ADMINISTRATION AGREEMENT
AGREEMENT dated as of March 10, 1998 between Xxxxx Value Fund, Inc. (the
"Fund"), a Maryland corporation, and Countrywide Fund Services, Inc.
("Countrywide"), an Ohio corporation.
WHEREAS, the Fund is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund wishes to employ the services of Countrywide to serve as
its administrative agent; and
WHEREAS, Countrywide wishes to provide such services under the conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Fund and Countrywide agree as follows:
1. APPOINTMENT.
The Fund hereby appoints and employs Countrywide as agent to perform
those services described in this Agreement for the Fund. Countrywide shall act
under such appointment and perform the obligations thereof upon the terms and
conditions hereinafter set forth.
2. DOCUMENTATION.
The Fund will furnish from time to time the following documents:
A. Each resolution of the Board of Directors of the Fund authorizing the
original issue of its shares;
B. Each Registration Statement filed with the Securities and Exchange
Commission (the "SEC") and amendments thereof;
C. A certified copy of each amendment to the Articles of Incorporation
and the Bylaws of the Fund;
D. Certified copies of each resolution of the Board of Directors
authorizing officers to give instructions to Countrywide;
E. Specimens of all new forms of share certificates accompanied by Board
of Directors' resolutions approving such forms;
-1-
F. Such other certificates, documents or opinions which Countrywide may,
in its discretion, deem necessary or appropriate in the proper
performance of its duties;
G. Copies of all Investment Advisory Agreements in effect; and
H. Copies of all documents relating to special investment or withdrawal
plans which are offered or may be offered in the future by the Fund
and for which Countrywide is to act as plan agent.
3. FUND ADMINISTRATION.
Subject to the direction and control of the Directors of the Fund,
Countrywide shall supervise the Fund's business affairs not otherwise supervised
by other agents of the Fund. To the extent not otherwise the primary
responsibility of, or provided by, other agents of the Fund, Countrywide shall
supply (i) office facilities, (ii) internal auditing and regulatory services,
and (iii) executive and administrative services. Countrywide shall coordinate
the preparation of (i) tax returns, (ii) reports to shareholders of the Fund,
(iii) reports to and filings with the SEC and state securities authorities
including preliminary and definitive proxy materials, post-effective amendments
to the Fund's registration statement, and the Fund's Form N-SAR, and (iv)
necessary materials for Board of Directors' meetings unless prepared by other
parties under agreement with the Fund. Countrywide shall provide personnel to
serve as officers of the Fund if so elected by the Board of Directors; provided,
however, that the Fund shall reimburse Countrywide for the reasonable
out-of-pocket expenses incurred by such personnel in attending Board of
Directors' meetings and shareholders' meetings of the Fund.
4. RECORDKEEPING AND OTHER INFORMATION.
Countrywide shall create and maintain all records required by
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act and the rules thereunder, as the same
may be amended from time to time, pertaining to the various functions performed
by it and not otherwise created and maintained by another party pursuant to
contract with the Fund. All such records shall be the property of the Fund at
all times and shall be available for inspection and use by the Fund. Where
applicable, such records shall be maintained by Countrywide for the periods and
in the places required by Rule 31a-2 under the 1940 Act. The retention of such
records shall be at the expense of the Fund. Countrywide shall make available
during regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the Fund, any
person retained by the Fund, or any regulatory agency having authority over the
Fund.
-2-
5. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
6. COMPENSATION.
For the performance of Countrywide's obligations under this Agreement,
the Fund shall pay Countrywide, on the first business day following the end of
each month, a monthly fee at the annual rate of .15% of the Fund's average daily
net assets up to $50 million; .125% of such assets from $50 to $100 million; and
.10% of such assets in excess of $100 million; provided, however, that the
minimum fee shall be $1,000 per month.
7. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The parties hereto acknowledge and agree that nothing contained herein
shall be construed to require Countrywide to perform any services for the Fund
which services could cause Countrywide to be deemed an "investment adviser" of
the Fund within the meaning of Section 2(a)(20) of the 1940 Act or to supersede
or contravene the Fund's prospectus or statement of additional information or
any provisions of the 1940 Act and the rules thereunder. Except as otherwise
provided in this Agreement and except for the accuracy of information furnished
to it by Countrywide, the Fund assumes full responsibility for complying with
all applicable requirements of the 1940 Act, the Securities Act of 1933, as
amended, and any other laws, rules and regulations of governmental authorities
having jurisdiction.
8. REFERENCES TO COUNTRYWIDE.
The Fund shall not circulate any printed matter which contains any
reference to Countrywide without the prior written approval of Countrywide,
excepting solely such printed matter as merely identifies Countrywide as
Administrative Services Agent, Transfer, Dividend Disbursing, Shareholder
Service and Plan Agent and Accounting Services Agent. The Fund will submit
printed matter requiring approval to Countrywide in draft form, allowing
sufficient time for review by Countrywide and its counsel prior to any deadline
for printing.
