Investment Advisory and Administrative Contract
THIS AGREEMENT (this "Agreement") is made this ___day of___, 1995,
by and between Texas Capital Value Fund, Inc., a Maryland corporation
(the "Fund"), and First Austin Capital Management, Inc., a Delaware
corporation (the "Investment Advisor").
WITNESSETH:
WHEREAS, the Fund engages in the business of investing and
reinvesting its assets and property in various stocks and securities and
the Investment Advisor engages in the business of providing investment
advisory services; and
WHEREAS, the Fund has need for investment advisory services.
NOW THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Advisory Services. The Investment Advisor shall render investment
advisory services (the "Advisory Services") to the Fund, subject to the
supervision and direction of the Board of Directors of the Fund, for the
period set forth in Paragraph 6 below on the terms set forth herein. The
Investment Advisor shall render such Advisory Services and assume
the obligations herein set forth, for the compensation provided in
Paragraph 3(a) below. The Investment Advisor shall, for the purposes
herein, be deemed to be an independent contractor, and shall, unless
otherwise expressly provided and authorized, have no authority to act
for or represent the Fund in any way, or in any way be deemed an agent
or employee of the Fund.
2. Administrative Services. In addition to the Advisory Services, the
Investment Advisor shall provide certain administrative support
services to the Fund including establishing and maintaining
shareholders' accounts and records, processing purchase and
redemption transactions, answering routine client inquiries regarding
the Fund, preparing all registration statements, prospectuses, tax
returns and proxy statements, valuing the Fund's portfolio daily and
calculating the daily net asset value per share, and providing such other
administrative services to the Fund as the Fund may reasonably request
(collectively, the "Administrative Services"). The Investment Advisor
may contract with third parties to perform all or part of the
Administrative Services. Notwithstanding anything contained in this
Agreement to the contrary, under no circumstances shall the execution
of any such third party contract be deemed an assignment by the
Investment Advisor of an interest in this Agreement.
3.(a) Compensation. As a compensation for the services to be rendered
to the Fund by the Investment Advisor under the provisions of this
Agreement, the Fund shall pay to the Investment Advisor a fee equal to
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the sum of (i) one and nine-tenths percent (1.90%) of the amount of
assets in the Fund between one dollar ($1.00) and five million dollars
($5,000,000), inclusive, plus (ii) one and three-tenths percent (1.30%) of
the amount of assets in the Fund between five million and one dollars
($5,000,001.00) and thirty million dollars ($30,000,000), inclusive, plus (c)
one and twenty-eight hundredths percent (1.28%) of the amount of
assets in the Fund between thirty million and one dollars ($30,000,001)
and one hundred million dollars ($100,000,000), inclusive, plus (d) one
and twenty-five hundredths percent (1.25%) of the amount of assets in
the Fund between one hundred million and one dollars ($100,000,001)
and two hundred million dollars ($200,000,000), inclusive, plus (e) one
and twenty hundredths percent (1.20%) of the amount of assets in the
Fund in excess of two hundred and one million dollars ($200,000,001),
inclusive (all assets in the Fund for the purposes of this Paragraph to be
rounded to the nearest dollar prior to the computation of any fee owed).
Such fees shall be accrued daily and be payable monthly in arrears on
the first day of each calendar month. Accruals of fees to the Investment
Advisor shall begin on the execution date of this Agreement.
(b) Costs. All Fund costs, with the exception of extraordinary
legal expenses (as determined by the Board of Directors of the Fund),
brokerage commissions, custodial charges based upon transactions in
the portfolio of the Fund and marketing expenses, will be borne by the
Investment Advisor as part of this Agreement. In addition, the
Investment Advisor shall absorb all the organization costs for the Fund
as determined by the Board of Directors of the Fund.
In the conduct of the respective businesses of the parties hereto and in
the performance of this Agreement, the Fund and the Investment
Advisor may share common facilities and personnel common to each.
The entire cost to the Fund for the use of common facilities and
personnel will be borne by the Advisor as part of this Agreement.
If any Fund costs which the Investment Advisor has agreed to
bear hereunder are incurred by the Fund pursuant to separate
agreements with third parties, the Fund shall provide the Investment
Advisor with copies of such agreements and any amendments thereto
and shall either xxxx the Investment Advisor for the costs insured by the
Fund thereunder or direct the Investment Advisor to pay any such costs
incurred directly to the third parties involved as provided by the
applicable agreements.
