SECOND AMENDED AND RESTATED
TRANSFER, DIVIDEND DISBURSING, SHAREHOLDER SERVICE
AND PLAN AGENCY AGREEMENT
AGREEMENT dated as of May 31, 2008 between The Xxxxx Advantage Funds, an
Ohio business trust (the "Trust"), and JPMorgan Chase Bank, N.A. ("JPMorgan"),
having its principal place of business in Ohio (f/k/a Integrated Investment
Services, Inc.).
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, Integrated Investment Services, Inc. was acquired by JPMorgan;
and
WHEREAS, the Trust wishes to employ the services of JPMorgan to serve as
its transfer, dividend disbursing, shareholder service and plan agent; and
WHEREAS, JPMorgan 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 JPMorgan agree as follows:
1. APPOINTMENT.
The Trust hereby appoints and employs JPMorgan as agent to perform those
services described in this Agreement for the Trust. JPMorgan shall act under
such appointment and perform the obligations thereof upon the terms and
conditions hereinafter set forth.
2. DOCUMENTATION.
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 JPMorgan;
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 JPMorgan 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 JPMorgan is to act as plan agent.
3. JPMORGAN TO RECORD SHARES.
JPMorgan shall record the issuance of shares of the Trust and maintain
pursuant to applicable rules of the SEC a record of the total number of shares
of the Trust which are authorized, issued and outstanding, based upon data
provided to it by the Trust. JPMorgan shall also provide the Trust on a regular
basis or upon reasonable request the total number of shares which are
authorized, issued and outstanding.
4. JPMORGAN TO VALIDATE TRANSFERS.
Upon receipt of a proper request for transfer and upon surrender to
JPMorgan of certificates, if any, in proper form for transfer, JPMorgan shall
approve such transfer and shall take all necessary steps to effectuate the
transfer as indicated in the transfer request. Upon approval of the transfer,
JPMorgan shall notify the Trust in writing of each such transaction and shall
make appropriate entries on the shareholder records maintained by JPMorgan.
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5. SHARE CERTIFICATES.
If the Trust authorizes the issuance of share certificates and an investor
requests a share certificate, JPMorgan will countersign and mail, by insured
first class mail, a share certificate to the investor at his address as set
forth on the transfer books of the Trust, subject to any other instructions for
delivery of certificates representing newly purchased shares and subject to the
limitation that no certificates representing newly purchased shares shall be
mailed to the investor until the cash purchase price of such shares has been
collected and credited to the account of the Trust maintained by the Custodian.
The Trust shall supply JPMorgan with a sufficient supply of blank share
certificates and from time to time shall renew such supply upon request of
JPMorgan. Such blank share certificates shall be properly signed, manually or,
if authorized by the Trust, by facsimile; and notwithstanding the death,
resignation or removal of any officers of the Trust authorized to sign share
certificates, JPMorgan may continue to countersign certificates which bear the
manual or facsimile signature of such officer until otherwise directed by the
Trust. In case of the alleged loss or destruction of any share certificate, no
new certificates shall be issued in lieu thereof, unless there shall first be
furnished an appropriate bond satisfactory to JPMorgan and the Trust, and issued
by a surety company satisfactory to JPMorgan and the Trust.
6. RECEIPT OF FUNDS.
Upon receipt of any check or other instrument drawn or endorsed to it as
agent for, or identified as being for the account of, the Trust or IFS Fund
Distributors, Inc., as underwriter of the Trust (the "Underwriter"), JPMorgan
shall stamp the check or instrument with the date of receipt, determine the
amount thereof due the Trust and shall forthwith process the same for
collection. Upon receipt of notification of receipt of funds eligible for share
purchases in accordance with the Trust's then current prospectus and statement
of additional information, JPMorgan shall notify the Trust, at the close of each
business day, in writing of the amount of said funds credited to the Trust and
deposited in its account with the Custodian, and shall similarly notify the
Underwriter of the amount of said funds credited to the Underwriter and
deposited in its account with its designated bank.
7. PURCHASE ORDERS.
Upon receipt of an order for the purchase of shares of the Trust,
accompanied by sufficient information to enable JPMorgan to establish a
shareholder account, JPMorgan shall, as of the next determination of net asset
value after receipt of such order in accordance with the Trust's then current
prospectus and statement of additional information, compute the number of shares
due to the shareholder, credit the share account of the shareholder, subject to
collection of the funds, with the number of shares so purchased, shall notify
the Trust in writing or by computer report at the close of each business day of
such transactions and shall mail to the shareholder and/or dealer of record a
notice of such credit when requested to do so by the Trust.
