MUTUAL FUND SERVICES AGREEMENT Fund Sub-Administration Services between THE HUNTINGTON NATIONAL BANK and UNIFIED FUND SERVICES, INC. April 1, 2009
Exhibit
10 under Item 601/Reg. S-K
Fund
Sub-Administration Services
between
THE
HUNTINGTON NATIONAL BANK
and
UNIFIED
FUND SERVICES, INC.
April
1, 2009
Exhibit A
– Portfolio Listing
Exhibit B
– General Description of Fund Sub-Administration Services
Exhibit C
– Fees and Expenses
AGREEMENT
(this “Agreement”), dated as of April 1, 2009, between the Huntington National
Bank, a national banking association, (the “Huntington”), and Unified Fund
Services, Inc., a Delaware corporation (“Unified”).
WITNESSETH:
WHEREAS,
pursuant to a certain Administrative Services Agreement dated June 23, 2006, as
amended, Huntington has been serving as administrator to the Huntington Funds, a
Delaware statutory trust (the “Investment Company”), and has been providing
certain administrative services either exclusively or in conjunction with one or
more sub-administrators to the Investment Company; and
WHEREAS,
the Investment Company is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the “1940 Act”);
and
WHEREAS,
Huntington wishes to retain Unified to provide certain sub-administration
services with respect to the Investment Company, and Unified is willing to
furnish such services;
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the parties hereto hereby agree as follows:
Section 1. Appointment. Huntington
hereby appoints Unified to provide fund sub-administration services for the
Investment Company, subject to the supervision of Huntington and the Board of
Trustees of the Investment Company (the “Board”), for the period and on the
terms set forth in this Agreement. Unified accepts such appointment
and agrees to furnish the services herein set forth in return for the
compensation as provided in Section 6 and Exhibit C to this
Agreement. The Investment Company will initially consist of the
portfolios, funds and/or classes of shares (each a “Portfolio”; collectively the
“Portfolios”) listed on Exhibit A. Huntington
shall notify Unified in writing of each new Portfolio established by the
Investment Company. Each new Portfolio shall be subject to the
provisions of this Agreement, except to the extent that the provisions
(including those relating to the compensation and expenses payable by
Huntington) may be modified with respect to each new Portfolio in writing by
Huntington and Unified at the time of the addition of the new
Portfolio.
Section 2. Representations and
Warranties of Unified. Unified represents and warrants to
Huntington that:
(a) Unified
is a corporation duly organized and existing under the laws of the State of
Delaware;
(b) Unified
is empowered under applicable laws and by its Certificate of Incorporation and
By-Laws to enter into and perform this Agreement, and all requisite corporate
proceedings have been taken by Unified to authorize Unified to enter into and
perform this Agreement;
(c) Unified
has, and will continue to have, access to the facilities, personnel and
equipment required to fully perform its duties and obligations
hereunder;
(d) no
legal or administrative proceedings have been instituted or threatened against
Unified that would impair its ability to perform its duties and obligations
under this Agreement; and
(e) Unified’s
entrance into this Agreement will not cause a material breach or be in material
conflict with any other agreement or obligation of Unified or any law or
regulation applicable to Unified.
Section 3. Representations and
Warranties of Huntington. Huntington represents and warrants
to Unified that:
(a) it
is a nationally-chartered banking institution duly organized, existing and in
good standing under to laws of its charter;
(b) it
is duly qualified to carry on its business in each jurisdiction where the nature
of its business requires such qualification;
(c) it
is empowered under applicable laws, its organizational documents and company
proceedings to enter into and perform this Agreement;
(d) it
has and will have access to the necessary facilities, equipment and personnel to
perform its duties and obligations under this Agreement;
(e) it
is in compliance with federal securities law and applicable federal and state
banking requirements and is in good standing to serve as Administrator under
this Agreement;
(f) no
legal or administrative proceedings have been instituted or threatened
which would impair Huntington’s ability to perform its duties and
obligations under this Agreement; and
(g) its entrance
into this Agreement shall not cause a material breach or be in material conflict
with any other agreement or obligation of Huntington or any law or regulation
applicable to it.
Section 4. Delivery of Documents and
Other Materials.
(a) Huntington
will promptly furnish to Unified such copies, properly certified or
authenticated, of contracts, documents and other related information that
Unified may request or require to properly discharge its duties. Such
documents may include, but are not limited to, the following:
(i) resolutions
of the Board of the Investment Company authorizing the appointment of Unified to
provide certain sub-administration services to the Investment Company and
approving this Agreement, as applicable;
(ii) the
Investment Company Declaration of Trust;
(iii) the
Investment Company By-Laws, anti-money laundering policies, and code of
ethics;
(iv) the
Investment Company Notification of Registration on Form N-8A under the 1940 Act
as filed with the Securities and Exchange Commission (“SEC”);
(v) the
Investment Company most currently effective registration statement including
exhibits, as amended, on Form N-1A (the “Registration Statement”) under the 1933
Act and the 1940 Act, as filed with the SEC;
(vi) copies
of the Management Agreement between the Investment Company and each investment
advisor to a Portfolio, the Advisory Agreement between each investment advisor
and each sub-advisor to a Portfolio, if any, each advisor’s or sub-advisor’s
proxy voting procedures, and copies of the advisor’s and the Investment Company
errors and omissions and directors’ and officers’ insurance
policies;
(vii) opinions
of counsel and auditors reports;
(viii) the
Investment Company currently effective Prospectus and Statement of Additional
Information relating to all Portfolios and all amendments and supplements
thereto (such Prospectus and Statement of Additional Information and supplements
thereto, as presently in effect and as from time to time hereafter amended and
supplemented, herein called the “Prospectuses”); and
(ix) such
other agreements as the Investment Company may enter into from time to time,
including securities lending agreements, futures and commodities account
agreements, brokerage agreements and options agreements.