4. Non-Exclusive. The services to be rendered by the Investment
Advisor to the Fund under this Agreement are not to be deemed to
be exclusive, and the Investment Advisor shall be free to render
similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired
thereby. If its ability becomes so impaired, as determined by the
Fund in its sole and absolute discretion, the Fund shall notify the
Investment Advisor of same and this Agreement shall automatically
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terminate upon the receipt by the Investment Advisor of such notice.
Such automatic termination shall be upon the same terms and
conditions as provided for other terminations pursuant to the last
sentence of Paragraph 7 below.
5. Interested Parties. It is understood and agreed that directors,
officers, employees, agents and shareholders of the Fund may be
interested in the Investment Advisor as directors, officers, employees,
agents and shareholders of the Investment Advisor. Similarly,
directors, officers, employees, agents and shareholders of the
Investment Advisor may be interested in the Fund as directors, officers,
employees, agents and shareholders of the Fund. Furthermore, the
Investment Advisor itself may be interested in the Fund as a
shareholder or otherwise of the Fund. It is understood and agreed that
directors, officers, employees, agents and shareholders of the
Investment Advisor may continue as directors, officers, employees,
agents and shareholders of the Fund and vice versa; that the Investment
Advisor, its directors, officers, employees, agents and shareholders may
engage in other business, may render investment advisory services to
other investment companies, or to any other corporation, association,
firm or individual, and may render underwriting services to the Fund,
or to any other investment company, corporation, association, firm or
individual, subject to the provisions of Paragraph 4 above. The parties
agree that the Investment Advisor has a proprietary interest in the
names "Texas Capital Value Funds, Inc." and "Value and Growth
Portfolio", and the Fund agrees to promptly take any and all necessary
action to remove the names "Texas Capital Value Funds, Inc." and
"Value and Growth Portfolio" from its corporate name and from the
name of any of its funds upon receipt of written request therefor from
the Investment Advisor.
6. Term. Notwithstanding the date of this Agreement first above
written, the effective date of this Agreement (the "Effective Date") shall
be the effective date of that certain Registration Statement on Form N-
1A of the Fund, filed by the Fund with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended. Thereafter, this
Agreement shall continue in effect for one year from the Effective Date.
Such term may be extended annually for additional periods of one year
provided that each such extension is approved at least annually by a
vote of the Fund's Board of Directors. Such vote shall be cast in person
at a meeting called for the purpose of voting on such approval, and
shall include the votes of a majority of the Directors who are not parties
to this Agreement or interested persons of any such party.
7. Termination. This Agreement may be terminated at any time upon
sixty (60) days prior written notice, without the payment of any
penalty, by the Fund's Board of Directors or by vote of a majority of
the outstanding voting securities of the Fund. This Agreement shall
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automatically terminate in the event of its assignment by the Investment
Advisor or the Fund (within the meaning of the Investment Company
Act of 1940 (the "1940 Act")), which shall be deemed to include a
transfer of control of the Investment Advisor or the Fund, respectively,
unless an exemption from such automatic termination is granted by
order or rule of the Securities and Exchange Commission. Upon the
termination of this Agreement, the obligations of all the parties
hereunder shall cease and terminate as of the date of such termination,
except for (i) any obligation to respond to a breach of this Agreement
committed prior to such termination, (ii) the obligation of the Fund to
pay to the Investment Advisor the fee provided in Paragraph 3(a)
above, prorated to the date of termination, and (iii) the obligation of the
Investment Advisor to bear the costs provided for in Paragraph 3(b)
above, prorated to the date of termination (if applicable).
8. Assignment. This Agreement shall terminate automatically in the
event of its whole or partial assignment by the Investment Advisor or
the Fund as provided in Paragraph 7 above.
