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Exhibit (h-1)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1998, between
PACIFIC CAPITAL FUNDS, a Massachusetts business trust (the "Trust") and BISYS
FUND SERVICES OHIO, INC., an Ohio corporation (the "Administrator").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest ("Shares");
and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Trust as the Trust and the Administrator may agree on
("Funds") and as listed on Schedule A attached hereto and made a part of this
Agreement, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as follows:
ARTICLE 1. Retention of the Administrator. The Trust hereby retains the
Administrator to act as the administrator of the Funds and to furnish the Funds
with the management and administrative services as set forth in Article 2 below.
The Administrator hereby accepts such employment and agrees to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized
herein, shall have no authority to act for or represent the Trust in any way and
shall not be deemed an agent of the Trust.
ARTICLE 2. Administrative Services. The Administrator shall perform or
supervise the performance by others of other administrative services in
connection with the operations of the Funds, and, on behalf of the Trust, will
investigate, assist in the selection of and conduct relations with custodians,
depositories, accountants, legal counsel, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and persons in any other capacity deemed
to be necessary or desirable for the Funds' operations. The Administrator shall
provide the Trustees of the Trust with such reports regarding investment
performance as they may reasonably request but shall have no responsibility for
supervising the performance by any investment adviser or sub-adviser of its
responsibilities.
The Administrator shall provide the Trust with regulatory reporting,
all necessary office space, equipment, personnel, compensation and facilities
(including facilities for shareholders' and Trustees' meetings) for handling the
affairs of the Funds and such other services as the Administrator shall, from
time to time, determine to be necessary to perform its obligations under this
Agreement. In addition, at the request of the Board of Trustees, the
Administrator
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shall make reports to the Trust's Trustees concerning the performance of its
obligations hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) calculate contractual Trust expenses and control all
disbursements for the Trust, and as appropriate compute the
Trust's total return, expense ratios, portfolio turnover rate
and, if required, portfolio average dollar-weighted maturity;
(b) assist Trust counsel with the preparation of prospectuses,
statements of additional information, registration statements
and proxy materials;
(c) prepare such reports, applications and documents
(including reports regarding the sale and redemption of Shares
as may be required in order to comply with Federal and state
securities laws) as may be necessary or desirable to register
the Trust's Shares with state securities authorities, monitor
the sale of Trust Shares for compliance with state securities
laws, and file with the appropriate state securities
authorities the registration statements and reports for the
Trust and the Trust's Shares and all amendments thereto, as
may be necessary or convenient to register and keep effective
the Trust and the Trust's Shares with state securities
authorities to enable the Trust to make a continuous offering
of its Shares;
(d) develop and prepare, with the assistance of the Trust's
investment adviser, communications to shareholders, including
the annual report to shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other
reports to Trust shareholders, and supervise and facilitate
the proxy solicitation process for all shareholder meetings,
including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among
others, the Trust's investment adviser, distributor,
custodian, transfer agent and fund accountant;
(f) supervise the Trust's transfer agent with respect to the
payment of dividends and other distributions to shareholders;
(g) calculate performance data of the Funds for dissemination
to information services covering the investment Trust
industry;
(h) coordinate and supervise the preparation and filing of the
Trust's tax returns;
(i) examine and review the operations and performance of the
various organizations providing services to the Trust or any
Fund of the Trust, including, without limitation, the Trust's
investment adviser, distributor, custodian, fund
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accountant, transfer agent, outside legal counsel and
independent public accountants, and at the request of the
Board of Trustees, report to the Board on the performance of
such organizations;
(j) assist with the layout and printing of publicly
disseminated prospectuses and assist with and coordinate
layout and printing of the Trust's semi-annual and annual
reports to shareholders;
(k) assist with the design, development, and operation of the
Funds, including new classes, investment objectives, policies
and structure;
(l) provide individuals reasonably acceptable to the Trust's
Board of Trustees to serve as officers of the Trust, who will
be responsible for the management of certain of the Trust's
affairs as determined by the Trust's Board of Trustees;
(m) advise the Trust and its Board of Trustees on matters
concerning the Trust and its affairs;
(n) obtain and keep in effect fidelity bonds and Trustees and
officers/errors and omissions insurance policies for the Trust
in accordance with the requirements of Rules 17g-1 and
17d-1(7) under the 1940 Act as such bonds and policies are
approved by the Trust's Board of Trustees;
(o) monitor and advise the Trust and its Funds on their
regulated investment company status under the Internal Revenue
Code of 1986, as amended;
(p) perform all administrative services and functions of the
Trust and each Fund to the extent administrative services and
functions are not provided to the Trust or such Fund pursuant
to the Trust's or such Fund's investment advisory agreement,
distribution agreement, custodian agreement, transfer agent
agreement and fund accounting agreement;
(q) furnish advice and recommendations with respect to other
aspects of the business and affairs of the Funds as the Trust
and the Administrator shall determine desirable; and
(r) prepare and file with the SEC the semi-annual report for
the Trust on Form N-SAR and all required notices pursuant to
Rule 24f-2.
