FIRST AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
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AGREEMENT dated as of May 31, 2002 between The Xxxxx Advantage Funds, an
Ohio business trust (the "Trust"), and Integrated Fund Services, Inc.
("Integrated"), an Ohio corporation.
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust wishes to employ the services of Integrated to serve as
its administrative agent; and
WHEREAS, Integrated wishes to provide such services under the conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and Integrated agree as follows:
1. APPOINTMENT.
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The Trust hereby appoints and employs Integrated as agent to perform
those services described in this Agreement for the Trust. Integrated shall act
under such appointment and perform the obligations thereof upon the terms and
conditions hereinafter set forth.
2. DOCUMENTATION.
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The Trust will furnish from time to time the following documents:
A. Each resolution of the Board of Trustees of the Trust authorizing the
original issue of its shares;
B. Each Registration Statement filed with the Securities and Exchange
Commission (the "SEC") and amendments thereof;
C. A certified copy of each amendment to the Agreement and Declaration of
Trust and the Bylaws of the Trust;
D. Certified copies of each resolution of the Board of Trustees
authorizing officers to give instructions to Integrated;
E. Specimens of all new forms of share certificates accompanied by Board
of Trustees' resolutions approving such forms;
F. Such other certificates, documents or opinions which Integrated may,
in its discretion, deem necessary or appropriate in the proper
performance of its duties;
G. Copies of all Underwriting and Dealer Agreements in effect;
H. Copies of all Investment Advisory Agreements in effect; and
I. Copies of all documents relating to special investment or withdrawal
plans which are offered or may be offered in the future by the Trust
and for which Integrated is to act as plan agent.
3. TRUST ADMINISTRATION.
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Subject to the direction and control of the Trustees of the Trust,
Integrated shall supervise the Trust's business affairs not otherwise supervised
by other agents of the Trust. To the extent not otherwise the primary
responsibility of, or provided by, other agents of the Trust, Integrated shall
supply (i) office facilities, (ii) internal auditing and regulatory services,
and (iii) executive and administrative services. Integrated shall coordinate the
preparation of (i) tax returns, (ii) reports to shareholders of the Trust, (iii)
reports to and filings with the SEC and state securities authorities including
preliminary and definitive proxy materials, post-effective amendments to the
Trust's registration statement, and the Trust's Form N-SAR, and (iv) necessary
materials for Board of Trustees' meetings unless prepared by other parties under
agreement with the Trust. In addition, Integrated shall assist the Trust's
investment adviser in establishing and monitoring appropriate compliance
programs and making reports to the Trust with respect thereto. Integrated shall
provide personnel to serve as officers of the Trust if so elected by the Board
of Trustees; provided, however, that the Trust shall reimburse Integrated for
the reasonable out-of-pocket expenses incurred by such personnel in attending
Board of Trustees' meetings and shareholders' meetings of the Trust.
4. RECORDKEEPING AND OTHER INFORMATION.
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Integrated shall create and maintain all records required by
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act and the rules thereunder, as the same
may be amended from time to time, pertaining to the various functions performed
by it and not otherwise created and maintained by another party pursuant to
contract with the Trust. All such records shall be the property of the Trust at
all times and shall be available for inspection and use by the Trust. Where
applicable, such records shall be maintained by Integrated for the periods and
in the places required by Rule 31a-2 under the 1940 Act. The retention of such
records shall be at the expense of the Trust. Integrated shall make available
during regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the Trust, any
person retained by the Trust, or any regulatory agency having authority over the
Trust.
Nonpublic personal shareholder information shall remain the sole
property of the Trust. Such information shall not be disclosed or used for any
purpose except in connection with the performance of the duties and
responsibilities described herein or as required or permitted by
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law. The provisions of this Section shall survive the termination of this
Agreement. The parties agree to comply with any and all regulations promulgated
by the Securities and Exchange Commission or other applicable laws regarding the
confidentiality of shareholder information.
5. FURTHER ACTIONS.
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Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
6. COMPENSATION.
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For the performance of Integrated's obligations under this Agreement,
each series of the Trust shall pay Integrated, on the first business day
following the end of each month, a monthly fee at the annual rate of 0.10% of
such series' average daily net assets up to $25 million; 0.075% of such assets
from $25 to $50 million; and 0.05% of such assets in excess of $50 million;
provided, however, that the minimum fee shall be $1,000 per month for each
series.
7. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
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The parties hereto acknowledge and agree that nothing contained herein
shall be construed to require Integrated to perform any services for the Trust
which services could cause Integrated to be deemed an "investment adviser" of
the Trust within the meaning of Section 2(a)(20) of the 1940 Act or to supersede
or contravene the Trust's prospectus or statement of additional information or
any provisions of the 1940 Act and the rules thereunder. Except as otherwise
provided in this Agreement and except for the accuracy of information furnished
to it by Integrated, the Trust and its investment adviser assume full
responsibility for ensuring that the portfolio investments of the Trust comply
with all applicable requirements of the 1940 Act, the Securities Act of 1933, as
amended, and any other laws, rules and regulations of governmental authorities
having jurisdiction.
8. REFERENCES TO INTEGRATED.
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The Trust shall not circulate any printed matter which contains any
reference to Integrated without the prior written approval of Integrated,
excepting solely such printed matter as merely identifies Integrated as
Administrative Services Agent, Transfer, Shareholder Servicing and Dividend
Disbursing Agent, and Accounting Services Agent. The Trust will submit printed
matter requiring approval to Integrated in draft form, allowing sufficient time
for review by Integrated and its counsel prior to any deadline for printing.
9. INDEMNIFICATION OF INTEGRATED.
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A. Integrated may rely on information reasonably believed by it to be
accurate and reliable. Except as may otherwise be required by the 1940 Act and
the rules thereunder, neither Integrated nor its shareholders, officers,
directors, employees, agents, control persons or affiliates of any thereof shall
be subject to any liability for, or any damages, expenses or losses incurred by
the Trust in connection with, any error of judgment, mistake of law, any act or
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omission connected with or arising out of any services rendered under or
payments made pursuant to this Agreement or any other matter to which this
Agreement relates, except by reason of willful misfeasance, bad faith,
negligence, clerical errors and mechanical failures on the part of any such
persons in the performance of the duties of Integrated under this Agreement or
by reason of reckless disregard by any of such persons of the obligations and
duties of Integrated under this Agreement, for all of which exceptions
Underwriter shall be liable to the Trust.
B. Notwithstanding any other provision of this Agreement, the Trust
shall indemnify and hold harmless Integrated, its directors, officers,
employees, shareholders, agents, control persons and affiliates from and against
any and all claims, demands, expenses and liabilities (whether with or without
basis in fact or law) of any and every nature which Integrated may sustain or
incur or which may be asserted against Integrated by any person by reason of, or
as a result of: (i) any action taken or omitted to be taken by Integrated in
good faith in reliance upon any certificate, instrument, order or share
certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized person, upon the oral
instructions or written instructions of an authorized person of the Trust or
upon the opinion of legal counsel for the Trust or its own counsel; or (ii) any
action taken or omitted to be taken by Integrated in connection with its
appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed. However, indemnification under this
subparagraph shall not apply to actions or omissions of Integrated or its
directors, officers, employees, shareholders or agents in cases of its or their
own negligence, willful misconduct, bad faith, or reckless disregard of its or
their own duties hereunder, including clerical errors and mechanical failures.
C. In order that the indemnification provisions contained in this
Paragraph 9 shall apply, it is understood that if in any case the Trust may be
asked to indemnify Integrated or any other person or hold Integrated or any
other person harmless, the Trust shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that Integrated will use all reasonable care to identify and notify
the Trust promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Trust.
The Trust shall have the option to defend Integrated and any such person against
any claim which may be the subject of this indemnification, and in the event
that the Trust so elects it will so notify Integrated, and thereupon the Trust
shall take over complete defense of the claim, and neither Integrated nor any
such person shall in such situation initiate further legal or other expenses for
which it shall seek indemnification under this Paragraph 9. Integrated shall in
no case confess any claim or make any compromise in any case in which the Trust
will be asked to indemnify Integrated or any such person except with the Trust's
written consent.
