XXXXXXXXX XXXXXX INCOME FUNDS
INVESTOR CLASS
ADMINISTRATION AGREEMENT
This Agreement is made as of February 9, 2001, between
Xxxxxxxxx Xxxxxx Income Funds, a Delaware business trust ("Trust"), and
Xxxxxxxxx Xxxxxx Management Inc., a New York corporation ("Administrator") with
respect to the Investor Class of shares.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended ("1940 Act"), as an open-end, diversified
management investment company and has established several separate series of
shares ("Series"), with each Series having its own assets and investment
policies, and with each Series having one or more classes of shares;
WHEREAS, the Trust desires to retain the Administrator to
furnish administrative services, including shareholder accounting,
recordkeeping, and other services to shareholders, to each Series listed in
Schedule A attached hereto (as it may be amended from time to time, a Series or,
as appropriate, the Investor Class of each such Series), and the Administrator
is willing to furnish such services,
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties agree as follows:
1. SERVICES OF THE ADMINISTRATOR.
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1.1 ADMINISTRATIVE SERVICES. The Administrator shall
supervise the business and affairs of each Series and its Investor Class and
shall provide such services required for effective administration of such Series
as are not provided by employees or other agents engaged by such Series;
PROVIDED, that the Administrator shall not have any obligation to provide under
this Agreement any services related to the distribution of a Series's shares, or
any other services that are the subject of a separate agreement or arrangement
between a Series and the Administrator. The Administrator can use any of the
officers and employees of Xxxxxxxxx Xxxxxx, LLC to provide any of the services
or reports required under this agreement. Subject to the foregoing, in providing
administrative services hereunder, the Administrator shall:
1.1.1 OFFICE SPACE, EQUIPMENT AND FACILITIES.
Furnish without cost to each Series and its Investor Class, or pay the cost of,
such office space, office equipment and office facilities as are adequate for
the needs of its Series and their Investor Class;
1.1.2 PERSONNEL. Provide, without remuneration
from or other cost to each Series, the services of individuals competent to
perform all of the executive, administrative and clerical functions of each
Series and its Investor Class that are not performed by employees or other
agents engaged by the Series or by the Administrator acting in some other
capacity pursuant to a separate agreement or arrangement with the Series;
1.1.3 AGENTS. Assist each Series in selecting
and coordinating the activities of the other agents engaged by the Series,
including the Series's shareholder servicing agent, custodian, independent
auditors and legal counsel;
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1.1.4 TRUSTEES AND OFFICERS. Authorize and
permit the Administrator's directors, officers or employees who may be elected
or appointed as trustees or officers of the Trust to serve in such capacities,
without remuneration from or other cost to the Trust or any Series;
1.1.5 BOOKS AND RECORDS. Assure that all
financial, accounting and other records required to be maintained and preserved
by each Series are maintained and preserved by it or on its behalf in accordance
with applicable laws and regulations; and
1.1.6 REPORTS AND FILINGS. Assist in the
preparation of (but not pay for) all periodic reports by each Series or its
Investor Class to shareholders of such Series or Class and all reports and
filings required to maintain the registration and qualification of the Series
and the Investor Class shares, or to meet other regulatory or tax requirements
applicable to the Series or its Investor Class, under federal and state
securities and tax laws.
1.2 SHAREHOLDER AND RELATED SERVICES (INVESTOR CLASS
ONLY). The Administrator shall provide such of the following services as are
required by any Series or its shareholders:
1.2.1 Direct shareholder services, consisting of:
(a) Processing Series share purchase and
redemption requests transmitted or delivered to the office of the Administrator;
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(b) Coordinating and implementing bank-to-bank
wire transfers in connection with Series share purchases and redemptions;
(c) Executing exchange orders involving
concurrent purchases and redemption of shares of a Series and shares of other
Series or of other investment companies or series thereof;
(d) Responding to telephonic and in-person
inquiries from existing shareholders or their representatives requesting
information regarding matters such as shareholder account or transaction status,
net asset value ("NAV") of Series shares, and Series performance, Series
services, plans and options, Series investment policies, Series portfolio
holdings, and Series distributions and classification thereof for tax purposes;
(e) Dealing with shareholder complaints and
correspondence directed to or brought to the attention of the Administrator; and
(f) Generating or developing and distributing
special data, notices, reports, programs and literature required by large
shareholders, by shareholders with specialized informational needs, or by
shareholders generally in light of developments, such as changes in tax laws.