(b) The
Investment Company shall cause to be turned over to Unified copies of all
records of, and supporting documentation relating to, all Portfolios and matters
for which Unified is responsible hereunder, together with such other records
relating to such Portfolios and matters as may be helpful or necessary to
Unified’s delivery of services hereunder, including copies of litigation,
regulatory inquiries or investigations, or other litigation involving the
Investment Company during the three years preceding the date of this
Agreement. Such records and documentation shall be in electronic
format to the extent practicable.
Section 5. Services Provided by
Unified.
(a) Unified
will provide the following services subject to the direction and supervision of
Huntington and the Investment Company’s Board, and in compliance with the
objectives, policies and limitations set forth in the Investment Company’s
currently effective Registration Statement, Declaration of Trust and By-Laws;
applicable laws and regulations; and all resolutions and policies implemented by
the Board, and further subject to Unified’s policies and procedures as in effect
from time to time:
(i) Fund Sub-Administration
Services, as described on Exhibit B to this
Agreement.
(b) Unified
will also:
(i) provide
office facilities with respect to the provision of the services contemplated
herein (which may be in the offices of Unified or a corporate affiliate of
Unified);
(ii) provide
or otherwise obtain personnel sufficient, in Unified’s sole discretion, for
provision of the services contemplated herein;
(iii) furnish
equipment and other materials, which Unified, in its sole discretion, believes
are necessary or desirable for provision of the services contemplated herein;
and
(iv) keep
records relating to the services provided hereunder in such form and manner as
set forth on (or required by policies described in) Exhibits B and C and
as Unified, in its sole discretion, may otherwise deem appropriate or
advisable, all in accordance with the 1940 Act. To the extent
required by Section 31 of the 1940 Act and the rules thereunder, Unified agrees
that all such records prepared or maintained by Unified relating to the services
provided hereunder are the property of the Investment Company and will be
preserved for the periods prescribed under Rule 31a-2 under the 1940 Act,
maintained at Huntington’s expense, and made available to the SEC staff for
inspection in accordance with such Section and rules. Subject to the
provisions of Section 9 hereof, Unified further agrees to surrender promptly to
Huntington upon its request those records and documents created and maintained
by Unified pursuant to this Agreement.
Section 6. Fees: Expenses: Expense
Reimbursement.
(a) As
compensation for the services rendered to Huntington pursuant to this Agreement
Huntington shall pay Unified on a monthly basis those fees determined as set
forth on Exhibit
C to this Agreement. Unified reserves the right to negotiate
with the applicable investment adviser the fees with respect to each Portfolio,
and the fees applicable to each Portfolio will be set forth on an Exhibit C applicable
to that Portfolio. The fees set forth on Exhibit C may be
adjusted from time to time by agreement of the parties. The
annual minimum fees are subject to an annual cost of living adjustment based on
the prior year’s annual minimum fees. The cost of living
adjustment is described in more detail on Exhibit
C. Upon any termination of this Agreement before the end of
any month, the fee for the part of the month before such termination shall be
equal to the fee normally due for the full monthly period and shall be payable,
without setoff, upon the date of termination of this Agreement.
(b) For
the purpose of determining fees calculated as a function of a Portfolio’s net
assets, the value of the Portfolio’s net assets shall be computed as required by
its currently effective Prospectus, generally accepted accounting principles and
resolutions of the Board.
(c) Unified
will from time to time employ or associate with such person or persons as may be
appropriate to assist Unified in the performance of this
Agreement. Except as otherwise expressly provided in this Agreement,
the compensation of such person or persons for such employment shall be paid by
Unified and no obligation will be incurred by or on behalf of Huntington in such
respect. If any such person or persons are employed or designated as
officers by both Unified and the Investment Company, Unified shall be
responsible for the compensation of such person (including travel and other
expenses) in their capacity as an employee or officer of Unified, and Huntington
shall be responsible for the compensation of such person (including travel and
other expenses) in their capacity as an employee or officer of the Investment
Company. If Unified gives permission to one or more of its employees
or officers to act as an employee, officer or other agent of the Investment
Company, Unified shall not be responsible for any action or omission of any such
person(s) while such person is rendering or deemed to be rendering services to
the Investment Company or acting on business of the Investment
Company.
(d) Unified
will bear all of its own expenses incurred by reason of its performance of the
services required under this Agreement, except as otherwise expressly provided
in this Agreement. Huntington agrees to promptly reimburse Unified
for any equipment and supplies specially ordered by or for the Investment
Company through Unified and for any other expenses not contemplated by this
Agreement that Unified may incur on Huntington’s or the Investment Company’s
behalf, at Huntington’s or the Investment Company’s request or as consented to
by Huntington or the Investment Company. Such other expenses to be
incurred in the operation of the Investment Company and to be borne by
Huntington, include, but are not limited to: taxes; interest; brokerage fees and
commissions; salaries and fees of officers and directors who are not officers,
directors, shareholders or employees of Unified or Unified’s affiliates; SEC and
state Blue Sky registration and qualification fees, levies, fines and other
charges; advisory fees; Investment Company chief compliance officer expenses;
charges and expenses of custodians; insurance premiums including fidelity bond
premiums, errors and omissions and directors and officers premiums; auditing and
legal expenses; costs of maintenance of corporate existence; expenses of
typesetting and printing of prospectuses and for distribution to current
shareholders of the Investment Company; expenses of printing and production
costs of shareholders’ reports and proxy statements and materials; costs and
expenses of Investment Company stationery and forms; costs and expenses of
special telephone and data lines and devices; costs associated with corporate,
shareholder and Board meetings; and any extraordinary expenses and other
customary mutual fund expenses.