The Administrator shall perform such other services for the Trust that
are mutually agreed upon by the parties from time to time. Such services may
include performing internal audit examinations; mailing the annual reports of
the Funds; preparing an annual list of shareholders; and mailing notices of
shareholders' meetings, proxies and proxy statements, for all of which the Trust
will pay the Administrator's out-of-pocket expenses.
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ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
its obligations under this Agreement. The Administrator shall also provide the
items which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Trust as well as all Trustees of the
Trust who are affiliated persons of the Administrator or any affiliate of the
Administrator; provided, however, that unless otherwise specifically provided
herein, the Administrator shall not be obligated to pay the compensation of any
employee of the Trust retained by the Trustees of the Trust to perform services
on behalf of the Trust.
(B) The Trust. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Trustees who are not
affiliated persons of the Administrator or any investment advisers to the Trust
or any affiliate of the Administrator or any such investment adviser, insurance,
interest, brokerage costs, litigation and other extraordinary or nonrecurring
expenses, and all fees and charges of investment advisers to the Trust.
ARTICLE 4. Compensation of the Administrator.
(A) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Trust shall pay to the Administrator compensation at an annual
rate specified in Schedule A attached hereto. Such compensation shall be
calculated and accrued daily, and paid to the Administrator monthly. The Trust
shall also reimburse the Administrator for its reasonable out-of-pocket
expenses, including but not limited to the travel and lodging expenses incurred
by officers and employees of the Administrator in connection with attendance at
Board meetings.
If this Agreement becomes effective subsequent to the first
day of a month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of
the Administrator shall be confined to those expressly set forth herein, and no
implied duties are
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assumed by or may be asserted against the Administrator hereunder. The
Administrator shall not be liable for any error of judgment or mistake of law or
for any loss arising out of any act or omission in carrying out its duties
hereunder, except a loss resulting from willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder, except as may otherwise be provided
under provisions of applicable law which cannot be waived or modified hereby.
(As used in this Article 5, the term "Administrator" shall include directors,
officers, employees and other agents of the Administrator as well as the
Administrator itself.)
The Trust agrees to indemnify and hold harmless the Administrator, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise, and from
and against any and all judgments, liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character, arising out of or
in any way relating to any actions taken by the Administrator or the
Administrator's failure to take any actions with respect to the performance of
services under this Agreement on behalf of any Fund or based, if applicable,
upon reasonable reliance on information, records, instructions or requests with
respect to such Fund given or made to the Administrator by a duly authorized
representative of the Trust; provided that this indemnification shall not apply
to actions or omissions of the Administrator in cases of its own bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties.
The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the Trust may be asked to indemnify or hold the
Administrator harmless, the Trust shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and it is further
understood that the Administrator 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, but failure to do so in good faith shall not affect the
Administrator's rights hereunder.
The Trust shall be entitled to participate at its own expense or, if it
so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the Trust elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the Trust
and satisfactory to the Administrator, whose approval shall not be unreasonably
withheld. In the event that the Trust elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and expenses of any
additional counsel retained by it. If the Trust does not elect to assume the
defense of a suit, it will reimburse the Administrator for the reasonable fees
and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Trust at any time for instructions
and may consult counsel for the Trust or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
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Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Trust until receipt of written notice thereof from the Trust.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and shareholders of the Trust are or may be or become interested in the
Administrator, as officers, employees or otherwise, and that directors, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Trust, and that the Administrator may be or become
interested in the Trust as a shareholder or otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall
be as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor, and the Administrator
shall be responsible, to the extent provided in Article 5 hereof, for all acts
of such subcontractor as if such acts were its own. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties
hereto only if such amendment is specifically approved (i) by the vote of a
majority of the Trustees of the Trust, and (ii) by the vote of a majority of the
Trustees of the Trust who are not parties to this Agreement or interested
persons of any such party, cast in person at a Board of Trustees meeting called
for the purpose of voting on such approval.
ARTICLE 10. Proprietary and Confidential Information. The Administrator
agrees on behalf of itself and its directors, officers and employees to treat
confidentially and as proprietary information of the Trust all records and other
information relative to the Trust and prior, present, or potential shareholders,
and not to use such records and information for any purpose other than
performance of its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld where Administrator may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust.
