Exhibit (g)
CUSTODIAN AGREEMENT
between
HUNTINGTON VA FUNDS
and
THE HUNTINGTON NATIONAL BANK
TABLE OF CONTENTS
PAGE
1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT .......................................................2
2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUNDS
HELD BY THE CUSTODIAN.......................................................................................3
2.1 HOLDING SECURITIES.................................................................................3
2.2 DELIVERY OF SECURITIES.............................................................................3
2.3 REGISTRATION OF SECURITIES.........................................................................5
2.4 BANK ACCOUNTS......................................................................................6
2.5 PAYMENTS FOR SHARES................................................................................6
2.6 AVAILABILITY OF FEDERAL FUNDS......................................................................6
2.7 COLLECTION OF INCOME...............................................................................7
2.8 PAYMENT OF FUND MONEYS.............................................................................7
2.9 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES PURCHASED................................8
2.10 PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF SHARES OF A FUND........................................9
2.11 APPOINTMENT OF AGENTS..............................................................................9
2.12 DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEM........................................................9
2.13 SEGREGATED ACCOUNT................................................................................10
2.14 JOINT REPURCHASE AGREEMENTS.......................................................................11
2.15 OWNERSHIP CERTIFICATES FOR TAX PURPOSES...........................................................11
2.16 PROXIES...........................................................................................11
2.17 COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES..............................................11
2.18 PROPER INSTRUCTIONS...............................................................................12
2.19 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.......................................................12
2.20 EVIDENCE OF AUTHORITY.............................................................................13
2.21 NOTICE TO TRUST BY CUSTODIAN REGARDING CASH MOVEMENT..............................................13
3. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND CALCULATION
OF NET ASSET VALUE AND NET INCOME..........................................................................13
4. RECORDS....................................................................................................13
5. OPINION OF TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS..........................................................14
6. REPORTS TO TRUST BY INDEPENDENT PUBLIC ACCOUNTANTS.........................................................14
7. COMPENSATION OF CUSTODIAN..................................................................................14
8. RESPONSIBILITY OF CUSTODIAN................................................................................14
9. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT................................................................16
10. SUCCESSOR CUSTODIAN........................................................................................16
11. INTERPRETIVE AND ADDITIONAL PROVISIONS.....................................................................17
12. OHIO LAW TO APPLY..........................................................................................17
13. NOTICES....................................................................................................18
14. COUNTERPARTS...............................................................................................18
15. LIMITATIONS OF LIABILITY...................................................................................18
CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of the 15th day of October, 1999 between
HUNTINGTON VA FUNDS (the "Trust"), a Massachusetts business trust, on behalf of
its portfolios (hereinafter collectively called the "Funds" and individually
referred to as a "Fund"), and THE HUNTINGTON NATIONAL BANK, a national banking
association (hereinafter called the "Custodian").
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
The Trust hereby employs the Custodian as the custodian of the assets
of each of the Funds of the Trust. Except as otherwise expressly provided
herein, the securities and other assets of each of the Funds shall be segregated
from the assets of each of the other Funds and from all other persons and
entities. The Trust will deliver to the Custodian all securities and cash owned
by the Funds and all payments of income, payments of principal or capital
distributions received by them with respect to all securities owned by the Funds
from time to time, and the cash consideration received by them for shares of
beneficial interest ("Shares") of the Funds as may be issued or sold from time
to time. The Custodian shall not be responsible for any property of the Funds
held or received by the Funds and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Section ),
the Custodian shall from time to time employ one or more sub-custodians upon the
terms specified in the Proper Instructions.
2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUNDS HELD
BY THE CUSTODIAN
2.1 HOLDING SECURITIES. The Custodian shall hold and physically
segregate for the account of each Fund all non-cash property,
including all securities owned by each Fund, other than
securities which are maintained pursuant to Section in a
Securities System (as defined below), or securities which are
subject to a joint repurchase agreement with affiliated funds
pursuant to Section . The Custodian shall maintain records of
all receipts, deliveries and locations of such securities,
together with a current inventory thereof, and shall conduct
periodic physical inspections of certificates representing
stocks, bonds and other securities held by it under this
Agreement in such manner as the Custodian shall determine from
time to time to be advisable in order to verify the accuracy
of such inventory. With respect to securities held by any
agent appointed pursuant to Section hereof, and with respect
to securities held by any sub-custodian appointed pursuant to
Section hereof, the Custodian may rely upon certificates from
such agent as to the holdings of such agent and from such
sub-custodian as to the holdings of such sub-custodian, it
being understood that such reliance in no way relieves the
Custodian of its responsibilities under this Agreement. The
Custodian will promptly report to the Trust the results of
such inspections, indicating any shortages or discrepancies
uncovered thereby, and take appropriate action to remedy any
such shortages or discrepancies.
2.2 DELIVERY OF SECURITIES. The Custodian shall release and
deliver securities owned by a Fund held by the Custodian or in
a Securities System account of the Custodian only upon receipt
of Proper Instructions, which may be continuing instructions
when deemed appropriate by the parties, and only in the
following cases:
(1) Upon sale of such securities for the account of a
Fund and receipt of payment therefor;
(2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities
entered into by the Trust;
(3) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section
hereof;
(4) To the depository agent in connection with tender or
other similar offers for portfolio securities of a
Fund, in accordance with the provisions of Section
hereof;
(5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the
cash or other consideration is to be delivered to the
Custodian;
(6) To the issuer thereof, or its agent, for transfer
into the name of a Fund or into the name of any
nominee or nominees of the Custodian or into the name
or nominee name of any agent appointed pursuant to
Section or into the name or nominee name of any
sub-custodian appointed pursuant to Section ; or for
exchange for a different number of bonds,
certificates or other evidence representing the same
aggregate face amount or number of units; provided
that, in any such case, the new securities are to be
delivered to the Custodian;
(7) Upon the sale of such securities for the account of a
Fund, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street
delivery custom"; provided that in any such case, the
Custodian shall have no responsibility or liability
for any loss arising from the delivery of such
securities prior to receiving payment for such
securities except as may arise from the Custodian's
own failure to act in accordance with the standard of
reasonable care or any higher standard of care
imposed upon the Custodian by any applicable law or
regulation if such above-stated standard of
reasonable care were not part of this Agreement;
(8) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization or readjustment of the securities of
the issuer of such securities, or pursuant to
provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities
and cash, if any, are to be delivered to the
Custodian;
(9) In the case of warrants, rights or similar
securities, the surrender thereof in the exercise of
such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities
for definitive securities; provided that, in any such
case, the new securities and cash, if any, are to be
delivered to the Custodian;
(10) For delivery in connection with any loans of
portfolio securities of a Fund, BUT ONLY against
receipt of adequate collateral in the form of (a)
cash, in an amount specified by the Trust, (b)
certificated securities of a description specified by
the Trust, registered in the name of the Fund or in
the name of a nominee of the Custodian referred to in
Section hereof or in proper form for transfer, or (c)
securities of a description specified by the Trust,
transferred through a Securities System in accordance
with Section hereof;
(11) For delivery as security in connection with any
borrowings requiring a pledge of assets by a Fund,
BUT ONLY against receipt of amounts borrowed, except
that in cases where additional collateral is required
to secure a borrowing already made, further
securities may be released for the purpose;
(12) For delivery in accordance with the provisions of any
agreement among the Trust or a Fund, the Custodian
and a broker-dealer registered under the Securities
Exchange Act of 1934, as amended, (the "Exchange
Act") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of the Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or
organizations, regarding escrow or other arrangements
in connection with transactions for a Fund;
(13) For delivery in accordance with the provisions of any
agreement among the Trust or a Fund, the Custodian,
and a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading
Commission or any similar organization or
organizations, regarding account deposits in
connection with transaction for a Fund;
(14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for a Fund, for delivery to such
Transfer Agent or to the holders of shares in
connection with distributions in kind, in
satisfaction of requests by holders of Shares for
repurchase or redemption; and
(15) For any other proper corporate purpose, BUT ONLY upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Trustees of the
Trust on behalf of a Fund signed by an officer of the
Trust and certified by its Secretary or an Assistant
Secretary, specifying the securities to be delivered,
setting forth the purpose for which such delivery is
to be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons
to whom delivery of such securities shall be made.
2.3 REGISTRATION OF SECURITIES. Securities held by the Custodian
(other than bearer securities) shall be registered in the name
of a particular Fund or in the name of any nominee of the Fund
or of any nominee of the Custodian which nominee shall be
assigned exclusively to the Fund, UNLESS the Trust has
authorized in writing the appointment of a nominee to be used
in common with other registered investment companies
affiliated with the Fund, or in the name or nominee name of
any agent
appointed pursuant to Section or in the name or nominee name
of any sub-custodian appointed pursuant to Section. All
securities accepted by the Custodian on behalf of a Fund
under the terms of this Agreement shall be in "street name"
or other good delivery form.
2.4 BANK ACCOUNTS. The Custodian shall open and maintain a
separate bank account or accounts in the name of each Fund,
subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement, and shall hold in
such account or accounts, subject to the provisions hereof,
all cash received by it from or for the account of each Fund,
other than cash maintained in a joint repurchase account with
other affiliated funds pursuant to Section of this Agreement
or by a particular Fund in a bank account established and used
in accordance with Rule 17f-3 or any successor provision under
the Investment Company Act of 1940, as amended, (the "1940
Act"). Funds held by the Custodian for a Fund may be deposited
by it to its credit as Custodian in the Banking Department of
the Custodian or in such other banks or trust companies as it
may in its discretion deem necessary or desirable; provided,
however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that
each such bank or trust company and the funds to be deposited
with each such bank or trust company shall be approved by vote
of a majority of the Board of Trustees ("Board") of the Trust.
Such funds shall be deposited by the Custodian in its capacity
as Custodian for the Fund and shall be withdrawable by the
Custodian only in that capacity. If requested by the Trust,
the Custodian shall furnish the Trust, not later than twenty
(20) days after the last business day of each month, an
internal reconciliation of the closing balance as of that day
in all accounts described in this section to the balance shown
on the daily cash report for that day rendered to the Trust.
2.5 PAYMENTS FOR SHARES. The Custodian shall make such
arrangements with the Transfer Agent of each Fund as will
enable the Custodian to receive the cash consideration due to
each Fund and will deposit into each Fund's account such
payments as are received from the Transfer Agent. The
Custodian will provide timely notification to the Trust and
the Transfer Agent of any receipt by it of payments for Shares
of the respective Fund.
2.6 AVAILABILITY OF FEDERAL FUNDS. Upon mutual agreement between
the Trust and the Custodian, the Custodian shall make federal
funds available to the Funds as of specified times agreed upon
from time to time by the Trust and the Custodian in the amount
of checks, clearing house funds, and other non-federal funds
received in payment for Shares of the Funds which are
deposited into the Funds' accounts.
