ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this ________ day of __________________, 1999,
by and between THE TUSCARORA INVESTMENT TRUST, a Massachusetts business trust
(the "Trust"), having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, and BISYS FUND SERVICES OHIO, INC. (the "Administrator"),
an Ohio corporation organized under the laws of the State of Ohio and having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"),
consisting of several series of shares of beneficial interest or common stock
("Shares"); and
WHEREAS, the Trust desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
each series of the Trust, listed on Schedule A attached hereto and made part of
this Agreement, as such Schedule A may be amended from time to time
("Portfolios"), on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Administrator hereby agree as follows:
ARTICLE 1. RETENTION OF THE ADMINISTRATOR. The Trust hereby retains the
Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust.
ARTICLE 2. ADMINISTRATIVE SERVICES. The Administrator shall coordinate,
supervise and effect a full conversion of the Trust's administrative, transfer
agent and fund accounting services to the Administrator prior to December 1,
1999 and shall perform or supervise the performance by others of other
administrative services in connection with the operations of the Portfolios,
and, on behalf of the Trust, will investigate, assist in the selection of and
conduct relations with custodians, depositories, accountants, legal counsel,
underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and
persons in any other capacity deemed to be necessary or desirable for the
Portfolios' operations. The Administrator shall provide the Board of Trustees of
the Trust (hereafter referred to as the "Trustees") with such reports regarding
investment performance as they may reasonably request but shall have no
responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities.
The Administrator shall provide the Trust with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Trustees' meetings) for handling the
affairs of the Portfolios and such other services as the Administrator shall,
from time to time, determine to be necessary to perform its obligations under
this Agreement. In addition, at the request of the Trustees, the Administrator
shall make reports to the Trust's Trustees concerning the performance of its
obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Trust expenses and control all disbursements
for the Trust, and as appropriate compute the Trust's yields, total
return, expense ratios, portfolio turnover rate and, if required,
portfolio average dollar-weighted maturity;
(b) coordinate and supervise, in consultation with Trust counsel, the
preparation of prospectuses, statements of additional information,
registration statements and proxy materials;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of Shares as may
be required in order to comply with Federal and state securities law)
as may be necessary or desirable to make notice filings relating to
the Trust's Shares with state securities authorities, monitor the sale
of Trust Shares for compliance with state securities laws, and file
with the appropriate state securities authorities the registration
statements and reports for the Trust and the Trust's Shares and all
amendments thereto, as may be necessary or convenient to qualify and
keep effective the Trust and the Trust's Shares with state securities
authorities to enable the Trust to make a continuous offering of its
Shares;
(d) develop and prepare, with the assistance of the Trust's investment
adviser, communications to Shareholders, including the annual report
to Shareholders, coordinate the mailing of prospectuses, notices,
proxy statements, proxies and other reports to Trust Shareholders, and
supervise and facilitate the proxy solicitation process for all
shareholder meetings, including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among others,
the Trust's investment adviser, distributor, custodian, transfer agent
and fund accountant;
(f) supervise the Trust's transfer agent with respect to the payment
of dividends and other distributions to Shareholders;
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(g) calculate performance data of the Portfolios for dissemination to
information services covering the investment Trust industry;
(h) coordinate and supervise the preparation and filing of the Trust's
tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Trust or any Portfolio of the
Trust, including, without limitation, the Trust's investment adviser,
distributor, custodian, fund accountant, transfer agent, outside legal
counsel and independent public accountants, and at the request of the
Trustees, report to the Board on the performance of such
organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of the
Trust's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives, policies and
structure;
(l) provide individuals reasonably acceptable to the Trust's Trustees
to serve as officers of the Trust, who will be responsible for the
management of certain of the Trust's affairs as determined by the
Trust's Trustees;
(m) advise the Trust and its Trustees on matters concerning the Trust
and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under the
1940 Act as such bonds and policies are approved by the Trust's
Trustees;
(o) monitor and advise the Trust and its Portfolios on their
registered investment company status under the Internal Revenue Code
of 1986, as amended;
(p) monitor and advise the Trust and its Portfolios on compliance with
applicable limitations as imposed by the 1940 Act and the rules and
regulations thereunder or set forth in the Trust's or any Portfolios'
then current Prospectus or Statement of Additional Information;
(q) provide such internal legal services as are requested by the Trust
from time
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including, but not limited to, the coordination of meetings and
preparation of materials for the quarterly and special meetings of the
Trustees;
(r) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that all necessary
information is made available to, the Trust's independent public
accountants in connection with the preparation of any audit or report
requested by the Trust;
(s) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that the necessary
information is made available to, the Securities and Exchange
Commission in connection with any regulatory audit of the Trust or the
investment adviser of the Trust;
(t) perform all administrative services and functions of the Trust and
each Portfolio to the extent administrative services and functions are
not provided to the Trust or such Portfolio pursuant to the Trust's or
such Portfolio's investment advisory agreement, distribution
agreement, custodian agreement, transfer agent agreement and fund
accounting agreement;
(u) furnish advice and recommendations with respect to other aspects
of the business and affairs of the Portfolios as the Trust and the
Administrator shall determine desirable; and
(v) prepare and file with the SEC the semi-annual report for the Trust
on Form N-SAR and all required notices pursuant to Rule 24f-2.
