EXHIBIT 23(H)(XIII) UNDER FORM N-1A
EXHIBIT 10(H) UNDER ITEM 601/REG. S-K
FUND ACCOUNTING AGREEMENT
AGREEMENT made as the 1st day of May, 2002, between Huntington National
Bank ("Huntington"), a national bank having its principal place of business at
00 X. Xxxx Xx., Xxxxxxxx, Xxxx, 00000, and BISYS FUND SERVICES OHIO, INC.
("BISYS"), a corporation organized under the laws of the State of Delaware and
having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000.
WHEREAS, Huntington has entered into a Financial Administration and
Accounting Services Agreement, dated December 1, 2001 (the "Services
Agreement"), with the Huntington Funds and with the Huntington VA Funds (the
"Trusts"), each of which is a Massachusetts business trust registered with the
Securities and Exchange Commission (the "Commission") as an open-end management
investment company under the Investment Company Act of 1940, as amended, (the
"1940 Act"), concerning the provision of various services, including but not
limited to fund accounting services;
WHEREAS, Huntington desires that BISYS perform certain fund accounting
services for each series of the Trusts currently existing as set forth in
Schedule A hereto, and such additional series as may hereafter be created (such
series are individually referred to herein as a "Fund" and collectively as the
"Funds"); and`
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Fund Accountant.
(a) Maintenance of Books and Records. BISYS will keep and
maintain the following books and records of each Fund
pursuant to Rule 31a-1 under the Investment Company Act of
1940 (the "Rule"):
(i) Journals containing an itemized daily record in
detail of all purchases and sales of securities, all
receipts and disbursements of cash and all other
debits and credits, as required by subsection (b)(1)
of the Rule;
(ii) General and auxiliary ledgers reflecting all asset,
liability, reserve, capital, income and expense
accounts, including interest accrued and interest
received, as required by subsection (b)(2)(I) of the
Rule;
(iii) Separate ledger accounts required by subsection
(b)(2)(ii) and (iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts
(except shareholder accounts) as required by
subsection (b)(8) of the Rule.
(b) Performance of Daily Accounting Services. In addition to
the maintenance of the books and records specified above,
BISYS shall perform the following accounting services daily
for each Fund:
(i) Calculate the net asset value per share utilizing
prices obtained from the sources described in
subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing
services, or if such quotes are unavailable, then
obtain such prices from each Fund's investment
adviser or its designee, as approved by the Trust's
Board of Trustees;
(iii) Verify and reconcile with the Funds' custodian all
daily trade activity;
(iv) Compute, as appropriate, each Fund's net income and
capital gains, dividend payables, dividend factors,
total returns, periodic performance, 7-day yields, 7-
day effective yields, 30-day yields, and weighted
average portfolio maturity;
(v) Review daily the net asset value calculation and
dividend factor (if any) for each Fund prior to
release to shareholders, check and confirm the net
asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and
yields to NASDAQ;
(vi) Report to the Trust the daily market pricing of
securities in any money market Funds, with the
comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if
requested by the Trust;
(ix) Update fund accounting system to reflect rate
changes, as received from a Fund's investment
adviser, on variable interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to
instructions received from the Fund's Financial
Administrator ;
(xii) Determine the outstanding receivables and payables
for all (1) security trades, (2) Fund share
transactions and (3) income and expense accounts;
(xiii) Provide accounting reports in connection with the
Trust's regular annual audit and other audits and
examinations by regulatory agencies; and
(xiv) Provide such periodic reports as the parties shall
agree upon, as set forth in a separate schedule.
(c) Special Reports and Services.
(i) BISYS may provide additional special reports upon the
request of the Trust or a Fund's investment adviser,
which may result in an additional charge, the amount
of which shall be agreed upon between the parties.
(ii) BISYS may provide such other similar services with
respect to a Fund as may be reasonably requested by
the Trust, which may result in an additional charge,
the amount of which shall be agreed upon between the
parties.
(iii) Prepare for review by the Trust and its legal
counsel, and file, Form N-SAR, and SEC Rule 24f-2
notices.
(iv) Prepare and submit for approval by officers of the
Trusts a Fund expense budget, and review expense
calculations.
(v) Prepare Fund income forecasts and submit for approval
by officers of the Trusts recommendations for Fund
income dividend distributions.
(d) Additional Accounting Services. BISYS shall also perform
the following additional accounting services for each Fund:
(i) Provide monthly a download (and hard copy thereof) of
the unaudited financial statements described below,
upon request of the Trust. The unaudited financial
statements will include the following items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and
federal excise tax returns;
(B) the Trust's semi-annual reports to be filed
with the Securities and Exchange Commission
("SEC") on Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly
(if any) shareholder reports;
(D) registration statements on Form N-1A and other
filings relating to the registration of shares;
(E) the Administrator's monitoring of each Trust's
status as a regulated investment company under
Subchapter M of the Internal Revenue Code, as
amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
2. Subcontracting.
BISYS may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that BISYS shall not be relieved of any of its obligations under this
Agreement by the appointment of such subcontractor and provided further, that
BISYS shall be responsible, to the extent provided in Section 7 hereof, for all
acts of such subcontractor as if such acts were its own.
3. Compensation.
Huntington shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto, as such Schedule may be amended from time to time. The fees
are accrued daily and billed monthly and shall be due and payable upon receipt
of the invoice. Upon the termination of this Agreement before the end of any
month, the fee for the relevant month shall be prorated according to the
proportion which the portion of the month during which this Agreement remains
effective bears to the full monthly period, and shall be payable upon the date
of termination of this Agreement. In addition, Huntington shall reimburse BISYS
for its out-of-pocket costs incurred in connection with this Agreement,
including those described in Section 4 below, as well as any and all costs and
expenses (including reasonable attorney's fees) incurred by BISYS to collect any
charges due under this Agreement.
4. Expenses and Expense Reimbursement.
(a) Huntington agrees to promptly reimburse BISYS for any equipment and
supplies specially ordered by or for Huntington through BISYS and for any other
expenses not contemplated by this Agreement that BISYS may incur on any Fund's
behalf at Huntington's request or with Huntington's consent.
Each Fund will bear all expenses that are incurred in the operation
of the Fund and not specifically assumed by BISYS. Expenses to be borne by each
Fund include, but are not limited to: organization expenses; cost of services of
independent accountants and outside legal and tax counsel (including such
counsel's review of the Fund's registration statement, proxy materials, federal
and state tax qualification as a regulated investment company and other reports
and materials prepared by BISYS under this Agreement); cost of any services
contracted for by the Fund directly from parties other than BISYS; costs of
trading operations and brokerage fees, commissions and transfer taxes in
connection with the purchase and sale of securities for the Fund; investment
advisory fees; taxes, insurance premiums and other fees and expenses applicable
to its operation; costs incidental to any meetings of shareholders including,
but not limited to, legal and accounting fees, proxy filing fees and the costs
of preparation, printing and mailing of any proxy materials; costs incidental
to Board meetings, including fees and expense of Board members; the salary and
expenses of any officer, director/trustee or employee of Huntington of the Fund;
costs incidental to the preparation, printing and distribution of the Fund's
registration statements and any amendments thereto and shareholder reports;
cost of typesetting and printing of prospectuses; cost of preparation and
filing of the Fund's tax returns, Form N-1A of N-2 and Form N-SAR, and all
notices registrations and amendments associated with applicable federal and
state tax and securities laws; fidelity bond and directors' and officers'
liability insurance; and cost of independent pricing services used in computing
each Fund's NAV.
