Exhibit 23(h)(ix) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
FUND ACCOUNTING AGREEMENT
AGREEMENT made as the 1st day of May, 2002, between Huntington National
Bank ("Huntington"), a national bank having its principal place of business
at 00 X. Xxxx Xx., Xxxxxxxx, Xxxx, 00000, and BISYS FUND SERVICES OHIO, INC.
("BISYS"), a corporation organized under the laws of the State of Delaware
and having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000.
WHEREAS, Huntington has entered into a Financial Administration and
Accounting Services Agreement, dated December 1, 2001 (the "Services
Agreement"), with the Huntington Funds and with the Huntington VA Funds (the
"Trusts"), each of which is a Massachusetts business trust registered with
the Securities and Exchange Commission (the "Commission") as an open-end
management investment company under the Investment Company Act of 1940, as
amended, (the "1940 Act"), concerning the provision of various services,
including but not limited to fund accounting services;
WHEREAS, Huntington desires that BISYS perform certain fund accounting
services for each series of the Trusts currently existing as set forth in
Schedule A hereto, and such additional series as may hereafter be created
(such series are individually referred to herein as a "Fund" and collectively
as the "Funds"); and`
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Fund Accountant.
(a) Maintenance of Books and Records. BISYS will keep and
maintain the following books and records of each Fund
pursuant to Rule 31a-1 under the Investment Company Act of
1940 (the "Rule"):
(i) Journals containing an itemized daily record in
detail of all purchases and sales of securities, all
receipts and disbursements of cash and all other
debits and credits, as required by subsection (b)(1)
of the Rule;
(ii) General and auxiliary ledgers reflecting all asset,
liability, reserve, capital, income and expense
accounts, including interest accrued and interest
received, as required by subsection (b)(2)(I) of the
Rule;
(iii) Separate ledger accounts required by subsection
(b)(2)(ii) and (iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts
(except shareholder accounts) as required by
subsection (b)(8) of the Rule.
(b) Performance of Daily Accounting Services. In addition to
the maintenance of the books and records specified above,
BISYS shall perform the following accounting services daily
for each Fund:
(i) Calculate the net asset value per share utilizing
prices obtained from the sources described in
subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing
services, or if such quotes are unavailable, then
obtain such prices from each Fund's investment
adviser or its designee, as approved by the Trust's
Board of Trustees;
(iii) Verify and reconcile with the Funds' custodian all
daily trade activity;
(iv) Compute, as appropriate, each Fund's net income and
capital gains, dividend payables, dividend factors,
total returns, periodic performance, 7-day yields,
7-day effective yields, 30-day yields, and weighted
average portfolio maturity;
(v) Review daily the net asset value calculation and
dividend factor (if any) for each Fund prior to
release to shareholders, check and confirm the net
asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and
yields to NASDAQ;
(vi) Report to the Trust the daily market pricing of
securities in any money market Funds, with the
comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on
securities purchased at a price other than face
value, if requested by the Trust;
(ix) Update fund accounting system to reflect rate
changes, as received from a Fund's investment
adviser, on variable interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to instructions received from
the Fund's Financial Administrator ;
(xii) Determine the outstanding receivables and payables for all (1) security
trades, (2) Fund share transactions and (3) income
and expense accounts;
(xiii) Provide accounting reports in connection with
the Trust's regular annual audit and other audits and
examinations by regulatory agencies; and
(xiv) Provide such periodic reports as the parties shall
agree upon, as set forth in a separate schedule.
(c) Special Reports and Services.
(i) BISYS may provide additional special reports upon the
request of the Trust or a Fund's investment adviser,
which may result in an additional charge, the amount
of which shall be agreed upon between the parties.
(ii) BISYS may provide such other similar services with respect to a Fund as
may be reasonably requested by the Trust, which may
result in an additional charge, the amount of which
shall be agreed upon between the parties.
(iii) Prepare for review by the Trust and its legal counsel, and file, Form
N-SAR, and SEC Rule 24f-2 notices.
(iv) Prepare and submit for approval by officers of the Trusts a Fund
expense budget, and review expense calculations.
(v) Prepare Fund income forecasts and submit for approval by officers of
the Trusts recommendations for Fund income dividend
distributions.
