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UNDERWRITING AGREEMENT
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THIS UNDERWRITING AGREEMENT (this "Agreement") is made and entered into
as of this ___ day of _____, 2000, between Kit Xxxx Investment Trust, a Delaware
business trust (the "Trust"), Kit Xxxx Investment Advisory Services, Inc., a
California corporation (the "Advisor") and Quasar Distributors, LLC, as
underwriter (the "Underwriter").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and is authorized to issue shares of beneficial interests ("Shares") in separate
series with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Advisor is registered as an investment adviser under the
Investment Advisers Act of 1940 (the "Advisers Act") and is engaged in the
business of supplying investment advice as an independent contractor;
WHEREAS, the Trust wishes to retain the Underwriter as principal
underwriter in connection with the offering and sale of the Shares of each
series listed on Exhibit A (as amended from time to time) (each, a "Fund" and,
collectively, the "Funds") to this Agreement;
WHEREAS, the Underwriter is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, this Agreement has been approved by a vote of the Trust's
board of trustees or directors ("Board") and its disinterested
trustees/directors in conformity with Section 15(c) of the 1940 Act; and
WHEREAS, the Underwriter is willing to act as principal underwriter for
the Trust on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. APPOINTMENT OF THE UNDERWRITER.
The Trust hereby appoints the Underwriter as its agent for the sale and
distribution of Shares of the Funds, subject to the terms and for the period set
forth in this Agreement. The Underwriter hereby accepts such appointment and
agrees to act hereunder.
2. SERVICES AND DUTIES OF THE UNDERWRITER.
(a) The Underwriter agrees to sell Shares of the Funds as agent for the Trust
during the term of this Agreement, upon the terms and at the current offering
price (plus sales charge, if any) described in the Prospectus. As used in this
Agreement, the term "Prospectus" shall mean the current prospectus, including
the statement of additional information, as amended or supplemented, relating to
the Funds and included in the currently effective registration statement or
post-effective amendment thereto (the "Registration Statement") of the Trust
under the Securities Act of 1933 (the "1933 Act") and the 0000 Xxx.
(b) During the continuous public offering of Shares of the Funds, the
Underwriter will hold itself available to receive orders, satisfactory to the
Underwriter, for the purchase of Shares of the Funds and will accept such orders
on behalf of the Trust. Such purchase orders shall be deemed effective at the
time and in the manner set forth in the Prospectus.
(c) The Underwriter, with the operational assistance of the Trust's transfer
agent, shall make Shares available through the National Securities Clearing
Corporation's Fund/SERV System.
(d) In connection with all matters relating to this Agreement, the Underwriter
agrees to act in conformity with the Trust's Agreement and Declaration of Trust
and By-Laws and with the instructions of the Board and to comply with the
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the regulations of the
NASD and all other applicable federal or state laws and regulations. The
Underwriter acknowledges and agrees that it is not authorized to provide any
information or make any representations other than as contained in the
Prospectus and any sales literature specifically approved by the Trust and the
Underwriter.
(e) The Underwriter agrees to cooperate with the Trust in the development of all
proposed advertisements and sales literature relating to the Funds. The
Underwriter agrees to review all proposed advertisements and sales literature
for compliance with applicable laws and regulations, and shall file with
appropriate regulators those advertisements and sales literature it believes are
in compliance with such laws and regulations. The Underwriter agrees to furnish
to the Trust any comments provided by regulators with respect to such materials
and to use its best efforts to obtain the approval of the regulators to such
materials.
(f) The Underwriter, in its sole discretion, may repurchase Shares offered for
sale by shareholders of the Funds. Repurchase of Shares by the Underwriter shall
be at the price determined in accordance with, and in the manner set forth in,
the current Prospectus. At the end of each business day, the Underwriter shall
notify, by any appropriate means, the Trust and its transfer agent of the orders
for repurchase of Shares received by the Underwriter since the last report, the
amount to be paid for such Shares, and the identity of the shareholders offering
Shares for repurchase. The Trust reserves the right to suspend such repurchase
right upon written notice to the Underwriter. The Underwriter further agrees to
act as agent for the Trust to receive and transmit promptly to the Trust's
transfer agent shareholder requests for redemption of Shares.
