TRANSFER, DIVIDEND DISBURSING, SHAREHOLDER SERVICE
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AND PLAN AGENCY AGREEMENT
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AGREEMENT dated as of , 199 between XxxxxXxxxxx.xxx Trust, a Massachusetts
business trust (the "Trust"), and Countrywide Fund Services, Inc.
("Countrywide"), an Ohio corporation.
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust wishes to employ the services of Countrywide to serve as
its transfer, dividend disbursing, shareholder service and plan agent; and
WHEREAS, Countrywide wishes to provide such services under the conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and Countrywide agree as follows:
1. APPOINTMENT.
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The Trust hereby appoints and employs Countrywide as agent to perform
those services described in this Agreement for the Trust. 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 Trust will furnish from time to time the following documents:
A. Each resolution of the Board of Trustees of the Trust 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 Agreement and Declaration of
Trust and the Bylaws of the Trust;
D. Certified copies of each resolution of the Board of Trustees
authorizing officers to give instructions to Countrywide;
E. Specimens of all new forms of share certificates accompanied by Board
of Trustees' resolutions approving such forms;
F. Such other certificates, documents or opinions which Countrywide may,
in its reasonable discretion, deem necessary or appropriate in the
proper performance of its duties;
G. Copies of all Underwriting and Dealer Agreements in effect;
H. Copies of all Investment Advisory Agreements in effect; and
I. Copies of all documents relating to special investment or withdrawal
plans which are offered or may be offered in the future by the Trust
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 Trust and
maintain pursuant to applicable rules of the SEC a record of the total number of
shares of the Trust which are authorized, issued and outstanding, based upon
data provided to it by the Trust. Countrywide shall also provide the Trust on a
regular basis or upon reasonable request the total number of shares which are
issued and outstanding, but shall have no obligation when recording the issuance
of the Trust's shares, except as otherwise set forth herein or in any other
agreement between Countrywide and the Trust, 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 Trust.
4. COUNTRYWIDE TO VALIDATE TRANSFERS.
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Upon receipt of a proper request for transfer and upon surrender to
Countrywide of certificates, if any, in proper form for transfer, 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 Trust in writing of each such transaction and shall
make appropriate entries on the shareholder records maintained by Countrywide.
5. SHARE CERTIFICATES.
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If the Trust authorizes the issuance of share certificates and an
investor requests a share certificate, Countrywide will countersign and mail, by
insured first class mail, a share certificate to the investor at his address as
set forth on the transfer books of the Trust, subject to any other instructions
for delivery of certificates representing newly purchased shares and subject to
the limitation that no certificates representing newly purchased shares shall be
mailed to the investor until the cash purchase price of such shares has been
collected and credited to the account of the Trust maintained by the Custodian.
The Trust shall supply Countrywide with a sufficient supply of blank share
certificates and from time to time shall renew such supply upon
request of Countrywide. Such blank share certificates shall be properly signed,
manually or, if authorized by the Trust, by facsimile; and notwithstanding the
death, resignation or removal of any officers of the Trust authorized to sign
share certificates, Countrywide may continue to countersign certificates which
bear the manual or facsimile signature of such officer until otherwise directed
by the Trust. In case of the alleged loss or destruction of any share
certificate, no new certificates shall be issued in lieu thereof, unless there
shall first be furnished an appropriate bond satisfactory to Countrywide and the
Trust, and issued by a surety company satisfactory to Countrywide and the Trust.
6. 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 Trust or the
principal underwriter of the Trust (the "Underwriter"), Countrywide shall stamp
the check or instrument with the date of receipt, determine the amount thereof
due the Trust and shall forthwith process the same for collection and deposit
with the Trust's Custodian. Upon receipt of notification of receipt of funds
eligible for share purchases in accordance with the Trust's then current
prospectus and statement of additional information, Countrywide shall notify the
Trust, at the close of each business day, in writing of the amount of said funds
credited to the Trust and deposited in its account with the Custodian, and shall
similarly notify the Underwriter of the amount of said funds credited to the
Underwriter and deposited in its account with its designated bank.
7. PURCHASE ORDERS.
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Upon receipt of an order for the purchase of shares of the Trust,
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 Trust's then
current prospectus and statement of additional information, compute the number
of shares due to the shareholder, credit the share account of the shareholder,
subject to collection of the funds, with the number of shares so purchased,
notify the Trust in writing or by computer report at the close of each business
day of such transactions and shall provide to the shareholder and/or dealer of
record a notice of such credit when requested to do so by the Trust.
