FIRST AMENDED AND RESTATED
TRANSFER, DIVIDEND DISBURSING, SHAREHOLDER SERVICE
AND PLAN AGENCY AGREEMENT
-------------------------
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 transfer, dividend disbursing, shareholder service and plan 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.
-----------
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.
-------------
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. INTEGRATED TO RECORD SHARES.
---------------------------
Integrated 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. Integrated 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. INTEGRATED TO VALIDATE TRANSFERS.
--------------------------------
Upon receipt of a proper request for transfer and upon surrender to
Integrated of certificates, if any, in proper form for transfer, Integrated
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,
Integrated shall notify the Trust in writing of each such transaction and shall
make appropriate entries on the shareholder records maintained by Integrated.
5. SHARE CERTIFICATES.
------------------
If the Trust authorizes the issuance of share certificates and an
investor requests a share certificate, Integrated 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 Integrated with a sufficient supply of blank share
certificates and from time to time shall renew such supply upon request of
Integrated. 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, Integrated 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 Integrated and the Trust, and
issued by a surety company satisfactory to Integrated and the Trust.
2
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"), Integrated
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, Integrated 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 Integrated to establish a
shareholder account, Integrated 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 Integrated is notified by the Trust's Custodian that
any check or other order for the payment of money is returned unpaid for any
reason, Integrated will:
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 Integrated pursuant to this Agreement.
9. SALES CHARGE.
------------
In computing the number of shares to credit to the account of a
shareholder, Integrated 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
3
accordance with any notification filed with respect to combined and accumulated
purchases. Integrated 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 Integrated; provided, however, that Integrated shall have no
liability hereunder arising from the incorrect selection by Integrated 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 Integrated fails
to select the rate specified.
10. DIVIDENDS AND DISTRIBUTIONS.
---------------------------
The Trust shall furnish Integrated with appropriate evidence of
trustee action authorizing the declaration of dividends and other distributions.
Integrated 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, Integrated 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 Integrated shall disburse
dividends to shareholders of record in accordance with the Trust's then current
prospectus and statement of additional information. Integrated 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. Integrated 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, Integrated 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.
11. UNCLAIMED DIVIDENDS AND UNCLAIMED REDEMPTION PROCEEDS.
-----------------------------------------------------
Integrated shall, at least annually, furnish in writing to the Trust
the names and addresses, as shown in the shareholder accounts maintained by
Integrated, 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.
Integrated 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.
4
12. REDEMPTIONS AND EXCHANGES.
-------------------------
A. Integrated 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 Integrated. Upon its approval of such
redemption transactions, Integrated, 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, Integrated shall either: (a)
prepare checks in the appropriate amounts for approval and verification by the
Trust and signature by an authorized officer of Integrated 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 Integrated. If Integrated or the Trust
determines that a request for redemption does not comply with the requirements
for redemptions, Integrated 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, Integrated, 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. Integrated 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 Integrated and the Trust consistent with the Trust's then current
prospectus and statement of additional information.
D. The authority of Integrated 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.
--------------------------
Integrated 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
5
Integrated 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 Integrated 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.
-----------------
Integrated 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. Integrated 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.
--------------------
Integrated 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
Integrated or the Underwriter, with copies to the Underwriter. Upon receipt of
any check drawn or endorsed to the Trust (or Integrated, as agent) or otherwise
identified as being payment of an outstanding wire-order, Integrated will stamp
said check with the date of its receipt and deposit the amount represented by
such check to Integrated's deposit accounts maintained with the Custodian.
Integrated 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 Integrated 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.
16. OTHER PLANS.
-----------
Integrated 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.
-----------------------------------
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
6
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.
18. SHAREHOLDER RECORDS.
-------------------
Integrated 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;
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 Integrated 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
7
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.
-----------------------
Integrated 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,
Integrated 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, Integrated shall arrange for the Trust's investment
adviser to have direct access to shareholder information contained in
Integrated's computer system, including account balances, performance
information and such other information which is available to Integrated with
respect to shareholder accounts.
22. COOPERATION WITH ACCOUNTANTS.
----------------------------
Integrated 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.
23. SHAREHOLDER SERVICE AND CORRESPONDENCE.
--------------------------------------
Integrated 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. Integrated 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
Integrated will notify the Trust of any correspondence or inquiries which may
require an answer from the Trust.
8
24. PROXIES.
-------
Integrated 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 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 in accordance with the schedule
attached hereto as Schedule A. The Trust shall promptly reimburse Integrated for
any out-of-pocket expenses and advances which are to be paid by the Trust in
accordance with Paragraph 27.
27. EXPENSES.
--------
Integrated 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 Integrated
under this Paragraph 27 shall be paid by the Trust, including, but not limited
to, costs and expenses of officers and employees of Integrated 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 Integrated for services provided under this
Agreement. Postage for mailings of dividends, proxies, reports and other
mailings to all shareholders shall be advanced to Integrated three business days
prior to the mailing date of such materials.
28. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
--------------------------------------------------
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
9
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 INTEGRATED.
------------------------
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.
30. EQUIPMENT FAILURES.
------------------
Integrated 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. Integrated shall have no
liability with respect to equipment failures beyond its control.
31. INDEMNIFICATION OF INTEGRATED.
-----------------------------
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
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. 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
10
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 31 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 31. 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.
32. TERMINATION
-----------
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.
11
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.
33. SERVICES FOR OTHERS.
-------------------
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.
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.
12
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 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 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.
41. FORCE MAJEURE.
-------------
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
13
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
INTEGRATED FUND SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Its: President
14
August 24, 1999 Schedule A
----------
COMPENSATION
Services FEE
As Transfer Agent,
Dividend Disbursing Agent
and Shareholder Servicing Agent:
The Golden Rainbow Fund Payable monthly at a rate of $20.00/year per
account; subject to a minimum of $1,500
per month in the aggregate
The Market Neutral Fund Payable monthly at rate of $20.00/year per
account; subject to a minimum of $1,500
per month in the aggregate
The Small Cap Fund Payable monthly at a rate of $20.00/year per
account; subject to a minimum of $1,500
per month in the aggregate
The Large Cap Plus Fund Payable monthly at a rate of $20.00/year per
account; subject to a minimum of $1,500
per month in the aggregate
15