(g) The Underwriter may, in its discretion, acting only as principal on its own
behalf, enter into agreements with such qualified broker-dealers as it may
select, in order that such broker-dealers also may sell Shares of the Funds. The
Underwriter may pay a portion of any applicable sales charge, or allow a
discount, to a selling broker-dealer, as described in the Prospectus or, if not
described, as agreed upon with the broker-dealer. The Underwriter shall include
in the forms of agreement with selling broker-dealers a provision for the
forfeiture by them of their sales charge or discount with respect to Shares sold
by them and redeemed, repurchased or tendered for redemption within seven
business days after the date of confirmation of such purchases.
(h) The Underwriter shall devote its best efforts to effect sales of Shares of
the Funds but shall not be obligated to sell any certain number of Shares.
(i) The Underwriter shall prepare reports for the Board regarding its activities
under this Agreement as from time to time shall be reasonably requested by the
Board.
(j) The services furnished by the Underwriter hereunder are not to be deemed
exclusive and the Underwriter shall be free to furnish similar services to
others so long as its services under this Agreement are not impaired thereby.
The Trust recognizes that from time to time officers and employees of the
Underwriter may serve as directors, trustees, officers and employees of other
entities (including investment companies), that such other entities may include
the name of the Underwriter as part of their name and that the Underwriter or
its affiliates may enter into distribution, administration, fund accounting,
transfer agent or other agreements with such other entities.
3. DUTIES AND REPRESENTATIONS OF THE TRUST.
(a) The Trust represents that it is registered as an open-end management
investment company under the 1940 Act and agrees that it will act in material
conformity with its Agreement and Declaration of Trust, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. The Trust agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal and
state laws and regulations.
(b) The Trust shall take or cause to be taken all necessary action to register
Shares of the Funds under the 1933 Act and to maintain an effective Registration
Statement for such Shares in order to permit the sale of Shares as herein
contemplated. The Trust authorizes the Underwriter to use the Prospectus, in the
form furnished to the Underwriter from time to time, in connection with the sale
of Shares.
(c) The Trust shall have the right to suspend the sale of Shares of any Fund at
any time in response to conditions in the securities markets or otherwise, and
to suspend the redemption of Shares of any Fund at any time permitted by the
1940 Act or the rules of the Securities and Exchange Commission ("SEC"). The
Trust shall advise the Underwriter promptly of any such determination.
(d) The Trust agrees to advise the Underwriter promptly in writing:
(i) of any correspondence or other communication by the SEC or its staff
relating to the Funds, including requests by the SEC for amendments to the
Registration Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any stop-order suspending
the effectiveness of the Registration Statement then in effect or the initiation
of any proceeding for that purpose;
(iii) of the occurrence of any event which makes untrue any statement of a
material fact made in the Prospectus or which requires the making of a change in
such Prospectus in order to make the statements therein not misleading; and
(iv) of all actions taken by the SEC with respect to any amendments to any
Registration Statement or Prospectus which may from time to time be filed with
the SEC.
(e) The Trust shall file such reports and other documents as may be required
under applicable federal and state laws and regulations. The Trust shall notify
the Underwriter in writing of the states in which the Shares may be sold and
shall notify the Underwriter in writing of any changes to such information.
(f) The Trust agrees to file from time to time such amendments to its
Registration Statement and Prospectus as may be necessary in order that its
Registration Statement and Prospectus will not contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(g) The Trust shall fully cooperate in the efforts of the Underwriter to sell
and arrange for the sale of Shares and shall make available to the Underwriter a
statement of each computation of net asset value. In addition, the Trust shall
keep the Underwriter fully informed of its affairs and shall provide to the
Underwriter from time to time copies of all information, financial statements,
and other papers that the Underwriter may reasonably request for use in
connection with the distribution of Shares, including, without limitation,
certified copies of any financial statements prepared for the Trust by its
independent public accountants and such reasonable number of copies of the most
current Prospectus, statement of additional information and annual and interim
reports to shareholders as the Underwriter may request.
4. COMPENSATION.
(a) For the services provided by the Underwriter pursuant to this Agreement, the
Advisor shall pay to the Underwriter fees as set forth on Schedule B to this
Agreement.
