Exhibit (m)(31)
RECORDKEEPING AGREEMENT
AGREEMENT made as of February 3, 2003 by and between CITISTREET LLC
("CitiStreet"), Banc One Investment Advisors Corporation ("BOIA") and One Group
Mutual Funds (the "Trust").
WHEREAS, CitiStreet, has been retained by the sponsor of a qualified
employee benefit plan or plans (the "Plan" or "Plans"), to provide recordkeeping
and related administrative services on behalf of such Plans and the participants
under such Plans (the "Participants"), including daily valuation and processing
of orders for investment and reinvestment of assets in the various investment
options available under the Plans; and
WHEREAS, the Trust desires to enter into a Recordkeeping Agreement pursuant
to which the Trust will retain CitiStreet to perform certain recordkeeping and
accounting services and functions with respect to transactions in Trust shares
("Shares") made by or on behalf of such Plans and Participants, when with
respect to the Trust such Plans maintain with the Trust's transfer agent
("Transfer Agent") a single master shareholder account;
NOW, THEREFORE, in consideration of the following premises and mutual
covenants, the parties agree as follows:
1. Services Provided by CitiStreet
When and to the extent requested by the Trust, CitiStreet agrees to perform
the following recordkeeping and account services and functions with respect to
transactions in Shares made by or on behalf of Participants:
A. Maintain separate records for each Participant under the Plan,
which records shall reflect the Shares purchased and redeemed and
Share balances of such Participants. CitiStreet will maintain a
single master account with each Fund on behalf of the Plan and
such account shall be in the name of CitiStreet (or its nominee)
or the trustee of the Plan (or its nominee) as the record owner
of Shares owned by the Plan.
B. Disburse or credit to the Plan all proceeds of redemptions of
Shares and all dividends and other distributions not reinvested
in Shares.
C. Prepare and transmit to the Plan and/or Participants, as required
by law or the Plan, periodic statements showing the total number
of Shares owned by the Participants as of the statement closing
date, purchases and redemptions of Shares by the Participants
during the period covered by the statement and the dividends and
other distributions paid during the statement period (whether
paid in cash or reinvested in Shares), and such other information
as may be required, from time to time, by the Plan.
D. Transmit purchase and redemption orders to the Funds on behalf of
the Plan in accordance with the procedures set forth in Section
B.1. of the Mutual Fund Service Agreement among One Group Dealer
Services, Inc., One Group Administrative Services, Inc. and
_______________dated as of January __, 2003.
E. Distribute to the Plan and/or Participants, as appropriate,
copies of the Trust's prospectuses, proxy materials, periodic
fund reports to shareholders and other materials that the Trust
is required by law or otherwise to provide to its shareholders or
prospective shareholders.
F. Maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the
services for the Plan.
2. Appointment as Agent For Limited Purpose
CitiStreet shall be deemed the agent of the Trust for the sole and limited
purpose of receiving purchase, redemption and exchange orders from Participants
and transmitting corresponding instructions to the Transfer Agent. Except as
provided specifically herein, neither CitiStreet nor any person to which the
Trust may delegate any of its duties hereunder shall be or hold itself out as an
agent of the Transfer Agent or the Trust.
3. Representations of Recordkeeper
CitiStreet agrees, represents and warrants that:
A. It will forward Instructions within such time periods and to such
parties as are specified by the Trust, the Transfer Agent, the
Mutual Fund Service Agreement, the Trust's prospectuses and
applicable law and regulation.
B. If and to the extent required under applicable federal and state
securities laws and regulations, it is duly registered pursuant
to such laws and regulations, it is not a "fiduciary" of any Plan
as such term is defined in Section 3(21) of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 the Internal Revenue Code of 1986, as amended (the
"Code"), and the receipt of any fees by it from the Trust, and
the corresponding reduction of fees payable to CitiStreet by the
Plan (or by the P1an sponsor, according to Recordkeeper's
agreement with the Plan) will not constitute a "prohibited
transaction" for purposes of Title I of ERISA and Section 4975 of
the Code.
C. At all times during the term of this contract, CitiStreet will
maintain errors and omissions coverage in an amount not less than
$1,000,000 per occurrence, and in the aggregate. A certificate of
insurance evidencing such coverage will be provided by CitiStreet
to the Trust as soon as is practicable after commencement of this
Agreement.
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4. Records and Reporting
CitiStreet will maintain and preserve all records as required by law in
connection with its provision of services under this Agreement. Upon the
reasonable request of the Trust or the Transfer Agent, CitiStreet will provide
copies of historical records relating to transactions involving the Trust and
Participants, written communications regarding the Trust to or from
Participants, and other materials relating to the provision of services by
CitiStreet under this Agreement. CitiStreet will comply with any reasonable
request for such information and documents made by the Trust, or its Board of
Trustees or any governmental body or self-regulatory organization. CitiStreet
agrees that, with respect to the Plans regarding which it is providing services
under this Agreement, CitiStreet will permit the Trust, the Transfer Agent, or
their representatives to have reasonable access to its personnel and records in
order to facilitate the monitoring of the quality of the services provided by
CitiStreet. Notwithstanding anything herein to the contrary, CitiStreet shall
not be required to provide the names and addresses of Participants to the
Transfer Agent or the Trust, unless applicable law or regulation otherwise
requires.
