EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT Sample Clauses: 250 Samples

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 and SECTION 16 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this Agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 2 contracts

Sources: Services Agreement (Altmfx Trust), Services Agreement (Altx Trust)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("“Effective Date"”). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "“Partial Termination"”). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' ’ written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities and Atlantic's ’s out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 13 and SECTION 16 15 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 2 contracts

Sources: Services Agreement (Forum Funds Ii), Services Agreement (Forum Funds Ii)

Appears in 1 contract

Sources: Transfer Agency Services Agreement (Professionally Managed Portfolios)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("“Effective Date"”). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "“Partial Termination"”). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' ’ written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities and Atlantic's ’s out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 15 and SECTION 16 17 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Us Global Investors Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective ~~as between Atlantic and the Trust~~ on the date ~~first above written ("Effective Date"). This Agreement shall continue in effect until terminated. This Agreement shall become effective~~ hereof and, with respect to a each new Fund and Class referred to in Section 7, on the ~~later~~ earlier of the date ~~that~~ on which the Trust's Registration Statement ~~with respect~~ relating to the Shares of such Fund or Class becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust Fund or ~~the Funds~~Class. (b) This Agreement shall continue in effect ~~(i) until terminated in its entirety or (ii),~~ with respect to ~~any~~ each Fund and Class until December 31, 2002 (the "Initial Term") and shall continue in effect thereafter for successive one-year periods unless earlier terminated in accordance with this section or until the Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination")Class ceases operations. (c) In the event that the Trust elects to terminate this Agreement prior to December 31, 2004, pursuant to this Section 6, the Trust shall pay Forum twelve (the "multiplier") times the monthly average fees due to Forum under this Agreement ("Termination Fee") (calculated based on the last three months prior to the date of termination). The multiplier shall be reduced one-twelfth for each full calendar quarter after December 31, 2001 that expires. The Termination Fee shall be due as of the last day this Agreement is effective. An amendment of this Agreement that eliminates a portion of the services that Forum provides to the Trust and associated fees to Forum (as agreed by the parties), wherein Allfirst Trust Company N.A or its affiliates contemporaneously become responsible for delivering similar services to the Trust, shall not be deemed to be a termination. (d) This Agreement may be terminated ~~in its entirety~~ with respect to any or ~~there may be a Partial Termination~~all Funds at any time after the date that is 90 days prior to the expiration of the Initial Term, ~~without the payment of any penalty:~~ (i) ~~with~~ by the Board on 90 days' written notice to Forum or ~~without cause, at any time,~~ (ii) by ~~either Party~~ Forum on ~~the date specified in a~~ 90 days' written notice to the ~~other Party provided not less than 120 days (60 days with respect to~~ Trust. If the ~~Services described in Part IV of Appendix A)~~ Trust terminates the Agreement prior to ~~the termination date specified in the notice~~December 31, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement2004, the Trust shall ~~reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person~~ pay Forum a Termination Fee as calculated in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligationsSection 6(c). (e) This Agreement and the rights and duties under this Agreement may not be assigned by either Forum or the Trust except by the specific written consent of the other party. Notwithstanding anything in this Agreement to the contrary, the transfer of ownership of all or part the equity interests in Forum to Forum's employees or the heirs or devisees of John Keffer shall not be deemed to be ▇▇ ▇▇▇▇▇▇▇ent. All terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. (f) The provisions of ~~SECTION~~ Sections 2(c), 3, ~~SECTION 4, SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a)~~6(d), ~~SECTION 14~~ 6(e), 8, 9, 10, 12, and ~~SECTION 16~~ 13 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this Agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Fund Accounting Agreement (Ark Funds/Ma)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the ~~date first above written ("~~Effective Date"). This Agreement shall ~~continue in effect until terminated~~have a term beginning on the Effective Date and ending on December 31, 2012. This Agreement shall become effective with respect to a new Fund on ~~the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or~~ the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to Atlantic’s provision of Services to the ~~Trust~~ Trusts or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of~~ Services covered by Appendix A B, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described in any one or more of the parts of Appendix A~~ provided to a ~~Fund (a "Partial Termination")~~Fund. (c) This Agreement may be terminated (A) in its entirety or ~~there may be~~ (B) with respect to any Fund or with respect to any one or more of the Services covered by Appendix B, as applicable, provided to any one or more of the Funds (a “Partial Termination”), without the payment of any penalty: (i) with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, ; provided that in the event ~~the Trust~~ a Fund gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the ~~Trust~~ Fund and with the same effective date as that set forth in such notice from the ~~Trust~~Fund); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the applicable Board may delay the termination or Partial Termination for up to 60 sixty (60) days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds;; and (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' ’ written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 3(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the ~~Trust~~ Trusts or the Funds exercise ~~its~~ their right to terminate this Agreement, the ~~Trust~~ Trusts and the Funds shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities ~~and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements~~ (~~including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("~~“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the ~~Trust~~ Trusts and the Funds shall have no obligation to reimburse Atlantic for its costs if the ~~Trust terminates~~ Trusts and the Funds terminate this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if Atlantic terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the ~~Trust~~Trust or the Funds, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the ~~Trust~~ Funds