(e) Huntington
may request additional services, additional processing or special
reports. Additional services, including third party services,
generally will be charged at Unified's standard rates or at such other rate as
agreed by the parties. The parties acknowledge that Huntington is
under no obligation to avail itself of third party services through Unified, and
is free to choose its own service provider, so long as such choice does not
cause additional work on Unified's part.
(f) All
fees, out-of-pocket expenses or additional charges of Unified shall be billed on
a monthly basis and shall be due and payable upon receipt of the
invoice. No fees, out-of-pocket expenses or other charges set forth
in this Agreement shall be subject to setoff.
Unified
will render, after the close of each month in which services have been
furnished, a statement reflecting the charges for such month. Charges
remaining unpaid after thirty (30) days shall bear interest at the rate of 1.5%
per month (including specific amounts which are contested in good faith by
Huntington as provided in the next paragraph, unless such amounts prove not to
be payable), and all costs and expenses of effecting collection of any such
charges and interest, including reasonable attorney’s fees, shall be paid by the
Huntington to Unified.
In the
event that Huntington is more than sixty (60) days delinquent in its payments of
monthly xxxxxxxx in connection with this Agreement (with the exception of
specific amounts which are contested in good faith by Huntington as provided
below), this Agreement may be terminated upon thirty (30) days’ written
notice to Huntington by Unified. Huntington must notify Unified in
writing of any contested amounts within thirty (30) days of receipt of a billing
for such amounts, and the notice shall contain a description of the grounds for
the objection sufficient to permit an investigation and determination of its
accuracy. Amounts contested in good faith in writing within such
30-day period are not due and payable while they are being investigated;
uncontested amounts remain due and payable.
Section 7. Proprietary and Confidential
Information.
(a) Unified
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of Huntington and of the Investment Company, all records
and other information relative to the Investment Company’s prior, present or
potential shareholders, and to not use such records and information for any
purpose other than performance of Unified’s responsibilities, rights and duties
hereunder. Unified may seek a waiver of such confidentiality
provisions by furnishing reasonable prior notice to Huntington and obtaining
approval in writing from Huntington, which approval shall not be unreasonably
withheld. Waivers of confidentiality are not necessary (and are
deemed given) for use of such information for any purpose in the course of
performance of Unified’s responsibilities, duties and rights hereunder, when
Unified may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, with respect to Internal Revenue Service (“IRS”) levies, subpoenas
and similar actions, and with respect to any request by Huntington.
(b) Unified
may, from time to time, maintain or otherwise possess “consumer report
information” in connection with the provision of services under this agreement,
and Unified may, from time to time, dispose of such “consumer report
information” in connection with the provision of services under this
agreement. To the extent that Unified disposes of “consumer report
information,” Unified shall properly dispose of the information by taking
reasonable measures to protect against unauthorized access to or use of the
information in connection with its disposal, in accordance with the requirements
of Regulation S-P. The term “consumer report information”, as used in
this paragraph, shall have the same meaning as in Rule 30 under Regulation
S-P.
Section 8. Duties, Responsibilities and
Limitations of Liability.
(a) The
parties agree that this Agreement is a contract for services, and Unified
accepts the duties imposed upon it by this Agreement. Unified shall
be liable to Huntington in accordance with the laws of the State of Indiana for
any breach by Unified of the duties imposed upon it by this
Agreement.
(b) Neither
Unified nor any of its officers, directors, partners, employees, shareholders or
agents (collectively, together with Unified, the “Unified Parties”) shall have
any duty to Huntington to discover or attempt to discover any error or mistake
(including any continuing error) that occurred or began with respect to a
Portfolio prior to the date Unified commenced performing services to such
Portfolio hereunder, and Unified is entitled to rely upon, assume the accuracy
of, and maintain, continue and carry forward the classifications, conventions,
treatments, entries, balances, practices and all other work product and other
data of its predecessor service providers; provided, however, that Unified shall
promptly notify Huntington of any errors of its predecessors that it discovers.
Upon such discovery, Huntington and Unified shall at that time determine how to
proceed. Unified shall be entitled to receive, and Huntington shall
cause it to receive, the work product of its predecessor service providers, if
any.
(c) In
performing its services hereunder, Unified shall be entitled to rely on any oral
or written instructions, advice, notices or other communications, information,
records and documents (collectively, “Investment Company Information”) from
Huntington and the Investment Company, as well as the Investment Company’s
custodian, officers and directors, investors, brokers, investment advisors,
agents, legal counsel, auditor and other service providers, including
predecessor service providers (excluding in each case, the Unified Parties) (the
Huntington, collectively with such persons other than the Unified Parties,
“Huntington Representatives”), which Unified reasonably believes to be genuine,
valid and authorized. Unified also shall be entitled to consult with
and rely on the advice and opinions of the Investment Company’s auditor and of
outside legal counsel retained by the Investment Company, as may be determined
jointly by the Huntington and the Investment Company to be reasonably
necessary or appropriate, in each case at the expense of
Huntington. For all purposes of this Agreement, any person who is an
officer, director, partner, employee or agent of a Unified Party, and who is
also an officer, director, partner, employee or agent of the Huntington, shall
be deemed when rendering services to the Investment Company or acting on any
business of the Investment Company to be acting solely in such person’s capacity
as an officer, director, partner, employee or agent of the Investment Company,
and shall be deemed when rendering services in fulfillment of Unified’s duties
hereunder to be acting solely in such person’s capacity as an officer, director,
partner, employee or agent of Unified.
