EXHIBIT 23(H)(XIV) UNDER FORM N-1A
EXHIBIT 10(H) 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 ▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, 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 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇.
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/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President