(b) In addition to the expenses payable pursuant to Section 5(a) and those items
set forth in Section 4(a) above, the Advisor agrees to reimburse the Underwriter
or pay directly, as is appropriate, reasonable out-of-pocket expenses incurred
by the Underwriter in connection with activities primarily intended to result in
the sale of Shares, including, without limitation, typesetting, printing and
distribution of Prospectuses and shareholder reports; production, printing,
distribution and placement of advertising and sales literature and materials;
engagement of designers, free-xxxxx writers and public relations firms;
long-distance telephone lines, services and charges; postage; overnight delivery
charges; regulatory filing fees; record retention; and travel, lodging and
meals.
5. EXPENSES.
(a) The Trust shall bear all costs and expenses in connection with registration
of the Shares with the SEC and related compliance with state securities laws, as
well as all costs and expenses in connection with the offering of the Shares and
communications with shareholders of its Funds, including but not limited to (i)
fees and disbursements of its counsel and independent public accountants; (ii)
costs and expenses of the preparation, filing, printing and mailing of
Registration Statements and Prospectuses and amendments thereto, (iii) costs and
expenses of the preparation, printing and mailing of annual and interim reports,
proxy materials and other communications to shareholders of the Funds; and (iv)
fees required in connection with the offer and sale of Shares in such
jurisdictions as shall be selected by the Trust pursuant to Section 3(e) hereof.
(b) The Underwriter shall bear the expenses of registration or qualification of
the Underwriter as a dealer or broker under federal or state laws and the
expenses of continuing such registration or qualification. The Underwriter does
not assume responsibility for any expenses not expressly assumed hereunder.
6. INDEMNIFICATION.
(a) The Trust shall indemnify, defend and hold the Underwriter, and each of its
present or former members, officers, employees, representatives and any person
who controls or previously controlled the Underwriter within the meaning of
Section 15 of the 1933 Act, free and harmless from and against any and all
losses, claims, demands, liabilities, damages and expenses (including the costs
of investigating or defending any alleged losses, claims, demands, liabilities,
damages or expenses and any reasonable counsel fee incurred in connection
therewith) which the Underwriter, each of its present and former members,
officers, employees or representatives or any such controlling person, may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or
any rule or regulation thereunder, or under common law or otherwise, arising out
of or based upon any untrue statement, or alleged untrue statement of a material
fact contained in the Registration Statement or any Prospectus, as from time to
time amended or supplemented, or in any annual or interim report to
shareholders, or in any advertisement or sales literature that is not the
product of the process described in Section 2(e) above, or arising out of or
based upon any omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Trust's obligation to indemnify the
Underwriter and any of the foregoing indemnitees shall not be deemed to cover
any losses, claims, demands, liabilities, damages or expenses arising out of any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, Prospectus, annual or interim report, or any
such advertisement or sales literature in reliance upon and in conformity with
information relating to the Underwriter and furnished to the Trust or its
counsel by the Underwriter for the purpose of, and used in, the preparation
thereof; and provided further that the Trust's agreement to indemnify the
Underwriter and any of the foregoing indemnitees shall not be deemed to cover
any liability to the Trust or its shareholders to which the Underwriter would
otherwise be subject by reason of its willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement. The Trust's
agreement to indemnify the Underwriter, and any of the foregoing indemnitees, as
the case may be, with respect to any action, is expressly conditioned upon the
Trust being notified of such action brought against the Underwriter, or any of
the foregoing indemnitees, within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon the Underwriter, or such person, such notification to be given
by letter or by telegram addressed to the Trust's President, but the failure so
to notify the Trust of any such action shall not relieve the Trust from any
liability which the Trust may have to the person against whom such action is
brought by reason of any such untrue, or alleged untrue, statement or omission,
or alleged omission, otherwise than on account of the Trust's indemnity
agreement contained in this Section 6(a).
(b) The Trust shall be entitled to participate at its own expense in the defense
or, if it so elects, to assume the defense of any suit brought to enforce any
such loss, claim, demand, liability, damage or expense, but if the Trust elects
to assume the defense, such defense shall be conducted by counsel chosen by the
Trust and approved by the Underwriter, which approval shall not be unreasonably
withheld. In the event the Trust elects to assume the defense of any such suit
and retain such counsel, the indemnified defendant or defendants in such suit
shall bear the fees and expenses of any additional counsel retained by them. If
the Trust does not elect to assume the defense of any such suit, or in case the
Underwriter does not, in the exercise of reasonable judgment, approve of counsel
chosen by the Trust, the Trust will reimburse the indemnified person or persons
named as defendant or defendants in such suit, for the fees and expenses of any
counsel retained by Underwriter and them. The Trust's indemnification agreement
contained in Sections 6(a) and 6(b) and the Trust's representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriter, and
each of its present or former directors, officers, employees, representatives or
any controlling person, and shall survive the delivery of any Shares and the
termination of this Agreement. This agreement of indemnity will inure
exclusively to the Underwriter's benefit, to the benefit of each of its present
or former members, officers, employees or representatives or to the benefit of
any controlling persons and their successors. The Trust agrees promptly to
notify the Underwriter of the commencement of any litigation or proceedings
against the Trust or any of its officers or directors in connection with the
issue and sale of any of the Shares.