(b) In addition, BISYS shall be entitled to receive the following fees:
(i) Systems development fees billed at an hourly rate of $150
per hour, as
approved by Huntington;
(ii) Ad hoc reporting fees billed at an agreed upon rate; and
(iii) Fees for pricing the securities of the Fund pursuant to
Section 1(b)(ii) of
this Agreement.
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5. Standard of Care; Uncontrollable Events; Limitation of Liability.
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to Huntington for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other
equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon Huntington's reasonable request, BISYS shall provide
supplemental information concerning the aspects of its disaster recovery and
business continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this Agreement, BISYS
assumes no responsibility hereunder, and shall not be liable for, any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or similar events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
BISYS shall provide Huntington, at such times as Huntington may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement. BISYS shall also allow access to
auditors employed by the Funds' administrator to perform a reasonable review of
internal controls on a periodic basis, and said administrator may perform a
review of BISYS's internal control procedures relevant to the services rendered
under this Agreement; provided, however, that BISYS may require any such third
party to execute a confidentiality agreement containing customary provisions
necessary for the protection of confidential or proprietary information and
appropriately limiting the use or further dissemination of any information
obtained.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EACH OF
WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
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6. Term.
This Agreement shall remain in effect for a four (4) year period,
until April 30, 2006 (the "Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed automatically for
successive one year periods ("Rollover Periods"). This Agreement may be
terminated only (i) by provision of a notice of nonrenewal in the manner set
forth below, (ii) by mutual agreement of the parties, (iii) for "cause," as
defined below, upon the provision of sixty (60) days advance written notice by
the party alleging cause, or (iv) following the completion of the Initial Term,
upon one hundred twenty (120) days' advance written notice, as provided below.
Written notice of nonrenewal must be provided at least one hundred twenty days
prior to the end of the Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, following any such termination, in
the event that BISYS in fact continues to perform any one or more of the
services contemplated by this Agreement (or any Schedule or exhibit hereto) with
the consent of Huntington, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by Huntington upon such termination shall be immediately due and payable upon
and notwithstanding such termination. BISYS shall be entitled to collect from
Huntington, in addition to the fees and disbursements provided by Sections 3 and
4 hereof, the amount of all of BISYS' cash disbursements in connection with
BISYS' activities in effecting such termination, including without limitation,
the delivery to the Funds and/or their distributor or investment adviser and/or
other parties of the Fund's property, records, instruments and documents.
If, during the Initial Term, for any reason other than (i) mutual
agreement of the parties or (ii) "cause," as defined above (for which Huntington
has the right to terminate BISYS), BISYS's services are terminated hereunder,
BISYS is replaced as fund accountant, or if a third party is added to perform
all or a part of the services provided by BISYS under this Agreement (excluding
any Sub-Fund Accountant appointed as provided in Section 1 hereof), then
Huntington shall make a one-time cash payment, in consideration of the fee
structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to the balance that would be due BISYS for its services
hereunder during the remainder of the Initial Term, assuming for purposes of the
calculation of the one-time payment that the fees that would be earned by BISYS
for each month shall be based upon the average amount of assets, Funds and
classes, and fees payable to BISYS monthly, during the twelve (12) months prior
to the date that services terminate, BISYS is replaced or a third party is
added.
Following the completion of the Initial Term, either party may
terminate this Agreement upon one hundred twenty (120) days' advance written
notice to the other party.
In the event either Trust, or any Fund thereof, is merged into
another legal entity in part or in whole pursuant to any form of business
reorganization or is liquidated in part or in whole, prior to the expiration of
the Initial Term of this Agreement, the parties acknowledge and agree that the
liquidated damages provision set forth above shall be applicable in those
instances in which BISYS is not retained to provide fund accounting services
consistent with this Agreement, including the number of Funds subject to such
services. The one-time cash payment referenced above shall be due and payable
on the day prior to the first day in which services are terminated, BISYS is
replaced or a third party is added.
The parties further acknowledge and agree that, in the event
services are terminated, BISYS is replaced, or a third party is added, during
the Initial Term, as set forth above, (i) a determination of actual damages
incurred by BISYS would be extremely difficult, and (ii) the liquidated damages
provision contained herein is intended to adequately compensate BISYS for
damages incurred and is not intended to constitute any form of penalty.
7. Indemnification.
Huntington agrees to indemnify and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to BISYS'
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by Huntington, the
administrator or custodian of the Funds; provided that this indemnification
shall not apply to actions or omissions of BISYS in cases of its own bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties; and further provided that prior to confessing or settling any claim
against it which may be the subject of this indemnification, BISYS shall give
Huntington written notice of and reasonable opportunity to defend against said
claim in its own name or in the name of BISYS.
BISYS shall indemnify, defend, and hold Huntington harmless from
and against any and all claims, actions and suits and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) resulting directly
and proximately from BISYS' willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder
except to the extent the indemnifying party is materially prejudiced thereby.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
8. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of Huntington all books and
records which the Funds and BISYS are, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the Investment Company Act of 1940, as
amended (the "1940 Act"), relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS further agrees
that all such books and records shall be prepared and maintained at the expense
of BISYS, but shall be the property of the Trusts, and BISYS agrees to make such
books and records available for inspection by the Trusts, by Huntington or by
the Securities and Exchange Commission at reasonable times and otherwise to keep
confidential all books and records and other information relative to the Trusts
and their shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
In case of any request or demand for the inspection of such records
by another party, BISYS shall notify Huntington and follow Huntington's
instructions as to permitting or refusing such inspection; provided that BISYS
may exhibit such records in any case where (i) disclosure is required by law,
(ii) BISYS is advised by counsel that it may incur liability for failure to make
a disclosure, (iii) BISYS is requested to divulge such information by duly-
constituted authorities or court process, or (iv) BISYS is requested to make a
disclosure by Huntington. BISYS shall provide Huntington with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable.
9. Activities of BISYS.
The services of BISYS rendered to Huntington hereunder are not to
be deemed to be exclusive. BISYS is free to render such services to others and
to have other businesses and interests. It is understood that Directors,
Trustees, officers, employees and Shareholders of the Trusts or Huntington are
or may be or become interested in BISYS, as officers, employees or otherwise and
that partners, officers and employees of BISYS and its counsel are or may be or
become similarly interested in the Trusts or Huntington, and that BISYS may be
or become interested in the Trusts or Huntington as a shareholder or otherwise.