(d) Additional Accounting Services. BISYS shall also perform
the following additional accounting services for each Fund:
(i) Provide monthly a download (and hard copy thereof) of
the unaudited financial statements described below,
upon request of the Trust. The unaudited financial
statements will include the following items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and
federal excise tax returns;
(B) the Trust's semi-annual reports to be filed
with the Securities and Exchange Commission
("SEC") on Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly
(if any) shareholder reports;
(D) registration statements on Form N-1A and other
filings relating to the registration of shares;
(E) the Administrator's monitoring of each Trust's
status as a regulated investment company under
Subchapter M of the Internal Revenue Code, as
amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
2. Subcontracting.
BISYS may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that BISYS shall not be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that BISYS shall be responsible, to the extent provided in Section 7 hereof,
for all acts of such subcontractor as if such acts were its own.
3. Compensation.
Huntington shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth
in, Schedule B hereto, as such Schedule may be amended from time to time.
The fees are accrued daily and billed monthly and shall be due and payable
upon receipt of the invoice. Upon the termination of this Agreement before
the end of any month, the fee for the relevant month shall be prorated
according to the proportion which the portion of the month during which this
Agreement remains effective bears to the full monthly period, and shall be
payable upon the date of termination of this Agreement. In addition,
Huntington shall reimburse BISYS for its out-of-pocket costs incurred in
connection with this Agreement, including those described in Section 4 below,
as well as any and all costs and expenses (including reasonable attorney's
fees) incurred by BISYS to collect any charges due under this Agreement.
4. Expenses and Expense Reimbursement.
(a) Huntington agrees to promptly reimburse BISYS for any equipment
and supplies specially ordered by or for Huntington through BISYS and for any
other expenses not contemplated by this Agreement that BISYS may incur on any
Fund's behalf at Huntington's request or with Huntington's consent.
Each Fund will bear all expenses that are incurred in the
operation of the Fund and not specifically assumed by BISYS. Expenses to be
borne by each Fund include, but are not limited to: organization expenses;
cost of services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Fund's registration statement, proxy
materials, federal and state tax qualification as a regulated investment
company and other reports and materials prepared by BISYS under this
Agreement); cost of any services contracted for by the Fund directly from
parties other than BISYS; costs of trading operations and brokerage fees,
commissions and transfer taxes in connection with the purchase and sale of
securities for the Fund; investment advisory fees; taxes, insurance
premiums and other fees and expenses applicable to its operation; costs
incidental to any meetings of shareholders including, but not limited to,
legal and accounting fees, proxy filing fees and the costs of preparation,
printing and mailing of any proxy materials; costs incidental to Board
meetings, including fees and expense of Board members; the salary and
expenses of any officer, director/trustee or employee of Huntington of the
Fund; costs incidental to the preparation, printing and distribution of the
Fund's registration statements and any amendments thereto and shareholder
reports; cost of typesetting and printing of prospectuses; cost of
preparation and filing of the Fund's tax returns, Form N-1A of N-2 and Form
N-SAR, and all notices registrations and amendments associated with
applicable federal and state tax and securities laws; fidelity bond and
directors' and officers' liability insurance; and cost of independent
pricing services used in computing each Fund's NAV.
(b) In addition, BISYS shall be entitled to receive the following
fees:
(i) Systems development fees billed at an hourly rate of $150
per hour, as
approved by Huntington;
(ii) Ad hoc reporting fees billed at an agreed upon rate; and
(iii) Fees for pricing the securities of the Fund pursuant to Section
1(b)(ii) of
this Agreement.
5. Standard of Care; Uncontrollable Events; Limitation of Liability.
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be
liable to Huntington for any action taken or omitted by BISYS in the absence
of bad faith, willful misfeasance, negligence or reckless disregard by it of
its obligations and duties. The duties of BISYS shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other
equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon Huntington's reasonable request, BISYS shall provide
supplemental information concerning the aspects of its disaster recovery and
business continuity plan that are relevant to the services provided
hereunder. Notwithstanding the foregoing or any other provision of this
Agreement, BISYS assumes no responsibility hereunder, and shall not be liable
for, any damage, loss of data, delay or any other loss whatsoever caused by
events beyond its reasonable control. Events beyond BISYS' reasonable
control include, without limitation, force majeure events. Force majeure
events include natural disasters, actions or decrees of governmental bodies,
and communication lines failures that are not the fault of either party. In
the event of force majeure, computer or other equipment failures or similar
events beyond its reasonable control, BISYS shall follow applicable
procedures in its disaster recovery and business continuity plan and use all
commercially reasonable efforts to minimize any service interruption.