9. INDEMNIFICATION OF COUNTRYWIDE.
A. Countrywide may rely on information reasonably believed by it to be
accurate and reliable. Except as may otherwise be required by the 1940 Act and
the rules thereunder, neither Countrywide nor its shareholders, officers,
directors, employees, agents, control persons or affiliates of any thereof shall
be subject to any liability for, or any damages, expenses or losses incurred by
the Fund in connection with any error of judgment, mistake of law, any act or
omission connected with or arising out
-3-
of any services rendered under or payments made pursuant to this Agreement or
any other matter to which this Agreement relates, except by reason of willful
misfeasance, bad faith or gross negligence on the part of any such persons in
the performance of the duties of Countrywide under this Agreement or by reason
of reckless disregard by any of such persons of the obligations and duties of
Countrywide under this Agreement.
B. Any person, even though also a director, officer, employee, shareholder
or agent of Countrywide, or any of its affiliates, who may be or become an
officer, director, employee or agent of the Fund, shall be deemed, when
rendering services to the Fund or acting on any business of the Fund, to be
rendering such services to or acting solely as an officer, director, employee or
agent of the Fund and not as a director, officer, employee, shareholder or agent
of or one under the control or direction of Countrywide or any of its
affiliates, even though paid by one of these entities.
C. Notwithstanding any other provision of this Agreement, the Fund shall
indemnify and hold harmless Countrywide, its directors, officers, employees,
shareholders, agents, control persons and affiliates from and against any and
all claims, demands, expenses and liabilities (whether with or without basis in
fact or law) of any and every nature which Countrywide may sustain or incur or
which may be asserted against Countrywide by any person by reason of, or as a
result of: (i) any action taken or omitted to be taken by Countrywide in good
faith in reliance upon any certificate, instrument, order or share certificate
reasonably believed by it to be genuine and to be signed, countersigned or
executed by any duly authorized person, upon the oral instructions or written
instructions of an authorized person of the Fund or upon the opinion of legal
counsel for the Fund or its own counsel; or (ii) any action taken or omitted to
be taken by Countrywide in connection with its appointment in good faith in
reliance upon any law, act, regulation or interpretation of the same even though
the same may thereafter have been altered, changed, amended or repealed.
However, indemnification under this subparagraph shall not apply to actions or
omissions of Countrywide or its directors, officers, employees, shareholders or
agents in cases of its or their own gross negligence, willful misconduct, bad
faith, or reckless disregard of its or their own duties hereunder.
10. INDEMNIFICATION OF THE FUND.
Notwithstanding any other provision of this Agreement, Countrywide
shall indemnify and hold harmless the Fund, its directors, officers, employees,
shareholders, agents, control persons and affiliates, from and against any and
all claims, demands, expenses and liabilities (whether with or without basis in
fact or law) of any and every nature which the Fund may sustain or incur or
which may be asserted against the Fund by any person by reason of, or as a
result of, Countrywide's gross
-4-
negligence, willful misconduct, bad faith, or reckless disregard of its duties
hereunder.
11. TERMINATION
A. The provisions of this Agreement shall be effective on the date
first above written, shall continue in effect for two years from that date and
shall continue in force from year to year thereafter, but only so long as such
continuance is approved (1) by Countrywide, (2) by vote, cast in person at a
meeting called for the purpose, of a majority of the Fund's directors who are
not parties to this Agreement or interested persons (as defined in the 0000 Xxx)
of any such party, and (3) by vote of a majority of the Fund's Board of
Directors or a majority of the Fund's outstanding voting securities.
B. Either party may terminate this Agreement on any date by giving the
other party at least sixty (60) days' prior written notice of such termination
specifying the date fixed therefor. Upon termination of this Agreement, the Fund
shall pay to Countrywide such compensation as may be due as of the date of such
termination, and shall likewise reimburse Countrywide for any out-of-pocket
expenses and disbursements reasonably incurred by Countrywide to such date.
C. In the event that in connection with the termination of this
Agreement a successor to any of Countrywide's duties or responsibilities under
this Agreement is designated by the Fund by written notice to Countrywide,
Countrywide shall, promptly upon such termination and at the expense of the
Fund, transfer all records maintained by Countrywide under this Agreement and
shall cooperate in the transfer of such duties and responsibilities, including
providing for assistance from Countrywide's cognizant personnel in the
establishment of books, records and other data by such successor.
12. SERVICES FOR OTHERS.
Nothing in this Agreement shall prevent Countrywide or any affiliated
person (as defined in the 0000 Xxx) of Countrywide from providing services for
any other person, firm or corporation (including other investment companies);
provided, however, that Countrywide expressly represents that it will undertake
no activities which, in its judgment, will adversely affect the performance of
its obligations to the Fund under this Agreement.