5. Ability to Provide Services
CitiStreet agrees to notify the Trust promptly if for any reason it is
unable to perform its obligations under this Agreement.
6. Compensation
A. In consideration of performance of the services by CitiStreet
hereunder CitiStreet will be compensated at an annual rate of.15%
of the average daily net assets in Class I and Class A shares in
Participant accounts. The Trust shall pay a portion of the fee
equivalent to a maximum of $18.00 per Participant account
annually. Any portion of the fee in excess of this amount shall
be paid by BOIA.
B. CitiStreet will permit the Trust and their representatives
(including counsel and independent accountants) with reasonable
access to its records to enable the Trust to verify that
CitiStreet's charges hereunder comply with the provisions of this
Agreement. Such access shall include, but not be limited to, up
to four on-site inspections of CitiStreet's records each calendar
year.
C. CitiStreet shall calculate the compensation due under this
section 6 at the end of each quarter and shall send an invoice
therefor to the Trust. Each invoice shall be accompanied by a
statement setting forth the calculation of such compensation
amount. The check for payment shall be mailed to:
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CitiStreet LLC
Batterymarch Park III
Three ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
7. Notices
All notices and other communications hereunder shall be given or made in
writing and shall be delivered personally, or sent by telex, telecopier, express
delivery or registered or certified mail, postage prepaid, return receipt
requested, to the party or parties to whom they are directed at the following
addresses, or at such other addresses as may be designated by notice from such
party to all other parties.
To CitiStreet: CITISTREET LLC
Batterymarch Park III
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
With a Copy to: CITISTREET LLC
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(617) 376- 9180 (telecopy number)
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
To BOIA: Banc One Investment Advisors Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
To One Group: One Group Mutual Funds
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇/▇/▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telecopy number)
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
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Any notice, demand or other communication given in a manner prescribed in this
Section 7 shall be deemed to have been delivered on receipt.
8. Indemnification
CitiStreet shall indemnify and hold harmless the Trust from and against any
and all losses and liabilities that it may incur, including without limitation
reasonable attorneys' fees, expenses and costs arising out of or related to the
performance or non-performance of CitiStreet of its responsibilities under this
Agreement, excluding, however, any such claims, suits, loss, damage or costs
caused by, contributed to or arising from any non-compliance by the Trust with
its obligations under this Agreement, as to which the Trust as pertinent, shall
indemnify, hold harmless and defend CitiStreet on the same basis as set forth
above.
9. Termination
This Agreement may be terminated at any time by either party hereto upon
ninety (90) days written notice to the other. The provisions of paragraphs 4 and
8 shall continue in full force and effect after termination of this Agreement.
10. Anti-Money Laundering
CitiStreet will comply with all applicable laws and regulations aimed at
preventing, detecting, and reporting money laundering and suspicious
transactions and will take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices. CitiStreet
will (but only to the extent consistent with applicable law) take all steps
necessary and appropriate to provide the Trust with any requested information
about investors and accounts in the event that the Trust shall request such
information due to an inquiry or investigation by any law enforcement,
regulatory, or administrative authority. To the extent permitted by applicable
law and regulations, CitiStreet will notify the Trust of any concerns that
CitiStreet may have in connection with any investor in the context of relevant
anti-money laundering legislation/regulations.
11. Limitation of Liability of the Trustees and Shareholders
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, 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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12. Successors and Assigns
This Agreement may not be assigned without the written consent of all
parties to the Agreement at the time of such assignment. The assignment of the
Agreement shall not change the obligations, rights or responsibilities under
this Agreement and it shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
13. Counterparts
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
14. Severability
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
15. Entire Agreement
This Agreement, including the Attachments hereto, constitutes the entire
agreement between the parties with respect to the matters dealt with herein, and
supersedes all previous agreements, written or oral, with respect to such
matters.
16. Amendment
Neither this Agreement, nor any provision hereof, may be amended, waived,
discharged or terminated orally, but only by an instrument in writing signed by
all of the parties hereto.
17. Force Majeure
Except for payment obligations hereunder, in the event that 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 to the other party for any damages resulting from such
failure to perform or otherwise from such causes.
18. Miscellaneous
This Agreement is made and shall be construed under the laws of the
State of Ohio. If any provision of the Agreement shall be held or made invalid
by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of the Agreement shall not be affected thereby.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
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ONE GROUP MUTUAL FUNDS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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BANC ONE INVESTMENT ADVISORS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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CITISTREET LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: CFO
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