8. RETURNED CHECKS.
In the event that JPMorgan is notified by the Trust's Custodian that any
check or other order for the payment of money is returned unpaid for any reason,
JPMorgan will:
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A. Give prompt notification to the Trust and the Underwriter of the
non-payment of said check;
B. In the absence of other instructions from the Trust or the Underwriter,
take such steps as may be necessary to redeem any shares purchased on the basis
of such returned check and cause the proceeds of such redemption plus any
dividends declared with respect to such shares to be credited to the account of
the Trust and to request the Trust's Custodian to forward such returned check to
the person who originally submitted the check; and
C. Notify the Trust and Underwriter of such actions and correct the
Trust's records maintained by JPMorgan pursuant to this Agreement.
9. SALES CHARGE.
In computing the number of shares to credit to the account of a
shareholder, JPMorgan will calculate the total of the applicable sales charges
with respect to each purchase as set forth in the Trust's current prospectus and
statement of additional information and in accordance with any notification
filed with respect to combined and accumulated purchases. JPMorgan will also
determine the portion of each sales charge payable by the Underwriter to the
dealer of record participating in the sale in accordance with such schedules as
are from time to time delivered by the Underwriter to JPMorgan; provided,
however, that JPMorgan shall have no liability hereunder arising from the
incorrect selection by JPMorgan of the gross rate of sales charges except that
this exculpation shall not apply in the event the rate is specified by the
Underwriter or the Trust and JPMorgan fails to select the rate specified.
10. DIVIDENDS AND DISTRIBUTIONS.
The Trust shall furnish JPMorgan with appropriate evidence of trustee
action authorizing the declaration of dividends and other distributions.
JPMorgan shall establish procedures in accordance with the Trust's then current
prospectus and statement of additional information and with other authorized
actions of the Trust's Board of Trustees under which it will have available from
the Custodian or the Trust any required information for each dividend and other
distribution. After deducting any amount required to be withheld by any
applicable laws, JPMorgan shall, as agent for each shareholder who so requests,
invest the dividends and other distributions in full and fractional shares in
accordance with the Trust's then current prospectus and statement of additional
information. If a shareholder has elected to receive dividends or other
distributions in cash, then JPMorgan shall disburse dividends to shareholders of
record in accordance with the Trust's then current prospectus and statement of
additional information. JPMorgan shall, on or before the mailing date of such
checks, notify the Trust and the Custodian of the estimated amount of cash
required to pay such dividend or distribution, and the Trust shall instruct the
Custodian to make available sufficient funds therefor in the appropriate account
of the Trust. JPMorgan shall mail to the shareholders periodic statements, as
requested by the Trust, showing the number of full and fractional shares and the
net asset value per share of shares so credited. When requested by the Trust,
JPMorgan shall prepare and file with the Internal Revenue Service, and when
required, shall address and mail to shareholders, such returns and information
relating to dividends and distributions paid by the Trust as are required to be
so prepared, filed and mailed by applicable laws, rules and regulations.
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11. UNCLAIMED DIVIDENDS AND UNCLAIMED REDEMPTION PROCEEDS.
JPMorgan shall, at least annually, furnish in writing to the Trust the
names and addresses, as shown in the shareholder accounts maintained by
JPMorgan, of all shareholders for which there are, as of the end of the calendar
year, dividends, distributions or redemption proceeds for which checks or share
certificates mailed in payment of distributions have been returned. JPMorgan
shall use its best efforts to contact the shareholders affected and to follow
any other written instructions received from the Trust concerning the
disposition of any such unclaimed dividends, distributions or redemption
proceeds.
