EXHIBIT 23(H)(XIII) UNDER FORM N-1A
EXHIBIT 10(H) UNDER ITEM 601/REG. S-K
FUND ACCOUNTING AGREEMENT
AGREEMENT made as the 23rd day of June, 2006, between HUNTINGTON NATIONAL
BANK, N.A. ("Huntington"), a national bank having its principal place of
business at ▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, 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 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇.
WHEREAS, Huntington has entered into a Financial Administration and
Accounting Services Agreement, dated June 23, 2006 (the "Services Agreement"),
with The Huntington Funds (the "Trust"), a Delaware statutory 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 Trust 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
Trust a Fund expense budget, and review expense
calculations.
(v) Prepare Fund income forecasts and submit for approval
by officers of the Trust 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 or 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 through April 30, 2007.
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) 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
any Rollover Period.
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.
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 Trust, and BISYS agrees to make such
books and records available for inspection by the Trust, 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 Trust
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 Trust 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 Trust or Huntington, and that BISYS may be or
become interested in the Trust or Huntington as a shareholder or otherwise.
10. Reports.
BISYS will furnish to Huntington and to the Trust's 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 Trust 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 Trust and Huntington, and Huntington has full power and
authority thereunder to enter into this Agreement and retain BISYS' services
hereunder on behalf of the Trust.
(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) A copy of the Agreement and Declaration of Trust of the
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 the 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 Trust 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 ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: B. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with a copy to the Funds at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇, and if to BISYS at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Trust 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, N.A.
By:
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
Name:
Title:
Dated: June 23, 2006