2.7 COLLECTION OF INCOME
(1) The Custodian shall collect on a timely basis all
income and other payments with respect to registered
securities held hereunder to which each Fund shall be
entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely
basis all income and other payments with respect to
bearer securities if, on the date of payment by the
issuer, such securities are held by the Custodian or
its agent thereof and shall credit such income, as
collected, to each Fund's custodian account. Without
limiting the generality of the foregoing, the
Custodian shall detach and present for payment all
coupons and other income items requiring presentation
as and when they become due and shall collect
interest when due on securities held hereunder. The
collection of income due the Funds on securities
loaned pursuant to the provisions of Section shall be
the responsibility of the Trust. The Custodian will
have no duty or responsibility in connection
therewith, other than to provide the Trust with such
information or data as may be necessary to assist the
Trust in arranging for the timely delivery to the
Custodian of the income to which each Fund is
properly entitled.
(2) The Trust shall promptly notify the Custodian
whenever income due on securities is not collected in
due course and will provide the Custodian with
monthly reports of the status of past due income. The
Trust will furnish the Custodian with a weekly report
of accrued/past due income for the Fund. Once an item
is identified as past due and the Trust has furnished
the necessary claim documentation to the Custodian,
the Custodian will then initiate a claim on behalf of
the Trust. The Custodian will furnish the Trust with
a status report monthly unless the parties otherwise
agree.
2.8 PAYMENT OF FUND MONEYS. Upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate
by the parties, the Custodian shall pay out moneys of each
Fund in the following cases only:
(1) Upon the purchase of securities, futures contracts or
options on futures contracts for the account of a
Fund but only (a) against the delivery of such
securities, or evidence of title to futures
contracts, to the Custodian (or any bank, banking
firm or trust company doing business in the United
States or abroad which is qualified under the 1940
Act to act as a custodian and has been designated by
the Custodian as its agent for this purpose pursuant
to Section hereof) registered in the name of the Fund
or in the name of a nominee of the Custodian referred
to in Section hereof or in proper form for transfer,
(b) in the case of a purchase effected through a
Securities System, in accordance with the conditions
set forth in Section hereof or (c) in the case of
repurchase agreements entered into between the Trust
and any other party, (i) against delivery of the
securities either in certificate form or through an
entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii)
against delivery of the receipt evidencing purchase
for the account of the Fund of securities owned by
the Custodian along with written evidence of the
agreement by the Custodian to repurchase such
securities from the Fund;
(2) In connection with conversion, exchange or surrender
of securities owned by a Fund as set forth in Section
hereof;
(3) For the redemption or repurchase of Shares of a Fund
issued by the Trust as set forth in Section hereof;
(4) For the payment of any expense or liability incurred
by a Fund, including but not limited to the following
payments for the account of the Fund: interest;
taxes; management, accounting, transfer agent and
legal fees; and operating expenses of the Fund,
whether or not such expenses are to be in whole or in
part capitalized or treated as deferred expenses;
(5) For the payment of any dividends on Shares of a Fund
declared pursuant to the governing documents of the
Trust;
(6) For payment of the amount of dividends received in
respect of securities sold short;
(7) For any other proper purpose, BUT ONLY upon receipt
of, in addition to Proper Instructions, a certified
copy of a resolution of the Board of Trustees of the
Trust on behalf of a Fund signed by an officer of the
Trust and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment is
to be made, declaring such purpose to be a proper
purpose, and naming the person or persons to whom
such payment is to be made.
2.9 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
PURCHASED. In any and every case where payment for purchase
of securities for the account of a Fund is made by the
Custodian in advance of receipt of the securities purchased,
in the absence of specific written instructions from the Trust
to so pay in advance, the Custodian shall be absolutely liable
to the Fund for such securities to the same extent as if the
securities had been received by the Custodian.
2.10 PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF SHARES OF A FUND.
From such funds as may be available for the purpose of
repurchasing or redeeming Shares of a Fund, but subject to the
limitations of the Declaration of Trust and any applicable
votes of the Trustees of the Trust pursuant thereto, the
Custodian shall, upon receipt of instructions from the
Transfer Agent, make funds available for payment to holders of
Shares of such Fund who have delivered to the Transfer Agent a
request for redemption or repurchase of their Shares including
without limitation through bank drafts, automated
clearinghouse facilities, or by other means. In connection
with the redemption or repurchase of Shares of the Funds, the
Custodian is authorized upon receipt of instructions from the
Transfer Agent to wire funds to or through a commercial bank
designated by the redeeming shareholders.
2.11 APPOINTMENT OF AGENTS. The Custodian may at any time or times
in its discretion appoint (and may at any time remove) any
other bank or trust company which is itself qualified under
the 1940 Act and any applicable state law or regulation, to
act as a custodian, as its agent to carry out such of the
provisions of this Section as the Custodian may from time to
time direct; provided, however, that the appointment of any
agent shall not relieve the Custodian of its responsibilities
or liabilities hereunder.
2.12 DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEM. The Custodian
may deposit and/or maintain securities owned by the Funds in a
clearing agency registered with the Securities and Exchange
Commission ("SEC") under Section 17A or any successor
provision of the Exchange Act, which acts as a securities
depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies, each
referred to herein as "Securities System," in accordance with
applicable Federal Reserve Board and SEC rules and
regulations, if any, and subject to the following provisions:
(1) The Custodian may keep securities of each Fund in a
Securities System provided that such securities are
represented in an account ("Account") of the
Custodian in the Securities System which shall not
include any assets of the Custodian other than assets
held as a fiduciary, custodian or otherwise for
customers;
(2) The records of the Custodian with respect to
securities of the Funds which are maintained in a
Securities System shall identify by book-entry those
securities belonging to each Fund;
(3) The Custodian shall pay for securities purchased for
the account of each Fund upon (i) receipt of advice
from the Securities System that such securities have
been transferred to the Account, and (ii) the making
of an
entry on the records of the Custodian to reflect
such payment and transfer for the account of the
Fund. The Custodian shall transfer securities sold
for the account of a Fund upon (i) receipt of
advice from the Securities System that payment for
such securities has been transferred to the
Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer
and payment for the account of the Fund. Copies of
all advices from the Securities System of
transfers of securities for the account of a Fund
shall identify the Fund, be maintained for the
Fund by the Custodian and be provided to the Trust
at its request. Upon request, the Custodian shall
furnish the Trust confirmation of each transfer to
or from the account of a Fund in the form of a
written advice or notice and shall furnish to the
Trust copies of daily transaction sheets
reflecting each day's transactions in the
Securities System for the account of a Fund;
(4) The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's
accounting system, internal accounting control and
procedures for safeguarding securities deposited in
the Securities System;
(5) The Custodian shall have received the initial
certificate, required by Section hereof;
(6) Anything to the contrary in this Agreement
notwithstanding, the Custodian shall be liable to the
Trust for any loss or damage to a Fund resulting from
use of the Securities System by reason of any
negligence, misfeasance or misconduct of the
Custodian or any of its agents or of any of its or
their employees or from failure of the Custodian or
any such agent to enforce effectively such rights as
it may have against the Securities System; at the
election of the Trust, it shall be entitled to be
subrogated to the rights of the Custodian with
respect to any claim against the Securities System or
any other person which the Custodian may have as a
consequence of any such loss or damage if and to the
extent that a Fund has not been made whole for any
such loss or damage; and
(7) The authorization contained in this Section shall not
relieve the Custodian from using reasonable care and
diligence in making use of any Securities System.
2.13 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
Proper Instructions establish and maintain a segregated
account or accounts for and on behalf of each Fund, into which
account or accounts may be transferred cash and/or securities,
including securities maintained in an account by the Custodian
pursuant to Section hereof, (i) in accordance with the
provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under
the Exchange Act and a member of the NASD (or any futures
commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of the Options
Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any
similar organization or organizations, regarding escrow or
other arrangements in connection with transactions for a
Fund, (ii) for purpose of segregating cash or government
securities in connection with options purchased, sold or
written for a Fund or commodity futures contracts or options
thereon purchased or sold for a Fund, (iii) for the purpose
of compliance by the Trust or a Fund with the procedures
required by any release or releases of the SEC relating to
the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate
purposes, BUT ONLY, in the case of clause (iv), upon receipt
of, in addition to Proper Instructions, a certified copy of
a resolution of the Trustees signed by an officer of the
Trust and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such
segregated account. and declaring such purposes to be proper
corporate purposes.
2.14 JOINT REPURCHASE AGREEMENTS. Upon the receipt of Proper
Instructions, the Custodian shall deposit and/or maintain any
assets of a Fund and any affiliated funds which are subject to
joint repurchase transactions in an account established solely
for such transactions for the Fund and its affiliated funds.
For purposes of this Section , "affiliated funds" shall
include all investment companies and their portfolios for
which subsidiaries or affiliates of The Huntington National
Bank serve as investment advisers, distributors or
administrators in accordance with applicable exemptive orders
from the SEC. The requirements of segregation set forth in
Section shall be deemed to be waived with respect to such
assets.
2.15 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian shall
execute ownership and other certificates and affidavits for
all federal and state tax purposes in connection with receipt
of income or other payments with respect to securities of a
Fund held by it and in connection with transfers of
securities.
2.16 PROXIES. The Custodian shall, with respect to the securities
held hereunder, cause to be promptly executed by the
registered holder of such securities, if the securities are
registered otherwise than in the name of a Fund or a nominee
of a Fund, all proxies, without indication of the manner in
which such proxies are to be voted, and shall promptly deliver
to the Trust such proxies, all proxy soliciting materials and
all notices relating to such securities.
2.17 COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES. The
Custodian shall transmit promptly to the Trust and the
investment adviser of the Trust all written information
(including, without limitation, pendency of calls and
maturities of
securities and expirations of rights in connection therewith
and notices of exercise of call and put options written by
the Fund and the maturity of futures contracts purchased or
sold by the Fund) received by the Custodian from issuers of
the securities being held for the Trust. With respect to
tender or exchange offers, the Custodian shall transmit
promptly to the Trust and the investment adviser of the
Trust all written information received by the Custodian from
issuers of the securities whose tender or exchange is sought
and from the party (or his agents) making the tender or
exchange offer. If the Trust or the investment adviser of
the Trust desires to take action with respect to any tender
offer, exchange offer or any other similar transaction, the
Trust shall notify the Custodian in writing at least three
business days prior to the date on which the Custodian is to
take such action. However, the Custodian shall nevertheless
exercise its best efforts to take such action in the event
that notification is received three business days or less
prior to the date on which action is required. For
securities which are not held in nominee name, the Custodian
will act as a secondary source of information and will not
be responsible for providing corporate action notification
to the Trust.