for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the ~~Trust~~ Funds to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of ~~(i)~~ any Non-Discretionary Subcontractors ~~or (ii) any assignee provided that the Trust has consented to such assignment~~ and (B) Atlantic may subcontract for the performance hereof with ~~any of its Affiliates~~ Atlantic Accounting Services, LLC without prior notice; provided however, that Atlantic shall be as fully responsible to the ~~Trust~~ Funds for the acts and omissions of ~~such Affiliate~~ Atlantic Accounting Services, LLC as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the ~~Trust~~ Funds to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Wright Managed Income Trust)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 4(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching ~~Party~~party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon ~~the date set forth in the~~ written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if Atlantic terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) The provisions of ~~SECTION 3, SECTION~~ Sections 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~6, ~~SECTION 14~~ 8, 15 and ~~SECTION 16~~ 17 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; ~~provided however~~providedhowever, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; ~~provided however~~providedhowever, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between ~~Atlantic~~ Citibank and the Trust on the date first above written ("Effective Date"). This Agreement shall have a term of three years from the Effective Date and shall thereafter continue in effect from year to year until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to the Trust or the Funds; provided that the fees and liability and indemnification agreement provisions applicable to services provided and acts or failure to act before the Effective Date shall be the agreement provisions in effect at the time under the Prior Agreements. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described~~ provided to a Fund. (c) Except as provided in Section 5(e), this Agreement may be terminated (A) in its entirety or (B) with respect to any Fund or with respect to any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to ~~a Fund~~ any one or more of the Funds (a "Partial Termination")~~. (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty: (i) subject to Section 5(e) below, with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, ~~Atlantic~~ Citibank shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from ~~Atlantic~~ Citibank shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event ~~Atlantic~~ Citibank gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to ~~Atlantic~~ Citibank and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds;; and (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to ~~Atlantic~~Citibank, the failure by ~~Atlantic~~ Citibank to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 3(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, ~~Atlantic~~ Citibank shall promptly transfer to any successor service providers the original or copies of all books and records maintained by ~~Atlantic~~ Citibank under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse ~~Atlantic~~ Citibank for ~~Atlantic~~Citibank's reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse ~~Atlantic~~ Citibank for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if ~~Atlantic~~ Citibank terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) Except as provided in Section 5(c)(i) concerning Citibank's termination should the Trust give notice of Partial Termination and except as provided in Section 5(c)(ii), this Agreement may not be terminated with respect to any Fund as to which the Agreement becomes effective after the Effective Date (a "new Fund") before the end of three years following the date on which the Agreement becomes effective with respect to the new Fund, unless the operations of the new Fund are wound up and discontinued and the assets of the new Fund are distributed to the Shareholders. The period from the date on which this Agreement becomes effective as to a new Fund until the date on which the Agreement could be terminated as to the new Fund under this Section 5(e) is the "Base Period" as to the new Fund. (f) Inasmuch as a termination pursuant to Section 5(c)(ii) by Citibank or if the Agreement is otherwise terminated or deemed to be terminated by actions of the Trust (except pursuant to Section 5(c)(ii) due to breach by Citibank) will, in the circumstances described below in this Section 5(f), cause substantial damages to Citibank and because of the difficulty of estimating those damages, the Trust shall pay, as liquidated damages, the amounts set forth below as of the effective date of such termination or Partial Termination (the "Termination Payment Amount"): (A) If the new Fund is advised by an Adviser or an Affiliate of the Adviser that has provided advisory services to the Trust (even if such services were provided with respect to another Fund) for at least three (3) years prior to the effective date of such termination or Partial Termination for the new Fund (an "Existing Advisor"), then the Termination Payment Amount shall be equal to: (1) If the new Fund began operations as a Fund under the Trust -- (a) $50,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $30,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $15,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (2) If the new Fund began operations as a fund under another company or trust -- (a) $150,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $100,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $50,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (3) The amounts listed in (1) and (2) above are for terminations; the Termination Payment Amount for Partial Terminations shall be 50% of the amount listed. (B) If the new Fund is advised by an Advisor that is not an Existing Advisor, then the Termination Payment Amount shall be equal to one-third of (i) the average monthly fees payable to Citibank pursuant to Section 4(a) of this Agreement for the last six (6) months preceding such termination or Partial termination, multiplied by (ii) the number of full and partial months remaining until the expiration of the Base Period. The Parties agree that the foregoing sums are a reasonable forecast of probable actual loss to Citibank and that they are agreed to as liquidated damages and not as a penalty. (g) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (fh) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, ~~Atlantic~~ Citibank may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of ~~Atlantic~~ Citibank or (ii) subcontract for the performance hereof with any entity, including an Affiliate of ~~Atlantic~~Citibank; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as ~~Atlantic~~ Citibank is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services. Notwithstanding the foregoing, (A) ~~Atlantic~~ Citibank shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) ~~Atlantic~~ Citibank may subcontract for the performance hereof with ~~any of its Affiliates~~ Citigroup Fund Services, LLC without prior notice; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of ~~such Affiliate~~ Citigroup Fund Services, LLC as ~~Atlantic~~ Citibank is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services.

