(h)(49)
Trust Fund/SERV Agreement dated July 23, 2002
between One Group Mutual Funds and Benefit Plan Consultants, Inc.
Trust Fund/SERV Agreement
AGREEMENT entered into by and between the undersigned entities identified in the
signature block as "Fund Company" and "Trust, Entity."
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
Fund Company shall mean the open-end investment company 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 agreements with the Trust Entity and who maintain an interest in an
account with the Funds.
Trust Entity shall mean (i) a Trust Company, (ii) a Trust Department of a
Commercial Bank, or (iii) an entity performing services for a trust on behalf of
the Client-shareholders.
Fund Agent is (i) an investment advisor to or administrator for the each series
(individually, a "Fund"; collectively, 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 or Defined Contribution Clearing & Settlement Service
("Fund/SERV);
WHEREAS, Fund/SERV permits the transmission of Shareholder trade and
registration data between the Trust Entity and the Funds;
WHEREAS, the Fund Company 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 Company 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 Company and the Trust Entity hereby
agree as follows:
1
I. OBLIGATIONS OF THE FUND COMPANY
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 Company or its designee 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. On each Business Day, the Fund Company or its designee 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 Company or its designee 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 Company or its
designee 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 Company or its designee 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 Company and the Underwriter that would affect
the Fund Company's duties and obligations pursuant to this Agreement.
3. Accuracy of Information, Transmissions Through, and Access to Fund/SERV.
Confirmed trades and any other information provided by the Fund Company or its
designee 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
Company 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 Company.
4. Notice of Prospectus and Statement of Additional Information Revisions. The
Fund Company 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 the Fund Company 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
Company 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 Company on such Business Day.
2
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 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 Company 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 Company, the Trust Entity shall provide the Funds 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 Company if the transaction is
back dated more than five days or to a previous calendar year.
6. Trade Confirmation. Any information provided by the Fund Company or 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 Company 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 Company 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 Company or the
Fund Agent of such supporting documentation as it may reasonably request, the
Fund Company 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 company or the Fund Agent, and the Trust Entity
3
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 Company. The Fund Company 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 (each an,
"Indemnified Trust Entity Party"), 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 Fund Company or its
Agents relating to Fund/SERV, except to the extent caused by the negligence or
intentional misconduct of an Indemnified Trust Entity Party; (b) any breach of
the Fund Company's representations or warranties contained in this Agreement; or
(c) the Fund Company's failure to comply with any of the terms of this
Agreement.
2. Trust Entity. The Trust entity shall indemnify and hold harmless the Fund
Company, the Funds' custodian, the Funds' underwriter, the Funds' investment
adviser, the Fund Agent, the Funds' transfer agent/shareholder servicing agent,
each of their affiliated companies, and all of the divisions, subsidiaries,
directors, trustees, officers, agents, employees and assigns of each of the
foregoing (each an, "Indemnified Fund Party"), 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, except to the
extent caused by the negligence or intentional misconduct of an Indemnified Fund
Party; (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 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
4
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 Company. In the event any overpayment is made to
the Fund Company by the Trust Entity, the Fund Company shall promptly repay such
overpayment to the Trust Entity after the Fund Company receives notice of such
overpayment.
3. Termination. This Agreement shall continue in effect until terminated. The
Fund Company 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. Any understanding between the Fund Company and the
Trust Entity relating to Fund/SERV that is inconsistent with this Agreement
shall be null and void. Nothing 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 Company 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 State of Ohio.
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 Company
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.
5
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. At all times the Fund Company 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 Company's employees.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be executed as of the 23/rd/ day of July, 2002.
[FUND COMPANY]
Address:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ONE GROUP MUTUAL FUNDS
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ----------------------
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Title: Vice President
-----------------
[TRUST ENTITY]
BENEFIT PLAN CONSULTANTS, INC.
-----------------------------
(Name of Entity)
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., #▇▇
---------------------- _______________________
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------- --------------------
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇ Title: C.E.O.
---------------------- -----------------
6