(d) Notwithstanding
any other provision of this Agreement, Huntington agrees to defend, indemnify
and hold Unified and the other Unified Parties harmless from all demands,
claims, causes or other actions or proceedings of any nature or kind whatsoever
(collectively, “Claims”), expenses, liabilities, debts, costs, losses,
reasonable attorneys’ fees and expenses, payments, and damages of every nature
or kind whatsoever (collectively, “Damages”) arising directly or indirectly out
of or in connection with:
(i) the
provision of Investment Company Information to any Unified Parties by or on
behalf of Huntington Representatives and the reliance on or use by the Unified
Parties of Investment Company Information which is furnished to any of the
Unified Parties by or on behalf of any of Huntington Representatives, including
the reliance by Unified upon the historical accounting records and other records
of the Investment Company;
(ii) any
delays, inaccuracies, errors or omissions in or arising out of or attributable
to Investment Company Information which is furnished to any of the Unified
Parties by or on behalf of any of the Huntington Representatives or to the
untimely provision to Unified of such Investment Company
Information;
(iii) the
taping or other form of recording of telephone conversations or other forms of
electronic communications with investors and shareholders (or brokers or
advisors acting on behalf of investors or shareholders), or reliance by Unified
on telephone or other electronic instructions of any person acting on behalf of
a shareholder or shareholder account for which telephone or other electronic
services have been authorized;
(iv) the
reliance on or the carrying out by Unified or its officers or agents of any
instructions reasonably believed to be duly authorized, or requests of
Huntington;
(v) any
delays, inaccuracy, errors or omissions in or arising out of or attributable to
data or information provided to Unified by data and/or pricing services or any
other third party services, including but not limited to escheatment and lost
account services, and/or the selection of any service provider, regardless of
whether Huntington hires such services itself or instead chooses to utilize the
service through Unified;
(vi) the
offer or sale of shares by the Investment Company in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state or other instrumentality, or in violation of
any stop order or other determination or ruling by any federal agency or any
state agency with respect to the offer or sale of such shares in such state or
instrumentality (1) resulting from activities, actions or omissions by
Huntington Representatives, or (2) existing or arising out of activities,
actions or omissions by or on behalf of the Huntington Representatives prior to
the earlier of (x) the effective date of this Agreement and (y) the effective
date of an agreement between the parties hereto with respect to the subject
matter hereof that was in effect prior to the effective date of this
Agreement;
(vii) the
noncompliance by the Investment Company, its investment advisor(s) and/or its
distributor with applicable securities, tax, commodities and other laws, rules
and regulations;
(viii) any
Claim asserted by any current or former shareholder of the Investment Company,
or on such shareholder’s behalf or derivatively by any representative, estate,
heir or legatee, agent or other person, in connection with the holding, purchase
or sale of shares of the Investment Company; and
(ix) with
the exception of any Claim for breach of contract arising out of this Agreement,
any Claim taken by or on behalf of Huntington or the Investment Company against
any of the Unified Parties that arises directly or indirectly in connection with
this Agreement, or directly or indirectly out of a Unified Party’s actions (or
failure to act) in connection with this Agreement.
(e) Huntington
agrees to indemnify and hold harmless Unified from and against any and all
actions, suits, claims, losses, damages, costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) (collectively, "Losses") to which Unified may become
liable arising directly or indirectly out of any action or omission to act which
Unified takes (i) at any request or on the direction of or in reliance on the
reasonable advice of Huntington, (ii) upon any instruction, notice or other
instrument that Unified reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of Huntington (other
than an employee or other affiliated person of Unified who may otherwise be
named as an authorized representative of Huntington for certain purposes) or
(iii) on its own initiative in connection with the performance of its duties or
obligations hereunder. Further, Unified shall not be indemnified
against or held harmless from any Losses arising directly or indirectly out of
Unified's or Unified Parties’ own willful misfeasance, bad faith, gross
negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder.
(f) Unified
agrees to indemnify and hold harmless Huntington and the Investment Company, as
well as the Investment Company’s Trustees, officers, employees and
agents, from and against any and all actions, suits, claims, losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) (collectively,
"Losses") to which Huntington and the Investment Company, as well as the
Investment Company’s Trustees, officers, employees and agents, may become liable
arising directly or indirectly out of Unified's or Unified Parties’ own willful
misfeasance, bad faith, gross negligence in the performance of its duties, or
reckless disregard of its obligations and duties as set forth in this
Agreement.
(g) If
a claim is made against any party to this Agreement as to which that party may
seek indemnity under this Section 8 from the other party, the party seeking
indemnification shall notify the other party within ten (10) days after receipt
of any written assertion of such claim threatening to institute an action or
proceeding or service of summons or other legal process. Failure to
notify a party of a claim for indemnification will relieve the party from whom
indemnification is sought from any liability which it may have on account of the
indemnity provisions set forth under this Section 8 unless the party
seeking indemnification can demonstrate to the reasonable satisfaction of the
other party that such party has not been prejudiced in any material respect by
such failure to so notify.