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1.2.2 Assisting any institutional servicing agent
engaged by the Series in the development, implementation and maintenance of the
following special programs and systems to enhance overall Series shareholder
servicing capability, consisting of:
(a) Training programs for personnel of such
institutional servicing agent;
(b) Joint programs with such institutional
servicing agent for the development of systems software, shareholder information
reports, and other special reports;
(c) Automatic data exchange facilities with
shareholders and such institutional servicing agent;
(d) Automated clearinghouse transfer
procedures between shareholders and such institutional servicing agent; and
(e) Touch-tone telephone information and
transaction systems for shareholders.
1.2.3 Soliciting and gathering shareholder proxies.
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1.2.4 Such other shareholder and shareholder-related
services, whether similar to or different from those described in Subparagraphs
1.2.1, 1.2.2 and 1.2.3 of this Paragraph 1.2, as the parties may from time to
time agree in writing.
1.3 BLUE SKY SERVICES. The Administrator shall maintain under
this Agreement the registration or qualification of a Series and its shares
under state Blue Sky or securities laws and regulations, as necessary; PROVIDED
that such Series shall pay all related filing fees and registration or
qualification fees.
1.4 OTHER SERVICES. The Administrator shall provide such other
services required by a Series as the parties may from time to time agree in
writing are appropriate to be provided under this Agreement.
2. EXPENSES OF EACH SERIES.
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2.1 EXPENSES TO BE PAID BY THE ADMINISTRATOR. The
Administrator shall pay all salaries, expenses and fees of the officers,
trustees, or employees of the Trust who are officers, directors or employees of
the Administrator. If the Administrator pays or assumes any expenses of the
Trust, Series or Class not required to be paid or assumed by the Administrator
under this Agreement, the Administrator shall not be obligated hereby to pay or
assume the same or any similar expense in the future; PROVIDED, that nothing
herein contained shall be deemed to relieve the Administrator of any obligation
to the Trust or to a Series or Class under any separate agreement or arrangement
between the parties.
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2.2 EXPENSES TO BE PAID BY THE SERIES. Each Series shall
bear all expenses of its operation, except those specifically allocated to the
Administrator under this Agreement or under any separate agreement between such
Series and the Administrator. Expenses to be borne by such Series shall include
both expenses directly attributable to the operation of that Series and the
offering of its shares, as well as the portion of any expenses of the Trust that
is properly allocable to such Series in a manner approved by the trustees of the
Trust ("Trustees"). (The allocation of such expenses among the classes of a
Series, on either a class-specific or a pro rata basis, shall be made in
accordance with the Trust's Rule 18f-3 Plan.) Subject to any separate agreement
or arrangement between the Trust or a Series and the Administrator, the expenses
hereby allocated to each Series, and not to the Administrator, include, but are
not limited to:
2.2.1 CUSTODY. All charges of depositories,
custodians, and other agents for the transfer, receipt, safekeeping, and
servicing of its cash, securities, and other property;
2.2.2 SHAREHOLDER SERVICING. All expenses of
maintaining and servicing shareholder accounts, including but not limited to the
charges of any shareholder servicing agent, dividend disbursing agent or other
agent (other than the Administrator hereunder) engaged by a Series to service
shareholder accounts;
2.2.3 SHAREHOLDER REPORTS. All expenses of
preparing, setting in type, printing and distributing reports and other
communications to shareholders of a Series;
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2.2.4 PROSPECTUSES. All expenses of preparing,
setting in type, printing and mailing annual or more frequent revisions of a
Series's Prospectus and SAI and any supplements thereto and of supplying them to
shareholders of the Series and Account holders;
2.2.5 PRICING AND PORTFOLIO VALUATION. All
expenses of computing a Series's net asset value ("NAV") per share, including
any equipment or services obtained for the purpose of pricing shares or valuing
the Series's investment portfolio;
2.2.6 COMMUNICATIONS. All charges for equipment
or services used for communications between the Administrator or the Series and
any custodian, shareholder servicing agent, portfolio accounting services agent,
or other agent engaged by a Series;
2.2.7 LEGAL AND ACCOUNTING FEES. All charges for
services and expenses of a Series's legal counsel and independent auditors;
2.2.8 TRUSTEES' FEES AND EXPENSES. All
compensation of Trustees other than those affiliated with the Administrator, all
expenses incurred in connection with such unaffiliated Trustees' services as
Trustees, and all other expenses of meetings of the Trustees or committees
thereof;
2.2.9 SHAREHOLDER MEETINGS. All expenses