12. REDEMPTIONS AND EXCHANGES.
A. JPMorgan shall process, in accordance with the Trust's then current
prospectus and statement of additional information, each order for the
redemption of shares accepted by JPMorgan. Upon its approval of such redemption
transactions, JPMorgan, if requested by the Trust, shall mail to the shareholder
and/or dealer of record a confirmation showing trade date, number of full and
fractional shares redeemed, the price per share and the total redemption
proceeds. For each such redemption, JPMorgan shall either: (a) prepare checks in
the appropriate amounts for approval and verification by the Trust and signature
by an authorized officer of JPMorgan and mail the checks to the appropriate
person, or (b) in the event redemption proceeds are to be wired through the
Federal Reserve Wire System or by bank wire, cause such proceeds to be wired in
federal funds to the bank account designated by the shareholder, or (c)
effectuate such other redemption procedures which are authorized by the Trust's
Board of Trustees or its then current prospectus and statement of additional
information. The requirements as to instruments of transfer and other
documentation, the applicable redemption price and the time of payment shall be
as provided in the then current prospectus and statement of additional
information, subject to such supplemental instructions as may be furnished by
the Trust and accepted by JPMorgan. If JPMorgan or the Trust determines that a
request for redemption does not comply with the requirements for redemptions,
JPMorgan shall promptly notify the shareholder indicating the reason therefor.
B. If shares of the Trust are eligible for exchange with shares of any
other investment company, JPMorgan, in accordance with the then current
prospectus and statement of additional information and exchange rules of the
Trust and such other investment company, or such other investment company's
transfer agent, shall review and approve all exchange requests and shall, on
behalf of the Trust's shareholders, process such approved exchange requests.
C. JPMorgan shall notify the Trust, the Custodian and the Underwriter on
each business day of the amount of cash required to meet payments made pursuant
to the provisions of this Paragraph 12, and, on the basis of such notice, the
Trust shall instruct the Custodian to make available from time to time
sufficient funds therefor in the appropriate account of the Trust. Procedures
for effecting redemption orders accepted from shareholders or dealers of record
by telephone or other methods shall be established by mutual agreement between
JPMorgan and the Trust consistent with the Trust's then current prospectus and
statement of additional information.
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D. The authority of JPMorgan to perform its responsibilities under
Xxxxxxxxx 0, Xxxxxxxxx 10, and this Paragraph 12 shall be suspended with respect
to any series of the Trust upon receipt of notification by it of the suspension
of the determination of such series' net asset value.
13. AUTOMATIC WITHDRAWAL PLANS.
JPMorgan will process automatic withdrawal orders pursuant to the
provisions of the withdrawal plans duly executed by shareholders and the current
prospectus and statement of additional information of the Trust. Payments upon
such withdrawal order shall be made by JPMorgan from the appropriate account
maintained by the Trust with the Custodian on approximately the last business
day of each month in which a payment has been requested, and JPMorgan will
withdraw from a shareholder's account and present for repurchase or redemption
as many shares as shall be sufficient to make such withdrawal payment pursuant
to the provisions of the shareholder's withdrawal plan and the current
prospectus and statement of additional information of the Trust. From time to
time on new automatic withdrawal plans a check for payment date already past may
be issued upon request by the shareholder.
14. LETTERS OF INTENT.
JPMorgan will process such letters of intent for investing in shares of
the Trust as are provided for in the Trust's current prospectus and statement of
additional information. JPMorgan will make appropriate deposits to the account
of the Underwriter for the adjustment of sales charges as therein provided and
will currently report the same to the Underwriter.
15. WIRE-ORDER PURCHASES.
JPMorgan will send written confirmations to the dealers of record
containing all details of the wire-order purchases placed by each such dealer by
the close of business on the business day following receipt of such orders by
JPMorgan or the Underwriter, with copies to the Underwriter. Upon receipt of any
check drawn or endorsed to the Trust (or JPMorgan, as agent) or otherwise
identified as being payment of an outstanding wire-order, JPMorgan will stamp
said check with the date of its receipt and deposit the amount represented by
such check to JPMorgan's deposit accounts maintained with the Custodian.
JPMorgan will compute the respective portions of such deposit which represent
the sales charge and the net asset value of the shares so purchased, will cause
the Custodian to transfer federal funds in an amount equal to the net asset
value of the shares so purchased to the Trust's account with the Custodian, and
will notify the Trust and the Underwriter before noon of each business day of
the total amount deposited in the Trust's deposit accounts, and in the event
that payment for a purchase order is not received by JPMorgan or the Custodian
on the tenth business day following receipt of the order, will prepare an NASD
"notice of failure of dealer to make payment" and forward such notification to
the Underwriter.
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16. OTHER PLANS.
JPMorgan will process such accumulation plans, group programs and other
plans or programs for investing in shares of the Trust as are now provided for
in the Trust's current prospectus and statement of additional information and
will act as plan agent for shareholders pursuant to the terms of such plans and
programs duly executed by such shareholders.
17. RECORDKEEPING AND OTHER INFORMATION.
JPMorgan 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 JPMorgan 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. JPMorgan 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.
