EXHIBIT 23(H)(XV) UNDER FORM N-1A
EXHIBIT 10(H) UNDER ITEM 601/REG. S-K
AMENDMENT TO FUND ACCOUNTING AGREEMENT
THIS AMENDMENT, made as of the 1st day of July 2004, between Huntington
National Bank (hereinafter referred to as "Huntington"), a national bank having
its principal place of business at ▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
BISYS FUND SERVICES OHIO, INC. (hereinafter referred to as "BISYS"), an Ohio
corporation having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ is attached to and incorporated by reference into that
certain Fund Accounting Agreement dated May 1, 2002, as amended July 30, 2003
(the "Agreement"), by and between Huntington and BISYS. The terms of this
Amendment shall be in addition to the terms of the Agreement; provided, however,
that in the event of a conflict between the terms of this Amendment and the
terms of the Agreement, this Amendment shall control. To the extent the
Agreement is amended subsequent to the date hereof, and the terms of the amended
Agreement and this Amendment conflict, the terms of the Agreement shall control.
This preamble is an essential part of this Amendment and its terms are a part of
this Amendment.
WHEREAS, Huntington and BISYS entered into the Agreement, pursuant to
which BISYS performs fund accounting services for the underlying portfolios (the
"Funds") of The Huntington Funds and the Huntington VA Funds (collectively, the
"Trusts"), each of which is a Massachusetts business trust; and
WHEREAS, Huntington desires that BISYS provide certain additional
services in connection with the valuation of securities held in certain Funds'
portfolios, and BISYS is willing to provide the services set forth in this
Amendment on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, Huntington and BISYS hereby agree as follows:
1. Services as Fund Accountant. Section 1(b)(i) and (ii) of the
Agreement is hereby deleted in its entirety and replaced with the following:
(a) BISYS will calculate the net asset value per share ("NAV") of each
class of shares offered by each Fund in accordance with the relevant provisions
of the applicable Prospectus of each Fund and applicable regulations under the
1940 Act;
(b) In each calculation of NAV, BISYS will apply securities pricing
information as required or authorized under the terms of the valuation policies
and procedures of the Trusts ("Valuation Procedures"), including (A) using
pricing information from independent pricing services, with respect to
securities for which market quotations are readily available, and (B) if
applicable to a particular Fund or Funds (the "Fair Valued Securities"), fair
value pricing information or adjustment factors from independent fair value
pricing services or other vendors approved by the Trusts (collectively, "Fair
Value Information Vendors") with respect to securities for which market
quotations are not readily available, for which a significant event has occurred
following the close of the relevant market but prior to the Fund's pricing time,
or which are otherwise required to be made subject to a fair value
determination, as set forth under the Valuation Procedures.
(c) BISYS will prepare quarterly reports summarizing the impact of fair
value pricing on the NAV of each of the Fair Valued Securities as compared to
its NAV using local closed prices and as compared to its NAV using next-day open
prices, which reports help the Trusts to monitor and evaluate their use of fair
value pricing information under their Valuation Procedures.
(d) Consistent with Section 8 of the Agreement, in connection with the
services provided in (a) through (c) above, BISYS will keep and maintain the
books and records that are required to be kept and maintained under Rule 31a-1
or other applicable regulations under the 1940 Act, including those pertaining
to (A) fair value prices and/or adjustment factors provided by Fair Value
Information Vendors, and (B) market prices for securities that are valued using
fair value information provided by Fair Value Information Vendors.
2. Compensation and Expenses.
(a) As compensation for the services set forth above that relate to the
use of Fair Value Information Vendors ("Fair Value Support Services"),
Huntington shall pay to BISYS a one-time "Development Fee" and the "Annual BISYS
Fee", all as set forth on Schedule C to this Amendment. Huntington shall pay
BISYS the Annual BISYS Fee for each Fund that Huntington designates as being
subject to fair value determinations and for which Fair Value Support Services
are to be provided by BISYS hereunder; provided, however, that BISYS will not
charge such Annual BISYS Fee for a Fund that is a "clone" (whereby, at all times
during the year, at least 90% of the "clone" Fund's foreign portfolio holdings
are identical to those of the other Fund for which BISYS is charging the Annual
BISYS Fee) of another Fund for which Huntington is already paying the Annual
BISYS Fee. The compensation set forth under this Amendment is payable in
addition to the compensation otherwise payable under the Agreement. The parties
acknowledge that this compensation will ultimately be paid by the Trusts as a
reimbursement to Huntington under Section XV of the Financial Administration and
Accounting Services Agreement between Huntington and the Trusts, dated December
1, 2001.
(b) Additionally:
(i) Huntington shall reimburse BISYS for the actual costs incurred by
BISYS from Fair Value Information Vendors with respect to the
provision of fair value pricing information to BISYS for use in
valuing the portfolio holdings of those Funds that Huntington
designates as being subject to fair value determinations and for
which Fair Value Support Services are to be provided by BISYS
hereunder. Such actual costs are referred to as the Annual Fair
Valuation Vendor Fee and will be calculated at the discounted group
rate made available to BISYS clients by the Fair Valuation
Information Vendors, if applicable.
