Exhibit 99.B9(b)
TRANSFER, DIVIDEND DISBURSING, SHAREHOLDER SERVICE
AND PLAN AGENCY AGREEMENT
AGREEMENT dated as of September 30, 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 serve as its transfer, dividend disbursing, shareholder service and plan
agent with respect to the Corporation and each series identified on Schedule A
(each, a "Fund" and collectively, the "Funds"), which may be amended by
agreement of the parties from time to time; 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. DOCUMENTATION.
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The Corporation will furnish from time to time the following
documents:
A. Each resolution of the Board of Directors of the Corporation
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 Article of
Incorporation and the Bylaws of the Corporation;
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;
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 Corporation and for which Countrywide is to act
as plan agent.
3. COUNTRYWIDE TO RECORD SHARES.
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Countrywide shall record the issuance of shares of the
Corporation and maintain pursuant to applicable rules of the SEC a record of the
total number of shares of the Corporation which are authorized, issued and
outstanding, based upon data provided to it by the Corporation. Countrywide
shall also provide the Corporation on a regular basis or upon reasonable request
the total number of shares which are authorized, issued and outstanding, but
shall have no obligation when recording the issuance of the Corporation's
shares, except as otherwise set forth herein, to monitor the issuance of such
shares or to take cognizance of any laws relating to the issue or sale of such
shares, which functions shall be the sole responsibility of the Corporation.
4. COUNTRYWIDE TO VALIDATE TRANSFERS.
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Upon receipt of a proper request for transfer from the
Corporation's distributor or dealer or a shareholder, Countrywide shall approve
such transfer and shall take all necessary steps to effectuate the transfer as
indicated in the transfer request. Upon approval of the transfer, Countrywide
shall notify the Corporation in writing of each such transaction and shall make
appropriate entries on the shareholder records maintained by Countrywide.
5. RECEIPT OF FUNDS.
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Upon receipt of any check or other instrument drawn or
endorsed to it as agent for, or identified as being for the account of, the
Corporation, Countrywide shall stamp the check or instrument with the date of
receipt, determine the amount thereof due the Corporation and shall forthwith
process the same for collection. Upon receipt of notification of receipt of
funds eligible for share purchases in accordance with the Corporation's then
current prospectus and statement of additional information, Countrywide shall
notify the Corporation, at the close of each business day, in writing of the
amount of said funds credited to the Corporation and deposited in its account
with the Custodian.
6. PURCHASE ORDERS.
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Upon receipt of an order for the purchase of shares of the
Corporation, accompanied by sufficient information to enable Countrywide to
establish a shareholder account, Countrywide shall, as of the next determination
of net asset value after receipt of such order in accordance with the
Corporation's then current prospectus and statement of additional information,
compute the number of shares of each Fund due to the shareholder pursuant to the
distributor's, dealer's or shareholder's instructions, credit the share account
of the shareholder, subject to collection of the funds, with the number of
shares so purchased, shall notify the Corporation in writing or by computer
report at the close of each business day of such transactions and shall mail to
the shareholder and/or dealer of record a notice of such credit when requested
to do so by the Corporation.
7. RETURNED CHECKS.
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In the event that Countrywide is notified by the Corporation's
Custodian that any check or other order for the payment of money is returned
unpaid for any reason, Countrywide will:
A. Give prompt notification to the Corporation of the non-payment
of said check;
B. In the absence of other instructions from the Corporation,
take such steps as may be necessary to redeem any shares purchased on the basis
of such returned check and cause the proceeds of such redemption plus any
dividends declared with respect to such shares to be credited to the account of
the Corporation and to request the Corporation's Custodian to forward such
returned check to the person who originally submitted the check; and
C. Notify the Corporation of such actions and correct the
Corporation's records maintained by Countrywide pursuant to this Agreement.
8. DIVIDENDS AND DISTRIBUTIONS.
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The Corporation shall furnish Countrywide with appropriate
evidence of Director action authorizing the declaration of dividends and other
distributions. Countrywide shall establish procedures in accordance with the
Corporation's then current prospectus and statement of additional information
and with other authorized actions of the Corporation's Board of Directors under
which it will have available from the Custodian or the Corporation any required
information for each dividend and other distribution. After deducting any amount
required to be withheld by any applicable laws, Countrywide shall, as agent for
each shareholder who so requests, invest the dividends and other distributions
in full and fractional shares in accordance with the Corporation's then current
prospectus and statement of additional information. If a shareholder has elected
to receive dividends or other distributions in cash, then Countrywide shall
disburse dividends to shareholders of record in accordance with the
Corporation's then current prospectus and statement of additional information.
