's duties and obligations pursuant
to this Agreement.
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3. Accuracy of Information, Transmissions Through, and Access to Fund/SERV.
Confirmed trades and any other information provided by the Fund Agent to the
Trust Entity through Fund/SERV and pursuant to this Agreement shall be accurate,
complete, and in the format prescribed by the NSCC. The Fund Agent shall adopt,
implement and maintain procedures reasonably designed to ensure the accuracy of
all transmissions through Fund/SERV and to limit the access to, and the
inputting of data into, Fund/SERV to persons specifically authorized by the Fund
Agent.
4. Notice of Prospectus and Statement of Additional Information Revisions. The
Funds shall provide the Trust Entity with reasonable notice of any material
revisions to the Funds' prospectuses and statements of additional information as
are necessary to enable the Trust Entity to fulfill its obligations under this
Agreement.
II. OBLIGATIONS OF THE TRUST ENTITY
1. Transactions Subject to Fund/SERV. Trust Entity certifies that all
Instructions delivered to Fund Agent on any Business Day shall have been
received by the Trust Entity from the Client-shareholder by the close of trading
(currently 4:00 p.m. New York time) on the New York Stock Exchange (the "Close
of Trading") on such Business Day and that any Instructions received by it after
the Close of Trading on any given Business Day will be transmitted to Fund Agent
on the next Business Day. Trust Entity further certifies that all such
Instructions received by it from a Client-shareholder by the Close of Trading on
any Business Day will be delivered to Fund Agent on such Business Day.
2. Performance of Duties. The Trust Entity shall perform any and all duties,
functions, procedures and responsibilities assigned to it under this agreement
and as otherwise established by the NSCC. The Trust Entity shall maintain
facilities, equipment and skilled personnel sufficient to perform the foregoing
activities and to otherwise comply with the terms of this Agreement. The Trust
Entity shall conduct each of the forgoing activities in a competent manner
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and in compliance with (a) all applicable laws, rules and regulations, including
NSCC rules and procedures relating to Fund/SERV, and; (b) the then current
prospectuses and statements of additional information of the Funds.
3. Accuracy of Information, Transmissions Through, and Access to Fund/SERV.
Trade, registration, and if applicable, broker/dealer information provided by
the Trust Entity to the Fund Agent through Fund/SERV and pursuant to this
Agreement shall be accurate, complete and, in the format prescribed by the NSCC.
All instructions by the Trust Entity regarding each Fund/SERV Account shall be
true and correct and will have been duly authorized by the client-shareholder.
The Trust Entity shall adopt, implement and maintain procedures reasonably
designed to ensure the accuracy of all transmissions through Fund/SERV and to
limit the access to, and the inputting of data into, Fund/SERV to persons
specifically authorized by the Trust Entity.
4. Information Relating to Fund/SERV Transactions. For each Fund/SERV
transaction, including transactions establishing a Client-shareholder account
with the Fund Agent, the Trust Entity shall provide the Funds and the Fund Agent
with all information necessary or appropriate to establish and maintain each
Fund/SERV transaction (and any subsequent changes to such information) which the
Trust Entity hereby certifies is and shall remain true and correct. The Trust
Entity shall maintain documents required by the Funds or by applicable law,
rules or regulations to effect Fund/SERV transactions.
5. As-Of Transactions. Processing errors which result from any delay or error
caused by the Trust Entity may be adjusted through Fund/SERV by the Trust Entity
by the necessary transactions on an as-of basis and the cost to the Fund or Fund
Agent of such transactions shall be borne by the Trust Entity; provided however,
prior authorization must be obtained from the Fund Agent if the transaction is
back dated more than five days or to a previous calendar year.
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6. Trade Confirmation. Any information provided by the Fund Agent to the Trust
Entity electronically through Fund/SERV and pursuant to this Agreement, shall
satisfy the delivery obligations as outlined by SEC Rule 10b-10 and, as such,
the Fund Agent has the informed consent of the Trust Entity to suppress the
delivery of this information using paper-media. The Trust Entity will promptly
verify accuracy of confirmations of transactions and records received by the
Fund Agent through Fund/SERV.