9. Fidelity Bond. As part of this Agreement, the Investment Advisor
shall bear the cost of the fidelity bond required to be maintained by the
Fund for employees, officers, or directors of the Investment Advisor
who have access to the Fund's securities or cash. Such bond must
protect the Fund against loss from larceny and embezzlement under the
Act, and, in compliance with Rule 17g-1 under the 1940 Act, must be
approved both in form and amount by a majority of the independent
directors of the Fund at least annually with due consideration given to
(a) the value of the Investment Advisor's aggregate assets, (b) the type
of custody arrangements employed, and (c) the nature of the securities
owned. Additionally, the Investment Advisor shall bear the cost, if any,
for Employee and Officer/Director and Officer (E&O/D&O) liability
insurance covering the Investment Advisor in favor of the Fund. Under
the terms of this Agreement, there is no initial requirement that
E&O/D&O insurance be purchased, but if the Board of Directors of the
Fund ever requires in its sole and absolute discretion that it be carried,
or if the Investment Advisor decides, unilaterally, to carry it, then such
cost shall be borne by the Investment Advisor and such insurance, if
required to be carried by the Fund's Board of Directors, shall be in such
amount and for such a term as the Board may reasonably require. The
Investment Advisor shall not be liable for any error of judgment or of
law or for any loss suffered by the Fund in connection with the matters
to which this Agreement relates, except loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Investment
Advisor in the performance of its obligations and duties or by reason of
its reckless disregard of its obligations and duties under this
Agreement.
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10. Notices. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery or by mail,
and if given by mail shall be deemed sufficiently given if sent by
registered or certified mail addressed to the party to be notified at the
following applicable address:
The Fund:
Texas Capital Value Funds, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
The Investment Advisor:
First Austin Capital Management, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Either party may specify a different address for notice purposes
by written notice to the other.
11. Governing Law. This Agreement is executed and delivered in the
State of Texas and shall be governed by the laws of Texas and the 1940
Act.
12. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and terminates and supersedes all prior
understandings or agreements on the subject matter hereof. No
conditions or warranties shall be implied herefrom unless expressly set
forth herein. The Fund and the Investment Advisor each acknowledge
that the terms and conditions of this Agreement, and each of them, are
reasonable and fair and equitable. This Agreement may be modified
only by a future writing that is duly executed by both parties.
13. Severability. If any term of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then this
Agreement, including all of the remaining terms, will remain in full
force and effect as if such invalid or unenforceable term had never been
included.
14. Waiver. Waiver by either party of any breach of any term, covenant
or condition in this Agreement shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or
condition herein contained, nor shall any custom or practice which may
grow up between the parties in the administration of the terms hereof
be deemed a waiver of or in any way affect the right of each party to
insist on the performance of the other party in strict accordance with
said terms.
15. Time Is of the Essence. Time is of the essence of this Agreement.
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16. Attorneys' Fees. In the event of any litigation or arbitration
between the parties with respect to this Agreement, all costs and
expenses, including, without limitation, actual professional fees such as
accountants' and attorneys' fees, incurred by the prevailing party, shall
be paid by the other party, which obligation on the part of the other
party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
17. Mandatory Arbitration. All disputes arising under this Agreement
shall be arbitrated pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.
18. Independent Counsel. The parties acknowledge that they have had
the opportunity to consult with independent counsel of their own
choosing in the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date and year first above written.
Texas Capital Value Fund, Inc.,
a Maryland corporation
By______________________________
Xxxx X. Xxxxxxx, President
First Austin Capital Management, Inc.,
a Delaware corporation
By_____________________________
Xxxx X. Xxxxxxx, President
AMENDMENT TO THE
INVESTMENT ADVISORY AND ADMINISTRATIVE CONTRACT
DATED AUGUST 15, 1995
October 9, 0000
Xxx xxxxx xx Xxxxx has requested in its comments to the Fund for
registration in Texas that the fees paid to the Advisor for Advisory
Services and Administrative Services be split. The amendment below in
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no way changes total fees agreed to by the Board of Directors, but
rather changes the labeling of the fees.