10. Reports.
BISYS will furnish to Huntington and to the Trusts' properly
authorized auditors, investment advisers, examiners, distributors, dealers,
underwriters, salesmen, insurance companies and others designated by Huntington
in writing, such reports and at such times as are prescribed pursuant to the
terms and the conditions of this Agreement to be provided or completed by BISYS,
or as subsequently agreed upon by the parties pursuant to an amendment hereto.
Huntington agrees to examine each such report or copy promptly and will report
or cause to be reported any errors or discrepancies therein no later than three
business days from the receipt thereof. In the event that errors or
discrepancies, except such errors and discrepancies as may not reasonably be
expected to be discovered by the recipient within ten (10) days after conducting
a diligent examination, are not so reported within the aforesaid period of time,
a report will for all purposes be accepted by and binding upon Huntington and
any other recipient, and, except as may be provided in Section 5 hereof, BISYS
shall have no liability for errors or discrepancies therein and shall have no
further responsibility with respect to such report.
11. Rights of Ownership.
All computer programs and procedures developed to perform services
required to be provided by BISYS under this Agreement are the property of BISYS.
All records and other data except such computer programs and procedures are the
exclusive property of the Trusts or Huntington, as the case may be, and all
such other records and data will be furnished to Huntington in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. Return of Records.
BISYS may at its option at any time, and shall promptly upon
Huntington's demand, turn over to Huntington and cease to retain BISYS's files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to Huntington, such documents and
records will be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents will be turned over
to Huntington unless Huntington authorizes in writing the destruction of such
records and documents.
13. Representations and Warranties.
(a) Huntington represents and warrants certifies to BISYS that:
(1) as of the close of business on the effective date of this Agreement, each
Fund that is in existence as of the effective date has authorized unlimited
shares; (2) this Agreement has been duly authorized by Huntington and, when
executed and delivered by Huntington, will constitute a legal, valid and binding
obligation of Huntington, enforceable against Huntington in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties; and (3) the Services Agreement has been duly approved and
executed by the Trusts and Huntington, and Huntington has full power and
authority thereunder to enter into this Agreement and retain BISYS' services
hereunder on behalf of the Trusts.
(b) BISYS represents and warrants that: (1) the various
procedures and systems which BISYS has implemented with regard to safeguarding
from loss or damage attributable to fire, theft, or any other cause the records,
and other data of Huntington and BISYS's records, data, equipment facilities and
other property used in the performance of its obligations hereunder are
reasonably adequate and that it will make such changes therein from time to time
as are required for the secure performance of its obligations hereunder, and (2)
this Agreement has been duly authorized by BISYS and, when executed and
delivered by BISYS, will constitute a legal, valid and binding obligation of
BISYS, enforceable against BISYS in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL
REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) CONCERNING THE SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES
PROVIDED UNDER THIS AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
14. Insurance.
BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. Upon the request of Huntington, BISYS
shall provide evidence that coverage is in place. BISYS shall notify Huntington
should its insurance coverage with respect to professional liability or errors
and omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify Huntington of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify
Huntington should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
15. Information Furnished by Huntington.
Huntington has furnished to BISYS the following, as amended and
current as of the effective date of this Agreement:
(a) Copies of the Declaration(s) of Trust of each Trust and of
any amendments thereto, certified by the proper official of
the state in which such Declaration has been filed;
(b) A copy of each Trust's Bylaws and any amendments
thereto;
(c) A copy of the Services Agreement; and
(d) A list of all officers of the Funds and any other persons
(who may be associated with the Funds or its investment
advisor), together with specimen signatures of those
officers and other persons, who are authorized to instruct
BISYS in all matters.
(e) Two copies of the Prospectuses and Statement of Additional
Information of each Fund.
16. Information Furnished by BISYS.
BISYS has furnished to Huntington evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
(b) Authorization of BISYS to act as sub-fund accountant for the
Funds.
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17. Amendments to Documents.
Huntington shall furnish BISYS written copies of any amendments to,
or changes in, any of the items referred to in Section 15 hereof forthwith upon
such amendments or changes becoming effective. In addition, Huntington agrees
that no amendments will be made to the Prospectuses or Statements of Additional
Information of the Funds which might have the effect of changing the procedures
employed by BISYS in providing the services agreed to hereunder or which
amendment might affect the duties of BISYS hereunder unless Huntington first
obtains BISYS's approval of such amendments or changes, which approval shall not
be withheld unreasonably.
18. Legal Advice; Reliance on Prospectus and Instructions.
BISYS shall notify Huntington at any time BISYS believes that it is
in need of the advice of counsel (other than counsel in the regular employ of
BISYS or any affiliated companies) with regard to BISYS' responsibilities and
duties pursuant to this Agreement. After so notifying Huntington, BISYS, at its
discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing, such advice to be at the expense of Huntington unless
relating to a matter involving BISYS' willful misfeasance, bad faith, negligence
or reckless disregard of BISYS' responsibilities and duties hereunder, and BISYS
shall in no event be liable to Huntington or any Fund or any shareholder or
beneficial owner of the Funds for any action reasonably taken pursuant to such
advice.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Funds relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Funds unless BISYS receives written
instructions to the contrary in a timely manner from Huntington.
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. BISYS will not be held to have notice of any change
of authority of any officers, employees or agents of Huntington until receipt of
written notice thereof from Huntington.
19. Compliance with Law.
Except for the obligations of BISYS set forth in Section 8 hereof,
Huntington and the Trusts assume full responsibility for the preparation,
contents and distribution of each prospectus of the Funds as to compliance with
all applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. BISYS shall have no obligation to
take cognizance of any laws relating to the sale of the Funds' shares.
4
20. Notices.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to
Huntington, at: Huntington National Bank, at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxx with a copy to the Funds at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, XX 00000, Attn: Xxxxxx X. Xxxxx, and if to BISYS at 0000
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: President.
21. Assignment.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
22. Governing Law.
This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of the State of Ohio to the extent that
the applicable laws of the State of Ohio, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
23. Privacy.
Nonpublic personal financial information relating to consumers or
customers of a Fund provided by, or at the direction of Huntington to BISYS, or
collected or retained by BISYS to perform its duties as fund accountant of the
Funds shall be considered confidential information. BISYS shall not give, sell
or in any way transfer such confidential information to any person or entity,
other than affiliates of BISYS except at the direction of Huntington or as
required or permitted by law. BISYS shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Funds. Huntington represents to BISYS that the Trusts have adopted a Statement
of privacy policies and practices as required by the Commission's Regulation S-P
and agrees to provide BISYS with a copy of that statement annually.
24. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein.
(c) This Agreement may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of Huntington
or the Funds (other than an officer or employee of BISYS) does not conflict with
or violate any requirements of the Fund's Declaration of Trust, By-Laws or then-
current prospectuses, or any rule, regulation or requirement of any regulatory
body.
* * * * *
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
6
Dated: May 1, 2002
Amended as of April 30, 2004
SCHEDULE A
TO THE
FUND ACCOUNTING AGREEMENT
BETWEEN
HUNTINGTON NATIONAL BANK
AND
BISYS FUND SERVICES OHIO, INC.
