Term; Termination; Amendment This Agreement shall become effective and shall run for an initial period as specified for each Fund in Schedule A hereto. This Agreement shall continue in force from year to year after the initial period with respect to each Fund, but only as long as such continuance is specifically approved for each Fund at least annually in the manner required by the 1940 Act and the rules and regulations thereunder; provided, however, that if the continuation of this Agreement is not approved for each Fund, the Sub-Adviser may continue to serve in such capacity for each Fund in the manner and to the extent permitted by the 1940 Act and the rules and regulations thereunder. This Agreement shall automatically terminate in the event of its assignment and may be terminated at any time without the payment of any penalty by either party on sixty (60) days’ written notice to the Sub-Adviser. This Agreement may also be terminated by the Trust with respect to each Fund by action of the Board of Trustees or by a vote of a majority of the outstanding voting securities of such Fund on sixty (60) days’ written notice to the Sub-Adviser by the Trust. This Agreement may be terminated with respect to each Fund at any time without the payment of any penalty by the Manager, the Board of Trustees or by vote of a majority of the outstanding voting securities of the Fund in the event that it shall have been established by a court of competent jurisdiction that the Sub-Adviser or any officer or director of the Sub-Adviser has taken any action which results in a breach of the covenants of the Sub-Adviser set forth herein. The terms “assignment” and “vote of a majority of the outstanding voting securities” shall have the meanings set forth in the 1940 Act and the rules and regulations thereunder. Termination of this Agreement shall not affect the right of the Sub-Adviser to receive payments on any unpaid balance of the compensation described in Section 4 earned prior to such termination. This Agreement shall automatically terminate in the event the Investment Management Agreement between the Manager and the Trust is terminated, assigned or not renewed. This Agreement may be amended, modified or supplemented only by a written instrument duly executed by an authorized representative of each of the parties.
Certain Termination Benefits Unless otherwise specifically provided in this Agreement or otherwise required by law, all compensation and benefits payable to Executive under this Agreement shall terminate on the date of termination of Executive’s employment under this Agreement. Notwithstanding the foregoing, in the event of termination of Executive’s employment with the Company pursuant to Section 5(c) or Section 5(d) above, the Company shall provide to Executive the following termination benefits (“Termination Benefits”):
(i) continuation of salary at a rate equal to one-hundred (100%) of Executive’s Base Salary as in effect on the date of termination for a period of twelve months (payment shall be subject to withholding under applicable law and shall be made in periodic installments in accordance with the Company’s usual payroll practice for executive officers of the Company as in effect from time to time) with the first payment starting on the first payroll date that occurs 30 days after the Termination Date;
(ii) provided Executive elects and remains eligible for the continuation of group health plan benefits pursuant to 29 U.S.C. § 1161 et seq. (commonly known as “COBRA”), the Company will pay with the cost of the regular premium for such benefits shared in the same relative proportion by the Company and Executive as in effect on the date of termination from the date of termination until the earlier of: (1) twelve months after the date of termination, or (2) the date Executive is no longer eligible for COBRA; and
(iii) payment of the bonus that the Executive would have been entitled to receive under the bonus or other performance plan referred to in Section 3(b) had his employment not been terminated, prorated based on the number of days the Executive was employed by the Company during the relevant bonus period. Such payment shall be made to the Executive at the time bonuses under such plan are generally paid to other participants but in no event later than March 15 of the calendar year following the termination date. The Company shall have the right to terminate all of the Termination Benefits set forth in Section 5(e)(i) and Section 5(e)(ii) in the event that Executive fails to comply in any material respect with Executive’s Continuing Obligations under this Agreement. Notwithstanding the foregoing, nothing in this Section 5(e) shall be construed to affect Executive’s right to receive COBRA continuation entirely at Executive’s own cost to the extent that Executive may continue to be entitled to COBRA continuation after Executive’s right to cost sharing under Section 5(e)(ii) ceases. The Company and Executive agree that the Termination Benefits paid by the Company to Executive under this Section 5(e) shall be in full satisfaction, compromise and release of any claims arising exclusively out of any termination of Executive’s employment pursuant to Section 5(c) or Section 5(d), and that the payment of the Termination Benefits shall be contingent upon Executive’s delivery of a separation agreement in a form satisfactory to the Company that shall include a general release of claims in favor of the Company and related persons and entities (“Release Agreement”), it being understood that no Termination Benefits shall be provided unless and until such Release agreement becomes fully effective.