incidental to holding meetings of shareholders, including the printing of
notices and proxy materials, and proxy solicitation therefor;
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2.2.10 FEDERAL REGISTRATION FEES. All fees and
expenses of registering and maintaining the registration of the Trust and each
Series under the 1940 Act and the registration of each Series's shares under the
Securities Act of 1933 (the "1933 Act"), including all fees and expenses
incurred in connection with the preparation, setting in type, printing, and
filing of any Registration Statement, Prospectus and SAI under the 1933 Act or
the 1940 Act, and any amendments or supplements that may be made from time to
time;
2.2.11 STATE REGISTRATION FEES. All fees and
expenses of qualifying and maintaining the qualification of the Trust and each
Series and of each Series's shares for sale under securities laws of various
states or jurisdictions, and of registration and qualification of each Series
under all other laws applicable to a Series or its business activities
(including registering the Series as a broker-dealer, or any officer of the
Series or any person as agent or salesman of the Series in any state);
2.2.12 SHARE CERTIFICATES. All expenses of
preparing and transmitting a Series's share certificates, if any;
2.2.13 CONFIRMATIONS. All expenses incurred in
connection with the issue and transfer of a Series's shares, including the
expenses of confirming all share transactions;
2.2.14 BONDING AND INSURANCE. All expenses of
bond, liability, and other insurance coverage required by law or regulation or
deemed advisable by the Trustees, including, without limitation, such bond,
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liability and other insurance expense that may from time to time be allocated to
the Series in a manner approved by the Trustees;
2.2.15 BROKERAGE COMMISSIONS. All brokers'
commissions and other charges incident to the purchase, sale or lending of a
Series's portfolio securities;
2.2.16 TAXES. All taxes or governmental fees
payable by or with respect to a Series to federal, state or other governmental
agencies, domestic or foreign, including stamp or other transfer taxes;
2.2.17 TRADE ASSOCIATION FEES. All fees, dues and
other expenses incurred in connection with a Series's membership in any trade
association or other investment organization;
2.2.18 NONRECURRING AND EXTRAORDINARY EXPENSES.
Such nonrecurring and extraordinary expenses as may arise, including the costs
of actions, suits, or proceedings to which the Series is a party and the
expenses a Series may incur as a result of its legal obligation to provide
indemnification to the Trust's officers, Trustees and agents;
2.2.19 ORGANIZATIONAL EXPENSES. All
organizational expenses of each Series paid or assessed by the Administrator,
which such Series shall reimburse to the Administrator at such time or times and
subject to such condition or conditions as shall be specified in the Prospectus
and SAI pursuant to which such Series makes the initial public offering of its
shares; and
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2.2.20 INVESTMENT ADVISORY SERVICES. Any fees and
expenses for investment advisory services that may be incurred or contracted for
by a Series.
3. ADMINISTRATION FEE.
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3.1 FEE. As compensation for all services rendered,
facilities provided and expenses paid or assumed by the Administrator to or for
each Series or its Investor Class under this Agreement, the Investor Class of
such Series shall pay the Administrator an annual fee as set out in Schedule B
to this Agreement.
3.2 COMPUTATION AND PAYMENT OF FEE. The administration
fee shall accrue on each calendar day, and shall be payable monthly on the first
business day of the next succeeding calendar month. The daily fee accruals for
each Series shall be computed by multiplying the fraction of one divided by the
number of days in the calendar year by the applicable annual administration fee
rate (as set forth in Schedule B hereto), and multiplying this product by the
NAV of the Investor Class of such Series, determined in the manner set forth in
such Series's then-current Investor Class Prospectus, as of the close of
business on the last preceding business day on which such Series's Investor
Class NAV was determined.
4. OWNERSHIP OF RECORDS. All records required to be maintained and
preserved by each Series pursuant to the provisions or rules or regulations of
the Securities and Exchange Commission ("SEC") under Section 31(a) of the 1940
Act and maintained and preserved by the Administrator on behalf of such Series
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are the property of such Series and shall be surrendered by the Administrator
promptly on request by the Series; PROVIDED, that the Administrator may at its
own expense make and retain copies of any such records.
5. REPORTS TO ADMINISTRATOR. Each Series shall furnish or otherwise
make available to the Administrator such copies of that Series's Investor Class
Prospectus, SAI, financial statements, proxy statements, reports, and other
information relating to its business and affairs as the Administrator may, at
any time or from time to time, reasonably require in order to discharge its
obligations under this Agreement.