7. Shareholder Reports and Other Documents; Solicitation of Proxies. The Trust
Entity shall timely deliver to each Client-shareholder all reports and other
documents provided to it by the Funds or the Fund Agent as is required by
applicable securities law and the Trust Entity Agreement with the
Client-shareholder, provided that the Trust Entity has timely received copies of
such reports and/or documents. Subject to receipt by the Fund or the Fund Agent
of such supporting documentation as it may reasonably request, the Fund Agent
shall reimburse the Trust Entity for all reasonable out-of-pocket expenses
incurred by the Trust Entity in mailing all such reports and/or documents. The
Fund or the Fund Agent, and the Trust Entity shall cooperate with each other in
the solicitation and voting of proxies on behalf of the Funds according to the
Trust Entity's fiduciary responsibility as written in the trust agreement or as
required by state law or Federal Regulation.
III. INDEMNIFICATION
1. Fund Agent. The Fund Agent shall indemnify and hold harmless the Trust
Entity, and each of the Trust Entity's divisions, subsidiaries, directors,
officers, agents, employees and assigns of each of the foregoing (collectively,
"Indemnified Trust Entity Parties"), against and from any and all demands,
damages, liabilities, and losses, or any pending or completed actions, claims,
suits, complaints, proceedings, or investigations (including reasonable
attorneys fees and other costs, including all expenses of litigation or
arbitration, judgments, fines or amounts paid in any settlement consented to by
the Fund Agent) to which any of them may be or become subject to as a result or
arising out of (a) any negligent act or omission by the Funds or its Agents
5
relating to Fund/SERV provided the Trust Entity has not acted negligently; (b)
any breach of the Fund's representations or warranties contained in this
Agreement; or (c) the Fund Agent's failure to comply with any of the terms of
this Agreement.
2. Trust Entity. The Trust entity shall indemnify and hold harmless the Funds,
the Funds' custodian, the Funds' underwriter, the Funds' investment advisor, the
Fund Agent, each of their affiliated companies, and all of the divisions,
subsidiaries, directors, trustees, officers, agents, employees and assigns of
each of the foregoing (collectively, "Indemnified Fund Parties"), against and
from any and all demands, damages, liabilities, and losses, or any pending or
completed actions, claims, suits, complaints, proceedings, or investigations
(including reasonable attorneys fees and other costs, including all expenses of
litigation or arbitration, judgments, fines or amounts paid in any settlement
consented to by the Trust Entity) to which any of them may be or become subject
to as a result or arising out of (a) any negligent act or omission by the Trust
Entity, the Trust's correspondents, or their agents relating to Fund/SERV
provided the Fund Agent has not acted negligently; (b) any breach of the Trust's
representations or warranties in this Agreement; (c) the failure of the Trust
Entity or the Trust's correspondents to comply with any of the terms of this
Agreement; or (d) the Fund Agent's acceptance of any transaction or account
maintenance information from the Trust Entity through Fund/SERV including any
fraudulent or unauthorized transaction by either the Trust Entity or the
Client-shareholder.
3. Notice and Opportunity to Defend. If any action, suit, proceeding, or
investigation is initiated, or any claim or demand is made, against any Party
indemnified hereto with respect to which such Party ("Indemnified Party") may
make a claim against any other Party hereto ("Indemnifying Party") pursuant to
this Section III, then the Indemnified Party shall give prompt written notice of
such action, suit, proceeding, investigation, claim or demand to the
Indemnifying Party. Thereafter, the Indemnifying Party shall have the
opportunity, at its own expense and with its own counsel, to defend or settle
such action, suit, proceeding , investigation, claim or demand; provided,
however, that: (a) the Indemnifying Party shall keep the Indemnified
6
Party informed of all material developments and events relating to such action,
suit, proceeding, investigation, claim or demand; (b) the Indemnified Party
shall have the right to participate, at its own expense in the defense of such
action, suit, proceeding, investigation, claim or demand and shall cooperate as
reasonably requested by the Indemnifying Party in the defense thereof; and (c)
the Indemnifying Party shall not settle such action, suit, proceeding,
investigation, claim or demand without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
IV. MISCELLANEOUS
1. Overpayments to the Trust Entity. In the event any overpayment is made to the
Trust Entity by the Fund Agent, the Trust Entity shall promptly repay such
overpayment to the Fund Agent after the Trust Entity receives notice of such
overpayment.