The Investment Advisory and Administrative Contract, section 3.(a), is
replaced by the following amendment:
3.(a) As compensation for the services to be rendered to the Fund by the
Investment Advisor under the provisions of this Agreement, the Fund
shall pay to the Investment Advisor:
(i) for Advisory Services a flat fee of one percent (1%) of the net assets of
the Fund; plus additional amounts as follows: (ii)for Administrative
Services a fee equal to the sum of (i) nine-tenths percent (0.90%) of the
amount of assets in the Fund between one dollar ($1.00) and five million
dollars ($5,000,000), inclusive, plus (ii) three-tenths percent (0.30%) of
the amount of assets in the Fund between five million and one dollars
($5,000,001.00) and thirty million dollars ($30,000,000), inclusive, plus (c)
twenty-eight hundredths percent (0.28%) of the amount of assets in the
Fund between thirty million and one dollars ($30,000,001) and one
hundred million dollars ($100,000,000), inclusive, plus (d) twenty-five
hundredths percent (0.25%) of the amount of assets in the Fund between
one hundred million and one dollars ($100,000,001) and two hundred
million dollars ($200,000,000), inclusive, plus (e) twenty hundredths
percent (0.20%) of the amount of assets in the Fund in excess of two
hundred and one million dollars ($200,000,001), inclusive (all assets in
the Fund for the purposes of this Paragraph to be rounded to the
nearest dollar prior to the computation of any fee owed).
Such fees shall be accrued daily and be payable monthly in arrears on
the first day of each calendar month. Accruals of fees to the Investment
Advisor shall begin on the execution date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date and year first above written.
Texas Capital Value Fund, Inc.,
a Maryland corporation
By______________________________
Xxxx X. Xxxxxxx, President
First Austin Capital Management, Inc.,
a Delaware corporation
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By_____________________________
Xxxx X. Xxxxxxx, President
SECOND AMENDMENT TO THE
INVESTMENT ADVISORY AND ADMINISTRATIVE CONTRACT
DATED AUGUST 15, 1995
March 20, 1996
The following amends the Investment Advisory and Administrative
Contract between First Austin Capital Management, Inc. and Texas
Capital Value Funds, Inc. dated August 15, 1995 and supersedes the
Amendment to that Agreement dated October 20, 1995.
The Investment Advisory and Administrative Contract, section 3.(a), is
replaced by the following amendment:
3.(a) As compensation for the services to be rendered to the Fund by the
Investment Advisor under the provisions of this Agreement, the Fund
shall pay to the Investment Advisor:
(i) for Advisory Services a flat fee of one percent (1%) of the net assets of
the Fund; plus additional amounts as follows:
(ii)for Administrative Services a fee equal to the sum of (i) seven-tenths
percent (0.70%) of the amount of assets in the Fund between one dollar
($1.00) and five million dollars ($5,000,000), inclusive, plus (ii) five-
tenths percent (0.50%) of the amount of assets in the Fund between five
million and one dollars ($5,000,001.00) and thirty million dollars
($30,000,000), inclusive, plus (c) twenty-eight hundredths percent
(0.28%) of the amount of assets in the Fund between thirty million and
one dollars ($30,000,001) and one hundred million dollars
($100,000,000), inclusive, plus (d) twenty-five hundredths percent
(0.25%) of the amount of assets in the Fund between one hundred
million and one dollars ($100,000,001) and two hundred million dollars
($200,000,000), inclusive, plus (e) twenty hundredths percent (0.20%) of
the amount of assets in the Fund in excess of two hundred and one
million dollars ($200,000,001), inclusive (all assets in the Fund for the
purposes of this Paragraph to be rounded to the nearest dollar prior to
the computation of any fee owed).
Such fees shall be accrued daily and be payable monthly in arrears on
the first day of each calendar month. Accruals of fees to the Investment
Advisor shall begin on the execution date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date and year first above written.
8
Texas Capital Value Fund, Inc.,
a Maryland corporation
By______________________________
Xxxx X. Xxxxxxx, President
First Austin Capital Management, Inc.,
a Delaware corporation
By_____________________________
Xxxx X. Xxxxxxx, President
Investment Advisory Contract
THIS AGREEMENT (this "Agreement") is made
this ___day of___, 1996, by and between
Texas Capital Value Funds, Inc., a
Maryland corporation (the "Corporation"),
and Xxxx Xxxxx Xxxxxx, Xx., an
individual, dba Xxxxxx Capital Management
(the "Investment Advisor").
WITNESSETH:
WHEREAS, the Corporation is an open-ended
"series" investment company registered
with the Securities and Exchange
Commission under the Investment Company
Act of 1940; and
WHEREAS, the Board of Directors of the
Corporation (the "Board") has authorized
the establishment of a new series or
portfolio of securities and assets (the
"Fund"); and
WHEREAS, the Corporation has need of
investment advisory services for the Fund
and the Investment Advisor is in the
business of providing such services.