FUND NAME CLASSES OF SHARES
Huntington Money Market Fund Trust, Investment A,
Investment B, Interfund
Huntington Ohio Muni Money Market Fund Trust, Investment A
Huntington U. S. Treasury Money Market Fund Trust, Investment A
Huntington Florida Tax-Free Money Fund Trust, Investment A
Huntington Growth Fund Trust, Investment A,
Investment B
Huntington Income Equity Fund Trust, Investment A,
Investment B
Huntington Rotating Markets Fund Trust, Investment A
Huntington Dividend Capture Fund Trust, Investment A,
Investment B
Huntington International Equity Fund Trust, Investment A,
Investment B
Huntington Mid Corp America Fund Trust, Investment A,
Investment B
Huntington New Economy Fund Trust, Investment A,
Investment B
Huntington Mortgage Securities Fund Trust, Investment A,
Investment B
Huntington Ohio Tax-Free Fund Trust, Investment A,
Investment B
Huntington Michigan Tax-Free Fund Trust, Investment A,
Investment B
Huntington Fixed Income Securities Fund Trust, Investment A,
Investment B
Huntington Intermediate Government Income Fund Trust, Investment A,
Investment B
Huntington Short/Intermediate Fixed Income
Securities Fund Trust, Investment A,
Investment B
Huntington Situs Small Cap Fund Trust, Investment A,
Investment B
Huntington Macro 100 Fund Trust, Investment A,
Investment B
Huntington VA Rotating Markets Fund
Huntington VA New Equity Fund
Huntington VA Mid Corp America Fund
Huntington VA Dividend Capture Fund
Huntington VA Income Equity Fund
Huntington VA Growth Fund
Huntington VA Macro 100 Fund
Huntington VA International Equity Fund
Huntington VA Mortgage Securities Fund
Huntington VA Situs Small Cap Fund
A-1
Dated: May 1, 2002
SCHEDULE B
TO THE
FUND ACCOUNTING AGREEMENT
BETWEEN
HUNTINGTON NATIONAL BANK
AND
BISYS FUND SERVICES OHIO, INC.
FEES
BISYS shall be entitled to receive a fee for services to each Fund listed on
Schedule A at an annual rate of three one-hundredths of one percent (0.03%) of
the Fund's average daily net assets subject to a minimum of $680,000 for the
Fund Complex (Huntington Funds and Huntington VA Funds), per year. There is an
additional $35,000 minimum fee applied for each Fund for which BISYS provides
services in excess of 23 Funds. These additional Fund minimums are added to the
Fund Complex minimum. In addition, there shall be a $3,500 annual fee charged
to each Fund for each additional class of shares of such Fund over the initial
classes stated in Schedule A. BISYS shall also be reimbursed for reasonable
out-of-pocket expenses and miscellaneous service fees as set forth in Section 4
of this Agreement.
X-0
Xxxxxxxx 00, 0000
Xxxxxxxxxx National Bank
Attn: Xxx Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Re: USE OF INTERNET-BASED FUND ACCOUNTING AND AUTOMATED COMPLIANCE SYSTEM
Ladies and Gentlemen:
This will confirm the agreement between Huntington National Bank ("Client") and
BISYS Fund Services Ohio, Inc. ("BISYS") with respect to the use by Client of an
internet-based fund accounting and automated compliance information system
("FAACS") designed to provide on-line access to reports, data, and other
information pertaining to mutual fund operations.
1. Description of FAACS.
FAACS is an internet-based on-line fund accounting and automated
compliance information system designed to provide access to information that may
support the delivery and management of mutual fund products and services.
2. Use of FAACS by Client.
Client will be provided with user identification numbers and passwords
that will allow up to ten (10) persons designed by Client to gain access to
FAACS at any given time during the term of this Agreement. Client shall be
responsible for notifying BISYS of the names and locations of the persons to
whom the identification numbers and passwords have been assigned, and for
notifying BISYS in the event it becomes necessary to reassign identification
numbers and passwords to others.
3. Term.
This Agreement shall become effective on the date first written above and
shall continue for a four (4) year period until April 30, 2006 ("Initial Term").
Thereafter, subject to the automatic termination set forth in Section 18 herein,
this Agreement shall continue in effect until it is terminated in the manner set
forth in this Section 3. Either party may terminate this Agreement by providing
a written notice of non-renewal at least one hundred twenty (120) days prior to
the expiration of the Initial Term. Either party may terminate this Agreement
following the Initial Term by the provision of one hundred twenty (120) days'
advance written notice to the other party. Compensation due BISYS and unpaid by
Client upon such termination shall be immediately due and payable upon, and
notwithstanding such termination.
4. Compensation.
BISYS shall receive an annual fee from Client in accordance with the
following fee schedule:
(a) In the event Client elects to gain access to both (a) the
on-line fund accounting data and (b) the automated compliance
information system, the annual fee shall be equal to $2,600 per
fund portfolio.
(b) In the event Client elects to gain access to the on-line
fund accounting data only, the annual fee shall be equal to $1,500
per fund portfolio.
(c) In the event Client elects to gain access to the automated
compliance information system only, the annual fee shall be equal
to $1,500 per fun portfolio.
Such fees shall be payable in monthly installments commencing thirty (30)
days after Client is issued its first identification number and password.
5. Representations and Warranties.
Each party represents and warrants that:
(a) it has requisite corporate power and authority to enter
into, and fully perform pursuant to, this Agreement;
(b) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have
been duly and properly authorized by all requisite corporate action
on its part; and
(c) this Agreement has been duly executed and delivered by it
and, when executed and delivered will constitute legal, valid and
binding obligations enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties.
6. Disclaimer.
BISYS assumes no responsibility hereunder, and makes no representations,
concerning compliance by any of Client's investment portfolios with applicable
laws, regulations or investment policies (including without limitation
investment restrictions).
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLELY DISCLAIMED.
7. Limitation of Liability.
BISYS' SOLE LIABILITY, IF ANY, FOR LOSSES OR CLAIMS BY CLIENT OR THIRD
PARTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, IN THE AGGREGATE,
WILL BE LIMITED TO THE LESSER OF: (A) THE AMOUNT OF ACTUAL DIRECT
DAMAGES ATTRIBUTABLE SOLELY TO THE NEGLIGENCE OF BISYS, OR (B) THE AMOUNT
OF THE FEES PAID BY CLIENT TO BISYS UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE
TO THE LOSS OR CLAIM.
IN NO EVENT WILL BISYS BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON ACCOUNT
OF ENTERING INTO OR RELYING ON THIS AGREEMENT,EVEN IF BISYS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification.
Client will indemnify and hold BISYS harmless from and against all costs,
losses, damages and liabilities, including without limitation attorneys fees,
which may be incurred by BISYS on account of any and all claims, suits or
actions by third parties arising out of or relating to this Agreement and the
access and information provided hereunder.