BISYS shall provide Huntington, at such times as Huntington may
reasonably require, copies of reports rendered by independent public
accountants on the internal controls and procedures of BISYS relating to the
services provided by BISYS under this Agreement. BISYS shall also allow
access to auditors employed by the Funds' administrator to perform a
reasonable review of internal controls on a periodic basis, and said
administrator may perform a review of BISYS's internal control procedures
relevant to the services rendered under this Agreement; provided, however,
that BISYS may require any such third party to execute a confidentiality
agreement containing customary provisions necessary for the protection of
confidential or proprietary information and appropriately limiting the use or
further dissemination of any information obtained.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY
OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term.
This Agreement shall remain in effect for a four (4) year period,
until April 30, 2006 (the "Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed automatically
for successive one year periods ("Rollover Periods"). This Agreement may be
terminated only (i) by provision of a notice of nonrenewal in the manner set
forth below, (ii) by mutual agreement of the parties, (iii) for "cause," as
defined below, upon the provision of sixty (60) days advance written notice
by the party alleging cause, or (iv) following the completion of the Initial
Term, upon one hundred twenty (120) days' advance written notice, as provided
below. Written notice of nonrenewal must be provided at least one hundred
twenty days prior to the end of the Initial Term or any Rollover Period, as
the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or
unethical behavior in the conduct of its business; or (c) financial
difficulties on the part of the party to be terminated which are evidenced by
the authorization or commencement of, or involvement by way of pleading,
answer, consent or acquiescence in, a voluntary or involuntary case under
Title 11 of the United States Code, as from time to time is in effect, or any
applicable law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or alteration
of the rights of creditors.
Notwithstanding the foregoing, following any such termination, in
the event that BISYS in fact continues to perform any one or more of the
services contemplated by this Agreement (or any Schedule or exhibit hereto)
with the consent of Huntington, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification, shall
continue in full force and effect. Fees and out-of-pocket expenses incurred
by BISYS but unpaid by Huntington upon such termination shall be immediately
due and payable upon and notwithstanding such termination. BISYS shall be
entitled to collect from Huntington, in addition to the fees and
disbursements provided by Sections 3 and 4 hereof, the amount of all of
BISYS' cash disbursements in connection with BISYS' activities in effecting
such termination, including without limitation, the delivery to the Funds
and/or their distributor or investment adviser and/or other parties of the
Fund's property, records, instruments and documents.
If, during the Initial Term, for any reason other than (i) mutual
agreement of the parties or (ii) "cause," as defined above (for which
Huntington has the right to terminate BISYS), BISYS's services are terminated
hereunder, BISYS is replaced as fund accountant, or if a third party is added
to perform all or a part of the services provided by BISYS under this
Agreement (excluding any Sub-Fund Accountant appointed as provided in Section
1 hereof), then Huntington shall make a one-time cash payment, in
consideration of the fee structure and services to be provided under this
Agreement, and not as a penalty, to BISYS equal to the balance that would be
due BISYS for its services hereunder during the remainder of the Initial
Term, assuming for purposes of the calculation of the one-time payment that
the fees that would be earned by BISYS for each month shall be based upon the
average amount of assets, Funds and classes, and fees payable to BISYS
monthly, during the twelve (12) months prior to the date that services
terminate, BISYS is replaced or a third party is added.
Following the completion of the Initial Term, either party may
terminate this Agreement upon one hundred twenty (120) days' advance written
notice to the other party.
In the event either Trust, or any Fund thereof, is merged into
another legal entity in part or in whole pursuant to any form of business
reorganization or is liquidated in part or in whole, prior to the expiration
of the Initial Term of this Agreement, the parties acknowledge and agree that
the liquidated damages provision set forth above shall be applicable in those
instances in which BISYS is not retained to provide fund accounting services
consistent with this Agreement, including the number of Funds subject to such
services. The one-time cash payment referenced above shall be due and
payable on the day prior to the first day in which services are terminated,
BISYS is replaced or a third party is added.