2.18 PROPER INSTRUCTIONS. Proper Instructions as used throughout
this Section means a writing signed or initialed by one or
more person or persons as the Trustees shall have from time to
time authorized. Each such writing shall set forth the
specific transaction or type of transaction involved. Oral
instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a
person previously authorized in Proper Instructions to give
such instructions with respect to the transaction involved.
The Trust shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an
Assistant Secretary as to the authorization by the Trustees
accompanied by a detailed description of procedures approved
by the Trustees, Proper Instructions may include
communications effected directly between electromechanical or
electronic devices provided that the Trustees and the
Custodian are satisfied that such procedures afford adequate
safeguards for a Fund's assets.
2.19 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. The Custodian
may in its discretion, without express authority from the
Trust:
(1) make payments to itself or others for minor expenses
of handling securities or other similar items
relating to its duties under this Agreement, PROVIDED
that all such payments shall be accounted for to the
Trust in such form that it may be allocated to the
affected Fund;
(2) surrender securities in temporary form for securities
in definitive form;
(3) endorse for collection, in the name of a Fund,
checks, drafts and other negotiable instruments;
and
(4) in general, attend to all non-discretionary details
in connection with the sale, exchange, substitution,
purchase, transfer and other dealings with the
securities and property of each Fund except as
otherwise directed by the Trust.
2.20 EVIDENCE OF AUTHORITY. The Custodian shall be protected in
acting upon any instructions, notice, request, consent,
certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed on
behalf of a Fund. The Custodian may receive and accept a
certified copy of a vote of the Trustees of the Trust as
conclusive evidence (a) of the authority of any person to act
in accordance with such vote or (b) of any determination of or
any action by the Trustees pursuant to the Declaration of
Trust as described in such vote, and such vote may be
considered as in full force and effect until receipt by the
Custodian of written notice to the contrary.
2.21 NOTICE TO TRUST BY CUSTODIAN REGARDING CASH MOVEMENT. The
Custodian will provide timely notification to the Trust of any
receipt of cash, income or payments to the Trust and the
release of cash or payment by the Trust.
3. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND
CALCULATION OF NET ASSET VALUE AND NET INCOME
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Trustees of the Trust to keep the books
of account of each Fund and/or compute the net asset value per share of the
outstanding Shares of each Fund or, if directed in writing to do so by the
Trust, shall itself keep such books of account and/or compute such net asset
value per share. If so directed, the Custodian shall also calculate daily the
net income of a Fund as described in the Fund's currently effective prospectus
and Statement of Additional Information ("Prospectus") and shall advise the
Trust and the Transfer Agent daily of the total amounts of such net income and,
if instructed in writing by an officer of the Trust to do so, shall advise the
Transfer Agent periodically of the division of such net income among its various
components. The calculations of the net asset value per share and the daily
income of a Fund shall be made at the time or times described from time to time
in the Fund's currently effective Prospectus.
4. RECORDS
The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Trust and the Funds under the 1940 Act, with particular
attention to Section 31 thereof and Rules 31a-l and 31a-2 thereunder or any
successor provisions, and specifically including identified cost records used
for tax purposes. All such records shall be the property of the Trust and shall
at all times
during the regular business hours of the Custodian be open for inspection by
duly authorized officers, employees or agents of the Trust and upon notice to
the Trust, employees and agents of the SEC. In the event of termination of this
Agreement, the Custodian will deliver all such records to the Trust to a
successor Custodian, or to such other person as the Trust may direct. The
Custodian shall supply daily to the Trust a tabulation of securities owned by a
Fund and held by the Custodian and shall, when requested to do so by the Trust
and for such compensation as shall be agreed upon between the Trust and the
Custodian, include certificate numbers in such tabulations. In addition, the
Custodian shall electronically transmit daily to the Trust information
pertaining to security trading and other investment activity and all other cash
activity of a Fund.
5. OPINION OF TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall take all reasonable action to obtain from year to
year favorable opinions from independent public accountants with respect to its
activities hereunder in connection with the preparation of the Trust's
registration statement, periodic reports, or any other reports to the SEC and
with respect to any other requirements of the SEC.
6. REPORTS TO TRUST BY INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall provide the Trust, at such times as the Trust may
reasonably require, with reports by independent public accountants for each Fund
on the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a Securities System,
relating to the services provided by the Custodian for the Trust under this
Agreement; such reports shall be of sufficient scope and in sufficient detail,
as may reasonably be required by the Trust, to provide reasonable assurance that
any material inadequacies would be disclosed by such examination and, if there
are no such inadequacies, the reports shall so state.
7. COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Trust and the Custodian, and as reflected on Schedule A attached hereto.
8. RESPONSIBILITY OF CUSTODIAN
The Custodian shall be held to a standard of reasonable care in
carrying out the provisions of this Agreement; provided, however, that the
Custodian shall be held to any higher standard of care which would be imposed
upon the Custodian by any applicable law or regulation if such above stated
standard of reasonable care was not part of this Agreement. The Custodian shall
be entitled to rely on and may act upon advice of counsel (who may be counsel
for the Trust) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice, provided that such action
is not in violation of applicable
federal or state laws or regulations, and is in good faith and without
negligence. Subject to the limitations set forth in Section hereof, the
Custodian shall be kept indemnified by the Trust but only from the assets of the
Fund involved in the issue at hand and be without liability for any action taken
or thing done by it that is reasonably related to its responsibility to carry
out the terms and provisions of this Agreement in accordance with the above
standards.
In order that the indemnification provisions contained in this Section
shall apply, however, it is understood that if in any case the Trust may be
asked to indemnify or save the Custodian harmless, the Trust shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Custodian will use all reasonable care to
identify and notify the Trust promptly concerning any situation which presents
or appears likely to present the probability of such a claim for
indemnification. The Trust shall have the option to defend the Custodian against
any claim which may be the subject of this indemnification, and in the event
that the Trust so elects it will so notify the Custodian and thereupon the Trust
shall take over complete defense of the claim, and the Custodian shall in such
situation initiate no further legal or other expenses for which it shall seek
indemnification under this Section. The Custodian shall in no case confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify the Custodian except with the Trust's prior written consent.
Notwithstanding the foregoing, the responsibility of the Custodian with
respect to redemptions effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Trust.
If the Trust requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the reasonable opinion of the Custodian, result in the Custodian or its nominee
assigned to a Fund being liable for the payment of money or incurring liability
of some other form, the Custodian may request the Trust, as a prerequisite to
requiring the Custodian to take such action, to provide indemnity to the
Custodian in an amount and form satisfactory to the Custodian.
Subject to the limitations set forth in Section hereof, the Trust
agrees to indemnify and hold harmless the Custodian and its nominee from and
against all taxes, charges, expenses, assessments, claims and liabilities
(including reasonable counsel fees) (referred to herein as authorized charges)
incurred or assessed against it or its nominee in connection with the
performance of this Agreement, except such as may arise from it or its nominee's
own failure to act in accordance with the standard of care set forth herein or
any higher standard of care which would be imposed upon the Custodian by any
applicable law or regulation if such above-stated standard of care were not part
of this Agreement. To secure any authorized charges and any advances of cash or
securities made by the Custodian to or for the benefit of a Fund for any purpose
which results in the Fund incurring an overdraft at the end of any business day
or for extraordinary or emergency purposes during any business day, the Trust
hereby grants to the Custodian a security interest in and pledges to the
Custodian securities held for the Fund by the
Custodian in an amount not to exceed 10 percent of the Fund's gross assets, the
specific securities to be designated in writing from time to time by the Trust
or the Fund's investment adviser. Should the Trust fail to make such
designation, or should it instruct the Custodian to make advances exceeding the
percentage amount set forth above and should the Custodian do so, the Trust
hereby agrees that the Custodian shall have a security interest in all
securities or other property purchased for a Fund with the advances by the
Custodian, which securities or property shall be deemed to be pledged to the
Custodian, and the written instructions of the Trust instructing their purchase
shall be considered the requisite description and designation of the property so
pledged for purposes of the requirements of the Uniform Commercial Code. Should
the Trust fail to cause a Fund to repay promptly any authorized charges or
advances of cash or securities, subject to the provision of the second paragraph
of this Section regarding indemnification, the Custodian shall be entitled to
use available cash and to dispose of pledged securities and property as is
necessary to repay any such advances.
9. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid, to the other party, such termination to take effect not sooner
than sixty (60) days after the date of such delivery or mailing; PROVIDED,
however that the Custodian shall not act under Section hereof in the absence of
receipt of an initial certificate of the Secretary or an Assistant Secretary
that the Trustees of the Trust have approved this Agreement; PROVIDED FURTHER,
however, that the Trust shall not amend or terminate this Agreement in
contravention of any applicable federal or state regulations, or any provision
of the Declaration of Trust, and further provided, that the Trust may at any
time by action of its Board (i) substitute another bank or trust company for the
Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Agreement, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its reasonable costs, expenses and
disbursements incurred in connection with its performance of this agreement
through the date of termination.
10. SUCCESSOR CUSTODIAN
If a successor custodian shall be appointed by the Trustees of the
Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder for each Fund and
shall transfer to separate accounts of the successor custodian all of each
Fund's securities held in a Securities System.
If no such successor custodian shall be appointed, the Custodian shall,
in like manner, upon receipt of a certified copy of a vote of the Trustees of
the Trust, deliver at the office of the Custodian and transfer such securities,
funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Trustees shall have been delivered to the
Custodian on or before the date when such termination shall become effective,
then the Custodian shall have the right to deliver to a bank or trust company,
which is a "bank" as defined in the 1940 Act, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $100,000,000, all securities, funds and other
properties held by the Custodian and all instruments held by the Custodian
relative thereto and all other property held by it under this Agreement for each
Fund and to transfer to separate accounts of such successor custodian all of
each Fund's securities held in any Securities System. Thereafter, such bank or
trust company shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or of
the Trustees to appoint a successor custodian, the Custodian shall be entitled
to fair compensation for its services during such period as the Custodian
retains possession of such securities, funds and other properties and the
provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect.
11. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Agreement, the Custodian and
the Trust may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, PROVIDED that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Declaration of Trust. No interpretive or additional provisions made as
provided in the preceding sentence shall be deemed to be an amendment of this
Agreement.
12. OHIO LAW TO APPLY
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with laws of the state of Ohio.
13. NOTICES
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Trust or to the Custodian at
Huntington Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or to such other
address as the Trust or the Custodian may hereafter specify, shall be deemed to
have been properly delivered or given hereunder to the respective address.
14. COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
15. LIMITATIONS OF LIABILITY
The Custodian is expressly put on notice of the limitation of liability
as set forth in Article IV of the Declaration of Trust and agrees that the
obligations and liabilities assumed by the Trust and any Fund pursuant to this
Agreement, including, without limitation, any obligation or liability to
indemnify the Custodian pursuant to Section hereof, shall be limited in any case
to the relevant Fund and its assets and that the Custodian shall not seek
satisfaction of any such obligation from the shareholders of the relevant Fund,
from any other Fund or its shareholders or from the Trustees, Officers,
employees or agents of the Trust, or any of them. In addition, in connection
with the discharge and satisfaction of any claim made by the Custodian against
the Trust, for whatever reasons, involving more than one Fund, the Trust shall
have the exclusive right to determine the appropriate allocations of liability
for any such claim between or among the Funds.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative as of
the 15th day of October, 1999.
HUNTINGTON VA FUNDS
By:/s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx
President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
Senior Vice President
SCHEDULE A
to the
Custodian Agreement
dated as of October 15, 1999
between
Huntington VA Funds
and
The Huntington National Bank
For its services under the Custodian Agreement, the Custodian will
receive an annual fee as follows:
FOR CUSTODY SERVICES:
0.026% of the average daily net assets of each of the following
Huntington VA Funds:
Huntington VA Growth Fund
Huntington VA Income Equity Fund
FOR RECORDKEEPING SERVICES:
0.030% of the average daily net assets of each of the following
Huntington VA Funds:
Huntington VA Growth Fund
Huntington VA Income Equity Fund
All fees are to be accrued daily and paid monthly.
HUNTINGTON VA FUNDS
By:/s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx
President
THE HUNTINGTON NATIONAL BANK
By:/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
Senior Vice President
Exhibit (h)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT is made as of the 15th day of October, 1999, by and
between HUNTINGTON VA FUNDS, a Massachusetts business trust, having its
principal office and place of business at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx
00000 (the "Trust"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company, having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Trust is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Trust intends to initially offer shares in two series,
such series shall be named in the attached Schedule A which may be amended by
the parties from time to time (each such series, together with all other series
subsequently established by the Trust and made subject to this Agreement in
accordance with Article 11, being herein referred to as a "Fund," and
collectively as the "Funds"); and
WHEREAS, the Trust on behalf of the Funds desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent, custodian of
certain retirement plans and agent in connection with certain other activities,
and the Transfer Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT AND DUTIES
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust, on behalf of the Funds, hereby employs and appoints the
Transfer Agent to act as, and the Transfer Agent agrees to act as the
transfer agent for each Fund's
authorized and issued shares of beneficial interest, no par value
("Shares"), dividend disbursing agent, custodian of certain retirement
plans and agent in connection with any accumulation, open-account or
similar plan provided to the shareholders of each of the Funds of the
Trust ("Shareholders") and set out in the currently effective
prospectus and statement of additional information for such Funds,
including without limitation any periodic investment plan or periodic
withdrawal program. In accordance with procedures established from
time to time by agreement between the Trust on behalf of each of the
Funds, as applicable, and the Transfer Agent, the Transfer Agent
agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Trust authorized pursuant to the
Declaration of Trust of the Trust (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
(c) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate documentation
thereof to the Custodian;
(d) In respect to the transactions in items (a),
(b) and (c) above, the Transfer Agent shall execute transactions
directly with broker-dealers authorized by the Trust;
(e) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by the registered
owners thereof upon receipt of
appropriate instructions;
(g) Prepare and transmit payments for dividends and
distributions declared by the Trust on behalf of the applicable Fund;
(h) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by the
Transfer Agent of indemnification satisfactory to the Transfer Agent
and protecting the Transfer Agent and the Trust, and the Transfer Agent
at its option, may issue replacement certificates in place of mutilated
stock certificates upon presentation thereof and without such
indemnity;
(i) Maintain records of account for and advise the Funds
and their Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Funds and
maintain pursuant to Rule 17Ad-10(e) under the Securities Exchange Act
of __34, as amended, a record of the total number of Shares of the
Funds which are authorized, based upon data provided to it by the
Trust, and issued and outstanding. The Transfer Agent shall also
provide the Trust on a regular basis with the total number of Shares
which are authorized and issued and outstanding and shall have no
obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to
the issue or sale of such Shares, which functions shall be the sole
responsibility of the Trust.
1.2 In addition to and neither in lieu nor in contravention of the
services set forth in the above Section 1.1 :
(a) The Transfer Agent shall perform the customary
services of a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder
proxies, Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions
by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all
purchases and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information and (ii)
provide a system which will enable the Trust to monitor the total
number of Shares sold in each state.
(b) The Transfer Agent shall maintain a daily record and
produce a daily report for the Trust of all transactions and receipts
and disbursements of money and securities and deliver a copy of such
report for the Trust for each business day to the Trust no later than
9:00 a.m. Eastern Time, or such earlier time as the Trust may
reasonably require, on the next business day.
(c) The Trust shall (i) identify to the Transfer Agent in
writing those transactions and assets to be treated as exempt from blue
sky reporting for each state and (ii) verify the establishment of
transactions for each state on the system prior to activation and
thereafter monitor the daily activity for each state. The
responsibility of the Transfer Agent for the Trust's blue sky state
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Trust and the
reporting of such transactions to the Trust as provided above.
(d) The Trust on behalf of each Fund and the Transfer
Agent have established per the attached Service Responsibility
Schedule, as may be amended from time to time,
procedures as to who shall provide certain of these services in
Section . According to this Schedule, the Transfer Agent may at times
perform only a portion of the services and the Trust or its agent may
perform these services on the Trust's behalf.
(e) The Transfer Agent shall provide additional services
on behalf of the Trust (e.g., escheatment services) which may be agreed
upon in writing between the Trust and the Transfer Agent.
2. FEES AND EXPENSES
2.1 For the performance by the Transfer Agent pursuant to this
Agreement, the Trust agrees on behalf of each of the Funds to
pay the Transfer Agent an annual maintenance fee for each
Shareholder account as set out in the initial Fee Schedule
attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 2.2 below may be changed
from time to time subject to mutual written agreement between
the Trust and the Transfer Agent.
2.2 In addition to the fee paid under Section 2.1above, the Trust
agrees on behalf of each of the Funds to reimburse the
Transfer Agent for out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone,
microfilm, microfiche, mailing and tabulating proxies, records
storage, or advances incurred by the Transfer Agent for the
items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by the Transfer Agent at
the request or with the consent of the Trust, will be
reimbursed by the Trust on behalf of the applicable Fund.
2.3 The Trust agrees on behalf of each of the Funds to pay all
fees and reimbursable expenses within thirty (30) days
following the receipt of the respective billing notice, except
for any fees or expenses which are subject to good faith
dispute. In the event of such dispute, the Trust may only
withhold that portion of the fee or expense subject to the
good faith dispute. Postage for mailing of dividends, proxies,
Fund reports and other mailings to all shareholder accounts
shall be advanced to the Transfer Agent by the Trust at least
seven (7) days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Trust that:
3.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in the
Commonwealth of Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Transfer Agent that:
4.1 It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
4.2 It is empowered under applicable laws and by its Declaration
of Trust and By-Laws to enter into and perform this Agreement.
4.3 All corporate proceedings required by said Declaration of
Trust and By-Laws have been taken to authorize it to enter
into and perform this Agreement.
4.4 It is an open-end and diversified management investment
company registered under the Investment Company Act of 1940,
as amended.
4.5 A registration statement under the Securities Act of 1933, as
amended on behalf of each of the Funds is currently effective
and will remain effective, and appropriate state securities
law filings have been made and will continue to be made, with
respect to all Shares of the Funds being offered for sale.
5. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM
COMMERCIAL CODE
5.1 The Transfer Agent is authorized to promptly debit the
appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer and in the
amount of money that the Transfer Agent has been instructed to
transfer. The Transfer Agent shall execute payment orders in
compliance with the Security Procedure and with the Fund
instructions on the execution date provided that such payment
order is received by the customary deadline for processing
such a request, unless the payment order specifies a later
time. All payment orders and
communications received after this the customary deadline
will be deemed to have been received the next business day.
5.2 The Trust acknowledges that the Security Procedure it has
designated on the Fund Selection Form was selected by the
Trust from security procedures offered by the Transfer Agent.
The Trust shall restrict access to confidential information
relating to the Security Procedure to authorized persons as
communicated to the Transfer Agent in writing. The Trust must
notify the Transfer Agent immediately if it has reason to
believe unauthorized persons may have obtained access to such
information or of any change in the Trust's authorized
personnel. The Transfer Agent shall verify the authenticity of
all Trust instructions according to the Security Procedure.
5.3 The Transfer Agent shall process all payment orders on the
basis of the account number contained in the payment order. In
the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall
take precedence and govern.
5.4 The Transfer Agent reserves the right to decline to process or
delay the processing of a payment order which (a) is in excess
of the collected balance in the account to be charged at the
time of the Transfer Agent's receipt of such payment order;
(b) if initiating such payment order would cause the Transfer
Agent, in the Transfer Agent's sole judgement, to exceed any
volume, aggregate dollar, network, time, credit or similar
limits which are applicable to the Transfer Agent; or (c) if
the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
5.5 The Transfer Agent shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received
in compliance with the Security Procedure provided that such
requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the
Transfer Agent assumes no liability if the request for
amendment or cancellation cannot be satisfied.
5.6 The Transfer Agent shall assume no responsibility for failure
to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions as
received and the Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the
purpose of authenticating payment orders only and not for the
detection of errors in payment orders.
5.7 The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any
unauthorized payment order, unless the Transfer
Agent is notified of the unauthorized payment order within
thirty (30) days of notification by the Transfer Agent of
the acceptance of such payment order. In no event (including
failure to execute a payment order) shall the Transfer Agent
be liable for special, indirect or consequential damages,
even if advised of the possibility of such damages.
5.8 When the Trust initiates or receives Automated Clearing House
credit and debit entries pursuant to these guidelines and the
rules of the National Automated Clearing House Association and
the New England Clearing House Association, the Transfer Agent
will act as an Originating Depository Financial Institution
and/or receiving depository Financial Institution, as the case
may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are
provisional until the Transfer Agent receives final settlement
for such entry from the Federal Reserve Transfer Agent. If the
Transfer Agent does not receive such final settlement, the
Trust agrees that the Transfer Agent shall receive a refund of
the amount credited to the Trust in connection with such
entry, and the party making payment to the Trust via such
entry shall not be deemed to have paid the amount of the
entry.
5.9 Confirmation of Transfer Agent's execution of payment orders
shall ordinarily be provided within twenty-four (24) hours,
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back.
The Trust must report any objections to the execution of an
order within thirty (30) days.