9. Confidentiality.
Client shall treat as confidential, and shall not disclose or otherwise
make available, any information it receives or has access to under this
Agreement, including without limitation any software, diagrams, documentation,
trade secrets, processes or data, (collectively, the "Confidential
Information"), in any form, to any person other than persons designated by
Client. Client may use the Confidential Information only for the purposes
contemplated in this Agreement. Client will instruct all persons who have
access to the Confidential Information to keep the same confidential by using
the same care and discretion that Client uses with respect to its own
confidential property and trade secretes. Information that is in Client's
possession without an obligation of confidentiality, or that is in the public
domain through no fault of Client, shall not be subject to the foregoing
restrictions.
10. Modification or Amendment.
This Agreement constitutes the entire agreement between the parties
hereto, and may not be modified or amended except by an instrument in writing
executed by the parties hereto.
11. Assignability.
Unless otherwise agreed to in writing by the parties hereto, this
Agreement shall not be assignable.
12. Independent Contractor Status.
The parties intent that an independent contractor relationship shall be
created by this Agreement. Nothing herein shall be deemed or construed as an
agreement to create or form a partnership between Client and BISYS.
13. Governing Law.
This Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of Ohio.
14. Notices.
Any notice required or permitted to be given by either party to the other
shall be deemed sufficient if sent by registered mail or certified mail, postage
prepaid, addressed by the party giving notice to the other party at the
following addresses: if to Client, at
President]; if to BISYS, at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, Attention: President, or at such other addresses as such
party may from time to time specify in writing to the other party pursuant to
this Section.
15. No Waiver.
No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
16. Severability.
If any of the provisions of this Agreement are held invalid, illegal or
unenforceable, the remaining provisions shall be unimpaired.
17. Headings.
Headings are for reference and shall not affect the meaning of any of the
provisions of this Agreement.
18. Mutual Fund Services Agreements.
This Agreement is contingent upon the continued existence of the mutual
fund services agreements between BISYS and Client. If such agreements with
Client expire or terminate, then this Agreement will automatically terminate.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties and
supersedes all previous agreements, promises, proposals, representations,
understandings and negotiations, whether written or oral, between the parties
respecting the subject matter thereof.
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxx X. Xxxxx
Title: President
The foregoing Agreement is hereby accepted:
HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
AMENDMENT TO
FUND ACCOUNTING AGREEMENT
THIS AMENDMENT dated as of July 30, 2003 to the Fund Accounting Agreement
dated as of May 1, 2002 (the "Fund Accounting Agreement"), between Huntington
National Bank, N.A. ("Huntington"), a national bank having its principal place
of business at 00 X. Xxxx Xx., Xxxxxxxx, Xxxx, 00000, and BISYS Fund Services
Ohio, Inc. ("BISYS"), a corporation organized under the laws of the State of
Ohio and having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000.
WHEREAS, under the Fund Accounting Agreement, BISYS renders fund
accounting services with respect to the Huntington Funds and the Huntington VA
Funds (the "Trusts"), each of which is a Massachusetts business trust registered
with the Securities and Exchange Commission (the "Commission") as an open-end
management investment company under the Investment Company Act of 1940, as
amended, (the "1940 Act");
WHEREAS, the Fund Accounting Agreement provides that BISYS shall perform
such additional services as are mutually agreed upon and provided in an
amendment to the Agreement or its schedules, in consideration of such fees as
the parties may agree upon;
WHEREAS, Huntington desires that BISYS perform certain additional
services, in particular, making a BISYS employee available to serve as the
Treasurer of each Trust, whose duties include acting as the principal financial
officer for purposes of certifying the Trust's financial statements; and
WHEREAS, Huntington notes that Section 4.3 of the current Declaration of
Trust of each of the Trusts is identical and provides for indemnification and
insurance of officers of a Trust; and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services.
Subject to the BISYS Policies (as defined below), BISYS will make a BISYS
employee available to serve, upon designation as such by the Board of each
Trust, as the Treasurer (or under such other title to perform similar functions)
of each Trust.
Huntington agrees and acknowledges that BISYS' internal policies as
amended from time to time ("BISYS Policies") are applicable to the service of
any BISYS employee serving as a certifying officer of the Trusts (an "Certifying
Officer"), and that the service rendered by BISYS under the paragraph above is
limited to providing an Certifying Officer who, in the exercise of his or her
duties to each Trust, shall act in good faith and in a manner reasonably
believed by him or her to be in the best interests of each Trust.
Each Trust will assist and cooperate with BISYS (and shall take
reasonable steps to cause its officers, investment adviser(s) and other service
providers to assist and cooperate with BISYS) to facilitate the delivery of
information requested by BISYS in connection with the preparation of drafts of
the Funds' Form N-CSR Reports, including Fund financial statements, so that
BISYS may submit a draft Report to the Funds' Disclosure Controls and Procedures
Committee ("Fund DCP Committee") at least 10 days prior to the date the relevant
Form N-CSR Report is to be filed or released to print, whichever is earlier. In
connection with its review and evaluations, the Fund DCP Committee shall
establish a schedule to ensure that all required disclosures in Form N-CSR and
in the financial statements for the Fund are identified and prepared in a
timeframe sufficient to allow review by the Fund DCP Committee.
With input from the fund accounting service providers, the Trusts will be
responsible for, and shall support and facilitate the role of each Certifying
Officer and the Fund DCP Committee in, designing and maintaining the Funds'
disclosure controls and procedures ("Fund DCPs"), including (a) ensuring that
the Fund DCP Committee and/or Certifying Officers obtain and review sub-
certifications and reports on internal controls from the Fund's investment
adviser(s) and other service providers, if any, sufficiently in advance of the
date upon which the relevant financial statements must be finalized by BISYS (in
order to print, distribute and/or file the same hereunder), and (b) evaluation
of the effectiveness of the design and operation of the Fund DCP, under the
supervision, and with the participation of, the Certifying Officers, within the
requisite timeframe prior to the filing of each Report. Unless otherwise
expressly agreed in writing, the Principal/Chief Executive Officer of the
Trusts, or person performing similar functions, shall not be an employee of
BISYS.
If a BISYS employee serves as a Certifying Officer of a Trust, as long as
such Certifying Officer acts in good faith and in a manner reasonably believed
to be in the best interests of the Trust (and so long as such Certifying Officer
would not otherwise be liable to the Trust by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office), Huntington shall indemnify the Certifying Officer
and BISYS and hold the Certifying Officer and BISYS harmless from any loss,
liability, expenses (including reasonable attorneys fees) and damages incurred
by them arising out of or resulting from the service of such Certifying Officer
in his or her capacity as an Certifying Officer of the Trust. In that regard,
Huntington agrees to use reasonable efforts to ensure that officer
indemnification by the Trusts is provided to the fullest extent permitted by the
Trust's charter, by-laws, resolutions, or as otherwise covered under available
fidelity bond and errors and omissions' insurance. In the event that changes
are proposed or approved to the Trust's coverage under its charter or insurance
policy that provide indemnification to its officers, Huntington will notify
Bisys, and Bisys will have the right to withdraw the officer upon reasonable
notice.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited, provided that any such advanced expenses shall be
reimbursed by the indemnified party if an ultimate determination is made that
indemnification is not merited under the circumstances. If in any case a party
may be asked to indemnify or hold the other party harmless, the indemnifying
party shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder, except
to the extent the indemnifying party is materially prejudiced thereby. As to
any matter eligible for indemnification, an indemnified party shall act
reasonably and in accordance with good faith business judgment and shall not
effect any settlement or confess judgment without the consent of the
indemnifying party, which consent shall not be unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
2. Fees and Reimbursement of Expenses.
In addition to all fees, expenses and miscellaneous fees or charges
provided for under the Fund Accounting Agreement, BISYS shall be entitled to
receive $10,000 per fiscal year of the Trust, reflecting the amounts charged by
BISYS for the performance of services under this Amendment.
