ACCOUNTING SERVICES AGREEMENT
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AGREEMENT dated as of ___________________, 1997 between Xxxxxxx Capital
Mutual Fund Group, Inc. (the "Corporation"), a Maryland corporation, and
Countrywide Fund Services, Inc. ("Countrywide"), an Ohio corporation.
WHEREAS, the Corporation is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation wishes to employ the services of Countrywide to
provide the Corporation with certain accounting and pricing services; 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 Corporation and Countrywide agree as follows:
1. APPOINTMENT.
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The Corporation hereby appoints and employs Countrywide as agent to
perform those services described in this Agreement for the Corporation.
Countrywide shall act under such appointment and perform the obligations thereof
upon the terms and conditions hereinafter set forth.
2. CALCULATION OF NET ASSET VALUE.
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Countrywide will calculate the net asset value of each series of the
Corporation and the per share net asset value of each series of the Corporation,
in accordance with the current prospectus and statement of additional
information of each series of the Corporation, once daily as of the time
selected by the Corporation's Board of Directors. Countrywide will prepare and
maintain a daily valuation of all securities and other assets of the Corporation
in accordance with instructions from a designated officer of the Corporation or
its investment adviser and in the manner set forth in the Corporation's current
prospectus and statement of additional information. In valuing securities of the
Corporation, Countrywide may contract with, and rely upon market quotations
provided by, outside services.
3. BOOKS AND RECORDS.
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Countrywide will maintain and keep current the general ledger for each
series of the Corporation, recording all income and expenses, capital share
activity and security transactions of the Corporation. Countrywide will maintain
such further books and records as are necessary to enable it to perform its
duties under this Agreement, and will periodically provide reports to the
Corporation and its authorized agents regarding share purchases and redemptions
and trial balances of each series of the Corporation. Countrywide will prepare
and maintain complete, accurate and current all records with respect to the
Corporation required to be maintained by the Corporation under the Internal
Revenue Code of 1986, as amended (the "Code"), and under the rules and
regulations of the 1940 Act, and will preserve said records in the manner and
for the periods prescribed in the Code and the 1940 Act. The retention of such
records shall be at the expense of the Corporation.
All of the records prepared and maintained by Countrywide pursuant to
this Section 3 which are required to be maintained by the Corporation under the
Code and the 1940 Act will be the property of the Corporation. In the event this
Agreement is terminated, all such records shall be delivered to the Corporation
at the Corporation's expense, and Countrywide shall be relieved of
responsibility for the preparation and maintenance of any such records delivered
to the Corporation.
4. PAYMENT OF CORPORATION EXPENSES.
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Countrywide shall process each request received from the Corporation
or its authorized agents for payment of the Corporation's expenses. Upon receipt
of written instructions signed by an officer or other authorized agent of the
Corporation, Countrywide shall prepare checks in the appropriate amounts which
shall be signed by an authorized officer of Countrywide and mailed to the
appropriate party.
5. FORM N-SAR.
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Countrywide shall maintain such records within its control and shall
be requested by the Corporation to assist the Corporation in fulfilling the
requirements of Form N-SAR.
6. COOPERATION WITH ACCOUNTANTS.
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Countrywide shall cooperate with the Corporation's independent public
accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their unqualified
opinion where required for any document for the Corporation.
7. FURTHER ACTIONS.
---------------
Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
8. FEES.
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For the performance of the services under this Agreement, each series
of the Corporation shall pay Countrywide a monthly fee in accordance with the
schedule attached hereto as Schedule A. The fees with respect to any month shall
be paid to Countrywide on the last business day of such month. The Corporation
shall also promptly reimburse Countrywide for the cost of external pricing
services utilized by Countrywide. Countrywide shall not be required to reimburse
the Corporation or the Corporation's investment adviser for (or have deducted
from its fees) any expenses in excess of expense limitations imposed by certain
state securities commissions having jurisdiction over the Corporation.
9. 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
Corporation which services could cause Countrywide to be deemed an "investment
adviser" of the Corporation within the meaning of Section 2(a)(20) of the 1940
Act or to supersede or contravene the Corporation'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 Corporation assumes
full responsibility for complying with all applicable requirements of the 1940
Act, the Securities
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Act of 1933, as amended, and any other laws, rules and regulations of
governmental authorities having jurisdiction.
10. REFERENCES TO COUNTRYWIDE.
-------------------------
The Corporation 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 Corporation 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.
11. EQUIPMENT FAILURES.
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Countrywide shall take all steps necessary to minimize or avoid
service interruptions, and has entered into one or more agreements making
provision for emergency use of electronic data processing equipment. Countrywide
shall have no liability with respect to equipment failures beyond its control.
12. 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 Corporation in connection with any error of judgment, mistake of law, any
act or omission connected with or arising out 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
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agent of the Corporation, shall be deemed, when rendering services to the
Corporation or acting on any business of the Corporation, to be rendering such
services to or acting solely as an officer, director, employee or agent of the
Corporation 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 those entities.
C. Notwithstanding any other provision of this Agreement, the Corporation
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 Corporation
or upon the opinion of legal counsel for the Corporation 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.
13. TERMINATION.
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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 Corporations'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
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majority of the Corporation's Board of Directors or a majority of the
Corporation'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 therefore. Upon termination of this Agreement, the
Corporation 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 Corporation by written notice to Countrywide,
Countrywide shall, promptly upon such termination and at the expense of the
Corporation, 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.
14. SERVICES FOR OTHERS.
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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 Corporation under this Agreement.
15. LIMITATION OF LIABILITY.
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It is expressly agreed that the obligations of the Corporation
hereunder shall not be binding upon any of the Directors, shareholders,
nominees, officers, agents or employees of the Corporation, personally, but bind
only the corporation property of the Corporation. The execution and delivery of
this Agreement have been authorized by the Directors of the Corporation and
signed by an officer of the Corporation, acting as such, and neither such
authorization by such Directors nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose
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any liability on any of them personally, but shall bind only the corporation
property of the Corporation.
16. SEVERABILITY.
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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.
17. QUESTIONS OF INTERPRETATION.
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This Agreement shall be governed by the laws of the State of Ohio. 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 or in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Securities and Exchange Commission 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
Securities and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
18. NOTICES.
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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 Corporation: Xxxxxxx Capital Mutual Fund Group, Inc.
c/x Xxxxxxxxx Group
0000 Xxxx Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
To Countrywide: Countrywide Fund Services, Inc.
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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 18. 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.
19. AMENDMENT.
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This Agreement may not be amended or modified except by a written
agreement executed by both parties.
20. BINDING EFFECT.
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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.
21. COUNTERPARTS.
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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.
22. FORCE MAJEURE.
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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
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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.
23. MISCELLANEOUS.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXXX CAPITAL MUTUAL FUND GROUP, INC.
By:_______________________________
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By:_______________________________
Its: President
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Schedule A
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COMPENSATION
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Each series of the Corporation will pay Countrywide a monthly fee,
according to the average net assets of such series during such month, as
follows:
Average Monthly Net Assets Monthly Fee
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0 - $ 25,000,000 $1,500
25 - 50,000,000 2,000
50 - 100,000,000 2,500
100 - 200,000,000 3,000
Over 200,000,000 4,000 plus .001%
of such assets in
excess of $200,000,000
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