6. DATA ACCESS AND PROPRIETARY INFORMATION
6.1 The Trust acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Trust by the
Transfer Agent as part of the Trust's ability to access
certain Fund-related data ("Customer Data") maintained by the
Transfer Agent on databases under the control and ownership of
the Transfer Agent or other third party ("Data Access
Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or
other third party. In no event shall Proprietary Information
be deemed Customer Data. The Trust agrees to treat all
Proprietary Information as proprietary to the Transfer Agent
and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Trust
agrees for itself and its employees and agents to:
(a) Use such programs and databases solely from locations
as may be designated in writing by the Transfer Agent and solely in
accordance with the Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other
than in the normal course of performing processing in authorized
locations) the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such fact and
dispose of such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing the data or
information acquired pursuant to this Agreement from being
retransmitted to any other computer terminal, device, facility or other
location, except with the prior written consent of the Transfer Agent
(such permission not to be unreasonably withheld);
(e) Restrict access only to those authorized transactions
agreed upon by the Trust and the Transfer Agent; and
(f) Honor all reasonable written requests made by the
Transfer Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law, under
federal copyright law and under other federal or state law.
6.2 Proprietary Information shall not include all or any portion
of any of the foregoing items that: (i) are or become publicly
available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Transfer
Agent; or (iii) are already in the possession of the receiving
party at the time or receipt without obligation of
confidentiality or breach of this Agreement.
6.3 If the Trust notifies the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the
most recently issued user documentation for such services, the
Transfer Agent shall endeavor in a timely manner to correct
such failure. Organizations from which the Transfer Agent may
obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Trust
agrees to make no claim against the Transfer Agent arising out
of the contents of such third-party data, including, but not
limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN
CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE
BASIS. THE Transfer Agent EXPRESSLY DISCLAIMS ALL WARRANTIES
EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4 If the transactions available to the Trust include the ability
to originate electronic instructions to the Transfer Agent in
order to (i) effect the transfer or movement of cash or Shares
or (ii) transmit Shareholder information or other information,
then in such event the Transfer Agent shall be entitled to
rely on the validity and authenticity of such instruction
without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security
procedures established by the Transfer Agent from time to
time.
6.5 Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section. The
obligations of this Section shall survive any earlier
termination of this Agreement.
7. INDEMNIFICATION
7.1 The Transfer Agent shall not be responsible for, and the Trust
shall on behalf of the applicable Fund indemnify and hold the
Transfer Agent harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct;
(b) The Trust's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or
warranty of the Trust hereunder;
(c) The reliance on or use by the Transfer Agent or its
agents or subcontractors of information, records, documents or services
which (i) are received by the Transfer Agent or its agents or
subcontractors, and (ii) have been prepared, maintained or performed by
the Trust or any other person or firm on behalf of the Trust;
(d) The reliance on, or the carrying out by the Transfer
Agent or its agents or subcontractors of any instructions or requests
of the Trust on behalf of the applicable Fund;
(e) The offer or sale of Shares in violation of federal
or state securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination or
ruling by any federal or any state agency with respect to the offer or
sale of such Shares; and
(f) The negotiation and processing of (i) any checks
bearing fraudulent endorsements, (ii) other checks made payable to
prospective or existing Shareholders tendered to the Transfer Agent for
the purchase of Shares, such checks are commonly known as "third party
checks," and (iii) any counterfeit checks or checks subject to claims
of forgery or alteration.
7.2 At any time the Transfer Agent may apply to any officer of the
Trust for instructions, and may consult with legal counsel
with respect to any matter arising in connection with the
services to be performed by the Transfer Agent under this
Agreement, and the Transfer Agent and its agents or
subcontractors shall not be liable and shall be indemnified by
the Trust on behalf of the applicable Fund for any action
taken or omitted by it in reliance upon such instructions or
upon the opinion of such counsel. The Transfer Agent, its
agents and subcontractors shall be protected and indemnified
in acting upon any paper or document, reasonably believed to
be genuine and to have been signed by the proper person or
persons, or upon any instruction, information, data, records
or documents provided the Transfer Agent or its agents or
subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Trust, and
shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the
Trust. The Transfer Agent, its agents and subcontractors shall
also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Trust,
and the proper countersignature of any co-transfer agent or
co-registrar.
7.3 In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which
the Trust may be required to indemnify the Transfer Agent, the
Transfer Agent shall promptly notify the Trust of such
assertion, and shall keep the Trust advised with respect to
all developments concerning such claim. The Trust shall have
the option to participate with the Transfer Agent in the
defense of such claim or to defend against said claim in its
own name or in the name of the Transfer Agent. The Transfer
Agent shall in no case confess any claim or make any
compromise in any case in which the Trust may be required to
indemnify the Transfer Agent except with the Trust's prior
written consent.
8. STANDARD OF CARE
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith, or willful misconduct or that of its employees.
9. YEAR 2000
The Transfer Agent will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the available
technology to offer products that are Year 2000 ready, including, but not
limited to, century recognition of dates, calculations that correctly compute
same century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred years,
and if any changes are required, the Transfer Agency will make the changes to
its products at a price to be agreed upon by the parties and in a commercially
reasonable time frame and will require third-party suppliers to do likewise.
10. COVENANTS OF THE TRUST AND THE TRANSFER AGENT
10.1 The Trust shall on behalf of each of the Funds promptly
furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Trust authorizing the appointment of the Transfer Agent
and the execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of
the Trust and all amendments thereto.
10.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trust
for safekeeping of stock certificates, check forms and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such
certificates, forms and devices.
10.3 The Transfer Agent shall keep records relating to the services
to be performed hereunder, in the form and manner as it may
deem advisable. To the extent required by Section 31 of the
Investment Company Act of 1940, as amended, and the Rules
thereunder, the Transfer Agent agrees that all such records
prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are
the property of the Trust and will be preserved, maintained
and made available in accordance with such Section and Rules,
and will be surrendered promptly to the Trust on and in
accordance with its request.
10.4 The Transfer Agent and the Trust agree that all books,
records, information and data pertaining to the business of
the other party which are exchanged or received pursuant to
the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
10.5 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Transfer Agent will
endeavor to notify the Trust and to secure instructions from
an authorized officer of the Trust as to such inspection. The
Transfer Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by
its counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person.
11. TERMINATION OF AGREEMENT
11.1 This Agreement may be terminated by either party upon one
hundred twenty (120) days' written notice to the other.
11.2 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be borne by the Trust on behalf of the
applicable Fund(s). Additionally, the Transfer Agent reserves
the right to charge for any other reasonable expenses
associated with such termination and a charge equivalent to
the average of three (3) months' fees.
11.3 Should the Transfer Agent exercise its right to terminate, all
out-of-pocket expenses associated with the movement of
physical documents and materials will be borne by the Transfer
Agent on behalf of the applicable Fund(s).
12. ADDITIONAL FUNDS
In the event that the Trust establishes one or more series of Shares in
addition to the series named in the attached Schedule A with respect to which it
desires to have the Transfer Agent render services as transfer and service agent
under the terms hereof, it shall so notify the Transfer Agent in writing, and if
the Transfer Agent agrees in writing to provide such services, such series of
Shares shall become a Fund hereunder.
13. ASSIGNMENT
13.1 Except as provided in Section 13.1 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the
other party.
13.2 Except as explicitly stated elsewhere in this Agreement,
nothing under this Agreement shall be construed to give any
rights or benefits in this Agreement to anyone other than the
Transfer Agent and the Trust, and the duties and
responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Transfer Agent
and the Trust.
13.4 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
14. SUBCONTRACTORS
14.1 The Transfer Agent may, without further consent on the part of
the Trust, subcontract for the performance hereof with (i)
Boston Financial Data Services, Inc., a Massachusetts
corporation ("BFDS") which is duly registered as a transfer
agent pursuant to Section 17A(c)(2) of the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(2)"), (ii) a BFDS
subsidiary duly registered as a transfer agent pursuant to
Section 17A(c)(2) or (iii) a BFDS affiliate; provided,
however, that the Transfer Agent shall be as fully responsible
to the Trust for the acts and omissions of any subcontractor
as it is for its own acts and omissions.
14.2 Nothing herein shall impose any duty upon the Transfer Agent
in connection with or make the Transfer Agent liable for the
actions or omissions to act of unaffiliated third parties such
as by way of example and not limitation, Airborne Services,
Federal Express, United Parcel Service, the U.S. Mails, the
NSCC and telecommunication communications, provided, if the
Transfer Agent selected such company, the Transfer Agent shall
have exercised due care in selecting the same.
15. AMENDMENT
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Trustees of the Trust.
16. MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
17. FORCE MAJEURE
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
18. CONSEQUENTIAL DAMAGES
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
19. SURVIVAL
All provisions regarding indemnification, warranty, liability, and
limits thereon, and confidentiality and/or protections of proprietary rights and
trade secrets shall survive the termination of this Agreement.
20. SEVERABILITY
If any provision or provisions of this Agreement shall be held invalid,
unlawful, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired.
21. PRIORITIES CLAUSE
In the event of any conflict, discrepancy or ambiguity between the
terms and conditions contained in this Agreement and any Schedules or
attachments hereto, the terms and conditions contained in this Agreement shall
take precedence.
22. WAIVER
No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other party shall
be construed as a waiver of any succeeding breach of the same or of any other
covenant or condition.
23. MERGER OF AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
24. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of the Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as Trustees
and not individually and that the obligations of this instrument are not binding
upon any of the Trustees or Shareholders individually but are binding only upon
the assets and property of the Trust.
25. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
26. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction shall likewise be admissible in evidence.
27. NOTICES
All notices and other communications as required or permitted hereunder
shall be in writing and sent by first class mail, postage prepaid, addressed as
follows or to such other address or addresses of which the respective party
shall have notified the other.
If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
If to the Trust, to:
Huntington VA Funds
c/o The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Product Manager
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
HUNTINGTON VA FUNDS STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: President Its: Vice Chairman
SERVICE RESPONSIBILITY SCHEDULE
to the
Transfer Agency and Service Agreement
dated as of October 15, 1999
between
Huntington VA Funds
and
State Street Bank and Trust Company
Service Performed Responsibility
Transfer Agent Trust
---------- ------------------------------------------------------------- -------------------- --------------------
1. Receive orders for the purchase of Shares T
2. Issue Shares and hold Shares in Shareholder's accounts T
3. Receive redemption requests T
4. Effect transactions 1-3 above directly with broker-dealers T
5. Pay over monies to redeeming Shareholders T
6. Effect transfers of Shares T
7. Prepare and transmit dividends and distributions T
8. Issue replacement certificates T
9. Reporting of abandoned property T
10. Maintain records of account T
11. Maintain and keep a current and accurate control book for T
each issue of securities
12. Mail proxies T
13. Mail Shareholder reports T
14. Mail prospectuses to current Shareholders T
15. Withhold taxes on U.S. resident and non-resident alien T
accounts
16. Prepare and file U.S. Treasury Department forms T
17. Prepare and mail account and confirmation statements for T
Shareholders
18. Provide Shareholder account information T
19. Blue sky reporting T
These services are more fully described in Section 1.1 of the
Agreement.