Countrywide shall, on or before the mailing date of such checks, notify the
Corporation and the Custodian of the estimated amount of cash required to pay
such dividend or distribution, and the Corporation shall instruct the Custodian
to make available sufficient funds therefor in the appropriate account of the
Corporation. Countrywide shall mail to the shareholders periodic statements, as
requested by the Corporation, showing the number of full and fractional shares
and the net asset value per share of shares so credited. When requested by the
Corporation, Countrywide shall prepare and file with the Internal Revenue
Service, and when required, shall address and mail to shareholders, such returns
and information relating to dividends and distributions paid by the Corporation
as are required to be so prepared, filed and mailed by applicable laws, rules
and regulations.
9. UNCLAIMED DIVIDENDS AND UNCLAIMED REDEMPTION PROCEEDS.
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Countrywide shall, at least annually, furnish in writing to
the Corporation the names and addresses, as shown in the shareholder accounts
maintained by Countrywide, of all shareholders for which there are, as of the
end of the calendar year, dividends, distributions or redemption proceeds for
which checks or share certificates mailed in payment of distributions have been
returned. Countrywide shall use its best efforts to contact the shareholders
affected and to follow any other written instructions received from the
Corporation concerning the disposition of any such unclaimed dividends,
distributions or redemption proceeds.
10. REDEMPTIONS AND EXCHANGES.
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A. Countrywide shall process, in accordance with the Corporation's then
current prospectus and statement of additional information, each order for the
redemption of shares accepted by Countrywide. Upon its approval of such
redemption transactions, Countrywide, if requested by the Corporation, shall
mail to the shareholder and/or dealer of record a confirmation showing trade
date, number of full and fractional shares redeemed, the price per share and the
total redemption proceeds. For each such redemption, Countrywide shall either:
(a) prepare checks in the appropriate amounts for approval and verification by
the Corporation and signature by an authorized officer of Countrywide and mail
the checks to the appropriate person, or (b) in the event redemption proceeds
are to be wired through the Federal Reserve Wire System or by bank wire, cause
such proceeds to be wired in federal funds to the bank account designated by the
shareholder, or (c) effectuate such other redemption procedures, including
redemptions in kind, which are authorized by the Corporation's Board of
Directors or its then current prospectus and statement of additional
information. The requirements as to instruments of transfer and other
documentation, the applicable redemption price and the time of payment shall be
as provided in the then current prospectus and statement of additional
information, subject to such supplemental instructions as may be furnished by
the Corporation and accepted by Countrywide. If Countrywide or the Corporation
determines that a request for redemption does not comply with the requirements
for redemptions, Countrywide shall promptly notify the shareholder indicating
the reason therefor.
B. If shares of a Fund are eligible for exchange with shares of any
other Fund or investment company, Countrywide, in accordance with the then
current prospectus and statement of additional information and exchange rules of
the Corporation and such other investment company, or such other investment
company's transfer agent, shall review and approve all exchange requests and
shall, on behalf of the Corporation's shareholders, process such approved
exchange requests.
C. Countrywide shall notify the Corporation and the Custodian on each
business day of the amount of cash required to meet payments made pursuant to
the provisions of this Paragraph 10, and, on the basis of such notice, the
Corporation shall instruct the Custodian to make available from time to time
sufficient funds therefor in the appropriate account of the Corporation.
Procedures for effecting redemption orders accepted from shareholders or dealers
of record by telephone or other methods shall be established by mutual agreement
between Countrywide and the Corporation consistent with the Corporation's then
current prospectus and statement of additional information.
D. The authority of Countrywide to perform its responsibilities under
Xxxxxxxxx 0, Xxxxxxxxx 8, and this Paragraph 10 shall be suspended with respect
to any Fund upon receipt of notification by it of the suspension of the
determination of such series' net asset value.
11. AUTOMATIC WITHDRAWAL PLANS.
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Countrywide will process automatic withdrawal orders pursuant
to the provisions of the withdrawal plans duly executed by shareholders and the
current prospectus and statement of additional information of the Corporation.