Appears in 1 contract

Sources: Accounting, Administration and Transfer Agency Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("“Effective Date"”). This Agreement shall have a term of three years from the Effective Date and shall thereafter continue in effect from year to year until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to the Trust or the Funds; provided that the fees and liability and indemnification agreement provisions applicable to services provided and acts or failure to act before the Effective Date shall be the agreement provisions in effect at the time under the Prior Agreements. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of Appendix A~~ Services covered by Appendices B or C, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described~~ provided to a Fund. (c) Except as provided in Section 5(e), this Agreement may be terminated (A) in its entirety or (B) with respect to any Fund or with respect to any one or more of the ~~parts of Appendix A~~ Services covered by Appendices B or C, as applicable, provided to ~~a Fund~~ any one or more of the Funds (a "“Partial Termination"”)~~. (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty: (i) subject to Section 5(e) below, with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, Atlantic shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds;; and (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' ’ written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 3(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities ~~and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements~~ (~~including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("~~“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if Atlantic terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) Except as provided in Section 5(c)(i) concerning Atlantic’s termination should the Trust give notice of Partial Termination and except as provided in Section 5(c)(ii), this Agreement may not be terminated with respect to any Fund as to which the Agreement becomes effective after the Effective Date (a “new Fund”) before the end of three years following the date on which the Agreement becomes effective with respect to the new Fund, unless the operations of the new Fund are wound up and discontinued and the assets of the new Fund are distributed to the Shareholders. The period from the date on which this Agreement becomes effective as to a new Fund until the date on which the Agreement could be terminated as to the new Fund under this Section 5(e) is the “Base Period” as to the new Fund. (f) Inasmuch as a termination pursuant to Section 5(c)(ii) by Atlantic or if the Agreement is otherwise terminated or deemed to be terminated by actions of the Trust (except pursuant to Section 5(c)(ii) due to breach by Atlantic) will, in the circumstances described below in this Section 5(f), cause substantial damages to Atlantic and because of the difficulty of estimating those damages, the Trust shall pay, as liquidated damages, the amounts set forth below as of the effective date of such termination or Partial Termination (the “Termination Payment Amount”): (A) If the new Fund is advised by an Adviser or an Affiliate of the Adviser that has provided advisory services to the Trust (even if such services were provided with respect to another Fund) for at least three (3) years prior to the effective date of such termination or Partial Termination for the new Fund (an “Existing Advisor”), then the Termination Payment Amount shall be equal to: (1) If the new Fund began operations as a Fund under the Trust ¾ (a) $50,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $30,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $15,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (2) If the new Fund began operations as a fund under another company or trust ¾ (a) $150,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $100,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $50,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (3) The amounts listed in (1) and (2) above are for terminations; the Termination Payment Amount for Partial Terminations shall be 50% of the amount listed. (B) If the new Fund is advised by an Advisor that is not an Existing Advisor, then the Termination Payment Amount shall be equal to one-third of (i) the average monthly fees payable to Atlantic pursuant to Section 4(a) of this Agreement for the last six (6) months preceding such termination or Partial termination, multiplied by (ii) the number of full and partial months remaining until the expiration of the Base Period. The Parties agree that the foregoing sums are a reasonable forecast of probable actual loss to Atlantic and that they are agreed to as liquidated damages and not as a penalty. (g) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (fh) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, ~~(A)~~ Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Servicesassignment.