The parties further acknowledge and agree that, in the event
services are terminated, BISYS is replaced, or a third party is added, during
the Initial Term, as set forth above, (i) a determination of actual damages
incurred by BISYS would be extremely difficult, and (ii) the liquidated
damages provision contained herein is intended to adequately compensate BISYS
for damages incurred and is not intended to constitute any form of penalty.
7. Indemnification.
Huntington agrees to indemnify and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any and
all claims, demands, actions and suits, and from and against any and all
judgments, liabilities, losses, damages, costs, charges, counsel fees and
other expenses of every nature and character arising out of or in any way
relating to BISYS' actions taken or omissions with respect to the performance
of services under this Agreement or based, if applicable, upon reasonable
reliance on information, records, instructions or requests given or made to
BISYS by Huntington, the administrator or custodian of the Funds; provided
that this indemnification shall not apply to actions or omissions of BISYS in
cases of its own bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties; and further provided that
prior to confessing or settling any claim against it which may be the subject
of this indemnification, BISYS shall give Huntington written notice of and
reasonable opportunity to defend against said claim in its own name or in the
name of BISYS.
BISYS shall indemnify, defend, and hold Huntington harmless from
and against any and all claims, actions and suits and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) resulting
directly and proximately from BISYS' willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions
contained herein shall apply, however, it is understood that if in any case a
party may be asked to indemnify or hold the other party harmless, the
indemnifying party shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further understood that the
indemnified party will use all reasonable care to identify and notify the
indemnifying party promptly concerning any situation which presents or
appears likely to present the probability of such a claim for indemnification
against the indemnifying party, but failure to do so in good faith shall not
affect the rights hereunder except to the extent the indemnifying party is
materially prejudiced thereby.
The indemnifying party shall be entitled to participate at its
own expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the
indemnified party, whose approval shall not be unreasonably withheld. In the
event that the indemnifying party elects to assume the defense of any suit
and retain counsel, the indemnified party shall bear the fees and expenses of
any additional counsel retained by it. If the indemnifying party does not
elect to assume the defense of suit, it will reimburse the indemnified party
for the reasonable fees and expenses of any counsel retained by the
indemnified party. The indemnity and defense provisions set forth herein
shall indefinitely survive the termination of this Agreement.
8. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of Huntington all books
and records which the Funds and BISYS are, or may be, required to keep and
maintain pursuant to any applicable statutes, rules and regulations,
including without limitation Rules 31a-1 and 31a-2 under the Investment
Company Act of 1940, as amended (the "1940 Act"), relating to the maintenance
of books and records in connection with the services to be provided
hereunder. BISYS further agrees that all such books and records shall be
prepared and maintained at the expense of BISYS, but shall be the property of
the Trusts, and BISYS agrees to make such books and records available for
inspection by the Trusts, by Huntington or by the Securities and Exchange
Commission at reasonable times and otherwise to keep confidential all books
and records and other information relative to the Trusts and their
shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
In case of any request or demand for the inspection of such
records by another party, BISYS shall notify Huntington and follow
Huntington's instructions as to permitting or refusing such inspection;
provided that BISYS may exhibit such records in any case where (i) disclosure
is required by law, (ii) BISYS is advised by counsel that it may incur
liability for failure to make a disclosure, (iii) BISYS is requested to
divulge such information by duly-constituted authorities or court process, or
(iv) BISYS is requested to make a disclosure by Huntington. BISYS shall
provide Huntington with reasonable advance notice of disclosure pursuant to
items (i) - (iii) of the previous sentence, to the extent reasonably
practicable.
9. Activities of BISYS.
The services of BISYS rendered to Huntington hereunder are not to
be deemed to be exclusive. BISYS is free to render such services to others
and to have other businesses and interests. It is understood that Directors,
Trustees, officers, employees and Shareholders of the Trusts or Huntington
are or may be or become interested in BISYS, as officers, employees or
otherwise and that partners, officers and employees of BISYS and its counsel
are or may be or become similarly interested in the Trusts or Huntington, and
that BISYS may be or become interested in the Trusts or Huntington as a
shareholder or otherwise.