2. Overpayments to the Fund Agent. In the event any overpayment is made to the
Fund Agent by the Trust Entity, the Fund Agent shall promptly repay such
overpayment to the Trust Entity after the Fund Agent receives notice of such
overpayment.
3. Termination. This agreement shall continue in effect until terminated. The
Fund Agent or Trust Entity may terminate this agreement at any time by written
notice to the other 30 days prior to the termination date, but such termination
shall not affect the payment or repayment of fees on transactions, if any, prior
to the termination date. Termination also will not affect the indemnities given
under this Agreement. This Agreement may be amended at any time by mutual
agreement of both parties.
4. Conflicting Agreements. Except with respect to the provisions of this
Agreement contained in Paragraph 6 of this Section IV, any provision of this
agreement and the Statement of Operating Procedures, or other understanding
between the Fund Agent and the Trust Entity relating to Fund/SERV that is
inconsistent with this Agreement shall be null and void. Nothing
7
contained in this Agreement, however, shall be construed to limit or restrict
either Party's compliance with any law, regulation or order to which the Party
is subject or to prevent the Parties from supplementing this Agreement by
agreeing to additional duties, obligations, representations, warranties and/or
higher standards of care with respect thereto.
5. Assignment. Neither the Fund Agent nor the Trust Entity may assign this
Agreement without the prior written consent of the other Party, and any
attempted assignment without such consent shall be null and void; provided,
however, a change in control of either Party shall not constitute an assignment
of this Agreement.
6. Law. This Agreement shall be governed by and its provisions shall be
construed in accordance with the laws of the Commonwealth of Massachusetts.
7. Severability. If any provision of this Agreement is held to be invalid, the
remaining provisions of the Agreement shall continue to be valid and
enforceable.
8. Notice. Any notice or amendment required or permitted hereunder shall be in
writing and shall be given by personal service, mail, or facsimile to the other
Party at the address set forth below (or such other address as the Fund Agent or
the Trust Entity may specify by written notice to the other). Notice shall be
effective upon receipt if by mail, on the date of personal delivery (by private
messenger, courier service or otherwise), or upon receipt of facsimile,
whichever occurs first at:
Trust Entity: MFS Heritage Trust Company
c/o MFS Investment Management
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fund Agent: One Group Dealer Services, Inc.
Attn: President
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. Waiver. The failure of a Party to insist upon strict adherence to any
provision of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such Party of the right thereafter to insist upon strict
adherence to that provision or any other provision of this Agreement.
10. No Agency or Sale of Securities. Neither party shall be authorized to act
for or represent the other or in any way be deemed an agent or partner of the
other. The services contemplated by this Agreement do not constitute the sale of
securities between the parties.
11. Insurance by Trust Entity. At all times Trust Entity shall maintain
insurance coverage that is reasonable and customary in light of all its
responsibilities hereunder. Such coverage shall insure for losses resulting from
the criminal acts or errors and omissions of Trust Entity's employees.
12. Insurance by Fund. At all times the Fund shall maintain insurance coverage
that is reasonable and customary in light of all its responsibilities hereunder.
Such coverage shall insure for losses resulting from the criminal acts or errors
and omissions of the Fund's employees.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the 22/nd/ day of November, 2002.
ATTEST:
[Fund Agent]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary Title: President
One Group Mutual Funds
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary Title: Vice President & Treasurer
[Trust Entity]
MFS Heritage Trust Company
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Clerk Title: President
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SUPPLEMENT TO TRUST FUND/SERV AGREEMENT
BY AND BETWEEN
ONE GROUP DEALER SERVICES, INC.,
ONE GROUP MUTUAL FUNDS
AND
MFS HERITAGE TRUST COMPANY
Reference is made to the Trust Fund/Serv Agreement entered into as of
November 22, 2002 (the "Agreement") by and between MFS Heritage Trust Company
(the "Trust Entity"), One Group Mutual Funds (the `Funds"), and One Group Dealer
Services, Inc, (the "Fund Agent").
In consideration of the mutual covenants herein contained, which
consideration is full and complete, the Trust Entity and the Fund Agent hereby
agree to supplement and amend the Agreement, as follows:
1. Joinder of Additional Party. The parties to the Agreement agree to the
joinder of MFS Retirement Services, Inc. ("RSI"), an affiliate of the Trust
Entity, as a party to the Agreement, as supplemented and amended. RSI shall be
entitled to all of the rights and benefits, and subject to all of the
obligations, of the Agreement, as modified by this Supplement. The respective
obligations of RSI and the Trust Entity shall be several and not joint.
