SECOND AMENDED AND RESTATED
ACCOUNTING SERVICES 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 provide
the Trust with certain accounting and pricing services; 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. CALCULATION OF NET ASSET VALUE.
JPMorgan will calculate the net asset value of each series of the Trust
and the per share net asset value of each series of the Trust, in accordance
with the Trust's current prospectus and statement of additional information,
once daily as of the time selected by the Trust's Board of Trustees. JPMorgan
will prepare and maintain a daily valuation of all securities and other assets
of the Trust in accordance with instructions from a designated officer of the
Trust or its investment adviser and in the manner set forth in the Trust's
current prospectus and statement of additional information. In valuing
securities of the Trust, JPMorgan may contract with, and rely upon market
quotations provided by, outside services.
3. BOOKS AND RECORDS.
JPMorgan will maintain and keep current the general ledger for each series
of the Trust, recording all income and expenses, capital share activity and
security transactions of the Trust. JPMorgan will maintain such further books
and records as are necessary to enable it to perform its duties under this
Agreement, and will periodically provide reports to the Trust and its authorized
agents regarding share purchases and redemptions and trial balances of each
series of the Trust. JPMorgan will prepare and maintain complete, accurate and
current all records with respect to the Trust required to be maintained by the
Trust under the Internal Revenue Code of 1986, as amended (the "Code"), and
under the rules and regulations of the 1940 Act, and will preserve said records
in the manner and for the periods prescribed in the Code and the 1940 Act. The
retention of such records shall be at the expense of the Trust.
All of the records prepared and maintained by JPMorgan pursuant to this
Section 3 which are required to be maintained by the Trust under the Code and
the 1940 Act will be the property of the Trust. In the event this Agreement is
terminated, all such records shall be delivered to the Trust at the Trust's
expense, and JPMorgan shall be relieved of responsibility for the preparation
and maintenance of any such records delivered to 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 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.
4. PAYMENT OF TRUST EXPENSES.
JPMorgan shall process each request received from the Trust or its
authorized agents for payment of the Trust's expenses. Upon receipt of written
instructions signed by an officer or other authorized agent of the Trust,
JPMorgan shall prepare checks in the appropriate amounts which shall be signed
by an authorized officer of JPMorgan and mailed to the appropriate party.
5. FORM N-SAR.
JPMorgan shall maintain such records within its control and shall be
requested by the Trust to assist the Trust in fulfilling the requirements of
Form N-SAR.
6. 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.
7. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
2
8. FEES.
For the performance of JPMorgan's obligations under this Agreement, the
Second Amended and Restated Administration Agreement and the Second Amended and
Restated Transfer, Dividend Disbursing, Shareholder Service and Plan Agency
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.
9. 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.
10. 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.
11. 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.
12. 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 JPMorgan
shall be liable to the Trust.
3
B. Notwithstanding any other provision of this Agreement, 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 12 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 12. 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.
4
13. 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.
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.
14. 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.
15. 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.
5
16. 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.
17. 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 Securities and Exchange Commission 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
Securities and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
18. 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 18. 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.
6
19. AMENDMENT.
This Agreement may not be amended or modified except by a written
agreement executed by both parties.
20. 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.
21. 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.
22. 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.
23. 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.
7
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
8