ARTICLE 11. Certain Records. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or
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maintained by the Administrator on behalf of the Trust shall be prepared and
maintained at the expense of the Administrator, but shall be the property of the
Trust and will be made available to or surrendered promptly to the Trust on
request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Trust has
agreed to indemnify the Administrator against such liability.
ARTICLE 12. Maintenance of Systems and Equipment; Uncontrollable
Events. The Administrator shall maintain adequate and reliable computer and
other equipment necessary or appropriate to carry out its obligations under this
Agreement. In the event of computer or other equipment failures beyond its
reasonable control, the Administrator shall use its best efforts to minimize
service interruptions. The Administrator represents and warrants that the
various procedures and systems which it has implemented with regard to
safekeeping from loss or damage attributable to fire, theft or any other cause
of the records, data, equipment, facilities and other property used in the
performance of its obligations hereunder are adequate and that it will make such
changes therein from time to time as are required for the secure performance of
its obligations hereunder. Notwithstanding the foregoing, the Administrator
assumes no responsibility hereunder, and shall not be liable for any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. In any such event, the Administrator shall, at no additional
expense to the Trust, take all steps reasonably necessary to minimize service
interruptions.
ARTICLE 13. Representations of the Trust. The Trust certifies to the
Administrator that: (1) as of the close of business on the Effective Date, each
Fund that is in existence as of the Effective Date has authorized unlimited
shares, and (2) this Agreement has been duly authorized, executed and delivered
by the Trust, and constitutes a legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
ARTICLE 14. Representations of the Administrator. The Administrator
represents and warrants that: (1) the Administrator will perform comprehensive
tests on its systems to simulate the actual turning of the century. These tests
shall be intended to identify any operational issues caused by the century
change at midnight December 31, 1999. The Administrator agrees to implement by
December 31, 1998, all necessary updates and changes to its systems, if any, to
accommodate the turn of the century; and (2) this Agreement has been duly
authorized, executed and delivered by the Administrator, and constitutes a
legal, valid and binding obligation of the Administrator, enforceable against
the Administrator in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
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ARTICLE 15. Insurance. The Administrator shall notify the Trust should
any of the Administrator's insurance coverage be canceled or reduced. Such
notification shall include the date of change and the reasons therefor. The
Administrator shall notify the Trust of any material claims against the
Administrator with respect to services performed under this Agreement, whether
or not they may be covered by insurance, and shall notify the Trust from time to
time as may be appropriate of the total outstanding claims made by the
Administrator under its insurance coverage.
ARTICLE 16. Headings. Paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret this
Agreement.
ARTICLE 17. Entire Agreement. Effective as of the date set forth above,
the Administration Agreement between the parties dated as of October 29, 1993 is
terminated and shall be of no further force or effect except as otherwise set
forth therein. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof, and may not be amended without the
written consent of both parties.
ARTICLE 18. Definitions of Certain Terms. The terms "interested person"
and "affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 19. Notice. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the following address: if to the Trust, c/o Xxxxxx X. Xxxxxx,
Chairman, Pacific Capital Funds, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000;
if to the Administrator, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; or at such
other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
ARTICLE 20. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
ARTICLE 21. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 22. Matters Relating to the Trust as a Massachusetts Business
Trust. The names "Pacific Capital Funds" and "Trustees of Pacific Capital Funds"
refer respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated as of October 30, 1992, to which reference is hereby made and a copy
of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed
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or hereafter filed. The obligations of "Pacific Capital Funds" entered into in
the name or on behalf thereof by any of the Trustees, representatives or agents
are made not individually, but in such capacities, and are not binding upon any
of the Trustees, Shareholders or representatives of the Trust personally, but
bind only the assets of the Trust, and all persons dealing with any series of
shares of the Trust must look solely to the assets of the Trust belonging to
such series for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
PACIFIC CAPITAL FUNDS
By: /s/ IRIMGA XxXXX
-----------------------------
Title: President
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BISYS FUND SERVICES OHIO, INC.
By: /s/ XXXXXXX X. XXXXX
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Title: Executive Vice President
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 1, 1998
BETWEEN
PACIFIC CAPITAL FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Funds: This Agreement shall apply to all Funds of PACIFIC CAPITAL FUNDS,
either now or hereafter created (collectively, the "Funds"). The
current Funds of the Trust are set forth below:
U.S. Treasury Securities Fund
Short Intermediate U.S. Treasury Securities Fund
Diversified Fixed Income Fund
Tax-Free Short Intermediate Securities Fund
Tax-Free Securities Fund
Growth Stock Fund
Growth and Income Fund
New Asia Growth Fund
Balanced Fund
Value Fund
Small Capitalization Fund
International Stock Fund
Fees: Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Trust will pay the
Administrator on the first business day of each month, or at such
time(s) as the Administrator shall request and the parties hereto shall
agree, a fee computed daily at the annual rate of:
Twenty one-hundredths of one percent (.2%) of each Fund's
average daily net assets
The fee for the period from the day of the month this Agreement is
entered into until the end of that month shall be prorated according to
the proportion which such period bears to the full monthly period. Upon
any termination of this Agreement before the end of any month, the fee
for such part of a month shall be prorated according to the proportion
which such period bears to the full monthly period and shall be payable
upon the date of termination of this Agreement.