NOW THEREFORE, for good and valuable
consideration, the receipt and adequacy
of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
1. Advisory Services. The Investment
Advisor shall render investment advisory
services (the "Advisory Services") to the
Fund, subject to the supervision and
direction of the Board, for the period
set forth in Paragraph 6 below on the
terms set forth herein. The Investment
Advisor shall render such Advisory
Services and assume the obligations
herein set forth, for the compensation
provided in Paragraph 3(a) below. The
Investment Advisor shall, for the
purposes herein, be deemed to be an
independent contractor, and shall, unless
otherwise expressly provided and
authorized, have no authority to act for
or represent the Fund or Corporation in
any way, or in any way be deemed an agent
or employee of the Fund or the
Corporation.
2. All Other Services. (a) All other
services necessary to the operation of
the Fund shall be provided to the Fund
pursuant to written agreements (the
"Contracts") between the Corporation and
various third parties (the "Third
Parties"). Such services shall include,
without limitation, distribution
services, administrative services,
custodial services, transfer agent
services, accounting services, audit
services, and any other services the
Corporation deems necessary in its sole
and absolute discretion. The Investment
Advisor understands and acknowledges that
arranging for the provision of such
services shall be the sole right and
responsibility of the Corporation. Under
no circumstances shall the Investment
Advisor enter into any contracts or
agreements for the provision of same.
(b) The Investment Advisor shall pay all
compensation, costs and other monies owed
by the Corporation under any of the
Contracts, as provided in each such
Contract, directly to the applicable
Third Party. Upon execution of an
Agreement or any amendment thereto, the
Corporation shall promptly deliver a copy
of same to the Investment Advisor and the
Investment Advisor shall immediately
commence making any an all payments
required of the Corporation thereunder.
Such payments by the Investment Advisor
shall continue under each Contract until
the earlier to occur of (i) the date of
termination of this Agreement or (ii) the
date specified in such Contract for the
termination of payments.
(c) The Investment Advisor shall deliver
or cause to be delivered to any Third
Party any and all documents, records and
other information requested by such Third
Party for the performance of its
obligations under the applicable
Contract. Such documents, records and
other information shall be in a form and
delivered in a manner and within a time
frame that is acceptable to such Third
Party in its sole and absolute
discretion.
3.(a) Compensation. As compensation for
the Advisory Services, the Fund shall pay
to the Investment Advisor a flat fee of
one percent (1%) per annum of the net
assets of the Fund. In consideration of
the payments made by the Investment
Advisor pursuant to the provisions of
Paragraph 2 above, the Fund shall pay the
Investment Advisor a per annum fee equal
to the sum of (i) seven-tenths percent
(0.70%) of the amount of assets in the
Corporation between one dollar ($1.00)
and five million dollars ($5,000,000),
inclusive, plus (ii) five-tenths percent
(0.50%) of the amount of assets in the
Corporation between five million and one
dollars ($5,000,001) and thirty million
dollars ($30,000,000), inclusive, plus
(iii) twenty-eight hundredths percent
(0.28%) of the amount of assets in the
Corporation between thirty million and
one dollars ($30,000,001) and one hundred
million dollars ($100,000,000),
inclusive, plus (iv) twenty-five
hundredths percent (0.25%) of the amount
of assets in the Corporation between one
hundred million and one dollars
($100,000,001) and two hundred million
dollars ($200,000,000), inclusive, plus
(v) twenty hundredths percent (0.20%) of
the amount of assets in the Corporation
in excess of two hundred and one million
dollars ($200,000,001), inclusive (all
assets in the Corporation for the
purposes of this Paragraph to be rounded
to the nearest dollar prior to the
computation of any fee owed). Such fees
shall be accrued daily and be payable
monthly in arrears on the first day of
each calendar month. Accruals of fees to
the Investment Advisor shall begin on the
Effective Date.
(b) Costs. It is the intention of the
parties hereto that all Fund costs will
be borne by the Investment Advisor under
this Agreement with the exception of
brokerage commissions and custodial
charges based upon transactions in the
portfolio of the Fund. In addition, the
Investment Advisor shall absorb all the
organizational costs for the Fund as
determined by the Board.