2. Definition of Client-shareholders. The definition of "Client-shareholders"
appearing in the fourth paragraph on page 1 of the Agreement is amended to read
as follows:
"Client-shareholders shall mean defined contribution plans and other
qualified and non-qualified retirement plans which have entered into an
agreement with the Trust Entity, or an affiliate of the Trust Entity, with
respect to the provision of trustee or administrative services, and which
maintain an interest in an account with the Funds, which such account may be
registered in the name of the Trust Entity."
3. Definition of Trust Entity. The definition of "Trust Entity" appearing in
the fifth paragraph on page 1 of the Agreement is amended to read as follows:
"Trust Entity shall mean a trust company which provides Client-shareholders
with either limited purpose, directed trustee services pursuant to a trust
agreement or administrative services pursuant to an administrative services
agreement with either the Trust Entity or an affiliate."
4. NSCC DCC&S Service. The tenth paragraph on page 1 of the Agreement is
amended to read as follows:
"WHEREAS, NSCC offers the Defined Contribution Clearing and Settlement
service (the "DCC&S") (which currently utilizes the capabilities of NSCC's
Fund/SERV, Mutual Fund Profile and Networking services) and the Fund Agent
and the Trust Entity desire to participate in Fund/SERV with each other by
means of the DCC&S;"
5. RSI Administrative Services. The following two new paragraphs are inserted
immediately after the tenth paragraph on page 1 of the Agreement as follows:
"WHEREAS, MFS Retirement Services, Inc. ("RSI"), an affiliate of the Trust
Entity, provides administrative services to Client-shareholders pursuant to
separate administrative services agreements between RSI and each such
Client-shareholder;
WHEREAS, RSI may receive instructions for the purchase and/or redemption of
Fund shares from Client-shareholders and convey such instructions to the
Trust Entity;"
6. Fund Information; Adjustments. A new Paragraph 5 is added at the end of
Section I of the Agreement as follows:
"5. Fund Information; Adjustments. The Fund Agent agrees to furnish to the
Trust Entity (for further access by RSI), for each Fund through the Mutual
Fund Profile Service: (1) net asset value information as of the close of
trading (currently 4:00 P.M. Eastern Time, the "Close of Trading") on each
business day that the New York Stock Exchange is open for business (each a
"Business Day") or at such other time as the net asset value of a Fund is
calculated, as disclosed in the applicable then-current prospectus (the "NAV
Data"), and (2) dividend and capital gains information and, as applicable,
the daily accrual or distribution rate factor for each Fund as it becomes
available (collectively, the "Distribution Data"). The Fund Agent shall
provide the NAV Data and the Distribution Data to the Trust Entity via the
NSCC Mutual Fund Profile Service system and the NSCC Networking Files,
respectively, and subject to, and in accordance with, all applicable laws,
rules and regulations, including NSCC rules and procedures.
"The Fund Agent represents, warrants and covenants that all NAV Data,
Distribution Data and other information from time to time furnished by, or on
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behalf of, the Fund Agent to the Trust Entity will be true, accurate,
complete and current in all respects, and will be updated in accordance with
industry practice and as agreed to between Fund Agent and Trust Entity.
"In the event an adjustment is made to the computation of the net asset value
of any Fund's shares as reported under the immediately preceding paragraph,
the Fund Agent shall notify the Trust Entity and RSI as soon as possible
after discovering the need for any such adjustment. Notification may be made
by facsimile or by electronic transmission, and will include, for each day on
which an adjustment has occurred, the incorrect Fund net asset value, the
correct net asset value and the reason for the adjustment. The Fund Agent
agrees that the Trust Entity and RSI may send this notification or a
derivation thereof to Client-shareholders whose accounts may be affected by
the adjustment. If a Client-shareholder receives an amount less than the
amount to which it otherwise would have been entitled prior to a net asset
value adjustment, the Fund Agent agrees to reimburse each such
Client-shareholder account in accordance with the Fund's error correction
policy. The Fund Agent shall reimburse the Trust Entity promptly for its
reasonable and customary out-of-pocket expenses incurred in making
adjustments as a result of pricing errors. If a Client-shareholder account
receives an amount greater than the amount which it otherwise would have been
entitled prior to a net asset value adjustment, the Trust Entity and the Fund
Agent agree to evaluate the situation together on a case-by-case basis with
the goal towards pursuing an appropriate course of action. In no event,
however, shall either the Trust Entity or RSI be liable to the Fund Agent or
the Funds for any such amounts."