Complete Disposal Upon Termination of Service Agreement Upon Termination of the Service Agreement Provider shall dispose or delete all Student Data obtained under the Service Agreement. Prior to disposition of the data, Provider shall notify LEA in writing of its option to transfer data to a separate account, pursuant to Article II, section 3, above. In no event shall Provider dispose of data pursuant to this provision unless and until Provider has received affirmative written confirmation from LEA that data will not be transferred to a separate account.
Termination Amendment and Waiver 46 7.1 Termination....................................................................................46 7.2
Termination Amendment Waiver 49 Section 8.1 Termination.................................................. 49 Section 8.2
Certain Terminations The termination of any Proceeding or of any claim, issue, or matter therein by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
TERM, TERMINATION AND AMENDMENT (a) This Agreement shall become effective on the date of its execution and shall remain in full force and effect until March 31, 2008 (the “Initial Term”) and shall automatically continue in full force and effect after the Initial Term on an annual basis thereafter unless the Administrators terminate or the Sub-Administrator/Accounting Agent terminates this Agreement by written notice to the Administrators or the Sub-Administrator/Accounting Agent, as applicable, at least three hundred and sixty-five (365) days prior to the expiration of the Initial Term or any annual term thereafter. If this Agreement is terminated by either party as provided in the immediately preceding sentence, the Sub-Administrator/Accounting Agent shall, at the request of the Administrators, continue to provide services hereunder for a period (the “Extension Period”) of one hundred and eighty (180) days after the date of termination under the immediately preceding sentence and the compensation payable to the Sub-Administrator/Accounting Agent for such Extension Period shall be (i) if this Agreement is terminated under the first sentence of this Section 15(a) by the Sub-Administrator/Accounting Agent, the compensation described on Schedule D attached hereto as in effect on the date of the commencement of the Extension Period, or (ii) if this Agreement is terminated under the first sentence of this Section 15(a) by the Administrators, one hundred and twenty-five percent (125%) of the compensation described on Schedule D attached hereto as in effect on the date of the commencement of the Extension Period for the duration of such Extension Period.
(b) Notwithstanding the provisions of clause (a) herein, and subject to the provisions of clause (c) herein, within thirty (30) days of each Constructive Termination Date (as defined herein) the Administrators shall pay to the Sub-Administrator/Accounting Agent a fee (a “Termination Fee”) which is equal to 25% of the aggregate amount of fees which would have been payable to the Sub-Administrator/Accounting Agent under this Agreement with respect to the Terminated Funds, calculated in accordance with the Schedule D in effect on such Constructive Termination Date (as defined herein) but based on, in the case of the calculation of the sub-administration fees, the average assets of the Fund during the sixty (60) day period preceding its termination as a Fund hereunder, and for the greater of (A) three (3) years from such Constructive Termination Date or (B) the remainder of the Initial Term of this Agreement. For purposes of this Section 15, (i) a “Terminated Fund” is a Fund (A) to which an Administrator no longer furnishes administrative and/or fund accounting services as a result of the termination, expiration or non-renewal of the applicable administration, advisory or other service agreement by and between such Fund and the Administrator (an “Administration Agreement*), and the provision of services by the Sub-Administrator/Accounting Agent to any Administrator (or its affiliates) under this Agreement with respect to each such Fund is then eliminated or terminated; (B) that has not entered into a State Street Agreement as set forth in clause (c) below; and (C) with respect to which a Termination Fee has not been paid, and (ii) a “Constructive Termination Date” will occur (A) when the aggregate number of Terminated Funds since the date hereof equals 15% or more of the sum of (y) the aggregate number of Funds listed on Schedule A on the date hereof plus (z) the number of Funds added to Schedule A from time to time prior to such Constructive Termination Date and (B) thereafter, each time when the aggregate number of Terminated Funds since the last Constructive Termination Date equals 15% or more of the sum of (y) the aggregate number of Funds listed on Schedule A on the most recent Constructive Termination Date plus (z) the number of Funds added to Schedule A from time to time prior to the next Constructive Termination Date.