10. Reports.
BISYS will furnish to Huntington and to the Trusts' properly
authorized auditors, investment advisers, examiners, distributors, dealers,
underwriters, salesmen, insurance companies and others designated by
Huntington in writing, such reports and at such times as are prescribed
pursuant to the terms and the conditions of this Agreement to be provided or
completed by BISYS, or as subsequently agreed upon by the parties pursuant to
an amendment hereto. Huntington agrees to examine each such report or copy
promptly and will report or cause to be reported any errors or discrepancies
therein no later than three business days from the receipt thereof. In the
event that errors or discrepancies, except such errors and discrepancies as
may not reasonably be expected to be discovered by the recipient within ten
(10) days after conducting a diligent examination, are not so reported within
the aforesaid period of time, a report will for all purposes be accepted by
and binding upon Huntington and any other recipient, and, except as may be
provided in Section 5 hereof, BISYS shall have no liability for errors or
discrepancies therein and shall have no further responsibility with respect
to such report.
11. Rights of Ownership.
All computer programs and procedures developed to perform
services required to be provided by BISYS under this Agreement are the
property of BISYS. All records and other data except such computer programs
and procedures are the exclusive property of the Trusts or Huntington, as the
case may be, and all such other records and data will be furnished to
Huntington in appropriate form as soon as practicable after termination of
this Agreement for any reason.
12. Return of Records.
BISYS may at its option at any time, and shall promptly upon
Huntington's demand, turn over to Huntington and cease to retain BISYS's
files, records and documents created and maintained by BISYS pursuant to this
Agreement which are no longer needed by BISYS in the performance of its
services or for its legal protection. If not so turned over to Huntington,
such documents and records will be retained by BISYS for six years from the
year of creation. At the end of such six-year period, such records and
documents will be turned over to Huntington unless Huntington authorizes in
writing the destruction of such records and documents.
13. Representations and Warranties.
(a) Huntington represents and warrants certifies to BISYS
that: (1) as of the close of business on the effective date of this
Agreement, each Fund that is in existence as of the effective date has
authorized unlimited shares; (2) this Agreement has been duly authorized by
Huntington and, when executed and delivered by Huntington, will constitute a
legal, valid and binding obligation of Huntington, enforceable against
Huntington in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and (3) the
Services Agreement has been duly approved and executed by the Trusts and
Huntington, and Huntington has full power and authority thereunder to enter
into this Agreement and retain BISYS' services hereunder on behalf of the
Trusts.
(b) BISYS represents and warrants that: (1) the various
procedures and systems which BISYS has implemented with regard to
safeguarding from loss or damage attributable to fire, theft, or any other
cause the records, and other data of Huntington and BISYS's records, data,
equipment facilities and other property used in the performance of its
obligations hereunder are reasonably adequate and that it will make such
changes therein from time to time as are required for the secure performance
of its obligations hereunder, and (2) this Agreement has been duly authorized
by BISYS and, when executed and delivered by BISYS, will constitute a legal,
valid and binding obligation of BISYS, enforceable against BISYS in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL
REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE
OF TRADE) CONCERNING THE SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE
SERVICES PROVIDED UNDER THIS AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
14. Insurance.
BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. Upon the request of Huntington, BISYS
shall provide evidence that coverage is in place. BISYS shall notify
Huntington should its insurance coverage with respect to professional
liability or errors and omissions coverage be canceled. Such notification
shall include the date of cancellation and the reasons therefore. BISYS
shall notify Huntington of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered
by insurance, and shall notify Huntington should the total outstanding claims
made by BISYS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
15. Information Furnished by Huntington.
Huntington has furnished to BISYS the following, as amended and
current as of the effective date of this Agreement:
(a) Copies of the Declaration(s) of Trust of each Trust and of
any amendments thereto, certified by the proper official of
the state in which such Declaration has been filed;
(b) A copy of each Trust's Bylaws and any amendments
thereto;
(c) A copy of the Services Agreement; and
(d) A list of all officers of the Funds and any other persons
(who may be associated with the Funds or its investment
advisor), together with specimen signatures of those
officers and other persons, who are authorized to instruct
BISYS in all matters.
(e) Two copies of the Prospectuses and Statement of Additional
Information of each Fund.
16. Information Furnished by BISYS.
BISYS has furnished to Huntington evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
(b) Authorization of BISYS to act as sub-fund accountant for
the Funds.