Appears in 1 contract

Sources: Administration and Transfer Agency Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 4(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching ~~Party~~party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon ~~the date set forth in the~~ written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if Atlantic terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) The provisions of ~~SECTION 3, SECTION~~ Sections 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~6, ~~SECTION~~ 8, 14 and ~~SECTION~~ 16 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between ~~Atlantic~~ Citibank and the Trust on June 2, 2008 with respect to Fund Accounting Services and Fund Administration Services, except the ~~date first above written~~ Blue Sky Services set forth in Section 5 of Appendix C; and June 16, 2008 with respect to Transfer Agency Services and Blue Sky Services ("“Effective Date"”). This Agreement shall ~~continue in effect until terminated~~have a term beginning on the Effective Date and ending on April 19, 2010. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to Citibank’s provision of Services to the Trust or the Funds; provided that the fees and liability and indemnification agreement provisions applicable to services provided and acts or failure to act before the Effective Date shall be the agreement provisions in effect at the time under the Prior Forum Agreements. The parties agree that Citibank shall not be responsible for any obligations of Atlantic Fund Administration, LLC under the Agreement. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described~~ provided to a Fund. (c) Except as provided in Section 5(e), this Agreement may be terminated (A) in its entirety or (B) with respect to any Fund or with respect to any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to ~~a Fund~~ any one or more of the Funds (a "“Partial Termination"”)~~. (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty: (i) subject to Section 5(e) below, with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, ~~Atlantic~~ Citibank shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from ~~Atlantic~~ Citibank shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event ~~Atlantic~~ Citibank gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to ~~Atlantic~~ Citibank and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds;; and (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' ’ written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to ~~Atlantic~~Citibank, the failure by ~~Atlantic~~ Citibank to act consistently with the ~~Standard~~ standard of ~~Care;~~ care set forth in Section 3(a); (iii) provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, ~~Atlantic~~ Citibank shall promptly transfer to any successor service providers the original or copies of all books and records maintained by ~~Atlantic~~ Citibank under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse ~~Atlantic~~ Citibank for ~~Atlantic's~~ Citibank’s reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities ~~and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements~~ (~~including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("~~“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse ~~Atlantic~~ Citibank for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if ~~Atlantic~~ Citibank terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) Except as provided in Section 5(c)(i) concerning Citibank’s termination should the Trust give notice of Partial Termination and except as provided in Section 5(c)(ii), this Agreement may not be terminated with respect to any Fund, other than ▇▇▇▇▇ Advisory Flexible Value Fund, as to which the Agreement becomes effective after the Effective Date (a “new Fund”) before the end of three years following the date on which the Agreement becomes effective with respect to the new Fund, unless: (i) the operations of the new Fund are wound up and discontinued and the assets of the new Fund are distributed to the Shareholders or (ii) the new Fund reorganizes or merges with a different fund and Citibank continues to provide Services with respect to the Fund, or any successor fund, pursuant to this Agreement or any substantially similar agreement. The period from the date on which this Agreement becomes effective as to a new Fund until the date on which the Agreement could be terminated as to the new Fund under this Section 5(e) is the “Base Period” as to the new Fund. (f) Inasmuch as a termination pursuant to Section 5(c)(ii) by Citibank or if the Agreement is otherwise terminated or deemed to be terminated by actions of the Trust (except pursuant to Section 5(c)(ii) due to breach by Citibank) will, in the circumstances described below in this Section 5(f), cause substantial damages to Citibank and because of the difficulty of estimating those damages, the Trust shall pay, as liquidated damages, the amounts set forth below as of the effective date of such termination or Partial Termination (the “Termination Payment Amount”): (A) The Termination Payment Amount shall be equal to: (1) If the new Fund began operations as a Fund under the Trust ¾ (a) $50,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; and (b) $30,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund. (c) $15,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (2) If the new Fund began operations as a fund under another company or trust ¾ (a) $150,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $100,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $50,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (3) The amounts listed in (1) and (2) above are for terminations; the Termination Payment Amount for Partial Terminations shall be 50% of the amount listed. The Parties agree that the foregoing sums are a reasonable forecast of probable actual loss to Citibank and that they are agreed to as liquidated damages and not as a penalty. (g) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (fh) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, ~~Atlantic~~ Citibank may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of ~~Atlantic~~ Citibank or (ii) subcontract for the performance hereof with any entity, including an Affiliate of ~~Atlantic~~Citibank; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as ~~Atlantic~~ Citibank is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services. Notwithstanding the foregoing, (A) ~~Atlantic~~ Citibank shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) ~~Atlantic~~ Citibank may subcontract for the performance hereof with ~~any of its Affiliates~~ Citi Fund Services Ohio, Inc. without prior notice; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of ~~such Affiliate~~ Citi Fund Services Ohio, Inc. as ~~Atlantic~~ Citibank is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services.