(c) If, prior to the expiration of the Initial Term and on or before the thirtieth (30/th/) day after the most recent Constructive Termination Date, the Sub-Administrator/Accounting Agent is directly appointed by any Terminated Fund to perform such administrative and accounting services directly to such Fund pursuant to an agreement with substantially similar terms as this Agreement (the “State Street Agreement”), a term equal to or greater than the remaining portion of the Initial Term of this Agreement, and with a Fee Schedule comparable to the Fee Schedule currently in effect under this Agreement and attached as Schedule D with respect to the sub-administration services listed on Schedule X-x attached hereto and the sub-accounting services listed on Schedule B-3 attached hereto, then the Administrators shall not be required to include such Terminated Fund in the calculation of the Termination Fee then payable. Notwithstanding the provisions of subsection (c), however, in the event that the State Street Agreement is terminated by any Fund for any reason other than cause (such as the negligence or willful misconduct of the Sub-Administrator/Accounting Agent, its officers or employees) prior to March 31, 2008 (the expiration of the Initial Term under this Agreement), the Administrators shall pay to the Sub-Administrator/Accounting Agent, within thirty (30) days of such termination, a Termination Fee which is equal to 25% of the fees that would have been payable to the Sub-Administrator/Accounting Agent under this Agreement with respect to the relevant Terminated Fund, calculated in accordance with the Schedule D as in effect on the last day that such Terminated Fund was listed on Schedule A to this Agreement (but based on, in the case of the calculation of the sub-administration fees, the average assets of the fund during the sixty (60) day period prior to the termination), and for the remainder of the Initial Term of this Agreement. The amount of the termination fee, if any, payable and actually paid by such Terminated Fund to the Sub-Administrator/Accounting Agent in connection with the termination of, and as described in, the State Street Agreement shall reduce any fee payable by the Administrators under this subsection (c).
(d) The portion of any Termination Fee payable with respect to a Terminated Fund under subsection (b) and the Termination Fee payable with respect to a Terminated Fund under subsection (c) hereof shall be reduced by 40% in the event that the Terminated Fund is or becomes, on or before the date that such Termination Fee is due, a part of any fund family not listed on Schedule A attached hereto, and for which the Sub-Administrator/Accounting Agent provides sub-administrative and sub-acconting services.
(e) Termination of this Agreement with respect to a Fund shall in no way affect the continued validity of this Agreement with respect to any other Fund. Upon termination of this Agreement with respect to a Fund, and subject to the provisions of Section 7.2, Schedule A shall be amended to reflect the Funds subject to the terms of this Agreement.
(f) Notwithstanding clause (d), the Administrators may terminate this Agreement (i) upon thirty (30) days’ written notice to the Sub-Administrator/Accounting Agent that the Sub-Administrator/Accounting Agent is in breach of this Agreement, and the Sub-Administrator/Accounting Agent within such period fails to cure such breach, (ii) upon intervention of bankruptcy or receivership with respect to the Sub-Administrator/Accounting Agent, or (iii) upon the execution by the Sub-Administrator/Accounting Agent of any assignment for the benefit of creditors. Any such termination shall be in addition to, and not in lieu of, any rights the Administrators may have at law or in equity against the Sub-Administrator/Accounting Agent.
(g) Upon termination of this Agreement, the Administrators shall pay to the Sub-Administrator/Accounting Agent such compensation and any reimbursable expenses as may be due under the terms hereof as of the date of such termination.