(h) The
parties to this Agreement will cooperate in the control of the defense of any
action, suit or proceeding in which a
party is involved and for which indemnity is being provided by the other
party. Any party from whom indemnification is sought may negotiate
the settlement of any action, suit or proceeding subject to the other party’s
approval, which approval will not be unreasonably withheld. The party
seeking indemnification reserves the right, but not the obligation, to
participate in the defense or settlement of a claim, action or proceeding with
its own counsel. Costs or expenses incurred by a party to whom
indemnification is being provided in connection with, or as a result of such
participation, will be borne solely by the indemnifying party
unless:
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the
party seeking indemnification has received an opinion of counsel from
counsel to either party stating that the use of common counsel would
present an impermissible conflict of
interest;
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the
defendants in, or targets of, any such action or proceeding include both
Unified and Huntington, and legal counsel to either party has reasonably
concluded that there are legal defenses available to a party which are
different from or additional to those available to the other party or
which may be adverse to or inconsistent with defenses available to a
party; or
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the
party from whom indemnification is sought authorizes the other party to
employ separate counsel at the expense of the indemnifying
party.
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(i) Each
of the Unified Parties, on the one hand, and Huntington, on the other hand,
shall have the duty to mitigate Damages for which the other party may become
responsible at law and/or in connection with this Agreement. This
duty shall include giving such other party every reasonable opportunity to
correct or ameliorate any error or other circumstance that caused, resulted in
or increased such Damages, and every reasonable opportunity to assist in such
mitigation. The parties acknowledge that the proper accounting, tax
or other treatment of an event or matter can be susceptible to differing
opinions among reputable practitioners of appropriate expertise, both as to
events and transactions that are complete and as to the most efficient
remediation of events and transactions that have resulted or may result in
Damages. It is the intention of the parties that events and
transactions be treated and reported in a legitimate manner that gives rise to
the smallest amount of Damages, and that any remediation or corrective action
selected be that which gives rise to the smallest amount of Damages
(j) NOTWITHSTANDING
ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL ANY UNIFIED PARTY BE
LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, EACH OF WHICH DAMAGES
IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, THE CUMULATIVE LIABILITY OF THE UNIFIED PARTIES FOR DAMAGES THAT
ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, OR THAT ARISE
DIRECTLY OR INDIRECTLY OUT OF A UNIFIED PARTY’S ACTIONS (OR FAILURE TO ACT) IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL
THEORY, SHALL NOT EXCEED THE LESSER OF (i) $1,000,000.00 AND (ii) THE FEES
EARNED BY UNIFIED DURING THE 24-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE SUCH
DAMAGES WERE INCURRED. HUNTINGTON UNDERSTANDS THIS LIMITATION UPON
THE UNIFIED PARTIES’ DAMAGES TO BE A REASONABLE ALLOCATION OF RISKS (BOTH
INSURABLE AND OTHER RISKS), AND HUNTINGTON EXPRESSLY CONSENTS TO SUCH ALLOCATION
OF RISK. HUNTINGTON AND THE UNIFIED PARTIES AGREE THAT DAMAGES
LIMITATIONS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY TO ANY
ALTERNATIVE REMEDY ORDERED BY AN ARBITRATION PANEL, COURT OR OTHER TRIER OF FACT
IN THE EVENT ANY TRIER OF FACT DETERMINES THAT THE EXCLUSIVE REMEDIES PROVIDED
IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(k) Except
for remedies that cannot be waived as a matter of law and injunctive relief, the
remedies provided in this Section 8 shall be the Fund’s sole and exclusive
remedies for Claims and Damages that arise directly or indirectly in connection
with this Agreement, or directly or indirectly out of a Unified Party’s actions
(or failure to act) in connection with this Agreement.
The terms of this Section 8 will
survive the termination of this Agreement.
Section
9. Term. This
Agreement shall become effective on the date first herein above written, and
shall continue in effect for a term of 1 year, unless terminated with respect to
a Portfolio or all Portfolios by Unified as set forth in Section 6(f). This
Agreement will automatically renew for additional 1 year terms, unless
terminated with respect to a Portfolio or all Portfolios by either party upon
written notice given at least 120 days prior to the expiration of the then
current term. The fees set forth in Exhibit C shall
remain in effect during the initial term of this Agreement, unless modified in
writing by mutual agreement of the parties. Such fees shall be with
respect to the services described herein only, and any additional services to be
provided by Unified, either as a result of new regulations or requirements, or
at the request of the Fund, will be subject to additional fees, as set forth in
Section 6(e) of this Agreement. Unified reserves the right to modify
the fees payable by Huntington under this Agreement for any renewal term by
providing to Huntington a revised Exhibit C at least 60
days prior to the expiration of the then current term. Such revised
Exhibit C shall
be effective at the beginning of the subsequent term of the Agreement, and shall
remain in effect during such term, unless modified as described
above.
Except as
set forth in this Section 9, no other event (including any purported or actual
breach) shall result in termination of this Agreement, and the date of
termination shall be the last day of the term that expires following appropriate
notice. On the date of termination Huntington, on behalf of the
applicable Portfolio, shall pay to Unified all fees, compensation and other
charges as shall be accrued or due (or would accrue and become due) under the
terms of this Agreement through the last day of the term that expires following
appropriate notice. In the event a Portfolio or all Portfolios cease
operations prior to the termination date, or in the event that Unified, at the
request of Huntington, ceases providing services to a Portfolio or all
Portfolios prior to the termination date, the fees due at termination with
respect to a Portfolio shall be computed based on the average monthly fee paid
by that Portfolio during the six month period prior to the termination date;
notwithstanding the foregoing, Huntington shall be obligated to pay fees for the
remaining portion of the then applicable term. Unified shall cease
providing services to the Portfolio upon the date of termination, except as
otherwise provided in this Section 9.