18. SHAREHOLDER RECORDS.
JPMorgan shall maintain records for each shareholder account showing the
following:
A. Names, addresses and tax identifying numbers;
B. Name of the dealer of record, if any;
C. Number of shares held of each series;
D. Historical information regarding the account of each shareholder,
including dividends and distributions in cash or invested in shares;
E. Information with respect to the source of all dividends and
distributions allocated among income, realized short-term gains and realized
long-term gains;
F. Any instructions from a shareholder including all forms furnished by
the Trust and executed by a shareholder with respect to (i) dividend or
distribution elections and (ii) elections with respect to payment options in
connection with the redemption of shares;
G. Any correspondence relating to the current maintenance of a
shareholder's account;
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H. Certificate numbers and denominations for any shareholder holding
certificates;
I. Any stop or restraining order placed against a shareholder's account;
J. Information with respect to withholding in the case of a foreign
account or any other account for which withholding is required by the Internal
Revenue Code of 1986, as amended; and
K. Any information required in order for JPMorgan to perform the
calculations contemplated under this Agreement.
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 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.
19. TAX RETURNS AND REPORTS.
JPMorgan will prepare in the appropriate form, file with the Internal
Revenue Service and appropriate state agencies and, if required, mail to
shareholders of the Trust such returns for reporting dividends and distributions
paid by the Trust as are required to be so prepared, filed and mailed and shall
withhold such sums as are required to be withheld under applicable federal and
state income tax laws, rules and regulations.
20. OTHER INFORMATION TO THE TRUST.
Subject to such instructions, verification and approval of the Custodian
and the Trust as shall be required by any agreement or applicable law, JPMorgan
will also maintain such records as shall be necessary to furnish to the Trust
the following: annual shareholder meeting lists, proxy lists and mailing
materials, shareholder reports and confirmations and checks for disbursing
redemption proceeds, dividends and other distributions or expense disbursements.
21. ACCESS TO SHAREHOLDER INFORMATION.
Upon request, JPMorgan shall arrange for the Trust's investment adviser to
have direct access to shareholder information contained in JPMorgan's computer
system, including account balances, performance information and such other
information which is available to JPMorgan with respect to shareholder accounts.
22. COOPERATION WITH ACCOUNTANTS.
JPMorgan shall cooperate with the Trust's independent public accountants
and shall take all reasonable action in the performance of its obligations under
this Agreement to assure that the necessary information is made available to
such accountants for the expression of their unqualified opinion where required
for any document for the Trust.
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23. SHAREHOLDER SERVICE AND CORRESPONDENCE.
JPMorgan will provide and maintain adequate personnel, records and
equipment to receive and answer all shareholder and dealer inquiries relating to
account status, share purchases, redemptions and exchanges and other investment
plans available to Trust shareholders. JPMorgan will answer written
correspondence from shareholders relating to their share accounts and such other
written or oral inquiries as may from time to time be mutually agreed upon, and
JPMorgan will notify the Trust of any correspondence or inquiries which may
require an answer from the Trust.
24. PROXIES.
JPMorgan shall assist the Trust in the mailing of proxy cards and other
material in connection with shareholder meetings of the Trust, shall receive,
examine and tabulate returned proxies and shall, if requested by the Trust,
provide at least one inspector of election to attend and participate as required
by law in shareholder meetings of the Trust.
25. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
26. COMPENSATION.
For the performance of JPMorgan's obligations under this Agreement, the
Second Amended and Restated Accounting Services Agreement and the Second Amended
and Restated Administration Agreement between the parties (collectively, the
"Service Agreements"), the Trust shall pay JPMorgan, on the first business day
following the end of each month, a monthly fee in accordance with the schedule
attached as Schedule A.
27. EXPENSES.
JPMorgan shall furnish, at its expense and without cost to the Trust (i)
the services of its personnel to the extent that such services are required to
carry out its obligations under this Agreement and (ii) the use of data
processing equipment. All costs and expenses not expressly assumed by JPMorgan
under this Paragraph 27 shall be paid by the Trust, including, but not limited
to, costs and expenses of officers and employees of JPMorgan in attending
meetings of the Board of Trustees and shareholders of the Trust, as well as
costs and expenses for postage, envelopes, checks, drafts, continuous forms,
reports, communications, statements and other materials, telephone, telegraph
and remote transmission lines, use of outside pricing services, use of outside
mailing firms, necessary outside record storage, media for storage of records
(e.g., microfilm, microfiche, computer tapes), printing, confirmations and any
other shareholder correspondence and any and all assessments, taxes or levies
(excluding income taxes) assessed on JPMorgan for services provided under this
Agreement. Postage for mailings of dividends, proxies, reports and other
mailings to all shareholders shall be advanced to JPMorgan three business days
prior to the mailing date of such materials.