6. REPORTS TO EACH SERIES. The Administrator shall prepare and
furnish to each Series such reports, statistical data and other information in
such form and at such intervals as such Series may reasonably request.
7. OWNERSHIP OF SOFTWARE AND RELATED MATERIALS. All computer
programs, written procedures and similar items developed or acquired and used by
the Administrator in performing its obligations under this Agreement shall be
the property of the Administrator, and no Series will acquire any ownership
interest therein or property rights with respect thereto.
8. CONFIDENTIALITY. The Administrator agrees, on its own behalf and
on behalf of its employees, agents and contractors, to keep confidential any and
all records maintained and other information obtained hereunder which relates to
any Series or to any of a Series's former, current or prospective shareholders,
EXCEPT that the Administrator may deliver records or divulge information (a)
when requested to do so by duly constituted authorities after prior notification
to and approval in writing by such Series (which approval will not be
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unreasonably withheld and may not be withheld by such Series where the
Administrator advises such Series that it may be exposed to civil or criminal
contempt proceedings or other penalties for failure to comply with such request)
or (b) whenever requested in writing to do so by such Series.
9. THE ADMINISTRATOR'S ACTIONS IN RELIANCE ON SERIES' INSTRUCTIONS,
LEGAL OPINIONS, ETC.; SERIES' COMPLIANCE WITH LAWS.
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9.1 The Administrator may at any time apply to an officer
of the Trust for instructions, and may consult with legal counsel for a Series
or with the Administrator's own legal counsel, in respect of any matter arising
in connection with this Agreement; and the Administrator shall not be liable for
any action taken or omitted to be taken in good faith and with due care in
accordance with such instructions or with the advice or opinion of such legal
counsel. The Administrator shall be protected in acting upon any such
instructions, advice or opinion and upon any other paper or document delivered
by a Series or such legal counsel which the Administrator believes to be genuine
and to have been signed by the proper person or persons, and the Administrator
shall not be held to have notice of any change of status or authority of any
officer or representative of the Trust, until receipt of written notice thereof
from the Series.
9.2 Except as otherwise provided in this Agreement or in
any separate agreement between the parties and except for the accuracy of
information furnished to each Series by the Administrator, each Series assumes
full responsibility for the preparation, contents, filing and distribution of
its Investor Class Prospectus and SAI, and full responsibility for other
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documents or actions required for compliance with all applicable requirements of
the 1940 Act, the Securities Exchange Act of 1934, the 1933 Act, and any other
applicable laws, rules and regulations of governmental authorities having
jurisdiction over such Series.
10. SERVICES TO OTHER CLIENTS. Nothing herein contained shall limit
the freedom of the Administrator or any affiliated person of the Administrator
to render administrative or shareholder services to other investment companies,
to act as administrator to other persons, firms, or corporations, or to engage
in other business activities.
11. LIMITATION OF LIABILITY REGARDING THE TRUST. The Administrator
shall look only to the assets of each Series for performance of this Agreement
by the Trust on behalf of such Series, and neither the Trustees of the Trust
("Trustees") nor any of the Trust's officers, employees or agents, whether past,
present or future shall be personally liable therefor.
12. INDEMNIFICATION BY SERIES. Each Series shall indemnify the
Administrator and hold it harmless from and against any and all losses, damages
and expenses, including reasonable attorneys' fees and expenses, incurred by the
Administrator that result from: (i) any claim, action, suit or proceeding in
connection with the Administrator's entry into or performance of this Agreement
with respect to such Series; or (ii) any action taken or omission to act
committed by the Administrator in the performance of its obligations hereunder
with respect to such Series; or (iii) any action of the Administrator upon
instructions believed in good faith by it to have been executed by a duly
authorized officer or representative of the Trust with respect to such Series;
PROVIDED, that the Administrator shall not be entitled to such indemnification
in respect of actions or omissions constituting negligence or misconduct on the
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part of the Administrator or its employees, agents or contractors. Before
confessing any claim against it which may be subject to indemnification by a
Series hereunder, the Administrator shall give such Series reasonable
opportunity to defend against such claim in its own name or in the name of the
Administrator.