HUNTINGTON VA FUNDS STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxx
----------------- -------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------- ---------------
Its: President Its: Vice Chairman
--------- -------------
FEE SCHEDULE
TO THE
TRANSFER AGENCY AND SERVICE AGREEMENT
DATED AS OF OCTOBER 15, 0000
XXXXXXX
XXXXXXXXXX XX FUNDS
AND
STATE STREET BANK AND TRUST COMPANY
FUNDS
Huntington VA Growth Fund
Huntington VA Income Equity Fund
For each of the Funds listed above, the following annual fees apply:
Base Fee Per Fund (Per Cusip)........................................$6,000
Fee Per Account......................................................$16.50
OUT-OF-POCKET EXPENSES
Out-of-Pocket expenses include but are not limited to: confirmation statements,
postage, forms, audio response, telephone, records retention, transcripts,
microfilm, microfiche, and expenses incurred at the specific direction of the
Trust.
This fee schedule is subject to an annual Cost of Living Adjustment based on
regional consumer price index.
HUNTINGTON VA FUNDS STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxx
---------------- -------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
------------- ---------------
Its: President Its: Vice Chairman
--------- -------------
Exhibit (h)(2)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 20th day of December 1999, by and
between Huntington VA Funds, a Massachusetts business trust (the "Trust"), and
The Huntington National Bank (the "Administrator"), a national banking
association.
WHEREAS, the Trust is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), consisting of several series of shares of beneficial interest; and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such portfolios of the Trust as the Trust and the Administrator may agree on
("Funds") and as listed on the schedules attached hereto ("Schedules") and made
a part of this Agreement, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Trust hereby retains the
Administrator to act as the administrator of the Funds and to furnish the Funds
with the management and administrative services as set forth in ARTICLE 2 below.
The Administrator hereby accepts such employment to perform the duties set forth
below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust.
ARTICLE 2. ADMINISTRATIVE AND ACCOUNTING SERVICES. The Administrator
shall perform or supervise the performance by others of other administrative
services in connection with the operations of the Funds, and, on behalf of the
Trust, will investigate, assist in the selection of and conduct relations with
custodians, depositories, accountants, legal counsel, underwriters, brokers and
dealers, corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Funds' operations. The
Administrator shall provide the Trustees of the Trust with such reports
regarding investment performance and compliance with investment policies and
applicable laws, rules and regulations as they may reasonably request but shall
have
no responsibility for supervising the performance by any investment adviser
or sub-adviser of its responsibilities. The Administrator may appoint a
sub-administrator to perform certain of the services to be performed by the
Administrator hereunder, provided, however, that the Administrator is not
relieved of its obligations to the Trust as set forth hereunder.
The Administrator shall provide the Trust with administrative services,
regulatory reporting, fund accounting and related portfolio accounting services,
all necessary office space, equipment, personnel, compensation and facilities
(including facilities for shareholders' meetings but not Trustees' meetings that
are not held at offices of the Administrator) for handling the affairs of the
Funds and such other services as the Trustees may, from time to time, reasonably
request and the Administrator shall, from time to time, reasonably determine to
be necessary to perform its obligations under this Agreement. In addition, at
the request of the Trust's Board of Trustees (the "Trustees"), the Administrator
shall make reports to the Trustees concerning the performance of its obligations
hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) assist with the preparation of prospectuses, statements of
additional information, registration statements, and proxy
materials;
(b) coordinate the preparation and negotiation of, and administer,
contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor, custodian, and
transfer agent;
(c) provide consultation services with respect to the Trust's
fund accounting issues;
(d) assist as necessary in the preparation of the Trust's
budget and accruals, analysis and payment of the
expenses and accruals;
(e) review the Trust's financial statements;
(f) provide (directly or through a sub-administrator) individuals
acceptable to the Trustees for nomination, appointment, or
election as officers of the Trust, who will be responsible for
the management of certain of the Trust's affairs as determined
by the Trustees;
(g) examine and review the operations and performance of the
various organizations providing services to the Trust or any
Fund of the Trust, including, without limitation, the Trust's
investment adviser, distributor, custodian, transfer agent,
Trust counsel and independent public accountants, and at the
request of the Trustees, report to the Trustees on the
performance of these organizations;
(h) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and
printing of the Trust's semi-annual and annual reports to
shareholders;
(i) assist with the design, development, and operation of the
Trust, including new portfolio and class investment
objectives, policies and structure;
(j) advise the Trust and its Trustees on matters concerning the
Trust and its affairs;
(k) obtain (directly or through a sub-administrator) and keep in
effect fidelity bonds and directors and officers/errors and
omissions insurance policies for the Trust in accordance with
the requirements of Rules 17g-1 and 17d-1(7) under the 1940
Act as such bonds and policies are approved by the Trust's
Board of Trustees;
(l) monitor and advise the Trust and its Funds on their
registered investment company status under the Internal
Revenue Code of 1986, as amended;
(m) furnish advice and recommendations with respect to other
aspects of the business and affairs of the Funds as the
Trust and the Administrator shall determine desirable;
(n) monitor each Fund's compliance with the 1940 Act and the
applicable investment policies set forth in the Trust's
prospectuses and SAI;
(o) keep the books of account of each Fund;
(p) compute the net asset value per share of the outstanding
shares of each Fund;
(q) calculate daily the net income of each Fund as described
in each Fund's currently effective prospectus and Statement
of Additional Information;
(r) advise the Trust and the Trust's transfer agent daily of the
amounts of net income of each Fund and advise the transfer
agent periodically as to the division of such net income among
its various components;
(s) assist in the training and oversight of third parties used to
perform any of the services described herein;
(t) perform all administrative services and functions of the Trust
and each Fund to the extent administrative services and
functions are not provided to the Trust or such Fund pursuant
to the Trust's or such Fund's investment advisory agreement,
distribution agreement, custodian agreement or transfer agent
agreement; and
(u) provide other administrative services as requested by the
Trust from time to time.
The Administrator will perform other services for the Trust as agreed
from time to time, including, but not limited to: mailing the annual reports of
the Funds; preparing an annual list of shareholders; and mailing notices of
shareholders' meetings, proxies and proxy statements, for all of which the Trust
will pay the Administrator's out-of-pocket expenses.
In the performance of its duties hereunder, the Administrator will
comply with the provisions of the Declaration of Trust and the Bylaws of the
Trust, will safeguard and promote the welfare of the Trust, and will comply with
the policies that the Trustees may from time to time reasonably determine;
provided that such policies are not in conflict with this Agreement, the Trust's
governing documents, or any applicable statutes or regulations.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Trust as well as all Trustees of the
Trust who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Trust retained by the Trustees of the Trust
to perform services on behalf of the Trust.
(B) THE TRUST. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organizational costs, taxes, expenses for legal and auditing
services, the expenses of preparing (including typesetting), printing and
mailing reports, prospectuses, statements of additional information, proxy
solicitation material and notices to existing shareholders, all expenses
incurred in connection with issuing and redeeming shares, the costs of custodial
services, the cost of initial and ongoing registration of the shares under
federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of the Administrator or the investment adviser to
the Trust or any affiliated corporation of the Administrator or the investment
adviser, the costs of
Trustees' meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION AND ACCOUNTING FEES. For the services to be
rendered, the facilities furnished and the expenses assumed by the Administrator
pursuant to this Agreement, the Trust shall pay to the Administrator
compensation at annual rates specified in the Schedules for administrative
services and for accounting services. Such compensation shall be calculated and
accrued daily, and paid to the Administrator monthly.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) COMPENSATION FROM TRANSACTIONS. The Trust hereby authorizes any
entity or person associated with the Administrator which is a member of a
national securities exchange to effect any transaction on the exchange for the
account of the Trust which is permitted by Section 11 (a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act") and Rule 11a2-2(T) thereunder,
and the Trust hereby consents to the retention of compensation for such
transactions in accordance with Rule 11a2-2(T)(a)(2)(iv).
(C) SURVIVAL OF COMPENSATION RATES. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. STANDARD OF CARE OF THE ADMINISTRATOR; INDEMNIFICATION. The
duties of the Administrator shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Administrator hereunder. The Administrator shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any investment or for
any act or omission in carrying out its duties hereunder, except a loss
resulting from willful misfeasance, bad faith or negligence in the performance
of its duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of applicable
law which cannot be waived or modified hereby. (As used in this Article 7, the
term "Administrator" shall include directors, officers, employees and other
agents of the Administrator as well as the entity itself.)
So long as the Administrator or its agents act in good faith and with
due diligence and without negligence, the Trust assumes full responsibility and
shall indemnify the Administrator and hold it harmless from and against any and
all actions, suits and claims, whether groundless or otherwise, and from and
against any and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of said
administration, transfer agency, and dividend disbursing relationships to the
Trust or any other service rendered to the Trust hereunder. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
The 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 provision contained herein shall apply, however, it is
understood that if in any case the Trust may be asked to indemnify or hold the
Administrator harmless, the Trust shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care to identify and
notify the Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Trust, but good faith failure to do so shall not affect the rights
hereunder.
The Trust 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 Trust elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the Trust
and satisfactory to the Administrator, whose approval shall not be unreasonably
withheld. In the event that the Trust elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and expenses of any
additional counsel retained by it. If the Trust does not elect to assume the
defense of a suit, it will reimburse the Administrator for the reasonable fees
and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Trust at any time for instructions
and may consult counsel or the independent accountants for the Trust with
respect to any matter arising in connection with the Administrator's duties, and
the Administrator shall not be liable or accountable for any action taken or
omitted by it in good faith in accordance with such instruction or with the
opinion of such counsel or accountants.
Also, the Administrator 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. Nor shall the Administrator be held to have
notice of any change of authority of any officers, employee or agent of the
Trust until receipt of written notice thereof from the Trust.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and shareholders of the Trust are or may be or become interested in the
Administrator, as directors, officers, employees and shareholders or otherwise
and that directors, officers, employees and shareholders of the Administrator
and its counsel are or may be or become similarly interested in the Trust, and
that the Administrator may be or become interested in the Trust as a shareholder
or otherwise.
ARTICLE 7. CONFIDENTIALITY. The Administrator agrees on behalf of
itself and its employees to treat confidentially all records and other
information relative to the Trust and its prior, present or potential
shareholders and relative to the investment adviser and its prior, present or
potential customers, except, after prior notification to and approval in writing
by the Trust, which approval shall not be unreasonably withheld and may not be
withheld where the Administrator may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Trust.
ARTICLE 8. EQUIPMENT FAILURES. In the event of equipment failures
beyond the Administrator's control, the Administrator shall, at no additional
expense to the Trust, take reasonable steps to minimize service interruptions
but shall have no liability with respect to such service interruptions if such
reasonable steps are taken. The Administrator shall develop and maintain a plan
for recovery from equipment failures which may include contractual arrangements
with appropriate parties making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
ARTICLE 9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. The
Administrator undertakes to comply with all applicable requirements of the
Securities Act of 1933, as amended, the 1934 Act, the 1940 Act and any laws,
rules and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by the Administrator hereunder.
