Exhibit h(xii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
Amendment to
Fund Accounting Agreement
THIS AMENDMENT dated as of July 30, 2003 to the Fund Accounting
Agreement dated as of May 1, 2002 (the "Fund Accounting Agreement"),
between Huntington National Bank, N.A. ("Huntington"), a national bank
having its principal place of business at 00 X. Xxxx Xx., Xxxxxxxx,
Xxxx, 00000, and BISYS Fund Services Ohio, Inc. ("BISYS"), a corporation
organized under the laws of the State of Ohio and having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, under the Fund Accounting Agreement, BISYS renders fund
accounting services with respect to the Huntington Funds and the
Huntington VA Funds (the "Trusts"), each of which is a Massachusetts
business trust registered with the Securities and Exchange Commission
(the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended, (the "1940 Act");
WHEREAS, the Fund Accounting Agreement provides that BISYS shall
perform such additional services as are mutually agreed upon and
provided in an amendment to the Agreement or its schedules, in
consideration of such fees as the parties may agree upon;
WHEREAS, Huntington desires that BISYS perform certain additional
services, in particular, making a BISYS employee available to serve as
the Treasurer of each Trust, whose duties include acting as the
principal financial officer for purposes of certifying the Trust's
financial statements; and
WHEREAS, Huntington notes that Section 4.3 of the current
Declaration of Trust of each of the Trusts is identical and provides for
indemnification and insurance of officers of a Trust; and
WHEREAS, BISYS is willing to perform such services on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein set forth, the parties agree as follows:
1. Services.
Subject to the BISYS Policies (as defined below), BISYS will make
a BISYS employee available to serve, upon designation as such by the
Board of each Trust, as the Treasurer (or under such other title to
perform similar functions) of each Trust.
Huntington agrees and acknowledges that BISYS' internal policies
as amended from time to time ("BISYS Policies") are applicable to the
service of any BISYS employee serving as a certifying officer of the
Trusts (an "Certifying Officer"), and that the service rendered by BISYS
under the paragraph above is limited to providing an Certifying Officer
who, in the exercise of his or her duties to each Trust, shall act in
good faith and in a manner reasonably believed by him or her to be in
the best interests of each Trust.
Each Trust will assist and cooperate with BISYS (and shall take
reasonable steps to cause its officers, investment adviser(s) and other
service providers to assist and cooperate with BISYS) to facilitate the
delivery of information requested by BISYS in connection with the
preparation of drafts of the Funds' Form N-CSR Reports, including Fund
financial statements, so that BISYS may submit a draft Report to the
Funds' Disclosure Controls and Procedures Committee ("Fund DCP
Committee") at least 10 days prior to the date the relevant Form N-CSR
Report is to be filed or released to print, whichever is earlier. In
connection with its review and evaluations, the Fund DCP Committee shall
establish a schedule to ensure that all required disclosures in Form
N-CSR and in the financial statements for the Fund are identified and
prepared in a timeframe sufficient to allow review by the Fund DCP
Committee.
With input from the fund accounting service providers, the Trusts
will be responsible for, and shall support and facilitate the role of
each Certifying Officer and the Fund DCP Committee in, designing and
maintaining the Funds' disclosure controls and procedures ("Fund DCPs"),
including (a) ensuring that the Fund DCP Committee and/or Certifying
Officers obtain and review sub-certifications and reports on internal
controls from the Fund's investment adviser(s) and other service
providers, if any, sufficiently in advance of the date upon which the
relevant financial statements must be finalized by BISYS (in order to
print, distribute and/or file the same hereunder), and (b) evaluation of
the effectiveness of the design and operation of the Fund DCP, under the
supervision, and with the participation of, the Certifying Officers,
within the requisite timeframe prior to the filing of each Report.
Unless otherwise expressly agreed in writing, the Principal/Chief
Executive Officer of the Trusts, or person performing similar functions,
shall not be an employee of BISYS.
If a BISYS employee serves as a Certifying Officer of a Trust, as
long as such Certifying Officer acts in good faith and in a manner
reasonably believed to be in the best interests of the Trust (and so
long as such Certifying Officer would not otherwise be liable to the
Trust by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her
office), Huntington shall indemnify the Certifying Officer and BISYS and
hold the Certifying Officer and BISYS harmless from any loss, liability,
expenses (including reasonable attorneys fees) and damages incurred by
them arising out of or resulting from the service of such Certifying
Officer in his or her capacity as an Certifying Officer of the Trust.
In that regard, Huntington agrees to use reasonable efforts to ensure
that officer indemnification by the Trusts is provided to the fullest
extent permitted by the Trust's charter, by-laws, resolutions, or as
otherwise covered under available fidelity bond and errors and
omissions' insurance. In the event that changes are proposed or
approved to the Trust's coverage under its charter or insurance policy
that provide indemnification to its officers, Huntington will notify
Bisys, and Bisys will have the right to withdraw the officer upon
reasonable notice.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder
may ultimately be merited, provided that any such advanced expenses
shall be reimbursed by the indemnified party if an ultimate
determination is made that indemnification is not merited under the
circumstances. If in any case a party may be asked to indemnify or hold
the other party harmless, the indemnifying party shall be fully and
promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will
use all reasonable care to notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights
hereunder, except to the extent the indemnifying party is materially
prejudiced thereby. As to any matter eligible for indemnification, an
indemnified party shall act reasonably and in accordance with good faith
business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent
shall not be unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought
to enforce any claims subject to this indemnity provision. If the
indemnifying party elects to assume the defense of any such claim, the
defense shall be conducted by counsel chosen by it and reasonably
satisfactory to the indemnified party, whose approval shall not be
unreasonably withheld. In the event that the indemnifying party elects
to assume the defense of any suit and retain counsel, the indemnified
party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the
defense of a suit, it will reimburse the indemnified party for the
reasonable fees and expenses of any counsel retained by the indemnified
party. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
2. Fees and Reimbursement of Expenses.
In addition to all fees, expenses and miscellaneous fees or
charges provided for under the Fund Accounting Agreement, BISYS shall be
entitled to receive $10,000 per fiscal year of the Trust, reflecting the
amounts charged by BISYS for the performance of services under this
Amendment.
3. Miscellaneous.
(a) This Amendment supplements and amends the Agreement in
respect of the subject matter covered in this Amendment. The
provisions set forth in this Amendment supersede all prior
negotiations, understandings and agreements bearing upon the
subject matter covered herein, including any conflicting
provisions of the Agreement or any provisions of the
Agreement that directly cover or indirectly bear upon matters
covered under this Amendment, except that the indemnification
provisions set forth in Section 7 of the Fund Accounting
Agreement shall not be superseded by this Amendment, but
shall be supplemented by the indemnification provisions set
forth in Section 1 of this Agreement..
(b) Each reference to the Agreement in the Agreement (as it
existed prior to this Amendment) and in every other
agreement, contract or instrument to which the parties are
bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided
in this Amendment, the provisions of the Agreement remain in
full force and effect (including, without limitation, the
term of the Agreement). No amendment or modification to this
Amendment shall be valid unless made in writing and executed
by both parties hereto.
(c) Paragraph headings in this Amendment are included for
convenience only and are not to be used to construe or
interpret this Amendment.
(d) This Amendment may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed all as of the day and year first above written.
HUNTINGTON NATIONAL BANK, N.A.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