Payments upon such withdrawal order shall be made by Countrywide from the
appropriate account maintained by the Corporation with the Custodian on
approximately the last business day of each month in which a payment has been
requested, and Countrywide will withdraw from a shareholder's account and
present for repurchase or redemption as many shares as shall be sufficient to
make such withdrawal payment pursuant to the provisions of the shareholder's
withdrawal plan and the current prospectus and statement of additional
information of the Corporation. From time to time on new automatic withdrawal
plans a check for a payment date already past may be issued upon request by the
shareholder.
12. WIRE-ORDER PURCHASES.
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Countrywide will send written confirmations to the dealers of
record containing all details of the wire-order purchases placed by each such
dealer by the close of business on the business day following receipt of such
orders by Countrywide. Upon receipt of any check drawn or endorsed to the
Corporation (or Countrywide, as agent) or otherwise identified as being payment
of an outstanding wire-order, Countrywide will stamp said check with the date of
its receipt and deposit the amount represented by such check to Countrywide's
deposit accounts maintained with the Custodian. Countrywide will cause the
Custodian to transfer federal funds in an amount equal to the net asset value of
the shares so purchased to the Corporation's account with the Custodian and will
notify the Corporation before noon (Eastern Time) of each business day of the
total amount deposited in the Corporation's deposit accounts, and in the event
that payment for a purchase order is not received by Countrywide or the
Custodian on the tenth business day following receipt of the order, prepare an
NASD "notice of failure of dealer to make payment."
13. OTHER PLANS.
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Countrywide will process such accumulation plans, group
programs and other plans or programs for investing in shares of the Corporation
as are now, or in the future may be, provided for in the Corporation's then
current prospectus and statement of additional information and will act as plan
agent for shareholders pursuant to the terms of such plans and programs duly
executed by such shareholders.
14. RECORDKEEPING AND OTHER INFORMATION.
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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 Corporation. All such records shall be the property of the
Corporation at all times and shall be available for inspection and use by the
Corporation. 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 Corporation.
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 Corporation, any person retained by the Corporation,
or any regulatory agency having authority over the Corporation. Countrywide
agrees to keep confidential all records and other information relative to the
Corporation and its shareholders, except when requested to divulge such
information by duly-constituted authorities or court process, or requested by a
shareholder with respect to information concerning an account as to which such
shareholder has either a legal or beneficial interest or when requested by the
Corporation, the shareholder, or the dealer of record as to such account.
15. SHAREHOLDER RECORDS.
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Countrywide shall maintain records for each shareholder
account showing the following:
A. Names, addresses and tax identifying numbers;
B. Name of the dealer of record, if any;
C. Number of shares held of each series;
D. Historical information regarding the account of each
shareholder, including dividends and distributions in cash or
invested in shares;
E. Information with respect to the source of all dividends and
distributions allocated among income, realized short-term
gains and realized long-term gains;
F. Any instructions from a shareholder including all forms
furnished by the Corporation and executed by a shareholder
with respect to (i) dividend or distribution elections and
(ii) elections with respect to payment options in connection
with the redemption of shares;
G. Any correspondence relating to the current maintenance of a
shareholder's account;
H. Certificate numbers and denominations for any shareholder
holding certificates;
I. Any stop or restraining order placed against a shareholder's
account;
J. Information with respect to withholding in the case of a
foreign account or any other account for which withholding is
required by the Internal Revenue Code of 1986, as amended; and
K. Any information required in order for Countrywide to perform
the calculations contemplated under this Agreement.
16. TAX RETURNS AND REPORTS.
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Countrywide will prepare in the appropriate form, file with
the Internal Revenue Service and appropriate state agencies and, if required,
mail to shareholders of the Corporation such returns for reporting dividends and
distributions paid by the Corporation as are required to be so prepared, filed
and mailed and shall withhold such sums as are required to be withheld under
applicable federal and state income tax laws, rules and regulations.
17. OTHER INFORMATION TO THE CORPORATION.
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Subject to such instructions, verification and approval of the
Custodian and the Corporation as shall be required by any agreement or
applicable law, Countrywide will also maintain such records as shall be
necessary to furnish to the Corporation the following: annual shareholder
meeting lists, proxy lists and mailing materials, shareholder reports and
confirmations and checks for disbursing redemption proceeds, dividends and other
distributions or expense disbursements.