3. Miscellaneous.
(a) This Amendment supplements and amends the Agreement in respect of
the subject matter covered in this Amendment. The provisions set
forth in this Amendment supersede all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including any conflicting provisions of the
Agreement or any provisions of the Agreement that directly cover or
indirectly bear upon matters covered under this Amendment, except
that the indemnification provisions set forth in Section 7 of the
Fund Accounting Agreement shall not be superseded by this
Amendment, but shall be supplemented by the indemnification
provisions set forth in Section 1 of this Agreement..
(b) Each reference to the Agreement in the Agreement (as it existed
prior to this Amendment) and in every other agreement, contract or
instrument to which the parties are bound, shall hereafter be
construed as a reference to the Agreement as amended by this
Amendment. Except as provided in this Amendment, the provisions of
the Agreement remain in full force and effect (including, without
limitation, the term of the Agreement). No amendment or
modification to this Amendment shall be valid unless made in
writing and executed by both parties hereto.
(c) Paragraph headings in this Amendment are included for convenience
only and are not to be used to construe or interpret this
Amendment.
(d) This Amendment may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute
one and the same agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK, N.A.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
AMENDMENT TO FUND ACCOUNTING AGREEMENT
THIS AMENDMENT, made as of the 1st day of July 2004, between Huntington
National Bank (hereinafter referred to as "Huntington"), a national bank having
its principal place of business at 00 X. Xxxx Xx., Xxxxxxxx, Xxxx 00000, and
BISYS FUND SERVICES OHIO, INC. (hereinafter referred to as "BISYS"), an Ohio
corporation having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000 is attached to and incorporated by reference into that
certain Fund Accounting Agreement dated May 1, 2002, as amended July 30, 2003
(the "Agreement"), by and between Huntington and BISYS. The terms of this
Amendment shall be in addition to the terms of the Agreement; provided, however,
that in the event of a conflict between the terms of this Amendment and the
terms of the Agreement, this Amendment shall control. To the extent the
Agreement is amended subsequent to the date hereof, and the terms of the amended
Agreement and this Amendment conflict, the terms of the Agreement shall control.
This preamble is an essential part of this Amendment and its terms are a part of
this Amendment.
WHEREAS, Huntington and BISYS entered into the Agreement, pursuant to
which BISYS performs fund accounting services for the underlying portfolios (the
"Funds") of The Huntington Funds and the Huntington VA Funds (collectively, the
"Trusts"), each of which is a Massachusetts business trust; and
WHEREAS, Huntington desires that BISYS provide certain additional
services in connection with the valuation of securities held in certain Funds'
portfolios, and BISYS is willing to provide the services set forth in this
Amendment on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, Huntington and BISYS hereby agree as follows:
1. Services as Fund Accountant. Section 1(b)(i) and (ii) of the
Agreement is hereby deleted in its entirety and replaced with the following:
(a) BISYS will calculate the net asset value per share ("NAV") of each
class of shares offered by each Fund in accordance with the relevant provisions
of the applicable Prospectus of each Fund and applicable regulations under the
1940 Act;
(b) In each calculation of NAV, BISYS will apply securities pricing
information as required or authorized under the terms of the valuation policies
and procedures of the Trusts ("Valuation Procedures"), including (A) using
pricing information from independent pricing services, with respect to
securities for which market quotations are readily available, and (B) if
applicable to a particular Fund or Funds (the "Fair Valued Securities"), fair
value pricing information or adjustment factors from independent fair value
pricing services or other vendors approved by the Trusts (collectively, "Fair
Value Information Vendors") with respect to securities for which market
quotations are not readily available, for which a significant event has occurred
following the close of the relevant market but prior to the Fund's pricing time,
or which are otherwise required to be made subject to a fair value
determination, as set forth under the Valuation Procedures.
(c) BISYS will prepare quarterly reports summarizing the impact of fair
value pricing on the NAV of each of the Fair Valued Securities as compared to
its NAV using local closed prices and as compared to its NAV using next-day open
prices, which reports help the Trusts to monitor and evaluate their use of fair
value pricing information under their Valuation Procedures.
(d) Consistent with Section 8 of the Agreement, in connection with the
services provided in (a) through (c) above, BISYS will keep and maintain the
books and records that are required to be kept and maintained under Rule 31a-1
or other applicable regulations under the 1940 Act, including those pertaining
to (A) fair value prices and/or adjustment factors provided by Fair Value
Information Vendors, and (B) market prices for securities that are valued using
fair value information provided by Fair Value Information Vendors.
2. Compensation and Expenses.
(a) As compensation for the services set forth above that relate to the
use of Fair Value Information Vendors ("Fair Value Support Services"),
Huntington shall pay to BISYS a one-time "Development Fee" and the "Annual BISYS
Fee", all as set forth on Schedule C to this Amendment. Huntington shall pay
BISYS the Annual BISYS Fee for each Fund that Huntington designates as being
subject to fair value determinations and for which Fair Value Support Services
are to be provided by BISYS hereunder; provided, however, that BISYS will not
charge such Annual BISYS Fee for a Fund that is a "clone" (whereby, at all times
during the year, at least 90% of the "clone" Fund's foreign portfolio holdings
are identical to those of the other Fund for which BISYS is charging the Annual
BISYS Fee) of another Fund for which Huntington is already paying the Annual
BISYS Fee. The compensation set forth under this Amendment is payable in
addition to the compensation otherwise payable under the Agreement. The parties
acknowledge that this compensation will ultimately be paid by the Trusts as a
reimbursement to Huntington under Section XV of the Financial Administration and
Accounting Services Agreement between Huntington and the Trusts, dated December
1, 2001.
(b) Additionally:
(i) Huntington shall reimburse BISYS for the actual costs incurred by
BISYS from Fair Value Information Vendors with respect to the
provision of fair value pricing information to BISYS for use in
valuing the portfolio holdings of those Funds that Huntington
designates as being subject to fair value determinations and for
which Fair Value Support Services are to be provided by BISYS
hereunder. Such actual costs are referred to as the Annual Fair
Valuation Vendor Fee and will be calculated at the discounted group
rate made available to BISYS clients by the Fair Valuation
Information Vendors, if applicable.
(ii) Section 4(b)(iii) of the Agreement is deleted in its entirety and
replaced with the following:
Huntington shall pay to BISYS a charge for the pricing
information obtained with respect to each of the
securities held in the portfolio of each Fund, which
charge shall not exceed the charge that would be
incurred if the Fund were to obtain the information
directly from the relevant vendor or vendors.