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28. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The parties hereto acknowledge and agree that nothing contained herein
shall be construed to require JPMorgan to perform any services for the Trust
which services could cause JPMorgan 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 JPMorgan, 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.
29. REFERENCES TO JPMORGAN.
The Trust shall not circulate any printed matter which contains any
reference to JPMorgan without the prior written approval of JPMorgan, excepting
solely such printed matter as merely identifies JPMorgan as Administrative
Services Agent, Transfer, Shareholder Servicing and Dividend Disbursing Agent,
and Accounting Services Agent. The Trust will submit printed matter requiring
approval to JPMorgan in draft form, allowing sufficient time for review by
JPMorgan and its counsel prior to any deadline for printing.
30. EQUIPMENT FAILURES.
JPMorgan shall take all steps necessary to minimize or avoid service
interruptions, and has entered into one or more agreements making provision for
emergency use of electronic data processing equipment. JPMorgan shall have no
liability with respect to equipment failures beyond its control.
31. INDEMNIFICATION OF JPMORGAN.
A. JPMorgan 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 JPMorgan 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
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 JPMorgan under this Agreement or by
reason of reckless disregard by any of such persons of the obligations and
duties of JPMorgan under this Agreement, for all of which exceptions Underwriter
shall be liable to the Trust.
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B. The Trust shall indemnify and hold harmless JPMorgan, 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 JPMorgan may
sustain or incur or which may be asserted against JPMorgan by any person by
reason of, or as a result of: (i) any action taken or omitted to be taken by
JPMorgan 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 JPMorgan 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 JPMorgan 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 31 shall apply, it is understood that if in any case the Trust may be
asked to indemnify JPMorgan or any other person or hold JPMorgan 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
JPMorgan 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 JPMorgan 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 JPMorgan, and thereupon the Trust shall take
over complete defense of the claim, and neither JPMorgan nor any such person
shall in such situation initiate further legal or other expenses for which it
shall seek indemnification under this Paragraph 31. JPMorgan shall in no case
confess any claim or make any compromise in any case in which the Trust will be
asked to indemnify JPMorgan or any such person except with the Trust's written
consent.
D. Notwithstanding any other provision of this Agreement, JPMorgan 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.
32. TERMINATION
A. The provisions of this Agreement shall be effective on the date first
above written and shall continue in force for two years and from year to year
thereafter, but only so long as such continuance is approved (1) by JPMorgan,
(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.
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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 JPMorgan such compensation as may be due as of the date of
such termination, and shall likewise reimburse JPMorgan for any out-of-pocket
expenses and disbursements reasonably incurred by JPMorgan to such date.
C. In the event that in connection with the termination of this Agreement
a successor to any of JPMorgan's duties or responsibilities under this Agreement
is designated by the Trust by written notice to JPMorgan, JPMorgan shall,
promptly upon such termination and at the expense of the Trust, transfer all
records maintained by JPMorgan under this Agreement and shall cooperate in the
transfer of such duties and responsibilities, including provision for assistance
from JPMorgan's cognizant personnel in the establishment of books, records and
other data by such successor.
33. SERVICES FOR OTHERS.
Nothing in this Agreement shall prevent JPMorgan or any affiliated person
(as defined in the 0000 Xxx) of JPMorgan from providing services for any other
person, firm or corporation (including other investment companies); provided,
however, that JPMorgan 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.
34. LIMITATION OF LIABILITY.
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.
35. SEVERABILITY.
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.
36. QUESTIONS OF INTERPRETATION.
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.
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37. NOTICES.
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 JPMorgan: JPMorgan Chase Bank, N.A.
000 Xxxxxxxx, 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 37. 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.
38. AMENDMENT.
This Agreement may not be amended or modified except by a written
agreement executed by both parties.
39. BINDING EFFECT.
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.
40. 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.
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41. FORCE MAJEURE.
If JPMorgan 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.
42. MISCELLANEOUS.
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
Its: President
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxx X. Xxxxxx
Its: Managing Director
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