Appears in 1 contract

Sources: Accounting, Administration and Transfer Agency Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("“Effective Date"”). This Agreement shall have a term of three years from the Effective Date and shall thereafter continue in effect from year to year until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to the Trust or the Funds; provided that the fees and liability and indemnification agreement provisions applicable to services provided and acts or failure to act before the Effective Date shall be the agreement provisions in effect at the time under the Prior Agreements. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of Appendix A~~ Services covered by Appendices B or C, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described~~ provided to a Fund. (c) Except as provided in Section 5(e), this Agreement may be terminated (A) in its entirety or (B) with respect to any Fund or with respect to any one or more of the ~~parts of Appendix A~~ Services covered by Appendices B or C, as applicable, provided to ~~a Fund~~ any one or more of the Funds (a "“Partial Termination"”)~~. (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty: (i) subject to Section 5(e) below, with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, Atlantic shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds;; and (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' ’ written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 3(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities ~~and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements~~ (~~including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("~~“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if Atlantic terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) Except as provided in Section 5(c)(i) concerning Atlantic’s termination should the Trust give notice of Partial Termination and except as provided in Section 5(c)(ii), this Agreement may not be terminated with respect to any Fund as to which the Agreement becomes effective after the Effective Date (a “new Fund”) before the end of three years following the date on which the Agreement becomes effective with respect to the new Fund, unless the operations of the new Fund are wound up and discontinued and the assets of the new Fund are distributed to the Shareholders. The period from the date on which this Agreement becomes effective as to a new Fund until the date on which the Agreement could be terminated as to the new Fund under this Section 5(e) is the “Base Period” as to the new Fund. (f) Inasmuch as a termination pursuant to Section 5(c)(ii) by Atlantic or if the Agreement is otherwise terminated or deemed to be terminated by actions of the Trust (except pursuant to Section 5(c)(ii) due to breach by Atlantic) will, in the circumstances described below in this Section 5(f), cause substantial damages to Atlantic and because of the difficulty of estimating those damages, the Trust shall pay, as liquidated damages, the amounts set forth below as of the effective date of such termination or Partial Termination (the “Termination Payment Amount”): (A) If the new Fund is advised by an Adviser or an Affiliate of the Adviser that has provided advisory services to the Trust (even if such services were provided with respect to another Fund) for at least three (3) years prior to the effective date of such termination or Partial Termination for the new Fund (an “Existing Advisor”), then the Termination Payment Amount shall be equal to: (1) If the new Fund began operations as a Fund under the Trust — (a) $50,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $30,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $15,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (2) If the new Fund began operations as a fund under another company or trust — (a) $150,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $100,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $50,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (3) The amounts listed in (1) and (2) above are for terminations; the Termination Payment Amount for Partial Terminations shall be 50% of the amount listed. (B) If the new Fund is advised by an Advisor that is not an Existing Advisor, then the Termination Payment Amount shall be equal to one-third of (i) the average monthly fees payable to Atlantic pursuant to Section 4(a) of this Agreement for the last six (6) months preceding such termination or Partial termination, multiplied by (ii) the number of full and partial months remaining until the expiration of the Base Period. The Parties agree that the foregoing sums are a reasonable forecast of probable actual loss to Atlantic and that they are agreed to as liquidated damages and not as a penalty. (g) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (fh) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, ~~(A)~~ Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Servicesassignment.