3. Instructions and Compliance.
Huntington hereby instructs and authorizes BISYS to provide information
pertaining to the Fund's portfolio to Fair Value Information Vendors in
connection with the fair value determinations made under Huntington's Valuation
Procedures and other legitimate purposes related to the Fair Value Support
Services to be provided hereunder.
Huntington understands and acknowledges that while BISYS' services
hereunder are intended to assist Huntington, the Trusts and the Board in
fulfilling obligations to price and monitor pricing of Fund portfolios, BISYS
does not assume responsibility for the accuracy or appropriateness of pricing
information or methodologies, including any fair value pricing information or
adjustment factors. Huntington (or the Trusts) retains its overall
responsibilities to (i) adopt policies and procedures monitoring for
circumstances that may necessitate the use of fair value prices, (ii) establish
criteria for determining when market quotations are no longer reliable for a
particular portfolio security, (iii) determine a methodology or methodologies by
which the current fair value of the portfolio security may be determined, and
(iv) regularly review the appropriateness and accuracy of the method used in
valuing securities and make any necessary adjustments.
4. Information to be Furnished by Huntington and BISYS
BISYS represents that, upon request by Huntington or the Trust, it will
provide information regarding each independent pricing vendor and Fair Value
Information Vendor to be used by BISYS in rendering fund accounting services,
including Fair Value Support Services hereunder. BISYS shall not utilize any
independent pricing vendor who has not been approved by the Trust as a Fair
Value Information Vendor.
Huntington represents that the Trusts have approved, or shall approve,
each independent pricing vendor and Fair Value Information Vendor to be used by
BISYS in rendering fund accounting services, including Fair Value Support
Services hereunder.
Huntington has furnished BISYS with a copy of the Trusts' Valuation
Procedures and any related policies or procedures applicable to the services
hereunder, and BISYS agrees to render its services hereunder in a manner
consistent with the Valuation Procedures and such related policies or
procedures. Huntington will submit any material amendments to the Valuation
Procedures and such related policies or procedures to BISYS for BISYS' review,
and any amendment that would have a material impact upon the services to be
rendered by BISYS or the responsibilities of BISYS shall be subject to approval
by BISYS in good faith, including but not limited to the designation of any
additional Fair Value Information Vendor.
5. Representation of Huntington and BISYS
Huntington represents and warrants to BISYS that:
(a) This Agreement has been duly authorized by Huntington and the
Trusts and, when executed and delivered by Huntington, will
constitute a legal, valid and binding obligation of Huntington,
enforceable against Huntington in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the right and remedies
of creditors and secured parties; and
(b) Huntington represents and warrants that it has presented this
Agreement to, together with any information requested by, the Board
of Trustees of the Trusts, and the Board of Trustees of the Trusts
has approved this Agreement. Huntington shall provide BISYS with
copies of the resolutions evidencing such approval as of the
effective date of this Agreement.
BISYS represents and warrants to Huntington that:
(c) This Agreement has been duly authorized by BISYS and, when executed
and delivered by BISYS, will constitute a legal, valid and binding
obligation of BISYS, enforceable against BISYS in accordance with
its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
right and remedies of creditors and secured parties; and
(d) It has appropriate procedures and agreements in place to maintain
the confidentiality of any non-public portfolio holdings
information provided to the Fair Value Information Vendors unless
and until the Funds publicly disclose such information.
6. Miscellaneous
(a) Capitalized terms used but not defined in this Amendment have the
respective meanings ascribed to them in the Agreement.
(b) This Amendment supplements and amends the Agreement. The
provisions set forth in this Amendment supersede all prior negotiations,
understandings and agreements bearing upon the subject matter covered herein,
including any conflicting provisions of the Agreement or any provisions of the
Agreement that directly cover or indirectly bear upon matters covered under this
Amendment.
(c) Each reference to the Agreement in the Agreement (as it existed
prior to this Amendment) and in every other agreement, contract or instrument to
which the parties are bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided in this Amendment,
the provisions of the Agreement remain in full force and effect (including,
without limitation, the term of the Agreement). No amendment or modification to
this Amendment shall be valid unless made in writing and executed by both
parties hereto.
(d) Paragraph headings in this Amendment are included for convenience
only and are not to be used to construe or interpret this Amendment.
(e) This Amendment may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
7. Termination.
Notwithstanding the termination provisions set forth in Section 6 of the
Agreement, Huntington or the Trusts may terminate, without the payment of a
penalty, the Fair Value Support Services set forth under this Amendment upon
thirty (30) days prior written notice to BISYS. Neither Huntington nor the
Trusts will be obligated to make any additional payments under the Annual BISYS
Fee or the Annual Fair Valuation Vendor Fee after the expiration of the thirty
(30) day notice period. However, the remainder of the provisions of the
Amendment not relating to Fair Value Support Services (including specifically
those set forth in Sections 1(a) and (b) and (d), and Section 2(b)(ii)) of this
Amendment, to the extent such provisions are not applicable to Fair Value
Support Services and/or Fair Value Information Vendors, shall continue in effect
for the duration of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxx
Title: President Fund Services
SCHEDULE C
TO THE AMENDMENT TO FUND ACCOUNTING AGREEMENT BETWEEN
HUNTINGTON NATIONAL BANK AND BISYS FUND SERVICES OHIO, INC.
FAIR VALUATION INFORMATION VENDOR(S): As of the date of this Amendment, ITG is
the Fair Value Information Vendor.
DEVELOPMENT FEE
A one-time fee, due upon the execution of this Amendment: $10,000
ANNUAL BISYS FEE
An annual fee for services provided by BISYS under this Amendment:
For each Fund with less than 200 securities $5,000
For each Fund with at least 200 securities $7,500
OUT OF POCKET EXPENSES (INCLUDING THE ANNUAL FAIR VALUATION VENDOR FEE) AND
MISCELLANEOUS CHARGES
In addition to the above fees, BISYS shall be entitled to receive payment for
out-of-pocket expenses and miscellaneous charges, as set forth in Section 2(b)
of this Amendment. This includes the Annual Fair Valuation Vendor Fee, which
consists of the actual cost charged by Fair Value Information Vendors with
respect to the provision of fair value pricing information to BISYS for use in
valuing the portfolio holdings of a specific Fund or Funds.
CPI ESCALATION
The Annual BISYS Fee shall be increased annually commencing on the one-year
anniversary date of the Effective Date by the percentage increase since the
Effective Date in consumer prices for services as measured by the United States
Consumer Price Index entitled "All Services Less Rent of Shelter" or a similar
index should such index no longer be published.
BILLING
The Annual BISYS Fee and the Annual Fair Valuation Vendor Fee shall be accrued
and billed on a monthly basis in equal installments. It is understood that the
Development Fee, Annual BISYS Fee, and out-of-pocket expenses, including the
Annual Fair Valuation Fee, will be borne proportionately by the Funds (including
any "clone" Funds for which a separate Annual BISYS Fee is not charged) for
which Fair Value Support Services are provided hereunder, based on relative net
assets.