(c) The Trust shall not indemnify any person pursuant to this Section 6 unless
(i) the court or other body before which the proceeding was brought has rendered
a final decision on the merits that such indemnified person was not liable by
reason of his willful misfeasance, bad faith or negligence in the performance of
his duties, or his reckless disregard of obligations and duties, under this
Agreement or, (ii) in the absence of such a decision, a reasonable determination
(based upon a review of the facts) that such indemnified person was not liable
by reason of such conduct has been made by the vote of a majority of a quorum of
trustees of the Trust who are neither "interested persons" of the Trust nor
parties to the proceedings, or by an independent legal counsel in a written
opinion.
(d) The Trust shall advance attorney's fees and other expenses incurred by any
person in defending any claim, demand, action or suit which is the subject of a
claim for indemnification pursuant to this Section 6, so long as: (i) such
person shall undertake to repay all such advances unless it is ultimately
determined that he is entitled to indemnification hereunder; and (ii) such
person shall provide security for such undertaking, or the Trust shall be
insured against losses arising by reason of any lawful advances, or a majority
of a quorum of the disinterested, non-party trustees of the Trust (or an
independent legal counsel in a written opinion) shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that such person ultimately will be found
entitled to indemnification hereunder.
(e) The Underwriter shall indemnify, defend and hold the Trust, and each of its
present or former trustees, officers, employees, representatives, and any person
who controls or previously controlled the Trust within the meaning of Section 15
of the 1933 Act, free and harmless from and against any and all losses, claims,
demands, liabilities, damages and expenses (including the costs of investigation
or defending any alleged losses, claims, demands, liabilities, damages or
expenses, and any reasonable counsel fee incurred in connection therewith) which
the Trust, and each of its present or former trustees, officers, employees,
representatives, or any such controlling person, may incur under the 1933 Act,
the 1934 Act, any other statute (including Blue Sky laws) or any rule or
regulation thereunder, or under common law or otherwise, arising out of or based
upon any untrue, or alleged untrue, statement of a material fact contained in
the Trust's Registration Statement or any Prospectus, as from time to time
amended or supplemented, or in any annual or interim report to shareholders or
in any advertisement or sales literature that is not the product of the process
described in Section 2(e) above, or arising out of or based upon the omission,
or alleged omission, to state therein a material fact required to be stated
therein or necessary to make the statement not misleading, but only if such
statement or omission was made in reliance upon, and in conformity with,
information relating to the Underwriter and furnished to the Trust or its
counsel by the Underwriter for the purpose of, and used in, the preparation
thereof. The Underwriter's agreement to indemnify the Trust and any of the
foregoing indemnitees shall not be deemed to cover any liability to the
Underwriter to which the Trust would otherwise be subject by reason of its
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of its reckless disregard of its obligations and duties, under this
Agreement. The Underwriter's agreement to indemnify the Trust, and any of the
foregoing indemnitees, is expressly conditioned upon the Underwriter's being
notified of any action brought against the Trust, and any of the foregoing
indemnitees, such notification to be given by letter or telegram addressed to
the Underwriter's President, within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon the Trust or such person, but the failure so to notify the
Underwriter of any such action shall not relieve the Underwriter from any
liability which the Underwriter may have to the person against whom such action
is brought by reason of any such untrue, or alleged untrue, statement or
omission, otherwise than on account of the Underwriter's indemnity agreement
contained in this Section 6(e).