Appears in 1 contract

Sources: Administration and Transfer Agency Services Agreement (Forum Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("“Effective Date"”). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's ’s Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "“Partial Termination"”). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV II of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV II of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' ’ written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV II of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV II of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV II of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' ’ responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's ’s reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's ’s responsibilities and Atlantic's ’s out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("“termination costs"”); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 13 and SECTION 16 15 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Us Global Investors Funds)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above ~~written ("Effective Date"). This Agreement shall continue in effect until terminated~~written. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than ~~120~~ 90 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. Notwithstanding any provision of this Agreement to the contrary, in the event the Board determines to liquidate a Fund, this Agreement shall be terminated with respect to such Fund(s) at any time on at least thirty (30) days written notice thereof to Atlantic. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, Atlantic's reasonable costs incurred in providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's ~~responsibilities~~ responsibilities, including file formatting and other software development needs related to information transfer, and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 and SECTION 16 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this Agreement to any Affiliate of Atlantic or (ii) subcontract for the performance ~~hereof~~ of some or all of the Services required of it hereunder with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee that is not an Affiliate of Atlantic provided that the Trust has consented in writing, after full disclosure, to such assignment and the assignee has executed and delivered such agreements as are necessary to cause such assignee be liable to, and to indemnify, the Trust as Atlantic has so provided in this Agreement; and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and ~~omissions and that no~~ omissions. No such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Cornercap Group of Funds /Va/)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect ~~until terminated~~for (3) three years and shall renew automatically for successive one (1) year periods unless either Party gives written notice to the other Party not less than 120 days prior to the then current expiration date of this Agreement of the election not to renew the term of this Agreement. This Agreement shall become effective with respect to a new Fund on ~~the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or~~ the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty~~: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has termination cost obligations) or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that ~~dong~~ doing so is in the best interest of ~~shareholders~~ Shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party~~; and~~; (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. A; and Notwithstanding any provision of this Agreement to the contrary, in the event the Board determines to liquidate a Fund, this Agreement may be terminated, with respect to such Fund(s) at any time on at least thirty (30) days written notice thereof to Atlantic. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this ~~Agreement~~Agreement (including termination by Atlantic following a Partial Termination by the Trust as to which the Trust has termination cost obligations), the Trust shall (i) pay to Atlantic annual fees through the through the term of the agreement and (ii) reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has ~~reimbursement~~ termination cost obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 13 and SECTION 16 15 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this Agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Outlook Funds Trust)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination"). (c) This Agreement may be terminated in its entirety or there may be a Partial Termination, without the payment of any penalty: (i) with or without cause, at any time, by either Party on the date specified in a written notice to the other Party provided not less than 120 days (60 days with respect to the Services described in Part IV of Appendix A) prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial Termination (other than with respect to the Services described in Part IV of Appendix A), Atlantic shall have thirty (30) days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from Atlantic shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event Atlantic gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds; (ii) for cause at any time by the non-breaching Party on at least sixty (60) days' written notice thereof to the other Party, if the other Party has materially breached any of its obligations hereunder including, with respect to Atlantic, the failure by Atlantic to act consistently with the Standard of Care; provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching Party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process. (d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations). (e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 14 13 and SECTION 16 15 shall survive any termination of this Agreement. (f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.