13. INDEMNIFICATION BY THE ADMINISTRATOR. The Administrator shall
indemnify each Series and hold it harmless from and against any and all losses,
damages and expenses, including reasonable attorneys' fees and expenses,
incurred by such Series which result from: (i) the Administrator's failure to
comply with the terms of this Agreement with respect to such Series; or (ii) the
Administrator's lack of good faith in performing its obligations hereunder with
respect to such Series; or (iii) the Administrator's negligence or misconduct or
that of its employees, agents or contractors in connection herewith with respect
to such Series. A Series shall not be entitled to such indemnification in
respect of actions or omissions constituting negligence or misconduct on the
part of that Series or its employees, agents or contractors other than the
Administrator unless such negligence or misconduct results from or is
accompanied by negligence or misconduct on the part of the Administrator, any
affiliated person of the Administrator, or any affiliated person of an
affiliated person of the Administrator. Before confessing any claim against it
which may be subject to indemnification hereunder, a Series shall give the
Administrator reasonable opportunity to defend against such claim in its own
name or in the name of the Trust on behalf of such Series.
14. EFFECT OF AGREEMENT. Nothing herein contained shall be deemed to
require the Trust or any Series to take any action contrary to the Trust
Instrument or By-laws of the Trust or any applicable law, regulation or order to
which it is subject or by which it is bound, or to relieve or deprive the
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Trustees of their responsibility for and control of the conduct of the business
and affairs of the Series or Trust.
15. TERM OF AGREEMENT. The term of this Agreement shall begin on
February 9, 2001 with respect to each Series and, unless sooner terminated as
hereinafter provided, this Agreement shall remain in effect through June 30,
2001. Thereafter, this Agreement shall continue in effect with respect to each
Series from year to year, subject to the termination provisions and all other
terms and conditions hereof; PROVIDED, such continuance with respect to a Series
is approved at least annually by vote or written consent of the Trustees,
including a majority of the Trustees who are not interested persons of either
party hereto ("Disinterested Trustees"); and PROVIDED FURTHER, that the
Administrator shall not have notified a Series in writing at least sixty days
prior to the first expiration date hereof or at least sixty days prior to any
expiration date in any year thereafter that it does not desire such
continuation. The Administrator shall furnish any Series, promptly upon its
request, such information as may reasonably be necessary to evaluate the terms
of this Agreement or any extension, renewal or amendment thereof.
16. AMENDMENT OR ASSIGNMENT OF AGREEMENT. Any amendment to this
Agreement shall be in writing signed by the parties hereto; PROVIDED, that no
such amendment shall be effective unless authorized on behalf of any Series (i)
by resolution of the Trustees, including the vote or written consent of a
majority of the Disinterested Trustees, or (ii) by vote of a majority of the
outstanding voting securities of the Investor Class of such Series. This
Agreement shall terminate automatically and immediately in the event of its
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assignment; provided, that with the consent of a Series, the Administrator may
subcontract to another person any of its responsibilities with respect to such
Series.
17. TERMINATION OF AGREEMENT. This Agreement may be terminated at any
time by either party hereto, without the payment of any penalty, upon at least
sixty days' prior written notice to the other party; PROVIDED, that in the case
of termination by any Series, such action shall have been authorized (i) by
resolution of the Trustees, including the vote or written consent of the
Disinterested Trustees, or (ii) by vote of a majority of the outstanding voting
securities of the Investor Class of such Series.
18. NAME OF A SERIES. Each Series hereby agrees that if the
Administrator shall at any time for any reason cease to serve as administrator
to a Series, such Series shall, if and when requested by the Administrator,
eliminate from such Series's name the name "Xxxxxxxxx Xxxxxx" and thereafter
refrain from using the name "Xxxxxxxxx Xxxxxx" or the initials "NB" in
connection with its business or activities, and the foregoing agreement of each
Series shall survive any termination of this Agreement and any extension or
renewal thereof.
19. INTERPRETATION AND DEFINITION OF TERMS. 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 Act shall be resolved by
reference to such term or provision of the 1940 Act and to interpretation
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 validly issued pursuant to the 1940 Act. Specifically, the terms "vote of a
majority of the outstanding voting securities," "interested persons,"
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"assignment" and "affiliated person," as used in this Agreement shall have the
meanings assigned to them by Section 2(a) of the 1940 Act. In addition, when the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is modified, interpreted or relaxed by a rule, regulation or order of
the SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
20. CHOICE OF LAW. This Agreement is made and to be principally
performed in the State of New York, and except insofar as the Act or other
federal laws and regulations may be controlling, this Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York.
21. CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
22. EXECUTION IN COUNTERPARTS. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized
and their respective seals to be hereunto affixed, as of the day and year first
above written.
XXXXXXXXX XXXXXX INCOME FUNDS
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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XXXXXXXXX XXXXXX MANAGEMENT INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President
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