ARTICLE 10. COMPLIANCE WITH YEAR 2000. The Administrator warrants that
all software code owned by or under the Administrator's control, used in the
performance of the Administrator's obligations under this contract, will be Year
2000 compliant. For purposes of this Article, "Year 2000 Compliant" means that
the software will continue to operate beyond December 31, 1999 without creating
any logical or mathematical inconsistencies concerning any date after December
31, 1999 and without decreasing the functionality of the system applicable to
dates prior to January 1, 2000 including, but not limited to, making changes to
[a] date and
data century recognition; [b] calculations which accommodate same- and
multi-century formulas and date values; and [c] input/output of date values
which reflect century dates. All changes described in this Article will be made
at no additional cost to the Trust.
ARTICLE 11. DURATION OF THIS AGREEMENT. The Term of this Agreement
shall be as specified in the Schedules.
This Agreement shall not be assignable by either party without the
written consent of the other party. As used in this paragraph, the term
"assignment" shall be construed by reference to the term as defined and
interpreted under the 1940 Act.
The Administrator shall be entitled to collect from the Trust, in
addition to any other compensation owing to the Administrator, the amount of all
the Administrator's cash disbursements for services in connection with the
Administrator's activities in effecting termination as discussed in the Schedule
to this Agreement, including without limitation, the delivery to the Trust
and/or its designees of the Trust's property, records, instruments and
documents, or any copies thereof. Subsequent to such termination for a
reasonable fee to be paid by the Trust, the Administrator will provide the Trust
with reasonable access to any Trust documents or records remaining in its
possession.
ARTICLE 12. AMENDMENTS. This Agreement or any part hereof may be
changed or waived only by an instrument in writing signed by the party against
which enforcement of such change or waiver is sought.
ARTICLE 13. CERTAIN RECORDS. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made available
to or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection.
ARTICLE 14. DEFINITIONS OF CERTAIN TERMS. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 15. NOTICE. 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 the Trust, at c/o Xxxxxxx Xxxxxxxx, Senior Vice President, The
Huntington National Bank, 00 X. Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000;
and if to the Administrator at c/o Xxxxxxx Xxxxxxxx, Senior Vice President, The
Huntington National Bank, 00 X. Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000.
ARTICLE 16. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts and the applicable
provisions of the 1940 Act. To the extent that the applicable laws of the
Commonwealth of Massachusetts, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control.
ARTICLE 17. MULTIPLE ORIGINALS. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 18. LIMITATION OF LIABILITY. The Administrator is hereby
expressly put on notice of the limitation of liability as set forth in Article
IV of the Trust's Declaration of Trust and agrees that the obligations pursuant
to this Agreement of a particular Fund and of the Trust with respect to that
Fund shall be limited solely to the assets of that Fund, and the Administrator
shall not seek satisfaction of any such obligation from any other Fund, the
shareholders of any Fund, the Trustees, officers, employees or agents of the
Trust, or any of them.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
HUNTINGTON VA FUNDS
By:/s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
----------
Title: President
---------
THE HUNTINGTON NATIONAL BANK
By:/s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
Title: Senior Vice President
--------------------
SCHEDULE
TO THE ADMINISTRATION AGREEMENT
DATED AS OF DECEMBER 20, 0000
XXXXXXX
XXXXXXXXXX XX FUNDS
AND
THE HUNTINGTON NATIONAL BANK
Funds: This Agreement shall apply to all Funds of the Trust, either
now in the future created. The following is a listing of the
current portfolios of the Trust: VA Growth Fund and VA
Income Equity Fund (collectively, the "Funds").
Fees: Pursuant to Article 4, Section A, the Trust shall pay the
Administrator compensation for services rendered to the Funds
at an annual rate, which is calculated daily and paid monthly,
at a maximum administrative fee equal to 0.11% of each Fund's
average daily net assets plus a maximum accounting fee equal
to 0.03% of each Fund's average daily net assets.
Term: Pursuant to Article 10, the term of this Agreement shall
commence on December 20, 1999 and shall remain in effect
through December 20, 2004 ("Initial Term"). This Agreement
shall continue in effect for successive periods of one year
after the Initial Term, unless terminated by either party,
with or without cause, on not less than 60 days prior
written notice to the other party. In the event of a
material breach of this Agreement by either party, the
non-breaching party shall notify the breaching party in
writing of such breach and upon receipt of such notice, the
breaching party shall have 45 days to remedy the breach or
the non-breaching party may immediately terminate this
Agreement.
In addition, the Trust may terminate this Agreement immediately upon:
(i) the issuance of a final judgment by a court of competent
jurisdiction or of a final order by the Securities and
Exchange Commission, which judgment or order holds that the
Administrator has committed a felony or a misdemeanor
involving the purchase or sale of any security, or arising out
of its conduct as an administrator, a distributor, or an
affiliate of an investment company;
(ii) the dissolution or liquidation of the Administrator or other
cessation of its business other than a reorganization or
recapitalization of the Administrator as an ongoing
business; or
(iii) [a] the authorization of commencement of a voluntary case
regarding the Administrator under Title 11 of the United
States Code, as from time to time amended, or any other
applicable law of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or
alteration of the rights of creditors; [b] consent to or
acquiescence in any involuntary case under such Title 11 or
other such law; or [c] the commencement of any involuntary
case under such Title 11 or other such law, which case is not
dismissed within 30 days after the filing thereof.
Exhibit (h)(3)
SUB-ADMINISTRATION AGREEMENT
AGREEMENT, made as of this 20th day of December, 1999, between The
Huntington National Bank, a national banking association, ("Huntington") and SEI
Investments Mutual Funds Services, a Delaware corporation, (the
"Sub-Administrator").
WHEREAS, Huntington has entered into an Administration Agreement, dated
as of December 20, 1999 (the "Administration Agreement") with The Huntington
Funds (the "Trust"), a Massachusetts business trust, and an Administration
Agreement, dated as of December 20, 1999 (the "VA Administration Agreement")
with Huntington VA Funds (the "VA Trust") a Massachusetts business trust,
concerning the provision of management and administrative services for the
investment portfolios identified on Schedule A hereto, as such Schedule shall be
amended from time to time (individually referred to herein as the "Fund" and
collectively as the "Funds"); and
WHEREAS, Huntington desires to retain the Sub-Administrator to assist
it in performing administrative services with respect to each Fund and the
Sub-Administrator 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 SUB-ADMINISTRATOR:
a. review, and where necessary, file with the National
Association of Securities Dealers marketing materials
relating to the Funds;
b. register the Funds with each state pursuant to Blue Sky
regulations; monitor shareholders' transactions by state to
maintain current registration limits;
c. maintain feeds to third party reporting agencies;
d. prepare and file the tax returns for the Funds;
e. perform internal audit examinations not less frequently that
once annually at the request of the Trustees (for purposes
of this Agreement, the term
"Trustees" may refer to either the Board of Trustees of the
Trust or the Board of Trustees of the VA Trust);
f. complete monthly and quarterly total return performance
reporting;
g. prepare and file with the SEC all required notices pursuant
to Rule 24f-2;
h. perform secondary compliance functions with guidelines set
forth for the Funds pursuant to the prospectuses for the
Funds, the Investment Company Act of 1940, as amended (the
"1940 Act") and the registered investment company status
under the Internal Revenue Code of 1986, as amended;
i. provide individuals acceptable to the Trustees for
nomination, appointment, or election as officers of the
Funds, who will be responsible for the management of certain
of the affairs of the Funds as determined by the Trustees;
j. obtain and keep in effect fidelity bond and directors and
officers/errors and omissions insurance policies for the
Funds in accordance with the requirements of Rules 17g-1 and
17d-1(7) under the 1940 Act as such bonds and policies are
approved by the Trustees;
k. calculate contractual Fund expenses and control all
disbursements for the Funds, and as appropriate compute the
yields, total returns, expense ratios, portfolio turnover
rates and, if required, portfolio average dollar-weighed
maturities for the Funds;
l. maintain the general ledger for the Funds and prepare the
financial statements for the Funds, including expense
accruals and payments, determine the net asset value of the
assets of the Funds and of the shares of the Funds, and
monitor the transfer agent for the Funds with respect to the
payment of dividends and other distributions to
shareholders;
m. prepare the semi-annual reports for the Funds on Form N-SAR;
n. keep and maintain all books and records relating to its
services in accordance with Rule 31a-1 under the 1940 Act;
o. assist with the preparation of prospectuses, statements of
additional information, registration statements, and proxy
materials;
p. develop and prepare communications to shareholders,
including the annual report to shareholders, coordinate
mailing prospectuses, notices, proxy statements, proxies and
other reports to shareholders of the Funds, and supervise
and facilitate the solicitation of proxies solicited by the
Funds for all shareholder meetings, including tabulation
process for shareholder meetings; and
q. prepare, with the assistance of Huntington's counsel and
counsel to the Funds as required, the board book containing
the agenda and resolutions for the quarterly Board of
Trustees' meetings.
In the performance of its duties hereunder, the Sub-Administrator will
comply with the provisions of the Declaration of Trust and Bylaws of the Trust
and VA Trust, will safeguard and promote the welfare of the Funds and will
comply with the policies that the Trustees may from time to time reasonably
determine; provided that such policies are not in conflict with this Agreement,
the governing documents of the Funds, or any applicable statutes or regulations.
2. COMPENSATION; REIMBURSEMENT OF EXPENSES. Huntington shall pay the
Sub-Administrator for the services to be provided by the Sub-Administrator under
this Agreement in accordance with, and in the manner set forth in, Schedule B
hereto. In addition, Huntington agrees to reimburse the Sub-Administrator for
the Sub-Administrator's reasonable out-of-pocket expenses in providing services
hereunder.
3. EFFECTIVE DATE. This Agreement shall become effective with respect to
a Fund as of the date first written above (or, if a particular Fund is not in
existence on that date, on the date specified in the amendment to Schedule A to
this Agreement relating to such Fund or, if no date is specified, the date on
which such amendment is executed) (the "Effective Date").
4. TERM. This Agreement shall continue in effect with respect to a Fund,
unless earlier terminated by either party hereto as provided hereunder, until
December 20, 2004, and thereafter shall be renewed automatically for successive
one-year terms unless written notice not to renew is given by the non-renewing
party to the other party at least 60 days prior to the expiration of the
then-current term; provided, however, that after such termination for so long as
the Sub-Administrator in fact continues to perform any one or more of the
services contemplated by this Agreement or any schedule or exhibit hereto, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect.
Notwithstanding anything to the contrary herein, this Agreement shall terminate
automatically with respect to the Trust upon termination of the Administration
Agreement and/or with respect to the VA Trust upon termination of the VA
Administration Agreement.