The Administrator shall perform such other services for the Trust that are
mutually agreed upon by the parties from time to time. Such services may include
performing internal audit examinations; mailing the annual reports of the
Portfolios; preparing an annual list of Shareholders; and mailing notices of
Shareholders' meetings, proxies and proxy statements, for all of which the Trust
will pay the Administrator's reasonable out-of-pocket expenses.
ARTICLE 3. ALLOCATION OF CHARGES AND EXPENSES.
(A) THE ADMINISTRATOR. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the items
which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Trust as well as all Trustees of the
Trust who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Trust retained by the Trustees of the Trust
to perform services on behalf of the Trust.
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(B) THE TRUST. The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration and/or qualification of the Shares under
Federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of the Administrator or the Investment Adviser to
the Trust or any affiliated corporation of the Administrator or the Investment
Adviser, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
ARTICLE 4. COMPENSATION OF THE ADMINISTRATOR.
(A) ADMINISTRATION FEE. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator compensation at an annual
rate specified in Schedule A attached hereto. Such compensation shall be
calculated and accrued daily, and paid to the Administrator monthly. The Company
shall also reimburse the Administrator for its reasonable out-of-pocket
expenses, including the travel and lodging expenses incurred by officers and
employees of the Administrator in connection with attendance at Board meetings.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) SURVIVAL OF COMPENSATION RIGHTS. All rights of compensation under this
Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
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ARTICLE 5. STANDARD OF CARE. The duties of the Administrator shall be
confined to those expressly set forth herein, and no implied duties are assumed
by or may be asserted against the Administrator hereunder. The Administrator
shall be obligated to exercise care and diligence in the performance of its
duties hereunder and to act in good faith in performing the services provided
for under this Agreement. The Administrator shall be liable for any damages
arising directly or indirectly out of the Administrator's failure to perform its
duties under this Agreement to the extent such damages arise directly or
indirectly out of the Administrator's willful misfeasance, bad faith, negligence
in the performance of its duties, or reckless disregard of it obligations and
duties hereunder. (As used in this Article 5, the term "Administrator" shall
include directors, officers employees and other agents of the Administrator as
well as the Administrator itself.)
Without limiting the generality of the foregoing or any other
provision of this Agreement, (i) the Administrator shall not be liable for
losses beyond its reasonable control, provided that the Administrator has acted
in accordance with the standard of care set forth above; and (ii) the
Administrator shall not be liable for the validity or invalidity or authority or
lack thereof of any instruction, notice or other instrument that the
Administrator reasonably believes to be genuine and to have been signed or
presented by a duly authorized representative of the Trust (other than an
employee or other affiliated persons of the Administrator who may otherwise be
named as an authorized representative of the Trust for certain purposes).
The Administrator may apply to the Trust at any time for instructions
and may consult with counsel for the Trust or its own counsel and with
accountants and other experts with respect to any matter arising in connection
with the Administrator's duties hereunder, and the Administrator shall not be
liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the reasonable opinion of such counsel,
accountants or other experts qualified to render such opinion.
ARTICLE 6. INDEMNIFICATION. The Trust agrees to indemnify and hold harmless
the Administrator from and against any and all actions, suits, claims, losses,
damages, costs, charges, reasonable counsel fees and disbursements, payments,
expenses and liabilities (including reasonable investigation expenses)
(collectively, "Losses") arising directly or indirectly out of any action or
omission to act which the Administrator takes (i) at any request or on the
direction of or in reliance on the reasonable advice of the Trust, (ii) upon any
instruction, notice or other
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instrument that the Administrator reasonably believes to be genuine and to have
been signed or presented by a duly authorized representative of the Trust (other
than an employee or other affiliated person of the Administrator who may
otherwise be named as an authorized representative of the Trust for certain
purposes) or (iii) on its own initiative, in good faith and in accordance with
the standard of care set forth herein, in connection with the performance of its
duties or obligations hereunder; provided, however that the Trust shall have no
obligation to indemnify or reimburse the Administrator under this Article 6 to
the extent that the Administrator is entitled to reimbursement or
indemnification for such Losses under any liability insurance policy described
in this Agreement or otherwise.