13. SEVERABILITY.
In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
-5-
14. QUESTIONS OF INTERPRETATION.
This Agreement shall be governed by the substantive laws of the State
of New York without regard to its conflict of law provisions. Any disputes
arising out of this Agreement shall be adjudicated solely in the courts of the
State of New York or the federal court for the Southern District of New York (in
either case only within New York County, New York). The parties each agree to
personal jurisdiction and venue solely within New York County, New York, waive
any objections to personal jurisdiction and venue in New York County, New York,
and agree not to seek personal jurisdiction and venue in any other location. Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States Courts located in New York
County, New York or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC issued pursuant to said 1940
Act. In addition, where the effect of a requirement of the 1940 Act, reflected
in any provision of this Agreement, is revised by rule, regulation or order of
the SEC, such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
15. NOTICES.
All notices, requests, consents and other communications required or
permitted under this Agreement shall be in writing (including telex and
telegraphic communication) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, telecommunicated, or
mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To the Fund: Xxxxx Value Fund, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxx
To Countrywide: Countrywide Fund Services, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
or to such other address as any party may designate by notice complying with the
terms of this Section 15. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
-6-
16. CONFIDENTIALITY.
A. All information furnished to Countrywide or its representatives by
the Fund, including without limitation all names, addresses, telephone numbers
and other information of customers and prospective customers, and whether
furnished before or after the date hereof (the "Information"), will be kept
confidential by Countrywide and/or its representatives, and will not, except to
the extent necessary in order to carry out Countrywide's responsibilities and
obligations under this Agreement, be disclosed by Countrywide or any of its
representatives and will not be used by Countrywide or any of its
representatives for any purpose other than fulfilling Countrywide's
responsibilities and obligations under this Agreement. The term
"representatives" as used herein shall include Countrywide's affiliates, and
Countrywide and its affiliates' respective officers, directors, employees,
agents, and controlling persons. Countrywide acknowledges and agrees that any
information supplied to Countrywide by a customer or potential customer of the
Fund as a result of discussions, solicitations, or communications between the
Fund and said customer or potential customer shall constitute "Information" for
the purposes hereof. Countrywide shall be permitted to transmit the Information
only to those of its representatives who need to know the Information for the
purpose of assisting Countrywide in fulfilling its responsibilities and
obligations under this Agreement, who are informed by Countrywide of the
confidential nature of the Information and who have agreed in writing to keep
the Information confidential on the same terms as if such representatives were
signatories hereto. Copies of all agreements by which Countrywide's
representatives have agreed to keep the Information confidential shall be
delivered by Countrywide to the Fund promptly after execution thereof. In any
event Countrywide shall be responsible for the breach of this Agreement by its
representatives.
B. In the event that Countrywide or its representatives is requested
or becomes legally compelled to disclose any of the Information, said party
agrees to provide the Fund with prompt written notice, but in any event within 3
business days, so that the Fund may seek (with Countrywide's and/or its
representatives' cooperation, if so requested by the Fund) a protective order or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, or that the Fund waives compliance with these
confidentiality provisions, Countrywide and its representatives agree to furnish
only that portion of the Information which in the reasonable opinion of its
counsel is legally required and will use its best efforts to obtain reliable
assurance that confidential treatment will be accorded the Information.
C. The term "Information" as used herein shall not include matters
which (i) are or become generally available to the public other than as a result
of a disclosure by Countrywide or its
-7-
representatives, or (ii) were know to Countrywide on a non-confidential basis
prior to its disclosure to Countrywide by the Fund.
D. The Fund shall be entitled to injunctive relief to prevent breaches
of Countrywide's confidentiality obligations hereunder and to specifically
enforce the terms hereof in addition to any other remedy to which the Fund may
be entitled at law or in equity.
E. The confidentiality provisions of this Agreement shall survive the
termination of this Agreement.
17. AMENDMENT.
This Agreement may not be amended or modified except by a written
agreement executed by both parties.
18. BINDING EFFECT.
Each of the undersigned expressly warrants and represents that he has
the full power and authority to sign this Agreement on behalf of the party
indicated, and that his signature will operate to bind the party indicated to
the foregoing terms.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
20. FORCE MAJEURE.
If Countrywide shall be delayed in its performance of services or
prevented entirely or in part from performing services due to causes or events
beyond its control, including and without limitation, acts of God, interruption
of power or other utility, transportation or communication services, acts of
civil or military authority, sabotages, national emergencies, explosion, flood,
accident, earthquake or other catastrophe, fire, strike or other labor problems,
legal action, present or future law, governmental order, rule or regulation, or
shortages of suitable parts, materials, labor or transportation, such delay or
non-performance shall be excused and a reasonable time for performance in
connection with this Agreement shall be extended to include the period of such
delay or non-performance.
21. MISCELLANEOUS.
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXX VALUE FUND, INC.
By:/s/ Xxx Xxxxxxxx
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Its: President