7. Processing of Instructions. The last sentence in Paragraph 1 of Section II
of the Agreement is deleted and replaced with the following three new sentences:
"With respect to processing of Instructions received by the Close of Trading
on a Business Day, the Trust Entity shall transmit such Instructions to the
Fund Agent through Fund/SERV and DCC&S by 9:30 a.m. Eastern Time on the next
Business Day. The Fund Agent hereby appoints the Trust Entity as limited
purpose agent with respect to orders for the purchase and redemption of
shares of the Funds held by the Client-shareholders, and the Trust Entity
accepts such appointment, on the terms set forth herein. The Trust Entity may
utilize the services of one or more of its affiliates, including without
limitation RSI, MFS Fund Distributors, Inc. and MFS Service Center, Inc., in
performing its obligations hereunder."
8. Indemnification by Fund Agent. Paragraph 1 of Section III of the Agreement
is amended to read in its entirety as follows:
"Fund Agent. The Fund Agent shall indemnify and hold harmless the Trust
Entity, RSI, and each of the Trust Entity's and RSI's divisions,
subsidiaries, directors, officers, agents, employees and assigns of each of
the foregoing
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(collectively, "Indemnified Trust Entity Parties"), against and from any and all
demands, damages, liabilities, and losses, or any pending or completed actions,
claims, suits, complaints, proceedings, or investigations (including reasonable
attorneys fees and other costs, including all expenses of litigation or
arbitration, judgments, fines or amounts paid in any settlement consented to by
the Fund Agent) to which any of them may be or become subject to as a result or
arising out of (a) any negligent act or omission by the Funds or its agents
relating to Fund/SERV provided the Trust Entity has not acted negligently; (b)
any breach of the Fund's representations or warranties contained in this
Agreement; or (c) the Fund Agent's failure to comply with any of the terms of
this Agreement."
9. Indemnification by RSI. A new Paragraph 2.1 is hereby added to Section III
of the Agreement, as follows:
"RSI. RSI shall indemnify and hold harmless the Funds, the Funds' custodian,
the Funds' underwriter, the Funds' investment advisor, the Fund Agent, each
of their affiliated companies, and all of the divisions, subsidiaries,
directors, trustees, officers, agents, employees and assigns of each of the
foregoing (collectively, "Indemnified Fund Parties"), against and from any
and all demands, damages, liabilities, and losses, or any pending or
completed actions, claims, suits, complaints, proceedings, or investigations
(including reasonable attorneys fees and other costs, including all expenses
of litigation or arbitration, judgments, fines or amounts paid in any
settlement consented to by the Trust Entity) to which any of them may be or
become subject to as a result or arising out of (a) any negligent act or
omission by RSI or its agents in connection with the administrative services
to be performed by RSI hereunder, provided the Fund Agent has not acted
negligently; (b) any breach of RSI's representations or warranties in this
Agreement; or (c) the failure of RSI to comply with any of the terms of this
Agreement."
10. No Agency. The first sentence in Paragraph 10 of Section IV of the
Agreement is amended to read as follows:
"Except as provided in Section II of this Agreement, no party shall be
authorized to act for or represent the other or in any way be deemed an agent
or partner of the other."
11. Administrative Services Performed by RSI. (a) RSI (either itself or through
its affiliates) shall provide the following services to the Fund Agent on behalf
of the Funds:
(i) Provide adequate facilities and procedures to: (A) establish and
maintain Fund investments on behalf of Client-shareholders within a consolidated
account(s) on a transaction processing and record keeping system, and (B) access
by Client-shareholders'
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and their participants' ("Participants") to current Fund information, including
without limitation, share balances, dividend information and transaction
history.