The Administrator shall not be indemnified against or held harmless
from any Losses arising directly or indirectly out of the Administrator's own
willful misfeasance, bad faith, negligence in the performance of its duties, or
reckless disregard of its obligations and duties hereunder. (As used in this
Article 6, the term "Administrator" shall include directors, officers, employees
and other agents of the Administrator as well as the Administrator itself.)
ARTICLE 7. YEAR 2000 READINESS DISCLOSURE. The Administrator (a) has
reviewed its business and operations as they relate to the services provided
hereunder, (b) has developed or is developing a program to remediate or replace
computer applications and systems, and (c) has developed a testing plan to test
the redemption or replacement of computer application/systems, in each case, to
address on a timely basis the risk that certain computer applications/systems
used by the Administrator may be unable to recognize and perform properly date
sensitive functions involving the dates prior to, including and after December
31, 1999, including dates such as February 29, 2000 (the "Year 2000 Challenge").
The Administrator represents and warrants that, to the best of its knowledge and
belief, the reasonably foreseeable consequences of the Year 2000 Challenge will
not adversely effect the Administrator's ability to perform its duties and
obligations under this Agreement.
ARTICLE 8. ACTIVITIES OF THE ADMINISTRATOR. The services of the
Administrator rendered to the Trust are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that Trustees, officers, employees
and Shareholders of the Trust are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Trust, and that the Administrator may be or become
interested in the Trust as a Shareholder or otherwise.
ARTICLE 9. DURATION OF THIS AGREEMENT. The Term of this Agreement shall be
as specified in Schedule A hereto.
ARTICLE 10. ASSIGNMENT. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may, at its expense and upon written notice to the Trust,
subcontract with any entity or person concerning
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the provision of the services contemplated hereunder. The Administrator shall
not, however, be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that the Administrator
shall be responsible, to the extent provided in Article 5 hereof, for all acts
of such subcontractor as if such acts were its own. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
ARTICLE 11. AMENDMENTS. This Agreement, or any term thereof, may be changed
or waived only by written amendment signed by the party against whom enforcement
of such change or waiver is sought.
For special cases, the parties hereto may amend such procedures set
forth herein as may be appropriate or practical under the circumstances, and the
Administrator may conclusively assume that any special procedure which has been
approved by the Trust does not conflict with or violate any requirements of its
Declaration of Trust or then current prospectuses, or any rule, regulation or
requirement of any regulatory body.
ARTICLE 12. CERTAIN RECORDS. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Trust shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Trust and will be made available
to or surrendered promptly to the Trust on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Trust has
agreed to indemnify the Administrator against such liability.
ARTICLE 13. DEFINITIONS OF CERTAIN TERMS. The terms "interested person" and
"affiliated person," when used in this Agreement, shall have the respective
meanings specified in the 1940 Act and the rules and regulations thereunder,
subject to such exemptions as may be granted by the Securities and Exchange
Commission.
ARTICLE 14. NOTICE. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the other party
at the following address: if to the Trust, at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx Xxxxxxxx 00000, attn: __________________ and if to the
Administrator, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, attn: Xxxxxxx X.
Xxxxx or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
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ARTICLE 15. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Ohio and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Ohio, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 16. LIMITATION OF LIABILITY. A copy of the Declaration of Trust of
the Trust is on file with the Secretary of the Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Board of Trustees of the Trust and not individually and that the obligations of
this instrument are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and property of
the Trust (or if the matter relates only to a particular Portfolio, that
Portfolio), and the Administrator shall look only to the assets of the Trust, or
the particular Portfolio, for the satisfaction of such obligations.
ARTICLE 17. MULTIPLE ORIGINALS. This Agreement may be executed in two or
more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE TUSCARORA INVESTMENT TRUST
By:
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Title:
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BISYS FUND SERVICES OHIO, INC.
By:
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Title:
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DATED: _________________________
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF _________________________________
BETWEEN
THE TUSCARORA INVESTMENT TRUST
AND
BISYS FUND SERVICES OHIO, INC.
