Service Contracts (a) The Trustees may, at any time and from time to time, contract for exclusive or nonexclusive advisory, management and/or administrative services for the Trust or for any Series with any Person; and any such contract may contain such other terms as the Trustees may determine, including without limitation, authority for the Investment Adviser to determine from time to time without prior consultation with the Trustees what investments shall be purchased, held, sold or exchanged and what portion, if any, of the assets of the Trust shall be held uninvested and to make changes in the Trust's investments, and such other responsibilities as may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time, contract with any Persons, appointing such Persons exclusive or nonexclusive distributor or Principal Underwriter for the Shares of one or more of the Series or other securities to be issued by the Trust. Every such contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to time, to contract with any Persons, appointing such Person(s) to serve as custodian(s), transfer agent and/or shareholder servicing agent for the Trust or one or more of its Series. Every such contract shall comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and from time to time, to contract with any Persons to provide such other services to the Trust or one or more of the Series, as the Trustees determine to be in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust is a shareholder, director, officer, partner, trustee, employee, Manager, adviser, Principal Underwriter, distributor, or affiliate or agent of or for any Person with which an advisory, management or administration contract, or Principal Underwriter's or distributor's contract, or transfer, shareholder servicing or other type of service contract may be made, or that
(ii) any Person with which an advisory, management or administration contract or Principal Underwriter's or distributor's contract, or transfer, shareholder servicing or other type of service contract may be made also has an advisory, management or administration contract, or principal underwriter's or distributor's contract, or transfer, shareholder servicing or other service contract, or has other business or interests with any other Person, shall not affect the validity of any such contract or disqualify any Shareholder, Trustee or officer of the Trust from voting upon or executing the same, or create any liability or accountability to the Trust or its Shareholders, provided approval of each such contract is made pursuant to the applicable requirements of the 1940 Act.
Contracts 3(n) of the Disclosure Schedule lists the following written agreements, or material oral agreements that would be reasonably considered to exist that were entered into and known by the Company, to which the Company or its Subsidiaries is a party:
(i) any agreement for the lease of personal or real property to or from any Person providing for lease payments in excess of $1,000,000 per annum;
(ii) any agreement for the purchase of products or services (in each case, other than agreements evidenced by purchase orders), under which the undelivered balance of such products and services has a selling price in excess of $2,500,000;
(iii) any agreement for the sale of products or services (in each case, other than agreements evidenced by purchase orders), under which the undelivered balance of such products or services has a sales price in excess of $2,500,000;
(iv) any agreement concerning a partnership or joint venture;
(v) any agreement under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money in excess of $1,000,000 or any capitalized lease obligation, in excess of $250,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(vi) any non-competition agreement which materially restricts the ability of the Company or any of its Subsidiaries to freely conduct its business;
(vii) any agreement with any of the Sellers and their Affiliates which will survive the Closing, the default of which would result in a Material Adverse Effect;
(viii) any collective bargaining agreement;
(ix) any agreement for employment on a full-time, part-time, consulting or other basis with respect to any individual who received total compensation in 2002 in excess of $250,000 or who has an annual base compensation for 2003 in excess of $250,000, or any agreement providing severance benefits to any such person in excess of $250,000;
(x) any agreement under which it has advanced or loaned any amount to any of its directors, officers, managers and Employees outside the Ordinary Course of Business;
(xi) any other agreement, the default of which would result in a Material Adverse Effect; or
(xii) any agreement regulating or controlling or otherwise affecting the voting or disposition of any capital stock or other proprietary interest of the Company or any of its Subsidiaries and any shareholder agreement or agreement relating to the issuance of any securities of the Company or any of its Subsidiaries or the granting of any registration rights with respect thereto and which agreement does not terminate at or prior to Closing. The Company has made available to the Buyer a correct and complete copy of each written agreement or a summary of each material oral agreement listed in §3(n) of the Disclosure Schedule. Each such agreement is a valid and binding agreement of the Company or one of its Subsidiaries, as the case may be, and is in full force and effect and the Company has not received any notice that any such agreement is not a valid and binding agreement of each other party thereto. Neither the Company nor any of its Subsidiaries, and the Company has not received any notice that any other Person party thereto, is in default under any such agreements, and no event has occurred, or, to the Knowledge of the Company, is alleged to have occurred, which constitutes or with lapse of time or giving of notice or both, would constitute a default under any such agreement, except, in each case, for such defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Contracts and Agreements The agreements and documents described in the Registration Statement and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act to be described in the Registration Statement and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental Entity”), including, without limitation, those relating to environmental laws and regulations.