17. Amendments to Documents.
Huntington shall furnish BISYS written copies of any amendments
to, or changes in, any of the items referred to in Section 15 hereof
forthwith upon such amendments or changes becoming effective. In addition,
Huntington agrees that no amendments will be made to the Prospectuses or
Statements of Additional Information of the Funds which might have the effect
of changing the procedures employed by BISYS in providing the services agreed
to hereunder or which amendment might affect the duties of BISYS hereunder
unless Huntington first obtains BISYS's approval of such amendments or
changes, which approval shall not be withheld unreasonably.
18. Legal Advice; Reliance on Prospectus and Instructions.
BISYS shall notify Huntington at any time BISYS believes that it
is in need of the advice of counsel (other than counsel in the regular employ
of BISYS or any affiliated companies) with regard to BISYS' responsibilities
and duties pursuant to this Agreement. After so notifying Huntington, BISYS,
at its discretion, shall be entitled to seek, receive and act upon advice of
legal counsel of its choosing, such advice to be at the expense of Huntington
unless relating to a matter involving BISYS' willful misfeasance, bad faith,
negligence or reckless disregard of BISYS' responsibilities and duties
hereunder, and BISYS shall in no event be liable to Huntington or any Fund or
any shareholder or beneficial owner of the Funds for any action reasonably
taken pursuant to such advice.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Funds relating to the relevant Funds to the extent that
such services are described therein, as well as the minutes of Board meetings
(if applicable) and other records of the Funds unless BISYS receives written
instructions to the contrary in a timely manner from Huntington.
Also, BISYS shall be protected in acting upon any document which
it reasonably believes to be genuine and to have been signed or presented by
the proper person or persons. BISYS will not be held to have notice of any
change of authority of any officers, employees or agents of Huntington until
receipt of written notice thereof from Huntington.
19. Compliance with Law.
Except for the obligations of BISYS set forth in Section 8
hereof, Huntington and the Trusts assume full responsibility for the
preparation, contents and distribution of each prospectus of the Funds as to
compliance with all applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act"), the 1940 Act and any other laws, rules and
regulations of governmental authorities having jurisdiction. BISYS shall
have no obligation to take cognizance of any laws relating to the sale of the
Funds' shares.
20. Notices.
Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at
the last address furnished by the other party to the party giving notice: if
to Huntington, at: Huntington National Bank, at 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx with a copy to the Funds
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attn: Xxxxxx X. Xxxxx, and if to
BISYS at 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: President.
21. Assignment.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors
and permitted assigns.
22. Governing Law.
This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of the State of Ohio to the extent that
the applicable laws of the State of Ohio, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
23. Privacy.
Nonpublic personal financial information relating to consumers or
customers of a Fund provided by, or at the direction of Huntington to BISYS,
or collected or retained by BISYS to perform its duties as fund accountant of
the Funds shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person
or entity, other than affiliates of BISYS except at the direction of
Huntington or as required or permitted by law. BISYS shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed
to protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of records and information relating to
consumers or customers of the Funds. Huntington represents to BISYS that the
Trusts have adopted a Statement of privacy policies and practices as required
by the Commission's Regulation S-P and agrees to provide BISYS with a copy of
that statement annually.
24. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein.
(c) This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall constitute one
and the same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. The parties hereto may amend
such procedures as may be set forth herein by written agreement as may be
appropriate or practical under the circumstances, and BISYS may conclusively
assume that any special procedure which has been approved by an executive
officer of Huntington or the Funds (other than an officer or employee of
BISYS) does not conflict with or violate any requirements of the Fund's
Declaration of Trust, By-Laws or then-current prospectuses, or any rule,
regulation or requirement of any regulatory body.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
Huntington National Bank
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ illegible signature
Name:
Title:
A-2
Dated: May 1, 2002
As Amended: August 1, 2002
SCHEDULE A
TO THE
FUND ACCOUNTING AGREEMENT
BETWEEN
HUNTINGTON NATIONAL BANK
AND
BISYS FUND SERVICES OHIO, INC.
