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Exhibit 9(b)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 16th day of January, 1997, by and
between FIVE ARROWS SHORT-TERM INVESTMENT TRUST, a Delaware business trust (the
"Company"), and BISYS FUND SERVICES LIMITED PARTNERSHIP, d/b/a BISYS FUND
SERVICES (the "Administrator"), an Ohio limited partnership.
WHEREAS, the Company 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, Administrator is an affiliate of Five Arrows Fund Distributors
Inc., BISYS Fund Services, Inc. and BISYS Fund Services (Ireland) Limited (each
such entity and any other entity hereafter providing services under a BISYS
Agreement (as defined below) is hereinafter referred to as a "BISYS Entity");
and
WHEREAS, concurrently herewith, Administrator and the other BISYS
Entities are entering into other agreements to provide services to the Company,
the International Currency Fund, and Five Arrows Cash Management Fund PLC (such
agreements and any other comparable agreements in effect from time to time being
referred to collectively as the "BISYS Agreements"); and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
such series of the Company as the Company 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 Company and the Administrator hereby agree as
follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Company 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 to perform the duties
set forth below. The Company consents to the performance of certain services
hereunder by Administrator's affiliate, BISYS Fund Services (Ireland) Limited
("BISYS Ireland"); provided, however, that Administrator shall be fully
responsible for the acts and omissions of BISYS Ireland and shall not be
relieved of any of its responsibilities hereunder by any such delegation.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
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ARTICLE 2. ADMINISTRATIVE SERVICES. The Administrator shall perform
administrative services in connection with the operations of the Funds, and, on
behalf of the Company, will investigate, assist in the selection of, supervise
the performance by 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 Company 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 Company 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 shall make reports to the Company's Trustees concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator
shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and, as appropriate, compute the
Company's yields, total return, expense ratios, portfolio
turnover rate and, if required, portfolio average
dollar-weighted maturity;
(b) assist Company 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
law) as may be necessary or desirable to register the Company's
Shares with state securities authorities, monitor the sale of
Company Shares for compliance with state securities laws, and
file with the appropriate state securities authorities the
registration statements and reports for the Company and the
Company's Shares and all amendments thereto, as may be necessary
or convenient to register and keep effective the Company and the
Company's Shares with state securities authorities to enable the
Company to make a continuous offering of its Shares;
(d) develop and prepare, with the assistance of the Company'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 Company Shareholders, and supervise and facilitate
the proxy
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solicitation process for all shareholder meetings, including
the tabulation of shareholder votes;
(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor,
custodian, transfer agent and fund accountant;
(f) supervise the Company'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 company industry
including, without limitation, calculation of one, five and ten
year total returns and such other measures of performance
reasonably requested by the Company;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Company or any Fund of
the Company, including, without limitation, the Company's
investment adviser, distributor, custodian, fund 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 organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing
of the Company'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 Company's Board
of Trustees to serve as officers of the Company, who will be
responsible for the management of certain of the Company's
affairs as determined by the Company's Board of Trustees;
(m) advise the Company and its Board of Trustees on matters
concerning the Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company
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 Company's Board of Trustees;
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(o) monitor and advise the Company and its Funds on their registered
investment company status under the Internal Revenue Code of
1986, as amended;
(p) perform all administrative services and functions of the Company
and each Fund to the extent administrative services and
functions are not provided to the Company or such Fund pursuant
to the Company's or such Fund's distribution 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 Company and the
Administrator shall determine desirable; and
(r) prepare and file with the SEC the semi-annual report for the
Company on Form N-SAR and all required notices pursuant to Rule
24f-2.
The Administrator shall perform such other services for the Company
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
Company will pay the Administrator's out-of-pocket expenses.
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 Company as well as all Trustees of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Trustees of the
Company to perform services on behalf of the Company.
(B) THE COMPANY. The Company assumes and shall pay or cause to be paid
all other expenses of the Company 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 affiliated
corporation of the Administrator, interest, brokerage costs, litigation and
other extraordinary or nonrecurring expenses.
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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 Company 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.
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 assumed by or may be asserted against the Administrator
hereunder. Administrator shall use its best efforts to ensure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Company for any action taken or omitted by Administrator in the absence of bad
faith, willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties. The Company agrees to indemnify and hold harmless
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 Administrator's actions or
omissions with respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to Administrator by the Company, provided
that this indemnification shall not apply to actions or omissions of
Administrator in cases of its own bad faith, willful misfeasance, negligence or
from reckless disregard by it of its obligations and duties.