(ii) Section 4(b)(iii) of the Agreement is deleted in its entirety and
replaced with the following:
Huntington shall pay to BISYS a charge for the pricing
information obtained with respect to each of the
securities held in the portfolio of each Fund, which
charge shall not exceed the charge that would be
incurred if the Fund were to obtain the information
directly from the relevant vendor or vendors.
3. Instructions and Compliance.
Huntington hereby instructs and authorizes BISYS to provide information
pertaining to the Fund's portfolio to Fair Value Information Vendors in
connection with the fair value determinations made under Huntington's Valuation
Procedures and other legitimate purposes related to the Fair Value Support
Services to be provided hereunder.
Huntington understands and acknowledges that while BISYS' services
hereunder are intended to assist Huntington, the Trusts and the Board in
fulfilling obligations to price and monitor pricing of Fund portfolios, BISYS
does not assume responsibility for the accuracy or appropriateness of pricing
information or methodologies, including any fair value pricing information or
adjustment factors. Huntington (or the Trusts) retains its overall
responsibilities to (i) adopt policies and procedures monitoring for
circumstances that may necessitate the use of fair value prices, (ii) establish
criteria for determining when market quotations are no longer reliable for a
particular portfolio security, (iii) determine a methodology or methodologies by
which the current fair value of the portfolio security may be determined, and
(iv) regularly review the appropriateness and accuracy of the method used in
valuing securities and make any necessary adjustments.
4. Information to be Furnished by Huntington and BISYS
BISYS represents that, upon request by Huntington or the Trust, it will
provide information regarding each independent pricing vendor and Fair Value
Information Vendor to be used by BISYS in rendering fund accounting services,
including Fair Value Support Services hereunder. BISYS shall not utilize any
independent pricing vendor who has not been approved by the Trust as a Fair
Value Information Vendor.
Huntington represents that the Trusts have approved, or shall approve,
each independent pricing vendor and Fair Value Information Vendor to be used by
BISYS in rendering fund accounting services, including Fair Value Support
Services hereunder.
Huntington has furnished BISYS with a copy of the Trusts' Valuation
Procedures and any related policies or procedures applicable to the services
hereunder, and BISYS agrees to render its services hereunder in a manner
consistent with the Valuation Procedures and such related policies or
procedures. Huntington will submit any material amendments to the Valuation
Procedures and such related policies or procedures to BISYS for BISYS' review,
and any amendment that would have a material impact upon the services to be
rendered by BISYS or the responsibilities of BISYS shall be subject to approval
by BISYS in good faith, including but not limited to the designation of any
additional Fair Value Information Vendor.
5. Representation of Huntington and BISYS
Huntington represents and warrants to BISYS that:
(a) This Agreement has been duly authorized by Huntington and the
Trusts and, when executed and delivered by Huntington, will
constitute a legal, valid and binding obligation of Huntington,
enforceable against Huntington in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the right and remedies
of creditors and secured parties; and
(b) Huntington represents and warrants that it has presented this
Agreement to, together with any information requested by, the Board
of Trustees of the Trusts, and the Board of Trustees of the Trusts
has approved this Agreement. Huntington shall provide BISYS with
copies of the resolutions evidencing such approval as of the
effective date of this Agreement.
BISYS represents and warrants to Huntington that:
(c) This Agreement has been duly authorized by BISYS and, when executed
and delivered by BISYS, will constitute a legal, valid and binding
obligation of BISYS, enforceable against BISYS in accordance with
its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
right and remedies of creditors and secured parties; and
(d) It has appropriate procedures and agreements in place to maintain
the confidentiality of any non-public portfolio holdings
information provided to the Fair Value Information Vendors unless
and until the Funds publicly disclose such information.
6. Miscellaneous
(a) Capitalized terms used but not defined in this Amendment have the
respective meanings ascribed to them in the Agreement.
(b) This Amendment supplements and amends the Agreement. The
provisions set forth in this Amendment supersede all prior negotiations,
understandings and agreements bearing upon the subject matter covered herein,
including any conflicting provisions of the Agreement or any provisions of the
Agreement that directly cover or indirectly bear upon matters covered under this
Amendment.
(c) Each reference to the Agreement in the Agreement (as it existed
prior to this Amendment) and in every other agreement, contract or instrument to
which the parties are bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided in this Amendment,
the provisions of the Agreement remain in full force and effect (including,
without limitation, the term of the Agreement). No amendment or modification to
this Amendment shall be valid unless made in writing and executed by both
parties hereto.
(d) Paragraph headings in this Amendment are included for convenience
only and are not to be used to construe or interpret this Amendment.
(e) This Amendment may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
7. Termination.
Notwithstanding the termination provisions set forth in Section 6 of the
Agreement, Huntington or the Trusts may terminate, without the payment of a
penalty, the Fair Value Support Services set forth under this Amendment upon
thirty (30) days prior written notice to BISYS. Neither Huntington nor the
Trusts will be obligated to make any additional payments under the Annual BISYS
Fee or the Annual Fair Valuation Vendor Fee after the expiration of the thirty
(30) day notice period. However, the remainder of the provisions of the
Amendment not relating to Fair Value Support Services (including specifically
those set forth in Sections 1(a) and (b) and (d), and Section 2(b)(ii)) of this
Amendment, to the extent such provisions are not applicable to Fair Value
Support Services and/or Fair Value Information Vendors, shall continue in effect
for the duration of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK
By: /s/ B. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: B. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President Fund Services