FUND NAME CLASSES OF SHARES
Huntington Money Market Fund Trust, Investment A,
Investment B, Interfund
Huntington Ohio Muni Money Market Fund Trust, Investment A
Huntington U. S. Treasury Money Market Fund Trust, Investment A
Huntington Florida Tax-Free Money Fund Trust, Investment A
Huntington Growth Fund Trust, Investment A,
Investment B
Huntington Income Equity Fund Trust, Investment A,
Investment B
Huntington Rotating Index Fund Trust, Investment A,
Huntington Dividend Capture Fund Trust, Investment A,
Investment B
Huntington International Equity Fund Trust, Investment A,
Investment B
Huntington Mid Corp America Fund Trust, Investment A,
Investment B
Huntington New Economy Fund Trust, Investment A,
Investment B
Huntington Mortgage Securities Fund Trust, Investment A
Huntington Ohio Tax-Free Fund Trust, Investment A
Huntington Michigan Tax-Free Fund Trust, Investment A
Huntington Fixed Income Securities Fund Trust, Investment A,
Investment B
Huntington Intermediate Government Income Fund Trust, Investment A
Huntington Short/Intermediate Fixed Income
Securities Fund Trust
FUND NAME CLASSES OF SHARES
Huntington Situs Small Cap Fund Trust, Investment A,
Investment B
Huntington VA Rotating Fund
Huntington VA New Equity Fund
Huntington VA Mid Corp America Fund
Huntington VA Dividend Capture Fund
Huntington VA Income Equity Fund
Huntington VA Growth Fund
B-1
B-1
Dated: May 1, 2002
SCHEDULE B
TO THE
FUND ACCOUNTING AGREEMENT
BETWEEN
HUNTINGTON NATIONAL BANK
AND
BISYS FUND SERVICES OHIO, INC.
FEES
BISYS shall be entitled to receive a fee for services to each Fund listed on
Schedule A at an annual rate of three one-hundredths of one percent (0.03%)
of the Fund's average daily net assets subject to a minimum of $680,000 for
the Fund Complex (Huntington Funds and Huntington VA Funds), per year. There
is an additional $35,000 minimum fee applied for each Fund for which BISYS
provides services in excess of 23 Funds. These additional Fund minimums are
added to the Fund Complex minimum. In addition, there shall be a $3,500
annual fee charged to each Fund for each additional class of shares of such
Fund over the initial classes stated in Schedule A. BISYS shall also be
reimbursed for reasonable out-of-pocket expenses and miscellaneous service
fees as set forth in Section 4 of this Agreement.
February 25, 2002
Huntington National Bank
Attn: Xxx Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Re: Use of Internet-Based Fund Accounting and Automated Compliance System
Ladies and Gentlemen:
This will confirm the agreement between Huntington National Bank ("Client")
and BISYS Fund Services Ohio, Inc. ("BISYS") with respect to the use by
Client of an internet-based fund accounting and automated compliance
information system ("FAACS") designed to provide on-line access to reports,
data, and other information pertaining to mutual fund operations.
1. Description of FAACS.
FAACS is an internet-based on-line fund accounting and automated
compliance information system designed to provide access to information that
may support the delivery and management of mutual fund products and services.
2. Use of FAACS by Client.
Client will be provided with user identification numbers and passwords
that will allow up to ten (10) persons designed by Client to gain access to
FAACS at any given time during the term of this Agreement. Client shall be
responsible for notifying BISYS of the names and locations of the persons to
whom the identification numbers and passwords have been assigned, and for
notifying BISYS in the event it becomes necessary to reassign identification
numbers and passwords to others.
3. Term.
This Agreement shall become effective on the date first written above
and shall continue for a four (4) year period until April 30, 2006 ("Initial
Term"). Thereafter, subject to the automatic termination set forth in
Section 18 herein, this Agreement shall continue in effect until it is
terminated in the manner set forth in this Section 3. Either party may
terminate this Agreement by providing a written notice of non-renewal at
least one hundred twenty (120) days prior to the expiration of the Initial
Term. Either party may terminate this Agreement following the Initial Term
by the provision of one hundred twenty (120) days' advance written notice to
the other party. Compensation due BISYS and unpaid by Client upon such
termination shall be immediately due and payable upon, and notwithstanding
such termination.
4. Compensation.
BISYS shall receive an annual fee from Client in accordance with the
following fee schedule:
(a) In the event Client elects to gain access to both (a) the on-line
fund accounting data and (b) the automated compliance information
system, the annual fee shall be equal to $2,600 per fund
portfolio.
(b) In the event Client elects to gain access to the on-line fund
accounting data only, the annual fee shall be equal to $1,500 per
fund portfolio.