For purposes of this Agreement, actions or omissions by any BISYS
Entity or its employees, agents, directors, officers or nominees made in any
capacity shall be deemed to be actions or omissions by Administrator. Any
actions or omissions by a person who is both an officer or employee of the
Company and an officer or employee of any BISYS Entity shall be deemed to have
been committed solely in such person's capacity as an officer or employee of
such BISYS Entity.
The Company's agreement to indemnify Administrator, its partners and
employees and any such controlling person, as aforesaid, is expressly
conditioned upon the Company being notified of any action brought against
Administrator, its partners or employees, or any such controlling person, such
notification to be given in accordance with Article 12 hereof within 10 days
after the
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summons or other first legal process shall have been served. The failure to so
notify the Company of any such action shall not relieve the Company from any
liability which the Company may have to the person against whom such action is
brought by reason of any such untrue, or allegedly untrue, statement or
omission, or alleged omission, otherwise than with respect to incremental
liabilities resulting from such failure. The Company will be entitled to assume
the defense of any suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by counsel of good standing
chosen by the Company and approved by Administrator, which approval shall not be
unreasonably withheld. In the event the Company elects to assume the defense of
any such suit and retain counsel of good standing approved by Administrator, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Company does not
elect to assume the defense of any such suit, or in case Administrator
reasonably does not approve of counsel chosen by the Company, the Company will
reimburse Administrator, its partners and employees, or the controlling person
or persons named as defendant or defendants in such suit, for the fees and
expenses of any counsel retained by Administrator or them.
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company 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
reasonable 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.
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
Company until receipt of written notice thereof from the Company.
ARTICLE 6. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Company 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 directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Company, and that the Administrator may be or become
interested in the Company 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; the Administrator may also
at its expense, subcontract with any entity or person concerning the provision
of the services contemplated
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hereunder with the express prior written consent of the Company, provided that,
to the extent that the services delegated involve only such ministerial tasks as
are routinely and commonly delegated by similarly situated service providers,
such consent shall not be unreasonably withheld. The Administrator shall not,
however, be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that 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 by
a duly authorized written instrument.
ARTICLE 10. 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 maintained by the Administrator
on behalf of the Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company'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
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. 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 12. NOTICE. Any notice, demand, request or other communication
which may be required or contemplated herein shall be sufficiently given if (i)
given either by facsimile transmission or telex, by reputable overnight delivery
service, postage prepaid, or by registered or certified mail, postage prepaid
and return receipt requested, to the address indicated below or to such other
address as any party hereto may specify as provided herein, or (ii) delivered
personally at such address.
If to the Company: c/o Rothschild International Asset Management Limited
Five Arrows House
St. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxxxxx
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with a copy to:
Xxxxxxxx R.T. Xxxxxx
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
If to Administrator: 0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000.
Attention: Xxxxxx Xxxxxxxx
ARTICLE 13. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
It is expressly agreed that the obligations of the Company hereunder shall not
be binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Company personally, but shall bind only the trust property of
the Company. The execution and delivery of this Agreement have been authorized
by the Trustees, and this Agreement has been signed and delivered by an
authorized officer of the Company, acting as such, and neither such
authorization by the Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Company as provided in the Company's Agreement and Declaration of Trust.
ARTICLE 14. SEVERAL OBLIGATIONS OF THE FUNDS. The Company is a series
company with multiple series, the Funds, and has entered into this Agreement on
behalf of those series, as amended from time to time on notice to the
Administrator. With respect to any obligation of the Company on behalf of any
Fund arising hereunder, the Administrator shall look for payment or satisfaction
of such obligations solely to the assets and property of the Fund to which such
obligation relates as though the Company had separately contracted with the
Administrator by separate written instrument with respect to each Fund. In
addition, this Agreement may be terminated with respect to one or more Funds
without affecting the rights, duties or obligations of any of the other Funds.
ARTICLE 15. 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.
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ARTICLE 16. FORCE MAJEURE. If the Administrator is prevented, hindered
or delayed from or in performing any of its obligations under this Agreement by
a Force Majeure Event (as defined below), then:
(a) (i) the Administrator's obligations under this
Agreement shall be suspended for so long as the
Force Majeure Event continues and to the extent
that it is so prevented, hindered or delayed;
(ii) as soon as possible after the commencement of
the Force Majeure Event the Administrator shall
notify the Company in writing of the occurrence
of the Force Majeure Event, the date of
commencement of the Force Majeure Event and the
effect of the Force Majeure Event on the
Administrator's ability to perform its
obligations under this Agreement; and
(iii) as soon as possible after the cessation of the
Force Majeure Event the Administrator shall
notify the Company in writing of the cessation
of the Force Majeure Event and shall resume
performance of its obligations under this
Agreement.