(ii) Receive instructions from Participants, or Client-shareholders on
behalf of Participants, for the purchase, sale, exchange or redemption of Fund
shares ("Instructions") and communicate orders that correspond to the
Instructions ("Orders"), as directed, to the Fund Agent, the Fund or its
transfer agent (the "Receiving Party"), for the purpose of enabling the
Receiving Party to input and execute the Orders on the books of the Fund, in
accordance with the provisions set forth in the Agreement, as modified by this
Supplement.
(iii) Maintain records for each Participant reflecting Instructions and
outstanding balances of Fund shares beneficially owned by the Participant.
(iv) Prepare and transmit to Participants periodic consolidated account
statements.
(v) Respond to Participant inquiries regarding, among other things, share
prices, account balances, dividend amounts and dividend payment dates.
(vi) Provide other services relating to Participants' beneficial holdings
and transactions in the Funds as the parties from time to time shall mutually
agree.
(vii) Provide periodic Fund performance information to Client-shareholders
and Participants.
(b) In connection with the provision by RSI of the foregoing services, the Fund
Agent agrees to furnish the Trust Entity (for further access by RSI) with the
following information and materials, immediately after they become available or
are updated: (i) year-to-date, one-year, three-year, five-year and ten-year
performance information for each Fund, including yields calculated in accordance
with Securities and Exchange Commission requirements for fixed income funds;
(ii) information concerning portfolio composition, top holdings and (for fixed
income funds) bond ratings; (iii) prospectuses, statements of additional
information ("SAIs"), prospectus and SAI supplements ("Supplements"), annual and
semi-annual reports (collectively, "Reports"), sales literature and other
relevant information and materials. It is acknowledged and agreed that all
materials specified in Subsection (iii) shall be provided in reasonable
quantities at no cost to Trust Entity. It is also acknowledged that the Trust
Entity may provide Client-shareholders and their participants with periodic Fund
performance information and Fund fact sheets that have been obtained or derived
from third party services such as Lipper, CDA/▇▇▇▇▇▇▇▇▇▇▇▇ or Morningstar.
(c) The Fund Agent hereby authorizes the Trust Entity, the Trust Entity's
affiliates (including RSI) and each of their respective officers, employees,
agents and
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representatives to provide representatives of Client-shareholders and
Participants, as well as prospective Client-shareholders and their
representatives and agents, with net asset value information, dividend and
capital gains information, performance information, Client-shareholder account
information, and information concerning each Fund as set forth in the
prospectuses, SAIs, Supplements, Reports, sales literature and other materials
or information from time to time furnished by, or on behalf of, the Fund Agent,
and to accept requests from Client-shareholders and Participants (for processing
by the Trust Entity and its affiliates) for: (i) additional Client-shareholder
account statements; and (ii) exchanges among the Funds and between the Funds.
(d) In consideration of RSI's performance of the administrative services set
forth in the Agreement, as modified by this Supplement, and in recognition of
the substantial costs to be borne by the Trust Entity and RSI in providing
administrative functions on behalf of the qualified Client-shareholders with
respect to their investments in the Funds, the Funds agree to pay the Trust
Entity a Recordkeeping Fee of $12 per annum per participant account established
in each Fund. Such Recordkeeping Fee shall be assessed at a rate of $3.00 for
each participant account that is open on the last day of each calendar quarter
and shall be payable quarterly.
(1) The parties agree that the Recordkeeping Fees are for administrative
services only and do not constitute payment in any manner for investment
advisory, transfer agency or distribution services.
(2) The Trust Entity shall calculate the Recordkeeping Fees at the end of the
quarter and shall send an invoice therefor to the Fund. Each invoice shall be
accompanied by a statement setting forth the calculation of such
Recordkeeping Fees. The Fund shall make payment to the Trust Entity within 30
days after such invoice is sent to it by the Trust Entity.
(3) Except as otherwise provided in this Agreement, the Trust Entity, RSI,
the Fund and the Fund Agent shall bear all expenses incidental to the
performance of their respective obligations under this Agreement.