PORTFOLIOS: This Agreement shall apply to all such Portfolios of The
Tuscarora Investment Trust (the "Trust"), either now or hereafter
created, as the Trust and the Administrator may agree
(individually, the "Portfolio", and collectively, the
"Portfolios"). The current Portfolios of the Trust are set forth
below:
Xxx Xxxxx Fund
FEES: Pursuant to Article 4, in consideration of services rendered and
expenses assumed pursuant to this Agreement, the Trust will pay
the Administrator on the first business day of each month, or at
such time(s) as the Administrator shall request and the parties
hereto agree, a fee computed daily at annual rate of:
4 one-hundredths of one percent (.04%) of the
Trust's average daily net assets up to $500
million;
2.8 one-hundredths of one percent (.028%) of the
Trust's average daily net assets in excess of $500
million up to $1 billion; and
1.4 one-hundredths of one percent (.014%) of the
Trust's average daily net assets in excess of $1
billion.
The Administrator shall be entitled to receive an additional
annual fee of $10,000 for each new class of shares that is added
following the effective date of this Agreement.
The Administrator shall be entitled to receive an additional
annual fee of $30,000 for each new Portfolio that is added
following the effective date of this Agreement.
A-1
TERM:
(a) The term of this Agreement shall commence on
____________________, 1999 and shall continue in effect,
unless earlier terminated by either party hereto as provided
hereunder, until ___________________, 2002 (the "Initial
Term"). Thereafter, unless otherwise terminated as provided
herein, this Agreement shall be renewed automatically for
successive one-year periods ("Rollover Periods").
(b) This Agreement may be terminated without penalty: (i) by
provision of a notice of nonrenewal in the matter as set
forth below, (ii) by mutual agreement of the parties, (iii)
in the event of a Change of Control (as defined herein), in
accordance with the procedures outlined below or (iv) for
"cause" (as defined herein) upon the provision of sixty (60)
days advance written notice by the party alleging cause.
Written notice of nonrenewal must be provided at least sixty
(60) days prior to the end of the Initial Term or any
Rollover Period as the case may be.
(c) For purposes of this Agreement, "cause" shall mean: (i) a
material breach of this Agreement that has not been remedied
within thirty (30) days following written notice of such
breach from the non-breaching party, (ii) a series of
negligent acts or omissions or breaches of this Agreement
which, in the aggregate, constitute in the reasonable
judgment of the Trust, a serious failure to perform
satisfactorily the Administrator's obligations hereunder;
(iii) a final, unappealable judicial, regulatory or
administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (iv) financial
difficulties on the part of the party to be terminated which
are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title
11 of the United States Code, as from time to time is in
effect, or any applicable law, other than said Title 11, of
any jurisdiction relating to the liquidation or
reorganization of debtors or the modification or alteration
of the rights of creditors.
(d) In the event of a change of "control" (as such term is
defined in the 0000 Xxx) with respect to the Administrator
(a "Change of Control"), the Trust may conduct an interim
evaluation of the Administrator's performance under this
Agreement (a "Performance Evaluation"). The Performance
Evaluation shall be conducted within 120 days following the
later of: (i) a Change of Control, or (ii) the date the
Trust receives actual notice of a Change of Control from the
Administrator. If, in the reasonable judgment of the Trust,
the Performance Evaluation indicates that the quality level
of services being provided by the Administrator has
diminished materially (even though such diminution does not
constitute a material breach), the Trust shall, within
thirty (30) days (or such longer period of time as is agreed
upon by the parties) following the Performance Evaluation,
provide written notice
A-2
to the Administrator specifying the areas in which the Trust
believes the quality level of service has materially
diminished.
The Administrator shall have a period of thirty (30) days
(or such longer period of time as is agreed upon by the
parties) from the receipt of such written notice within
which to restore to the reasonable satisfaction of the Trust
the quality level of services. If, at the end of such thirty
(30) day period (or such longer period of time as is agreed
upon by the parties), the Administrator has not, to the
reasonable satisfaction of the Trust, restored the quality
level of services, the Trust may terminate this Agreement
upon the provision of thirty (30) days (or such longer
period of time as is agreed upon by the parties) advance
written notice to the Administrator.
(e) Notwithstanding the foregoing, after such termination for so
long as the Administrator, with the written consent of the
Trust, in fact continues to perform any one or more of the
services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including
without limitation the provisions dealing with
indemnification, shall continue in full force and effect.
Compensation due the Administrator and unpaid by the Trust
upon such termination shall be immediately due and payable
upon and notwithstanding such termination. The Administrator
shall be entitled to collect from the Trust, in addition to
the compensation described in this Schedule A, the amount of
all of the Administrator's cash disbursements for services
in connection with the Administrator's activities in
effecting such termination, including without limitation,
the delivery to the Trust and/or its designees of the
Trust's property, records, instruments and documents.