(h) If a successor sub-administrator/accounting agent or administrator or accounting agent for any Fund shall be appointed by any Administrator or by a Fund, respectively, the Sub-Administrator/Accounting Agent stall upon termination of this Agreement with respect to that Fund use commercially reasonable efforts to transfer the records of such Fund to the designated successor sub-administrator/accounting agent or administrator or accounting agent for that Fund, as appropriate, to provide reasonable assistance to the applicable Administrator and that Fund’s designated successor sub-administrator/accounting agent or administrator or accounting agent, and to provide other information relating to its services provided hereunder (subject, in each case, to the recompense of the Sub-Administrator/Accounting Agent for such assistance at its standard rates and fees in effect at the time of such transfer). If no such successor sub-administrator/accounting agent or administrator or accounting agent shall be appointed for a Fund, the Sub-Administrator/Accounting Agent shall, upon receipt of Proper Instructions on or before the termination of this Agreement for such Fund, deliver such Fund’s property in accordance with such instructions. If no successor sub-administrator/accounting agent or administrator or accounting agent shall be appointed for a Fund and no Proper Instructions have been received, in each case, on or before the termination of this Agreement for such Fund, the Sub-Administrator/Accounting Agent shall upon such termination deliver to the Administrator of such Fund (or its successor), at the office of the Sub-Administrator/Accounting Agent, all property of such Fund.
(i) This Agreement may be modified or amended from time to time by mutual written agreement of all parties hereto.
Term; Termination of Agreement This Agreement shall continue in force for a period of one year from the date hereof, subject to an unlimited number of successive one-year renewals upon mutual consent of the parties. It is the duty of the Independent Directors to evaluate the performance of the Advisor annually before renewing the Agreement, and each such renewal shall be for a term of no more than one year.
AMENDMENT OF AGREEMENT; MERGER The General Partner’s consent shall be required for any amendment to this Agreement. The General Partner, without the consent of the Limited Partners, may amend this Agreement in any respect or merge or consolidate the Partnership with or into any other partnership or business entity (as defined in Section 17-211 of the Act) in a transaction pursuant to Section 7.1(b), (c) or (d) hereof; provided, however, that the following amendments and any other merger or consolidation of the Partnership shall require the consent of Limited Partners holding more than 50% of the Percentage Interests of the Limited Partners:
(a) any amendment affecting the operation of the Redemption Right (except as provided in Section 8.5(d), 7.1(b) or 7.1(c)) in a manner adverse to the Limited Partners;
(b) any amendment that would adversely affect the rights of the Limited Partners to receive the distributions payable to them hereunder, other than with respect to the issuance of additional Partnership Units pursuant to Section 4.3;
(c) any amendment that would alter the Partnership’s allocations of Profit and Loss to the Limited Partners, other than with respect to the issuance of additional Partnership Units pursuant to Section 4.3; or
(d) any amendment that would impose on the Limited Partners any obligation to make additional Capital Contributions to the Partnership.
Termination; Amendment a. In addition to the automatic termination of this Agreement specified in Section 1.c. of this Agreement, each party to this Agreement may unilaterally cancel its participation in this Agreement by giving thirty (30) days prior written notice to the other party. In addition, each party to this Agreement may terminate this Agreement immediately by giving written notice to the other party of that other party's material breach of this Agreement. Such notice shall be deemed to have been given and to be effective on the date on which it was either delivered personally to the other party or any officer or member thereof, or was mailed postpaid or delivered to a telegraph office for transmission to the other party's designated person at the addresses shown herein or in the most recent NASD Manual.
b. This Agreement shall terminate immediately upon the appointment of a Trustee under the Securities Investor Protection Act or any other act of insolvency by Dealer.
c. The termination of this Agreement by any of the foregoing means shall have no effect upon transactions entered into prior to the effective date of termination and shall not relieve Dealer of its obligations, duties and indemnities specified in this Agreement. A trade placed by Dealer subsequent to its voluntary termination of this Agreement will not serve to reinstate the Agreement. Reinstatement, except in the case of a temporary suspension of Dealer, will only be effective upon written notification by Distributor.
d. This Agreement is not assignable or transferable and will terminate automatically in the event of its "assignment," as defined in the Investment Company Act of 1940, as amended and the rules, regulations and interpretations thereunder. The Distributor may, however, transfer any of its duties under this Agreement to any entity that controls or is under common control with Distributor.
e. This Agreement may be amended by Distributor at any time by written notice to Dealer. Dealer's placing of an order or accepting payment of any kind after the effective date and receipt of notice of such amendment shall constitute Dealer's acceptance of such amendment.