On the date of termination Huntington,
on behalf of the applicable Portfolio, agrees to pay, in addition to the amounts
described above, reasonable fees and expenses incurred by Unified in converting
the Portfolio to a new service provider or terminating the
Portfolio. Such fees shall include compensation for time spent by
personnel of Unified, and shall include but not be limited to, retrieving,
compiling, and moving books, records and materials of the Portfolio to
Huntington or the successor mutual fund service provider, conversion tape set-up
fees, test conversion preparation and processing fees and final conversion fees,
the closing of Unified’s records (and/or providing services related to the
Portfolio’s liquidation or other transaction), and other services related to
termination of Unified’s services. Payment shall be due simultaneous
with the transfer of all Investment Company Information to Huntington or to the
successor mutual fund service provider(s). Such termination/conversion fees and
expenses shall not be subject to any setoffs of any nature and shall be mutually
agreed upon in writing before Unified commences its termination/conversion
services.
On the
date of termination and upon payment of all amounts due and payable under this
Agreement without setoff (excluding only those amounts not then due and payable
under Section 6(f); provided, however, that the termination/conversion fees
described in this Section 9 shall be paid without setoff notwithstanding any
dispute), Unified agrees to provide Huntington with the complete
sub-administration records in its possession and to assist Huntington in the
orderly transfer of the Portfolio’s records. Without limiting the
generality of the foregoing, subject to the preceding sentence, Unified agrees
upon termination of this Agreement:
(a)
to deliver to Huntington on behalf of the Portfolio or to the Portfolio’s
successor mutual fund service provider(s), computer media containing the
Portfolio’s accounts and records together with such record layouts and
additional information as may reasonably be necessary to enable the successor
mutual fund service provider(s) to utilize the information therein;
(b) to
reasonably cooperate with the successor mutual fund service provider(s) in the
interpretation of the Portfolio’s account and records;
(c) to
forward all shareholder calls, mail and correspondence to the new mutual fund
service provider(s) upon de-conversion; and
(d) to
act in good faith to make the conversion or termination as smooth as possible
for the successor mutual fund service provider(s) and Huntington.
Section
10. Notices. Any
notice required or permitted hereunder shall be in writing and shall be deemed
to have been given and effective when delivered in person or by certified mail,
return receipt requested, at the following address (or such other address as a
party may specify by notice to the other):
(a) If
to the Investment Company, to:
The
Huntington Funds
0000
Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx,
XX 00000-0000
|
|
Attention: Xxxxxx
Xxxxxx, Secretary
|
(b) If
to Unified, to:
Unified
Fund Services, Inc.
0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention: President
Notice
also shall be deemed given and effective upon receipt by any party or
other person at the preceding address (or such other address as a party may
specify by notice to the other) if sent by regular mail, private messenger,
courier service, telex, facsimile, or otherwise, if such notice bears on its
first page in 14 point (or larger) bold type the heading “Notice Pursuant to
Mutual Fund Services Agreement.”
Section
11. Assignment; Nonsolicitation;
and Other Contracts. This Agreement may not be assigned or
otherwise transferred by either party hereto, without the prior written consent
of the other party, which consent shall not be unreasonably withheld; provided, however, that
Unified may, in its sole discretion and upon notice to Huntington, assign all
its right, title and interest in this Agreement to an affiliate, parent or
subsidiary, or to the purchaser of substantially all of its
business. Unified may, in its sole discretion, engage
subcontractors to perform any of its duties contained in this Agreement,
provided that Unified shall remain responsible to Huntington for all such
delegated duties in accordance with the terms and conditions of this Agreement,
in the same manner and to the same extent as if Unified were providing such
services itself. During the term of this Agreement and for a period
of one (1) year following the termination of this Agreement, Huntington shall
not, and shall not cause suffer or permit any affiliate, to recruit, solicit,
employ or engage, for Huntington or others, any Unified Party, without Unified’s
written consent. The Trust shall not require or expect Unified to
enter into any agreements for Huntington’s direct or indirect benefit, including
any sales, servicing or other similar agreements, that expose Unified to any
liability that is greater than the liability it is undertaking in this
Agreement.
Section
12. Intended
Beneficiaries. This Agreement
shall be binding upon Huntington, Unified and their respective successors and
assigns, and shall inure to the benefit of Huntington, Unified, the Unified
Parties, their respective heirs, successors and assigns. Nothing
herein expressed or implied is intended to confer upon any person not named or
described in the preceding sentence any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section
13. Arbitration. Notwithstanding
any provision of this Agreement to the contrary, any claim or controversy
arising out of or in any manner relating to this Agreement, or breach hereof,
which cannot be resolved between the parties themselves, shall be settled by
arbitration administered by the American Arbitration Association (the “AAA”) in
Indianapolis, Indiana in accordance with its rules applicable to commercial
disputes. The arbitration shall be conducted under the then-current
rules of the AAA.
Section
14. Waiver. The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver nor shall it deprive such party
of the right thereafter to insist upon strict adherence to that term or any term
of this Agreement. Any waiver must be in writing signed by the
waiving party.
Section
15. Force Majeure.
Unified shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its control, including without
limitation, acts of God, earthquake, fires, floods, failure or fluctuations in
electrical power, wars, acts of terrorism, acts of civil or military
authorities, governmental actions, nonperformance by a third party or any
similar cause beyond the reasonable control of Unified, failures or fluctuations
in telecommunications or other equipment, nor shall any such failure or delay
give Huntington the right to terminate this Agreement.
Section
16. Use of
Name. The Trust and Unified agree not to use the other’s name
nor the names of such other’s affiliates, designees, or assignees in any
prospectus, sales literature, or other printed material written in a manner not
previously, expressly approved in writing by the other or such other’s
affiliates, designees, or assignees except where required by the SEC or any
state agency responsible for securities regulation.