In the conduct of the respective
businesses of the parties hereto and in
the performance of this Agreement, the
Fund and the Investment Advisor may share
common facilities and personnel common to
each. The entire cost to the Fund for
the use of common facilities and
personnel will be borne by the Investment
Advisor as part of this Agreement.
4. Non-Exclusive. The services to be
rendered by the Investment Advisor to the
Fund under this Agreement are not to be
deemed to be exclusive, and the
Investment Advisor shall be free to
render similar or different services to
others so long as its ability to render
the services provided for in this
Agreement shall not be impaired thereby.
If its ability becomes so impaired, as
determined by the Corporation in its sole
and absolute discretion, the Corporation
shall notify the Investment Advisor of
same and this Agreement shall
automatically terminate upon the receipt
by the Investment Advisor of such notice.
Such automatic termination shall be upon
the same terms and conditions as provided
for other terminations pursuant to the
last sentence of Paragraph 7 below.
5. Interested Parties. It is understood
and agreed that directors, officers,
employees, agents and shareholders of the
Fund may be interested in the Investment
Advisor as directors, officers,
employees, agents and shareholders of the
Investment Advisor. Similarly,
directors, officers, employees, agents
and shareholders of the Investment
Advisor may be interested in the Fund or
the Corporation as directors, officers,
employees, agents and shareholders of the
Fund. Furthermore, the Investment Advisor
itself may be interested in the Fund as a
shareholder or otherwise of the Fund. It
is understood and agreed that directors,
officers, employees, agents and
shareholders of the Investment Advisor
may continue as directors, officers,
employees, agents and shareholders of the
Fund or Corporation and vice versa; that
the Investment Advisor, its directors,
officers, employees, agents and
shareholders may engage in other
business, may render investment advisory
services to other investment companies,
or to any other corporation, association,
firm or individual, and may render
underwriting services to the Fund, or to
any other investment company,
corporation, association, firm or
individual, subject to the provisions of
Paragraph 4 above. The parties agree
that the Investment Advisor has a
proprietary interest in the name , and
the Corporation agrees to promptly take
any and all necessary action to remove
the name, from the name of any of its
funds upon receipt of written request
therefor from the Investment Advisor.
6. Term. Notwithstanding the date of
this Agreement first above written, the
effective date of this Agreement (the
"Effective Date") shall be the effective
date of that certain Registration
Statement on Form N-1A of the Fund, filed
by the Fund with the Securities and
Exchange Commission under the Securities
Act of 1933, as amended, and the
Investment Company Act of 1940, as
amended. Thereafter, this Agreement
shall continue in effect for one year
from the Effective Date. Such term may
be extended annually for additional
periods of one year provided that each
such extension is approved at least
annually by a vote of the Board. Such
vote shall be cast in person at a meeting
called for the purpose of voting on such
approval, and shall include the votes of
a majority of the Directors on the Board
who are not parties to this Agreement or
interested persons of any such party.
7. Termination. This Agreement may be
terminated at any time upon sixty (60)
days' prior written notice, without the
payment of any penalty, by the
Corporation's Board of Directors or by
vote of a majority of the outstanding
voting securities of the Fund. This
Agreement shall automatically terminate
in the event of its assignment by the
Investment Advisor or the Fund (within
the meaning of the Investment Company Act
of 1940 (the "1940 Act")), which shall be
deemed to include a transfer of control
of the Investment Advisor or the Fund,
respectively, unless an exemption from
such automatic termination is granted by
order or rule of the Securities and
Exchange Commission. Upon the
termination of this Agreement, the
obligations of all the parties hereunder
shall cease and terminate as of the date
of such termination, except for (i) any
obligation to respond to a breach of this
Agreement committed prior to such
termination, (ii) the obligation of the
Fund to pay to the Investment Advisor the
fee provided in Paragraph 3(a) above,
prorated to the date of termination, and
(iii) the obligation of the Investment
Advisor to bear the costs provided for in
Paragraph 3(b) above, prorated to the
date of termination (if applicable).
8. Assignment. This Agreement shall
terminate automatically in the event of
its whole or partial assignment by the
Investment Advisor or the Fund as
provided in Paragraph 7 above.