(b) If the Force Majeure continues for more than one
month after the commencement of the Force Majeure
Event either party may terminate this Agreement by
giving not less than seven days notice in writing to
the other party.
(c) "Force Majeure Event" means any event beyond the
reasonable control of a party including, without
limitation, acts of God, war, riot, civil commotion,
malicious damage, compliance with any law or
governmental order, rule, regulation or direction,
accident, breakdown of plant or machinery, fire,
flood or storm.
ARTICLE 17. MISCELLANEOUS. 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. For purposes of this Agreement, no officer of the Company who is an
employee of any BISYS Entity shall be deemed to be an authorized representative
of the Company for the purposes of giving or receiving any notice, consent, or
other communication pursuant to Articles 5, 8, 10, 16 and Schedule A of this
Agreement or not in the ordinary course of business. No provision of this
Agreement shall be deemed to limit the duties or obligations of Administrator or
any other BISYS Entity under any other BISYS Agreement. Paragraph headings in
this Agreement are included for convenience only and are not to be used to
construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
FIVE ARROWS SHORT-TERM INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Attest: /s/ X.X. Arme
----------------------------
BISYS FUND SERVICES LIMITED
PARTNERSHIP
BY: BISYS FUND SERVICES, INC.,
GENERAL PARTNER
By: /s/ J. Xxxxx Xxxxx
--------------------------------
Attest: /s/ Xxxxx Xxxxx
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF JANUARY 16, 1997
BETWEEN FIVE ARROWS SHORT-TERM INVESTMENT TRUST
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Funds: This Agreement shall apply to all Funds of Five Arrows Investment Trust,
either now or hereafter created. The current Funds of Five Arrows
Investment Trust, are set forth below: U.S. Dollar, Pound Sterling,
Deutsche Xxxx and Canadian Dollar (collectively, the "Funds").
Fees: Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Company 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 and paid as specified below at the annual
rate equal to .05% of each Fund's average daily net assets, subject to
mutually agreed upon fee waivers from time to time. 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 Company's Declaration of Trust or in the
Prospectus or Statement of Additional Information respecting that Fund
as from time to time is in effect for the computation of the value of
such net assets in connection with the determination of the liquidating
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.
Term: Pursuant to Article 7, the term of this Agreement shall commence on and
shall remain in effect through January 16, 1999 ("Initial Term").
Thereafter, if not earlier terminated as herein provided, it shall
continue from year to year so long as such continuance with respect to
any such Fund is approved at least annually by the Trustees of the
Company. Notwithstanding the foregoing, this Agreement may be terminated
by either party, without payment of any penalty, except for the
liquidated damages described
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below, at any time with respect to any Fund upon not less than sixty
(60) days' prior written notice to the other party.
If this Agreement is terminated without Cause during the Initial Term
hereof, or during any subsequent annual term, and if the Administrator
is not continuing to be compensated as provided in Article 4 of this
Agreement, then the Company shall make a one-time cash payment, as
liquidated damages, to the Administrator equal to the balance due the
Administrator for the remainder of such term, assuming for purposes of
calculation of the payment that the asset level of the Company on the
effective date of such termination would remain constant for the balance
of the contract term. Notwithstanding the foregoing, the Company may
terminate this Agreement for Cause, without incurring any additional
cost and without liquidated damages. For purposes of this Agreement, the
term "Cause" shall mean (i) dishonest statements or acts with respect to
the Company or any affiliate thereof; (ii) failure to perform to the
reasonable satisfaction of the Company's Board of Trustees a substantial
portion of the Administrator's duties and responsibilities hereunder;
(iii) gross negligence or willful misconduct of the Administrator with
respect to the Company or any affiliate thereof; or (iv) material breach
by the Administrator of any of the Administrator's obligations
hereunder.
Notwithstanding the foregoing, after such termination for so long as the
Administrator, with the written consent of the Company, in fact
continues to perform any one or more of the services contemplated by
this Agreement or any schedule 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 Company upon such termination
shall be immediately due and payable upon and notwithstanding such
termination. The Administrator shall be entitled to collect from the
Company, 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 Company
and/or its designees of the Company's property, records, instruments and
documents, or any copies thereof. Subsequent to such termination, for a
reasonable fee, the Administrator will provide the Company with
reasonable access to any Company documents or records remaining in its
possession.
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