D. Notwithstanding any other provision of this Agreement, Integrated
shall be entitled to receive and act upon advice of counsel (who may be counsel
for the Trust or its own counsel) and shall be without liability for any action
reasonably taken or thing reasonably done pursuant to such advice, provided that
such action is not in violation of applicable federal or state laws or
regulations.
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10. TERMINATION
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A. The provisions of this Agreement shall be effective on the date
first above written and shall continue in force from year to year thereafter,
but only so long as such continuance is approved (1) by Integrated, (2) by vote,
cast in person at a meeting called for the purpose, of a majority of the Trust's
Trustees who are not parties to this Agreement or interested persons (as defined
in the 0000 Xxx) of any such party, and (3) by vote of a majority of the Trust's
Board of Trustees or a majority of the Trust's outstanding voting securities.
B. Either party may terminate this Agreement on any date by giving the
other party at least sixty (60) days' prior written notice of such termination
specifying the date fixed therefor. Upon termination of this Agreement, the
Trust shall pay to Integrated such compensation as may be due as of the date of
such termination, and shall likewise reimburse Integrated for any out-of-pocket
expenses and disbursements reasonably incurred by Integrated to such date.
C. In the event that in connection with the termination of this
Agreement a successor to any of Integrated's duties or responsibilities under
this Agreement is designated by the Trust by written notice to Integrated,
Integrated shall, promptly upon such termination and at the expense of the
Trust, transfer all records maintained by Integrated under this Agreement and
shall cooperate in the transfer of such duties and responsibilities, including
provision for assistance from Integrated's cognizant personnel in the
establishment of books, records and other data by such successor.
11. SERVICES FOR OTHERS.
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Nothing in this Agreement shall prevent Integrated or any affiliated
person (as defined in the 0000 Xxx) of Integrated from providing services for
any other person, firm or corporation (including other investment companies);
provided, however, that Integrated expressly represents that it will undertake
no activities which, in its judgment, will adversely affect the performance of
its obligations to the Trust under this Agreement.
12. LIMITATION OF LIABILITY.
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It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust, personally, but bind only the trust property
of the Trust. The execution and delivery of this Agreement have been authorized
by the Trustees of the Trust and signed by an officer of the Trust, acting as
such, and neither such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Trust.
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13. SEVERABILITY.
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In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
14. QUESTIONS OF INTERPRETATION.
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This Agreement shall be governed by the laws of the State of Ohio. Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States Courts or in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC issued pursuant to said 1940 Act. In addition, where the effect of a
requirement of the 1940 Act, reflected in any provision of this Agreement, is
revised by rule, regulation or order of the SEC, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
15. NOTICES.
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All notices, requests, consents and other communications required or
permitted under this Agreement shall be in writing (including telex and
telegraphic communication) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, telecommunicated, or
mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To the Trust: The Xxxxx Advantage Funds
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxx Xxxxx
To Integrated: Integrated Fund Services, Inc.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxxx
or to such other address as any party may designate by notice complying with the
terms of this Section 15. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
16. AMENDMENT.
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This Agreement may not be amended or modified except by a written
agreement executed by both parties.
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17. BINDING EFFECT.
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Each of the undersigned expressly warrants and represents that he has
the full power and authority to sign this Agreement on behalf of the party
indicated, and that his signature will operate to bind the party indicated to
the foregoing terms.
18. COUNTERPARTS.
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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.
19. FORCE MAJEURE.
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If Integrated shall be delayed in its performance of services or
prevented entirely or in part from performing services due to causes or events
beyond its control, including and without limitation, acts of God, interruption
of power or other utility, transportation or communication services, acts of
civil or military authority, sabotages, national emergencies, explosion, flood,
accident, earthquake or other catastrophe, fire, strike or other labor problems,
legal action, present or future law, governmental order, rule or regulation, or
shortages of suitable parts, materials, labor or transportation, such delay or
non-performance shall be excused and a reasonable time for performance in
connection with this Agreement shall be extended to include the period of such
delay or non-performance.
20. MISCELLANEOUS.
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The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE XXXXX ADVANTAGE FUNDS
By: /s/ Xxxxx X. Xxxxx
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Its: President
INTEGRATED FUND SERVICES, INC.
By: Xxxxx X. Xxxxxxxxx
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Its: President
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