9. Fidelity Bond. As part of this
Agreement, the Investment Advisor shall
bear the cost of the fidelity bond
required to be maintained by the
Corporation for employees, officers, or
directors of the Investment Advisor who
have access to the Fund's securities or
cash. Such bond must protect the Fund
against loss from larceny and
embezzlement under the Act, and, in
compliance with Rule 17g-1 under the 1940
Act, must be approved both in form and
amount by a majority of the independent
directors of the Corporation at least
annually with due consideration given to
(a) the value of the Investment Advisor's
aggregate assets, (b) the type of custody
arrangements employed, and (c) the nature
of the securities owned. Additionally,
the Investment Advisor shall bear the
cost, if any, for Employee and
Officer/Director and Officer (E&O/D&O)
liability insurance covering the
Investment Advisor in favor of the
Corporation. Under the terms of this
Agreement, there is no initial
requirement that E&O/D&O insurance be
purchased, but if the Board ever requires
in its sole and absolute discretion that
it be carried, or if the Investment
Advisor decides, unilaterally, to carry
it, then such cost shall be borne by the
Investment Advisor and such insurance, if
required to be carried by the Board,
shall be in such amount and for such a
term as the Board may reasonably require.
The Investment Advisor shall not be
liable for any error of judgement or of
law or for any loss suffered by the Fund
or the Corporation in connection with the
matters to which this Agreement relates,
except loss resulting from willful
misfeasance, bad faith or gross
negligence on the part of the Investment
Advisor in the performance of its
obligations and duties or by reason of
its reckless disregard of its obligations
and duties under this Agreement.
10. Notices. Any notice required or
permitted to be given hereunder must be
in writing and may be given by personal
delivery or by mail, and if given by mail
shall be deemed sufficiently given if
sent by registered or certified mail
addressed to the party to be notified at
the following applicable address:
The Corporation:
Texas Capital Value Funds, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
The Investment Advisor:
Mr. Xxxx Xxxxxx
Xxxxxx Capital Management
000 Xxxx Xxxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Either party may specify a different
address for notice purposes by written
notice to the other.
11. Governing Law. This Agreement is
executed and delivered in the State of
Texas and shall be governed by the laws
of Texas and the 1940 Act.
12. Entire Agreement. This Agreement
constitutes the entire agreement between
the parties and terminates and supersedes
all prior understandings or agreements on
the subject matter hereof. No conditions
or warranties shall be implied here from
unless expressly set forth herein. The
Corporation and the Investment Advisor
each acknowledge that the terms and
conditions of this Agreement, and each of
them, are reasonable and fair and
equitable. This Agreement may be
modified only by a future writing that is
duly executed by both parties.
13. Severability. If any term of this
Agreement is held by a court of competent
jurisdiction to be invalid or
unenforceable, then this Agreement,
including all of the remaining terms,
will remain in full force and effect as
if such invalid or unenforceable term had
never been included.
14. Waiver. Waiver by either party of
any breach of any term, covenant or
condition in this Agreement shall not be
deemed to be a waiver of any subsequent
breach of the same or any other term,
covenant or condition herein contained,
nor shall any custom or practice which
may grow up between the parties in the
administration of the terms hereof be
deemed a waiver of or in any way affect
the right of each party to insist on the
performance of the other party in strict
accordance with said terms.
15. Time Is of the Essence. Time is of
the essence of this Agreement.
16. Attorneys' Fees. In the event of
any litigation or arbitration between the
parties with respect to this Agreement,
all costs and expenses, including,
without limitation, actual professional
fees such as accountants' and attorneys'
fees, incurred by the prevailing party,
shall be paid by the other party, which
obligation on the part of the other party
shall be deemed to have accrued on the
date of the commencement of such action
and shall be enforceable whether or not
the action is prosecuted to judgement.
17. Mandatory Arbitration. All disputes
arising under this Agreement shall be
arbitrated pursuant to the Commercial
Arbitration Rules of the American
Arbitration Association.
18. Independent Counsel. The parties
acknowledge that they have had the
opportunity to consult with independent
counsel of their own choosing in the
negotiation and execution of this
Agreement.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed
on the date and year first above written.
Corporation:
Texas Capital Value Funds, Inc.,
a Maryland corporation
By: Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
Investment Advisor:
By: Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx Xxxxxx Xx., an individual,
dba Xxxxxx Capital Management