Appears in 1 contract

Sources: Services Agreement (Forum Funds Ii)

EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT. (a) This Agreement shall become effective as between ~~Atlantic~~ Citibank and the Trust on the date first above written ("Effective Date"). This Agreement shall have a term of three years from the Effective Date and shall thereafter continue in effect from year to year until terminated. This Agreement shall become effective with respect to a new Fund on the later of the date that the Trust's Registration Statement with respect to such Fund becomes effective or the date of the commencement of operations of the Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as ~~any~~ such ~~agreement~~ Agreement may have been deemed to relate to the Trust or the Funds; provided that the fees and liability and indemnification agreement provisions applicable to services provided and acts or failure to act before the Effective Date shall be the agreement provisions in effect at the time under the Prior Agreements. (b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to ~~the Services described in~~ any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to any one or more of the Funds, until terminated as to a Fund or a Service ~~described~~ provided to a Fund. (c) Except as provided in Section 5(e), this Agreement may be terminated (A) in its entirety or (B) with respect to any Fund or with respect to any one or more of the ~~parts of Appendix A~~ Services covered by Appendices C, D or E, as applicable, provided to ~~a Fund~~ any one or more of the Funds (a "Partial Termination")~~. (c) This Agreement may be terminated in its entirety or there may be a Partial Termination~~, without the payment of any penalty: (i) subject to Section 5(e) below, with or without cause, at any time, by either ~~Party~~ party on the date specified in a written notice to the other ~~Party~~ party provided not less than 120 days ~~(60 days with respect to the Services described in Part IV of Appendix A)~~ prior to the termination date specified in the notice, provided that in the event the Trust gives notice of a Partial ~~Termination (other than with respect to the Services described in Part IV of Appendix A)~~Termination, ~~Atlantic~~ Citibank shall have thirty ~~(30)~~ days to deliver notice that it intends to terminate any remaining portion, or the entirety, of this Agreement (and any such notice from ~~Atlantic~~ Citibank shall be deemed to have been given as of the date of the original notice from the Trust and with the same effective date as that set forth in such notice from the Trust); provided further, that in the event ~~Atlantic~~ Citibank gives notice of termination or of a Partial Termination, the Board may delay the termination or Partial Termination for up ~~to 60 days upon written notice to Atlantic and a finding that dong so is in the best interest of shareholders of the affected Fund or Funds;~~to (ii) for cause at any time by the non-breaching ~~Party~~ party on at least sixty (60) days' written notice thereof to the other ~~Party~~party, if the other ~~Party~~ party has materially breached any of its obligations hereunder including, with respect to ~~Atlantic~~Citibank, the failure by ~~Atlantic~~ Citibank to act consistently with the ~~Standard~~ standard of ~~Care~~care set forth in Section 3(a); provided, however, that (i) the termination notice shall describe the breach, and (ii) no such termination shall be effective if, with respect to any breach that is capable of being cured prior to the date set forth in the termination notice, the breaching ~~Party~~ party has cured such breach to the reasonable satisfaction of the non-breaching Party; and (iii) the provisions of this Agreement related to any of the Services described in Sections 1 through 4 of Part IV of Appendix A may be terminated at any time by the Board, effective upon the date set forth in the written notice to Atlantic, without the payment of any penalty; the remaining portions of this Agreement shall be considered severable and not affected. In the event of termination of any of the Services described in Sections 1 through 4 of Part IV of Appendix A, the Parties will mutually agree upon the fees payable to Atlantic with respect to the other Services described in Part IV of Appendix A. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Processparty. (d) Upon notice of termination by either ~~Party~~ party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, ~~Atlantic~~ Citibank shall promptly transfer to any successor service providers the original or copies of all books and records maintained by ~~Atlantic~~ Citibank under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement, the Trust shall reimburse ~~Atlantic~~ Citibank for ~~Atlantic~~Citibank's reasonable costs associated with the copying and movement of records and material to any successor ~~Person,~~ person and providing assistance to any successor ~~Person~~ person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse ~~Atlantic~~ Citibank for its costs if the Trust terminates this Agreement pursuant to clause (~~c)(ii~~ii) of