(c) In the event Client elects to gain access to the automated
compliance information system only, the annual fee shall be equal
to $1,500 per fun portfolio.
Such fees shall be payable in monthly installments commencing thirty
(30) days after Client is issued its first identification number and password.
5. Representations and Warranties.
Each party represents and warrants that:
(a) it has requisite corporate power and authority to enter into, and
fully perform pursuant to, this Agreement;
(b) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and properly authorized by all requisite corporate action on
its part; and
(c) this Agreement has been duly executed and delivered by it and,
when executed and delivered will constitute legal, valid and
binding obligations enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties.
6. Disclaimer.
BISYS assumes no responsibility hereunder, and makes no
representations, concerning compliance by any of Client's investment
portfolios with applicable laws, regulations or investment policies
(including without limitation investment restrictions).
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING
THE SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER
THIS AGREEMENT BY BISYS ARE COMPLELY DISCLAIMED.
7. Limitation of Liability.
BISYS' SOLE LIABILITY, IF ANY, FOR LOSSES OR CLAIMS BY CLIENT OR THIRD
PARTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, IN THE AGGREGATE,
WILL BE LIMITED TO THE LESSER OF: (A) THE AMOUNT OF ACTUAL DIRECT
DAMAGES ATTRIBUTABLE SOLELY TO THE NEGLIGENCE OF BISYS, OR (B) THE
AMOUNT OF THE FEES PAID BY CLIENT TO BISYS UNDER THIS AGREEMENT DURING
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE
RISE TO THE LOSS OR CLAIM.
IN NO EVENT WILL BISYS BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON
ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT,EVEN IF BISYS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification.
Client will indemnify and hold BISYS harmless from and against all
costs, losses, damages and liabilities, including without limitation
attorneys fees, which may be incurred by BISYS on account of any and all
claims, suits or actions by third parties arising out of or relating to this
Agreement and the access and information provided hereunder.
9. Confidentiality.
Client shall treat as confidential, and shall not disclose or otherwise
make available, any information it receives or has access to under this
Agreement, including without limitation any software, diagrams,
documentation, trade secrets, processes or data, (collectively, the
"Confidential Information"), in any form, to any person other than persons
designated by Client. Client may use the Confidential Information only for
the purposes contemplated in this Agreement. Client will instruct all
persons who have access to the Confidential Information to keep the same
confidential by using the same care and discretion that Client uses with
respect to its own confidential property and trade secretes. Information
that is in Client's possession without an obligation of confidentiality, or
that is in the public domain through no fault of Client, shall not be subject
to the foregoing restrictions.
10. Modification or Amendment.
This Agreement constitutes the entire agreement between the parties
hereto, and may not be modified or amended except by an instrument in writing
executed by the parties hereto.
11. Assignability.
Unless otherwise agreed to in writing by the parties hereto, this
Agreement shall not be assignable.
12. Independent Contractor Status.
The parties intent that an independent contractor relationship shall be
created by this Agreement. Nothing herein shall be deemed or construed as an
agreement to create or form a partnership between Client and BISYS.
13. Governing Law.
This Agreement shall be governed by, and interpreted in accordance
with, the laws of the State of Ohio.
14. Notices.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered mail or certified
mail, postage prepaid, addressed by the party giving notice to the other
party at the following addresses: if to Client, at
President]; if to BISYS, at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, Attention: President, or at such other addresses as
such party may from time to time specify in writing to the other party
pursuant to this Section.
15. No Waiver.
No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be deemed
a continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
16. Severability.
If any of the provisions of this Agreement are held invalid, illegal or
unenforceable, the remaining provisions shall be unimpaired.
17. Headings.
Headings are for reference and shall not affect the meaning of any of
the provisions of this Agreement.
18. Mutual Fund Services Agreements.
This Agreement is contingent upon the continued existence of the mutual
fund services agreements between BISYS and Client. If such agreements with
Client expire or terminate, then this Agreement will automatically terminate.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties and
supersedes all previous agreements, promises, proposals, representations,
understandings and negotiations, whether written or oral, between the parties
respecting the subject matter thereof.
BISYS FUND SERVICES OHIO, INC.
By: /s/ illegible signature
Title: President
The foregoing Agreement is hereby accepted:
HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