Section
17. Amendments. This
Agreement may be modified or amended from time to time by mutual written
agreement between the parties. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
Section
18. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law to any
person or circumstance, such provision shall be ineffective only to the extent
of such prohibition or invalidity. In the event that any one or more
of the provisions contained in this Agreement or any application thereof shall
be invalid, illegal or unenforceable in any respect or to any extent, the
validity, legality or enforceability of the remaining provisions of this
Agreement and any other application of such invalid provision shall not in any
way be affected or impaired thereby.
Section
19. Headings; Pronouns; Certain
Phrases; Rules of Construction. The headings in the sections
and subsections of this Agreement are inserted for convenience only and in no
way alter, amend, modify, limit or restrict the contractual obligations of the
parties. Wherever used in this Agreement, masculine, feminine and
neuter pronouns shall be deemed to include the other
genders. Singular pronouns and nouns (including defined terms) shall
be deemed to include the plural (and vice versa) as the context may require, but
shall have no effect upon the nature of a party’s liability as joint or
several. The Exhibits to this Agreement are hereby incorporated by
reference as if fully set forth in this Agreement. Wherever used in
this Agreement, the phrase “in connection with” shall be given the broadest
possible interpretation, and shall include matters (without limitation) that are
in whole or part caused by, relate to, arise out of, are attributable to, or
would not have occurred in the absence of circumstances created by, the referent
or object of such phrase. Each party acknowledges that it was represented by
legal counsel in connection with the review and execution of this Agreement, or
that it had an adequate opportunity to engage counsel for such review and chose
not to do so. The sole duties that Unified is accepting in return for
the fees and other remuneration hereunder are expressly set forth
herein. No exoneration of liability for a duty or other
indemnification or limitation shall be construed, by negative implication or
otherwise, to imply the existence of any duty. For example and
without limitation, indemnification of Unified for a failure of an investment
advisor to timely deliver trade tickets (or failure of any other third party to
timely deliver accurate Trust Information) shall not be construed to imply that
Unified has a duty to supervise such service provider or prevent a recurrence of
such failure.
Section
20. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Section 21. No Strict
Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.
Section
22. Entire Agreement; Survival;
Governing Law. This Agreement, the Exhibits hereto and any
subsequent amendments of the foregoing embody the entire understanding between
the parties with respect to the subject matter hereof, and supersedes all prior
negotiations and agreements between the parties relating to the subject matter
hereof. The provisions of Sections 6 through 21, inclusive, shall survive any
termination of this Agreement. This Agreement shall be governed by
and construed and interpreted according to the internal laws of the State of
Indiana, without reference to conflict of law principles.
[Signature
Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Mutual Fund Services Agreement to be signed by their
respective duly authorized officers as of the day and year first above
written.
THE
HUNTINGTON NATIONAL BANK
By: Date
Print Name:
Title:
Attest:
UNIFIED FUND SERVICES,
INC.
By: Date
Print Name:
Title:
By: Date
Print Name:
Title:
Attest:
EXHIBIT
A
to
List of
Portfolios
|
Portfolio Name
|
Share Class(es), if
applicable
|
|
Huntington
Dividend Capture Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Fixed Income Securities FundClass A Shares, Class B Shares, Institutional
Shares
|
|
|
Huntington
Tax-Free Money Fund
|
Class
A Shares, Institutional Shares
|
|
Huntington
Growth Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Income Equity Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Intermediate Government Income Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
International Equity Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Macro 100 Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Mid Corp America Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Money Market Fund
|
Class
A Shares, Class B Shares, Institutional Shares, Interfund
Shares
|
|
Huntington
Mortgage Securities Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
New Economy Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Ohio Municipal Money Market Fund
|
Class
A Shares, Institutional Shares
|
|
Huntington
Ohio Tax-Free Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Real Strategies Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Rotating Markets Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Short/Intermediate Fixed Income Securities Fund
|
Class
A Shares, Institutional Shares
|
|
Huntington
Situs Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
Technical Opportunities Fund
|
Class
A Shares, Class B Shares, Institutional Shares
|
|
Huntington
U.S. Treasury Money Market Fund
|
Class
A Shares, Institutional Shares
|
|
Huntington
VA Balanced Fund
|
|
|
Huntington
VA Dividend Capture Fund
|
|
|
Huntington
VA Growth Fund
|
|
|
Huntington
VA Income Equity Fund
|
|
|
Huntington
VA International Equity Fund
|
|
|
Huntington
VA Macro 100 Fund
|
|
|
Huntington
VA Mid Corp America Fund
|
|
|
Huntington
VA Mortgage Securities Fund
|
|
|
Huntington
VA New Economy Fund
|
|
|
Huntington
VA Real Strategies Fund
|
|
|
Huntington
VA Rotating Markets Fund
|
|
|
Huntington
VA Situs Fund
|
Exhibit
B
To
General Description of Fund
Sub-Administration Services
Subject
to the direction and control of the Huntington National Bank and utilizing
information provided by Huntington and its agents, the Sub-Administrator will
provide the following sub-administrative services to the Investment Company
and/or to each of the Portfolios listed on Exhibit A (each a
“Fund”):
Board
Relations
|
·
|
Coordinate
board meeting calendar.
|
|
·
|
Maintain
list of agenda items
|
|
o
|
Prepare
agenda, resolutions and related materials (including draft
materials).
|
|
·
|
Assemble
board materials for meetings; coordinate responsibilities and deadlines
for completion of materials, including preparation of legal memos,
collection and review of reports, lists and other documentation; and
production and delivery of board books containing all necessary
materials.