For purposes of determining the fees payable to the Administrator, the
value of the net assets of a particular Fund shall be computed in the
manner described in the Trust's Articles of Incorporation or in the
Prospectus or Statement of Additional Information respecting that Fund
as from time to time is in effect for
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the computation of the value of such net assets in connection with the
determination of the redemption value of the shares of such Fund.
The parties hereby confirm that the fees payable hereunder shall be
applied to each Fund as a whole, and not to separate classes of shares
within the Funds.
The fee payable by the Trust hereunder shall be allocated to each Fund
based upon its pro rata share (in proportion to average daily net
assets) of the total fee payable hereunder. Such fee as is attributable
to each Fund shall be a separate (and not joint or joint and several)
obligation of each such Fund. The Administrator may agree, from time to
time, to waive any fees payable under this Agreement. Such waiver shall
be at the Administrator's sole discretion.
Term: Pursuant to Article 7, the term of this Agreement shall commence on
October 1, 1998 and shall remain in effect through December 31, 2001
("Initial Term"). Thereafter, unless otherwise terminated as provided
herein, this Agreement shall be renewed automatically for successive
one-year periods ("Rollover Periods"). This Agreement may be terminated
without penalty (i) by provision of a notice of nonrenewal in the
manner set forth below, (ii) by mutual agreement of the parties or
(iii) for "cause," as defined below, upon the provision of 60 days
advance written notice by the party alleging cause. Written notice of
nonrenewal must be provided at least 60 days prior to the end of the
Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, gross negligence or reckless disregard on the
part of the party to be terminated with respect to its obligations and
duties set forth herein; (b) a material breach of this Agreement that
has not been cured within thirty (30) days following written notice of
such breach from the non-breaching party; (c) a final, unappealable
judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; (d) financial difficulties on
the part of the party to be terminated which are evidenced by the
authorization or commencement of, or involvement by way of pleading,
answer, consent or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time to time is in
effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors
or to the modification or alteration of the rights of creditors; or (e)
any other circumstance which substantially impairs the performance of
the obligations and duties of the party to be terminated, or its
ability to perform those obligations and duties as contemplated herein.
Notwithstanding the foregoing, after such termination for so long as
the Administrator, with the written consent of the Trust, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule
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or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue
in full force and effect. Compensation due the Administrator and unpaid
by the Trust upon such termination shall be immediately due and payable
upon and notwithstanding such termination. The Administrator shall be
entitled to collect from the Trust, in addition to the compensation
described in this Schedule A, the amount of all of the Administrator's
cash disbursements for services in connection with the Administrator's
activities in effecting such termination, including without limitation
the delivery to the Trust and/or its designees of the Trust's property,
records, instruments and documents, or any copies thereof. Subsequent
to such termination, for a reasonable fee, the Administrator will
provide the Trust with reasonable access to any Trust documents or
records remaining in its possession.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause", as defined above, the Administrator is replaced as
administrator, or if a third party is added to perform all or a part of
the services provided by the Administrator under this Agreement
(excluding any sub-administrator appointed by the Administrator as
provided in Article 7 hereof), then the Trust shall make a one-time
cash payment, in consideration of the fee structure and services to be
provided under this Agreement, and not as a penalty, to the
Administrator equal to the lesser of the amount due the Administrator
for: (i) a one year period commencing on the date the Administrator is
replaced or a third party is added; or (ii) the remainder of the
then-current term of this Agreement, assuming for purposes of
calculation of the payment that the amount due the Administrator shall
be based upon the total combined net asset value of the Funds as shown
in their most recently audited financial statements and shall remain
constant for the remainder of the then-current term.
In the event the Trust is merged into another legal entity in part or
in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the
then-current term of this Agreement, the parties acknowledge and agree
that the liquidated damages provision set forth above shall be
applicable in those instances in which the Administrator is not
retained to provide administration services consistent with this
Agreement. The one-time cash payment referenced above shall be due and
payable on the day prior to the first day in which the Administrator is
replaced or a third party is added.
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