(f) The Underwriter shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any such loss, claim, demand, liability, damage or expense, but if the
Underwriter elects to assume the defense, such defense shall be conducted by
counsel chosen by the Underwriter and approved by the Trust, which approval
shall not be unreasonably withheld. In the event the Underwriter elects to
assume the defense of any such suit and retain such counsel, the indemnified
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Underwriter does not elect to assume
the defense of any such suit, or in case the Trust does not, in the exercise of
reasonable judgment, approve of counsel chosen by the Underwriter, the
Underwriter will reimburse the indemnified person or persons named as defendant
or defendants in such suit, for the fees and expenses of any counsel retained by
the Trust and them. The Underwriter's indemnification agreement contained in
Sections 6(e) and (f) and the Underwriter's representations and warranties in
this Agreement shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Trust, and each of its present or
former directors, officers, employees, representatives or any controlling
person, and shall survive the delivery of any Shares and the termination of this
Agreement. This Agreement of indemnity will inure exclusively to the Trust's
benefit, to the benefit of each of its present or former directors, officers,
employees or representative or to the benefit of any controlling persons and
their successors. The Underwriter agrees promptly to notify the Trust of the
commencement of any litigation or proceedings against the Underwriter or any of
its officers or directors in connection with the issue and sale of any of the
Shares.
7. OBLIGATIONS OF TRUST.
This Agreement is executed by and on behalf of the Trust and the
obligations of the Trust hereunder are not binding upon any of the trustees,
officers or shareholders of the Trust individually but are binding only upon the
Trust and with respect to the Funds to which such obligations pertain.
8. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original agreement but all of which counterparts
shall together constitute but one and the same instrument.
9. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control, and nothing herein shall be construed in a manner inconsistent
with the 1940 Act or any rule or order of the SEC thereunder.
10. DURATION AND TERMINATION.
(a) This Agreement shall become effective with respect to each Fund listed on
Schedule A hereof as of the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to Schedule A to this Agreement
relating to that Fund is executed. Unless sooner terminated as provided herein,
this Agreement shall continue in effect for one year from the date hereof.
Thereafter, if not terminated, this Agreement shall continue automatically in
effect as to each Fund for successive one-year periods, provided such
continuance is specifically approved at least annually by (i) the Trust's Board
or (ii) the vote of a "majority of the outstanding voting securities" of a Fund,
and provided that in either event the continuance is also approved by a majority
of the Trust's Board who are not "interested persons" of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval.
(b) Notwithstanding the foregoing, this Agreement may be terminated, without the
payment of any penalty, with respect to a particular Fund (i) through a failure
to renew this Agreement at the end of a term, (ii) upon mutual consent of the
parties, or (iii) upon no less than 60 days' written notice, by either the Trust
through a vote of a majority of the members of the Board who are not "interested
persons" of the Trust and have no direct or indirect financial interest in the
operation of this Agreement or by vote of a "majority of the outstanding voting
securities" of a Fund, or by the Underwriter. The terms of this Agreement shall
not be waived, altered, modified, amended or supplemented in any manner
whatsoever except by a written instrument signed by the Underwriter and the
Trust. This Agreement will automatically terminate in the event of its
assignment.
11. MISCELLANEOUS.
The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. Any provision of this Agreement
which may be determined by competent authority to be prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested person," and "assignment" shall have the same meaning as such terms
have in the 1940 Act.
12. NOTICE.
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given when delivered
personally or sent by registered or certified mail, postage prepaid, return
receipt requested or sent by facsimile transmission to the other party's
principal office. Notice to the Underwriter shall be sent to:
Quasar Distributors, LLC
Attn: Xxxxxx Xxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
Kit Xxxx Investment Trust
Attn: Xxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers duly authorized thereunto as of the day and year
first above written.
KIT XXXX INVESTMENT ADVISORY SERVICES, INC. KIT XXXX INVESTMENT TRUST
By:__________________________ By: _________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
QUASAR DISTRIBUTORS, LLC,
By: ________________________
Name: ______________________
Title: _____________________
EXHIBIT A
SEPARATE SERIES OF KIT XXXX INVESTMENT TRUST
NAME OF SERIES DATE ADDED
Kit Xxxx Strategic Growth Fund
EXHIBIT B
DISTRIBUTION AGREEMENT
QUASAR DISTRIBUTORS, LLC
FEES
ADVERTISING COMPLIANCE REVIEW/NASD FILINGS
o $150 for the first 10 pages; $20 per page thereafter
LICENSING OF INVESTMENT ADVISOR'S STAFF (IF DESIRED)
o $900 per year per Series 7 representative
o All associated NASD and State fees for Registered Representatives, including
license and renewal fees.