Agreed as of July 1, 2004
HUNTINGTON NATIONAL BANK
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President Fund Services
AMENDMENT TO FUND ACCOUNTING AGREEMENT
THIS AMENDMENT, made as of the 29th day of September, 2005, between
Huntington National Bank (hereinafter referred to as "Huntington"), a national
bank having its principal place of business at 00 X. Xxxx Xx., Xxxxxxxx, Xxxx
00000, and BISYS FUND SERVICES OHIO, INC. (hereinafter referred to as "BISYS"),
an Ohio corporation having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000 is attached to and incorporated by reference into that
certain Fund Accounting Agreement dated May 1, 2002, as amended July 30, 2003,
and further amended as of July 1, 2004 (the "Agreement"), by and between
Huntington and BISYS. The terms of this Amendment shall be in addition to the
terms of the Agreement; provided, however, that in the event of a conflict
between the terms of this Amendment and the terms of the Agreement, this
Amendment shall control. To the extent the Agreement is amended subsequent to
the date hereof, and the terms of the amended Agreement and this Amendment
conflict, the terms of the Agreement shall control. This preamble is an
essential part of this Amendment and its terms are a part of this Amendment.
WHEREAS, Huntington and BISYS entered into the Agreement, pursuant to
which BISYS performs fund accounting services for the underlying portfolios (the
"Funds") of The Huntington Funds and the Huntington VA Funds (collectively, the
"Trusts"), each of which is a Massachusetts business trust; and
WHEREAS, BISYS has provided and Huntington desires that BISYS continue to
provide services with respect to Form N-Q, and BISYS is willing to provide the
services set forth in this Amendment in consideration of the fee described
below, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, Huntington and BISYS hereby agree as follows:
1. AMENDMENTS
(a) Section 1(c) of the Agreement is amended by the addition of the
following service to be provided by BISYS:
(vi) Prepare and File holdings reports on Form N-Q as required at
the end of the first and third fiscal quarters of each year.
(b) Schedule B of the Agreement is amended by the addition of the
following fee to be paid to BISYS:
Fees for Form N-Q services:
FORM N-Q REPORT DATE FEE FORMULA
Third Quarter 2004 $2,750.00 per series of The Huntington Funds per filing made on its behalf, and
$2,250.00 per series of the Huntington VA Funds per filing made on its behalf.
First Quarter 2005 $2,750.00 per series of The Huntington Funds per filing made on its behalf, and
$2,250.00 per series of the Huntington VA Funds per filing made on its behalf.
Third Quarter 2005 $15,000.00 total for all Form N-Q filings made on behalf of The Huntington Funds and Huntington
VA Funds.
First Quarter 2006 $15,000.00 total for all Form N-Q filings made on behalf of The Huntington Funds and Huntington
VA Funds.
Third Quarter 2006 and all Subject to further negotiation.
subsequent filings
The compensation set forth under this Amendment is payable in addition to
the compensation otherwise payable under the Agreement. Compensation payable to
BISYS with respect to the Form N-Q service shall not be applied or counted
toward any of the minimum fee requirements for other services provided by BISYS.
The parties acknowledge that this compensation will ultimately be paid by the
Trusts as a reimbursement to Huntington under Section XV of the Financial
Administration and Accounting Services Agreement between Huntington and the
Trusts, dated December 1, 2001.
2. REPRESENTATIONS
Huntington represents and warrants to BISYS that:
(a) This Amendment has been duly authorized by Huntington and the
Trusts and, when executed and delivered by Huntington, will
constitute a legal, valid and binding obligation of Huntington,
enforceable against Huntington in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the right and remedies
of creditors and secured parties; and
(b) Huntington represents and warrants that it has presented this
Amendment to, together with any information requested by, the Board
of Trustees of the Trusts, and the Board of Trustees of the Trusts
has approved this Amendment. Huntington shall provide BISYS with
copies of the resolutions evidencing such approval prior to the
effective date of this Amendment.
3. MISCELLANEOUS
(a) This Amendment supplements and amends the Agreement. The
provisions set forth in this Amendment supersede all prior negotiations,
understandings and agreements bearing upon the subject matter covered herein,
including any conflicting provisions of the Agreement or any provisions of the
Agreement that directly cover or indirectly bear upon matters covered under this
Amendment.
(b) Section headings in this Amendment are included for convenience
only and are not to be used to construe or interpret this Amendment.
(c) This Amendment may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
(d) Capitalized terms used but not defined in this Amendment have the
respective meanings ascribed to them in the Agreement.
(e) Each reference to the Agreement in the Agreement (as it existed
prior to this Amendment) and in every other agreement, contract or instrument to
which the parties are bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided in this Amendment,
the provisions of the Agreement remain in full force and effect (including,
without limitation, the term of the Agreement). No amendment or modification to
this Amendment shall be valid unless made in writing and executed by both
parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President Fund Services
December 19, 2005
Xxxxx X. Xxxx
Xxxxxx X. Xxxxx
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Fund Accounting Agreement
Gentlemen:
Reference is hereby made to the Fund Accounting Agreement (the "Agreement")
dated as of May 1, 2002, between The Huntington National Bank (the "Bank") and
BISYS Fund Services Ohio, Inc. ("BISYS") for the provision of fund accounting
services to The Huntington Funds and Huntington VA Funds (collectively, the
"Funds"). Section 6 of the Agreement provides that unless written notice of
termination is provided by either party at least 120 days prior to April 30,
2006, the Agreement automatically reviews for an additional one-year term. The
Bank seeks to examine alternative service providers, and will commence
soliciting bids for the delivery of fund accounting services to the Funds in the
near future. We sincerely hope that BISYS will submit a proposal in response to
our RFP.
In order to facilitate an orderly and through RFP process, the Board has
instructed me to provide termination notice under the Agreement before December
31, 2005, to preserve the Funds' rights to negotiate new terms for fund
accounting service either with BISYS or another service provider. In order to
retain BISYS until the RFP process is complete and a Board decision is made, we
request BISYS' agreement to the following terms: (1) the 120-day notice
requirement applicable to the April 30, 2006 termination date of the Agreement
is hereby waived; and (2) the existing Agreement will continue in effect until
terminated by either party upon 120 days' prior written notice to the other, or
such longer period as the parties agree in writing as being necessary to
effectuate any transition in service providers.
As you are well aware, it is important that we constantly seek the best
combination of service and price for our shareholders. We will be closely
reviewing all of the Huntington Fund's vendors to ensure that our shareholders
are beneficiaries of superior capabilities. The request is indicative of our
interest in serving our shareholders and we certainly appreciate the service we
have received from BISYS.
If the foregoing is agreeable to you, please so indicate by signing in the space
provided below. This letter agreement is effective from the date set forth
above and constitutes an amendment to the Agreement.
We will contact you shortly to discuss how to proceed with the proposal process.
Sincerely,
THE HUNTINGTON NATIONAL BANK
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: Senior Vice President
Acknowledged and Agreed:
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President
cc: Xxxxx Xxxxxxxxxxx
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx X. Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx, Esq.