In the event of a material breach of this Agreement by either party, the
non-breaching party shall notify the breaching party in writing of such breach
and upon receipt of such notice, the breaching party shall have 45 days to
remedy the breach or the non-breaching party may immediately terminate this
Agreement. Notwithstanding the foregoing, Huntington may terminate this
Agreement in accordance with the terms set forth in the Exhibit hereto relating
to Performance Standards.
5. OPERATIONAL GOALS AND PERFORMANCE STANDARDS. The parties agree that,
at least annually, they will establish and review operational goals for the
Funds. In addition, while the parties agree to be bound by the Performance
Standards described in the Exhibit hereto for the entire term of this Agreement,
the parties shall, at least annually, review in good faith such Performance
Standards.
6. STANDARD OF CARE OF THE SUB-ADMINISTRATOR; INDEMNIFICATION. The duties
of the Sub-Administrator shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted against the
Sub-Administrator hereunder. The Sub-Administrator shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in carrying out its duties hereunder,
except a loss resulting from willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder, except as may otherwise be provided under provisions of
applicable law which cannot be waived or modified hereby. (As used in this
Article 6, the term "Sub-Administrator" shall include directors, officers,
employees and other agents of the Sub-Administrator as well as that corporation
itself.)
So long as the Sub-Administrator or its agents act in good faith and with
due diligence and without negligence, Huntington assumes full responsibility and
shall indemnify the Sub-Administrator and hold it harmless from and against any
and all actions, suits and claims, whether groundless or otherwise, and from and
against any and all losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) arising directly or indirectly out of said
sub-administration relationship to the Funds or any other service rendered to
the Funds hereunder. The indemnify and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The 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 provision contained herein shall apply, however, it is
understood that if in any case Huntington may be asked to indemnify or hold the
Sub-Administrator harmless, Huntington shall be fully and promptly advised of
all
pertinent facts concerning the situation in question, and it is further
understood that the Sub-Administrator will use all reasonable care to identify
and notify Huntington promptly concerning any situation which presents or
appears likely to present the probability of such a claim for indemnification
against Huntington, but good faith failure to do shall not affect the rights
hereunder. In no event and under no circumstances shall either party to this
Agreement be liable to anyone, including, without limitation to the other party,
for consequential damages for any act or failure to act under any provision of
this Agreement if advised of the possibility thereof.
Huntington 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 Huntington elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by
Huntington and satisfactory to the Sub-Administrator, whose approval shall not
be unreasonably withheld. In the event that the Funds elects to assume the
defense of any suit and retain counsel, the Sub-Administrator shall bear the
fees and expenses of any additional counsel retained by it. If the Funds does
not elect to assume the defense of a suit, it will reimburse the
Sub-Administrator for the reasonable fees and expenses of any counsel retained
by the Sub-Administrator.
The Sub-Administrator may apply to the Funds at any time for instructions
or may consult counsel or independent accountants with respect to any matter
arising in connection with the Sub-Administrator's duties, and the
Sub-Administrator shall not be liable or accountable for any action taken or
omitted by it in good faith in accordance with such instruction or with the
opinion of such counsel or accountants.
Also, the Sub-Administrator 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. Nor shall the Sub-Administrator be
held to have notice of any change of authority of any officers, employee or
agent of Huntington until receipt of written notice thereof from Huntington.
7. RECORD RETENTION AND CONFIDENTIALITY. Huntington shall keep and
maintain on behalf of the Funds all books and records which the Funds and
Huntington are, or may be, required to keep and maintain in connection with the
services to be provided hereunder pursuant to any applicable statutes, rules and
regulations, including without limitation Rules 31a-1 and 31a-2 under the 1940
Act. Huntington further agrees that all such books and records shall be the
property of the Funds and to make such books and records available for
inspection by the Funds, the Sub-Administrator 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 Funds and its shareholders; except
when requested to divulge such information by duly-constituted authorities or
court process.
8. UNCONTROLLABLE EVENTS. The Sub-Administrator 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.
9. RIGHTS OF OWNERSHIP. All computer programs and procedures developed to
perform the services to be provided by the Sub-Administrator under this
Agreement are the property of the Sub-Administrator. All records and other data
except such computer programs and procedures are the exclusive property of the
Funds and all such other records and data will be furnished to Huntington and/or
the Funds in appropriate form as soon as practicable after termination of this
Agreement for any reason.
10. RETURN OF RECORDS. The Sub-Administrator at its option at any time,
and shall promptly upon the demand of Huntington and/or the Funds, turn over to
Huntington and/or the Funds and cease to retain the Sub-Administrator's files,
records and documents created and maintained by the Sub-Administrator pursuant
to this Agreement which are no longer needed by the Sub-Administrator in the
performance of its services or for its legal protection. If no so turned over to
Huntington and/or the Funds, such documents and records will be retained by the
Sub-Administrator 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
and/or the Funds unless the Funds authorizes in writing the destruction of such
records and documents.
11. REPRESENTATIONS OF HUNTINGTON. Huntington certifies to the
Sub-Administrator that 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.
12. REPRESENTATIONS OF THE SUB-ADMINISTRATOR. The Sub-Administrator
represents and warrants that: (1) the various procedures and systems which the
Sub-Administrator has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause of the records and other
data of the Funds and the Sub-Administrator's records, data, equipment
facilities and other property used in the performance of its obligations
hereunder are 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 the Sub-Administrator and,
when executed and delivered by the Sub-Administrator, will constitute a legal,
valid and binding obligation of the Sub-Administrator, enforceable against the
Sub-Administrator 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.
The Sub-Administrator warrants that all software code owned by or under
the Sub-Administrator's control, used in the performance of the
Sub-Administrator's obligations under this contract, will be Year 2000
compliant. For purposes of this paragraph, "Year 2000 Compliant" means that the
software will continue to operate beyond December 31, 1999 without creating any
logical or mathematical inconsistencies concerning any date after December 31,
1999 and without decreasing the functionality of the system applicable to dates
prior to January 1, 2000 including, but not limited to, making changes to [a]
date and data century recognition; [b] calculations which accommodate same- and
multi-century formulas and date values; and [c] input/output of date values
which reflect century dates. All changes described in this paragraph will be
made at no additional cost to the Funds or Huntington.
13. INSURANCE. The Sub-Administrator shall notify Huntington should any
of its insurance coverage be canceled or reduced. Such notification shall
include the date of change and the reasons therefor. The Sub-Administrator 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 from time to time as may be appropriate of the total
outstanding claims made by the Sub-Administrator under its insurance coverage.
14. PRICING POLICIES. The Sub-Administrator hereby acknowledges receipt
of the Security Valuation Policy and NAV Error Resolution Policy in effect as of
the date of this Agreement for each of the Funds. The Sub-Administrator further
agrees to comply in good faith in all material respects with the terms specified
therein, including without limitation the provision in the NAV Error Resolution
Policy which requires the party responsible for an NAV error to reimburse a Fund
and/or its shareholders, when such reimbursement is required under the Policy.
In no event shall this Agreement obligate the Sub-Administrator, without its
written consent, to assume additional liability under an NAV Error Resolution
Policy for any of the Funds which exceeds the liability assumed as of the date
of this Agreement. In the event that the Sub-Administrator determines that it
cannot comply in all material respects with the terms of the Security Valuation
Policy, it shall promptly notify Huntington of such fact and Huntington shall
propose to the Funds appropriate revisions, consistent with industry practices,
to the Security Valuation Policy.
15. NOTICES. Any notice provided hereunder shall be sufficiently
given when sent by registered or certified mail to Huntington at the following
address: 00 X. Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000, and to the
Sub-Administrator at the following address: Xxx Xxxxxxx Xxxxxx Xxxx, Xxxx, XX
00000, Attn: Legal Department or at such other address as either party may from
time to time specify in writing to the other party pursuant to this Section.
16. HEADINGS. Paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret this
Agreement.
17. ASSIGNMENT. All of the terms, obligations and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors of the parties hereto.
18. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
19. LIMITATION OF LIABILITY. The Sub-Administrator is hereby expressly
put on notice of the limitation of liability as set forth in Article IV of the
Declaration of Trust of the Trust and the VA Trust and agrees that the
obligations, if any, pursuant to this Agreement of the Funds shall be limited
solely to the assets of the Funds, and the Sub-Administrator shall not seek
satisfaction of any such obligation from any other Portfolio, the shareholders
of any Fund, the Trustees, officers, employees or agents of the Funds, or any of
them.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
Title: Senior Vice President
---------------------
SEI INVESTMENTS MUTUAL FUNDS SERVICES
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
--------------
Title: Vice President
--------------
SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
SEI INVESTMENTS MUTUAL FUNDS SERVICES
AND
THE HUNTINGTON NATIONAL BANK
NAME OF FUND
Huntington Money Market Fund
Huntington Ohio Municipal Money Market Fund
Huntington U.S. Treasury Money Market Fund
Huntington Growth Fund Huntington
Income Equity Fund
Huntington Mortgage Securities Fund
Huntington Ohio Tax-Free
Fund Huntington Michigan Tax-Free Fund
Huntington Fixed Income Securities Fund
Huntington Intermediate Government Income Fund
Huntington Short/Intermediate
Fixed Income Securities Fund
Huntington Florida Tax-Free Money Fund
Huntington VA Growth Fund
Huntington VA Income Equity Fund
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
Title: Senior Vice President
---------------------
SEI INVESTMENTS MUTUAL FUNDS SERVICES
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
--------------
Title: Vice President
--------------
SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
SEI INVESTMENTS MUTUAL FUNDS SERVICES
AND
THE HUNTINGTON NATIONAL BANK
NAME OF FUND COMPENSATION*
---------------------------------------------------------------------------------------------------------------------------
Huntington Money Market Fund Annual Rate of eight one-hundredths of one percent
Huntington Ohio Municipal Money Market Fund (.08%) of each such Fund's average daily net assets for
Huntington U.S. Treasury Money Market Fund the period December 20, 1999 through December 20, 2004.
Huntington Growth Fund
Huntington Income Equity Fund
Huntington Mortgage Securities Fund
Huntington Ohio Tax-Free Fund
Huntington Michigan Tax-Free Fund
Huntington Fixed Income Securities Fund
Huntington Intermediate Government Income Fund
Huntington Short/Intermediate Fixed Income Securities Fund
Huntington Florida Tax-Free Money Fund
Huntington VA Growth Fund
Huntington VA Income Equity Fund
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
Title: Senior Vice President
---------------------
SEI INVESTMENTS MUTUAL FUNDS SERVICES
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
--------------
Title: Vice President
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* All fees are computed daily and paid monthly. If this Agreement becomes
effective subsequent to the first day of a month or terminates before the
last day of a month, the Sub-Administrator's compensation for that part of
the month in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above.
Payment of the Sub-Administrator's compensation for the preceding month
shall be made promptly.