subsection (c) above or if ~~Atlantic~~ Citibank terminates this Agreement pursuant to clause (~~c)(i~~i) ~~above~~ of subsection (~~other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has reimbursement obligations)~~c) above. (e) Except as provided in Section 5(c)(i) concerning Citibank's termination should the Trust give notice of Partial Termination and except as provided in Section 5(c)(ii), this Agreement may not be terminated with respect to any Fund as to which the Agreement becomes effective after the Effective Date (a "new Fund") before the end of three years following the date on which the Agreement becomes effective with respect to the new Fund, unless the operations of the new Fund are wound up and discontinued and the assets of the new Fund are distributed to the Shareholders. The period from the date on which this Agreement becomes effective as to a new Fund until the date on which the Agreement could be terminated as to the new Fund under this Section 5(e) is the "Base Period" as to the new Fund. (f) Inasmuch as a termination pursuant to Section 5(c)(ii) by Citibank or if the Agreement is otherwise terminated or deemed to be terminated by actions of the Trust (except pursuant to Section 5(c)(ii) due to breach by Citibank) will, in the circumstances described below in this Section 5(f), cause substantial damages to Citibank and because of the difficulty of estimating those damages, the Trust shall pay, as liquidated damages, the amounts set forth below as of the effective date of such termination or Partial Termination (the "Termination Payment Amount"): (A) If the new Fund is advised by an Adviser or an Affiliate of the Adviser that has provided advisory services to the Trust (even if such services were provided with respect to another Fund) for at least three (3) years prior to the effective date of such termination or Partial Termination for the new Fund (an "Existing Advisor"), then the Termination Payment Amount shall be equal to: (1) If the new Fund began operations as a Fund under the Trust -- (a) $50,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $30,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $15,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (2) If the new Fund began operations as a fund under another company or trust -- (a) $150,000, if such termination or Partial Termination occurs within one year of the effective date of the Registration Statement for such new Fund; (b) $100,000, if such termination or Partial Termination occurs after one year but before the second year of the effective date of the Registration Statement for such new Fund; and (c) $50,000, if such termination or Partial Termination occurs after the second year but before the third year of the effective date of the Registration Statement for such new Fund; (3) The amounts listed in (1) and (2) above are for terminations; the Termination Payment Amount for Partial Terminations shall be 50% of the amount listed. (B) If the new Fund is advised by an Advisor that is not an Existing Advisor, then the Termination Payment Amount shall be equal to one-third of (i) the average monthly fees payable to Citibank pursuant to Section 4(a) of this Agreement for the last six (6) months preceding such termination or Partial termination, multiplied by (ii) the number of full and partial months remaining until the expiration of the Base Period. The Parties agree that the foregoing sums are a reasonable forecast of probable actual loss to Citibank and that they are agreed to as liquidated damages and not as a penalty. (g) The provisions of ~~SECTION~~ Sections 3, ~~SECTION~~ 4, ~~SECTION~~ 5, ~~SECTION 7 (other than SECTION 7(a))~~7, ~~SECTION 14~~ 13 and ~~SECTION 16~~ 15 shall survive any termination of this Agreement. (fh) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any ~~Party~~ party without the written consent of the other ~~Party~~party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, ~~Atlantic~~ Citibank may, without further consent on the part of the Trust, (i) assign this ~~Agreement~~ agreement to any Affiliate of ~~Atlantic~~ Citibank or (ii) subcontract for the performance hereof with any entity, including an Affiliate of ~~Atlantic~~Citibank; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as ~~Atlantic~~ Citibank is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services. Notwithstanding the foregoing, (A) ~~Atlantic~~ Citibank shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) ~~Atlantic~~ Citibank may subcontract for the performance hereof with ~~any of its Affiliates~~ Citigroup Fund Services, LLC without prior notice; provided however, that ~~Atlantic~~ Citibank shall be as fully responsible to the Trust for the acts and omissions of ~~such Affiliate~~ Citigroup Fund Services, LLC as ~~Atlantic~~ Citibank is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to ~~Atlantic~~ Citibank under this Agreement for the Services.

Appears in 1 contract

Sources: Accounting, Administration and Transfer Agency Services Agreement (Forum Funds)

Common use of EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT Clause in Contracts