12. Use Of Names. (a) The Fund Agent hereby authorizes the Trust Entity and RSI
to use the names and other identifying marks of the Fund Agent and each Fund in
connection with providing services under this Agreement. The Fund Agent or any
Fund may withdraw this authorization as to any particular use of any such name
or identifying marks at any time (i) upon the Fund Agent's or the Fund's
reasonable determination that such use would have a material adverse effect on
the reputation or marketing efforts of the Fund Agent or such Fund; or (ii) if
the Fund Agent or the Fund reasonably determines that materials using such names
or identifying marks are inaccurate or misleading. In addition, such
authorization shall terminate automatically if the Trust Entity and RSI are
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no longer providing services to the Fund Agent as described in the Agreement, as
modified by this Supplement, and upon termination of the Agreement.
(b) Except as otherwise expressly provided for in the Agreement, as modified by
this Supplement, neither the Fund Agent nor any Fund shall use any trademark,
trade name, service ▇▇▇▇ or logo of the Trust Entity, or its affiliates, without
the Trust Entity's prior written consent.
(c) The Trust Entity or RSI shall provide the Fund Agent with copies of all
advertising, sales literature or other marketing materials that refer to the
Fund Agent or any Fund by name or that ▇▇▇ any trademark, trade name, service
▇▇▇▇ or logo of the Fund or Fund Agent for review and approval before such
material is used. (The parties agree that Trust Entity shall provide Fund Agent
with templates of all Fund performance information and Fund fact sheets obtained
or derived from third party services, the content of which shall be updated
quarterly without further review or approval.) The Fund Agent shall provide the
Trust Entity or RSI with comments, if any, no later than seven business days
after receipt of such materials.
13. Additional Representations, Warranties and Covenants. Each party represents
and warrants that: (i) it is free to enter into the Agreement and this
Supplement, 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; (ii) it has full power and authority under applicable law, and has taken
all action necessary, to enter into and perform the Agreement and this
Supplement; and (iii) at all times it shall comply with all applicable federal
and state laws, rules and regulations, as well as applicable NSCC rules and
procedures and NASDR rules and regulations, in connection with its performance
of its obligations under, or in connection with, the Agreement and this
Supplement.
14. Maintenance/Access to Records. The Trust Entity, RSI and the Fund Agent
agree that each will maintain and preserve all records as required by law to be
maintained and preserved in connection with the Agreement and this Supplement,
and will otherwise comply with all laws, rules and regulations. Upon the
reasonable written request of the Fund Agent, the Trust Entity shall provide
copies of all the historical records relating to transactions involving the
Funds and the Client-shareholders, in each case as may reasonably be requested
to enable the Fund Agent to monitor and review the services provided under the
Agreement and this Supplement.
15. The names "One Group Mutual Funds" and "Trustees of One Group Mutual Funds"
refer respectively to the Trust created and the Declaration of Trust dated May
23, 1985, as amended and restated February 18, 1999, to which reference is
hereby made and a copy of which is on file at the office of the Secretary of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "One
Group Mutual Funds" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees,
-7-
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.
Except as expressly amended and supplemented hereby, the Agreement shall
continue in full force and effect and unamended.
-8-
IN WITNESS WHEREOF, each of the parties hereto have caused this Supplement to
the Agreement to be executed as of the 22nd day of November 2002 by their
respective officers hereunto duly authorized.
MFS HERITAGE TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
MFS RETIREMENT SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
ONE GROUP DEALER SERVICES, INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: President & CEO
-------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
ONE GROUP MUTUAL FUNDS
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President & Treasurer
-------------------------------------
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APPENDIX 1
STATEMENT OF
OPERATING PROCEDURES
A. The Fund Agent agrees that the sale of all Fund shares to Client-shareholders
under the Agreement and this Supplement shall be effected at the Fund's
applicable net asset value price per share, without the imposition of a
front-end or contingent deferred sales charge, in accordance with the
provisions of such Fund's then-effective prospectus.
B. The parties agree that all dividends earned on a Client-shareholder Fund
account shall be reinvested in additional shares, unless the Fund Agent is
otherwise instructed by the Trust Entity.
C. The Fund Agent will provide the Trust Entity with a list of names, titles and
telephone and facsimile numbers of the personnel designated and authorized to
communicate with the Trust Entity regarding Orders and related matters.
D. The Fund Agent will not make any changes to the CUSIP number of any Fund
without giving the Trust Entity reasonable prior notice of such change.
E. The Fund Agent acknowledges it can accept DCC&S trades submitted in any of
the following categories, (1) commissionable purchases, (2)
non-commissionable purchases, and (3) redemptions.
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