|
|
·
|
Attend
board meetings.
|
|
·
|
Maintain
matrix for contract renewals and termination (“compliance
calendar”).
|
|
·
|
Review
fee and expense comparison documentation for Section 15(c) review of
contracts (annual or as needed).
|
|
·
|
Prepare
or review board minutes, as needed; maintain final
minutes
|
|
·
|
Prepare
unanimous written consents
|
|
·
|
Maintain
record book of all organizational documents, official records, consents,
and approved minutes.
|
Regulatory Disclosure and
Corporate Governance Services
|
·
|
Draft
and review registration statements, preliminary and definitive
prospectuses, annual and semi-annual reports to shareholders and related
correspondence and exhibits.
|
|
·
|
Coordinate
with trustee counsel, independent auditor, custodian and sub-custodians,
advisers, rating and publication agencies and outside
vendors.
|
|
·
|
Draft,
review and/or file de-registration
applications.
|
|
·
|
Draft,
review and/or file merger/reorganization
documents.
|
|
·
|
Assist
with new product initiatives.
|
|
o
|
Draft
proxy materials.
|
|
o
|
File
proxy materials with SEC.
|
|
o
|
Maintain
files for registration statements, prospectuses, SAI's, financial
statements and stickers.
|
|
·
|
Coordinate
with the SEC with respect to inspection, comments on registration
statements, requests for
information.
|
|
·
|
Prepare
and update documents such as charter document, By-Laws and foreign
qualification filings.
|
|
·
|
Administer
shareholder meetings, assist with the preparation of proxy statements, and
draft and/or review shareholder meeting
scripts.
|
|
·
|
Assist
in identifying and monitoring pertinent regulatory and legislative
developments which may affect the Portfolios and, in response to the
results of such monitoring, coordinate and provide support to the
Portfolios and their advisors and sub-advisors with respect to those
developments and results, including support with respect to routine
regulatory examinations or investigations of a Portfolio, and with respect
to such matters, to work in conjunction with outside counsel, auditors and
other professional organizations engaged by the
Fund.
|
Administration
Services
|
·
|
Submit
regulatory filings to the SEC, which include, but are not limited to the
following form types:
|
|
o
|
N1-A
(Post Effective Amendments) and 497
|
|
o
|
Proxy
(Shareholder Meeting Notices)
|
|
o
|
N-SAR/S
|
|
o
|
N-CSR/S
(Certified Annual and Semi-Annual
Reports)
|
|
o
|
N-Q
|
|
o
|
N-PX
(Proxy Voting History)
|
|
o
|
24f-2
|
|
o
|
17g-1
(Fidelity Bond)
|
|
·
|
For
new portfolios, request and obtain fund and trust identifiers, including
CIK, CCC, SEC Identifiers, CUSIP, tax ID and
ticker.
|
|
·
|
Coordinate
prospectus printing and fulfillment
|
|
·
|
Assist
with insurance application and renewal process; monitor fidelity bond and
errors and omissions insurance coverage and make any related regulatory
filings.
|
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. These services do not include
correcting, verifying or addressing any prior actions or inactions by any Fund
or by any prior service provider. To the extent the Sub-Administrator
agrees to take such action, those actions taken shall be deemed part of the
Exhibit B.
Additionally,
Huntington shall cause the officers, advisor, distributor, legal counsel,
independent accountants, custodian, fund accountant and transfer agent for the
Funds to cooperate with the Sub-Administrator and to provide the
Sub-Administrator, upon request, with such information, documents and advice
relating to the Investment Company and/or the Portfolios as is within the
possession or knowledge of such persons, in order to enable the
Sub-Administrator to perform its duties.
|
FUND
SUB-ADMINISTRATION FEE SCHEDULE
|
|||
|
INew
Fund Start-Up/Existing Fund Conversion Fee
|
|||
|
New
fund establishment
Electronic
conversion
|
-$2,500 per share class 1
-Pass through of out-of-pocket
expenses, if any
|
||
|
1
This fee is waived for the existing portfolios listed in Exhibit A as of the
April 1, 2009 conversion.
|
|||
|
IIBase
Fees (as defined in Exhibit B – General Description of Fund
Sub-Administration Services)
|
|||
|
Base Fees are the greater of the
annual minimum or basis point fees as follows:
|
|||
|
Annual
Minimum Fees:
Initial
Portfolios (Applies to the
existing portfolios listed in Exhibit
A as of the April 1,
2009 conversion.)
Subsequent
Portfolios
Each
Additional Share Class
(of
a new or existing portfolio)
|
-$1,500,000
-$ 35,000
-$ 10,000
|
||
|
Annual Basis Point
Fees:
|
|||
|
0.045% for the first $4 billion
in average daily net assets per share class;
|
|||
|
0.035% from $4 billion to $6
billion in average daily net assets per share class;
|
|||
|
0.025% over $6 billion in average
daily net assets per share class.
|
|||
|
* Base Fees do not include
out-of-pocket expenses which include but are not limited to: printing,
postage and handling, shipping, record storage, blue sky state
registration fees, Edgarizing and regulatory filing fees and all other
expenses incurred on behalf of the Investment Company and its individual
portfolios. Additional services and/or fees not contemplated in
Exhibit B or this
schedule will be negotiated on a per occurrence basis.
|
|||
|
III Additional
Services and Fees
|
|||
|
1.Assistance in Dissolution and
Deregistration of the Fund (including related proxy
statement)
|
-Negotiable
|
||
|
2.Such other duties related to
the Administration of the Fund as agreed to by Unified
|
-Negotiable
|
||