18. ACCESS TO SHAREHOLDER INFORMATION.
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Upon request, Countrywide shall arrange for the Corporation's
investment adviser to have direct access to shareholder information contained in
Countrywide's computer system, including account balances, performance
information and such other information which is available to Countrywide with
respect to shareholder accounts.
19. COOPERATION WITH ACCOUNTANTS.
-----------------------------
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.
20. SHAREHOLDER SERVICE AND CORRESPONDENCE.
---------------------------------------
Countrywide will provide and maintain adequate personnel,
records and equipment to receive and answer all shareholder and dealer inquiries
relating to account status, share purchases, redemptions and exchanges and other
investment plans available to Corporation shareholders. Countrywide will answer
written correspondence from shareholders relating to their share accounts and
such other written or oral inquiries as may from time to time be mutually agreed
upon, and Countrywide will notify the Corporation of any correspondence or
inquiries which may require an answer from the Corporation.
21. PROXIES.
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Countrywide shall assist the Corporation in the mailing of
proxy cards and other material in connection with shareholder meetings of the
Corporation, shall receive, examine and tabulate returned proxies and shall, if
requested by the Corporation, provide at least one inspector of election to
attend and participate as required by law in shareholder meetings of the
Corporation.
22. FURTHER ACTIONS.
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Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. COMPENSATION.
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For the performance of Countrywide's obligations under this
Agreement, each Fund shall pay Countrywide, on the first business day following
the end of each month, a monthly fee in accordance with the schedule attached
hereto as Schedule A. Countrywide shall not be required to reimburse the Fund or
the Fund'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 Fund. The Corporation shall promptly reimburse
Countrywide for any out-of-pocket expenses and advances which are to be paid by
the Corporation in accordance with Paragraph 24.
24. EXPENSES.
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Countrywide shall furnish, at its expense and without cost to
the Corporation (i) the services of its personnel to the extent that such
services are required to carry out its obligations under this Agreement and (ii)
use of data processing equipment. All costs and expenses not expressly assumed
by Countrywide under this Paragraph 24 shall be paid by the Corporation,
including, but not limited to, costs and expenses of officers and employees of
Countrywide in attending meetings of the Board of Directors and shareholders of
the Corporation, as well as costs and expenses for postage, envelopes, checks,
drafts, continuous forms, reports, communications, statements and other
materials, telephone, telegraph and remote transmission lines, use of outside
mailing firms, necessary outside record storage, media for storage of records
(e.g., microfilm, microfiche, computer tapes), printing, confirmations and any
other shareholder correspondence and any and all assessments, taxes or levies
assessed on Countrywide for services provided under this Agreement. Postage for
mailings of dividends, proxies, reports and other mailings to all shareholders
shall be advanced to Countrywide three business days prior to the mailing date
of such materials.
25. REPRESENTATIONS OF THE CORPORATION.
-----------------------------------
The Corporation certifies to Countrywide that: (1) as of the
close of business on the effective date of this Agreement, each Fund has
authorized ________ million shares, and (2) by virtue of its Articles of
Incorporation, shares of each Fund which are redeemed by the Corporation may be
sold by the Corporation from its treasury, and (3) this Agreement has been duly
authorized by the Corporation and, when executed and delivered by the
Corporation, will constitute a legal, valid and binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and secured
parties.
26. REPRESENTATIONS OF COUNTRYWIDE.
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Countrywide represents and warrants that the various
procedures and systems which Countrywide has implemented with regard to
safeguarding from loss or damage attributable to fire, theft, or any other cause
of the blank checks, records, and other data of the Corporation and
Countrywide's records, data, equipment facilities and other property used in the
performance of its obligations hereunder are adequate and that it will make such
changes therein from time to time as are required for the secure performance of
its obligations hereunder.
27. INSURANCE.
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Countrywide will use reasonable efforts to obtain insurance
covering the services to be performed by it under this Agreement and shall
notify the Corporation in the event it is unable to do so within 90 days after
the effective date of this Agreement. Thereafter, Countrywide will notify the
Corporation should any of its insurance coverage be changed for any reason. Such
notification shall include the date of change and reasons therefor. Countrywide
will notify the Corporation of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance and shall notify the Corporation from time to time as may be
appropriate of the total outstanding claims made by Countrywide under its
insurance coverage.
28. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
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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 Act of 1933, as amended, and any
other laws, rules and regulations of governmental authorities having
jurisdiction.
29. 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 Transfer, Shareholder Servicing and Dividend Disbursing 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.
30. 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.
31. INDEMNIFICATION OF COUNTRYWIDE.
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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 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 these
entities.
C. 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.
D. If a claim is made against Countrywide as to which Countrywide may
seek indemnity under this Section, Countrywide shall notify the Corporation
promptly after any written assertion of such claim threatening to institute an
action or proceeding with respect thereto and shall notify the Corporation
promptly of any action commenced against Countrywide within ten (10) days after
Countrywide shall have been served with a summons or other legal process, giving
information as to the nature and basis of the claim. Failure to so notify the
Corporation shall not, however, relieve the Corporation from any liability which
it may have on account of the indemnity under this Section if the Corporation
has not been prejudiced in any material respect by such failure. Countrywide
shall cooperate in the control of the defense of any action, suit or proceeding
in which Countrywide is involved and for which indemnity is being provided by
the Corporation to Countrywide. The Corporation may negotiate the settlement of
any action, suit or proceeding subject to Countrywide's approval, which shall
not be unreasonably withheld. Countrywide shall have the right, but not the
obligation, to participate in the defense or settlement of a claim or action,
with its own counsel, but any costs or expenses incurred by Countrywide in
connection with, or as a result of, such participation will be borne solely by
Countrywide.
32. INDEMNIFICATION OF THE CORPORATION
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A. Countrywide shall indemnify any hold harmless the Corporation, each
Fund, and the Corporation's officers, directors, 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 Corporation may sustain or incur or which may
be asserted against the Corporation by any person by reason of, or as a result
of, the gross negligence, willful misconduct, or bad faith of Countrywide, or
its directors, officers, employees, shareholders, agents, control persons or
affiliates in taking any action or omitting to take any action under this
Agreement or the reckless disregard of their duties thereunder.
B. If a claim is made against the Corporation as to which the
Corporation may seek indemnity under this Section, the Corporation shall notify
Countrywide promptly after any written assertion of such claim threatening to
institute an action or proceeding with respect thereto and shall notify
Countrywide promptly of any action commenced against the Corporation within ten
(10) days after the Corporation shall have been served with a summons or other
legal process, giving information as to the nature and basis of the claim.
Failure to so notify Countrywide shall not, however, relieve Countrywide from
any liability which it may have on account of the indemnity under this Section
if Countrywide has not been prejudiced in any material respect by such failure.
The Corporation shall cooperate in the control of the defense of any action,
suit or proceeding in which Countrywide is involved and for which indemnity is
being provided by Countrywide to the Corporation. Countrywide may negotiate the
settlement of any action, suite or proceeding subject to the Corporation's
approval, which shall not be unreasonably withheld. The Corporation shall have
the right, but not the obligation, to participate in the defense or settlement
of a claim or action, with its own counsel, but any costs or expenses incurred
by the Corporation in connection with, or as a result of, such participation
will be borne solely by the Corporation.
33. TERMINATION
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A. The provisions of this Agreement shall be effective on the date
first above written and shall continue in effect for an initial term of one year
from that date. Thereafter, this Agreement shall continue in effect until
terminated by either party.
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.
34. 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.
35. LIMITATION OF LIABILITY.
------------------------
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 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 any liability on any
of them personally, but shall bind only the property of the Corporation.
36. 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.
37. QUESTIONS OF INTERPRETATION.
----------------------------
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 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.
38. 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 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.
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 38. 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.
39. AMENDMENT.
----------
This Agreement may not be amended or modified except by a
written agreement executed by both parties.
40. 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.
41. 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.
42. 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.
43. 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. This Agreement and the rights and
duties hereunder shall not be assignable with respect to a Fund by either party
except with the prior written consent of the other party.
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: /s/ Xxxxxxxx X.X. Xxxxx
---------------------------
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Its: President
Schedule A
----------
COMPENSATION
------------
Services FEE
-------- ---
(Per Account)
As Transfer, Dividend Disbursing,
Shareholder Service and Plan Agent:
Xxxxxxx Fund Payable monthly at
rate of
$17.00/year
Xxxxxxx Fledgling Fund Payable monthly at
rate of
$17.00/year
Each Fund will be subject to a minimum charge of $1,000 per month.