8. RETURNED CHECKS.
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In the event that Countrywide is notified by the Trust'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 Trust and the Underwriter of the
non-payment of said check;
B. In the absence of other instructions from the Trust or the
Underwriter, 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 Trust and to request the
Trust's Custodian to forward such returned check to the person who originally
submitted the check; and
C. Notify the Trust and Underwriter of such actions and correct the
Trust's records maintained by Countrywide pursuant to this Agreement.
9. SALES CHARGE.
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In computing the number of shares to credit to the account of a
shareholder, Countrywide will calculate the total of the applicable sales
charges with respect to each purchase as set forth in the Trust's current
prospectus and statement of additional information and in accordance with any
notification filed with respect to combined and accumulated purchases.
Countrywide will also determine the portion of each sales charge payable by the
Underwriter to the dealer of record participating in the sale in accordance with
such schedules as are from time to time delivered by the Underwriter to
Countrywide; provided, however, that Countrywide shall have no liability
hereunder arising from the incorrect selection by Countrywide of the gross rate
of sales charges except that this exculpation shall not apply in the event the
rate is specified by the Underwriter or the Trust and Countrywide fails to
select the rate specified.
10. DIVIDENDS AND DISTRIBUTIONS.
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The Trust shall furnish Countrywide with appropriate evidence of
trustee action authorizing the declaration of dividends and other distributions.
Countrywide shall establish procedures in accordance with the Trust's then
current prospectus and statement of additional information and with other
authorized actions of the Trust's Board of Trustees under which it will have
available from the Custodian or the Trust 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 Trust'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 such shareholder of record in accordance with the Trust's
then current prospectus and statement of additional information. Countrywide
shall, on or before the mailing date of such checks, notify the Trust and the
Custodian of the estimated amount of cash required to pay such dividend or
distribution, and the Trust shall instruct the Custodian to make available
sufficient funds therefor in the appropriate account of the Trust. Countrywide
shall mail to the shareholders periodic statements, as requested by the Trust,
showing the number of full and fractional shares and the net asset value per
share of shares so credited. When requested by the Trust, 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 Trust as are required to be so prepared,
filed and mailed by applicable laws, rules and regulations.
11. UNCLAIMED DIVIDENDS AND UNCLAIMED REDEMPTION PROCEEDS.
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Countrywide shall, at least annually, furnish electronically or in
writing to the Trust 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 instructions received from the
Trust concerning the disposition of any such unclaimed dividends, distributions
or redemption proceeds. Countrywide will escheat unclaimed funds as required by
law.
12. REDEMPTIONS AND EXCHANGES.
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A. Countrywide shall process, in accordance with the Trust'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 Trust, 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
Trust 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 which are
authorized by the Trust's Board of Trustees 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 Trust and accepted by Countrywide. If Countrywide or the Trust
determines that a request for redemption does not comply with the requirements
for redemptions, Countrywide or the Trust shall promptly notify the shareholder
indicating the reason therefor.
B. If shares of a series of the Trust are eligible for exchange with
shares of any other series of the Trust or any other investment company,
Countrywide, in accordance with the then current prospectus and statement of
additional information and exchange rules of the Trust 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 Trust's shareholders,
process such approved exchange requests.
C. Countrywide shall notify the Trust, the Custodian and the
Underwriter on each business day of the amount of cash required to meet payments
made pursuant to the provisions of this Paragraph 12, and, on the basis of such
notice, the Trust shall instruct the Custodian to make available from time to
time sufficient funds therefor in the appropriate account of the Trust.
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 Trust consistent with the Trust's then current
prospectus and statement of additional information.
D. The authority of Countrywide to perform its responsibilities under
Xxxxxxxxx 0, Xxxxxxxxx 10, and this Paragraph 12 shall be suspended with respect
to any series of the Trust upon receipt of notification by it of the suspension
of the determination of such series' net asset value.
13. 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 Trust. Payments upon
any such withdrawal order shall be made by Countrywide from the appropriate
account maintained by the Trust 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
Trust. From time to time on new automatic withdrawal plans a check for payment
date already past may be issued upon request by the shareholder.
14. LETTERS OF INTENT.
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Countrywide will process such letters of intent for investing in
shares of the Trust as are provided for in the Trust's current prospectus and
statement of additional information. Countrywide will make appropriate deposits
to the account of the Underwriter for the adjustment of sales charges as therein
provided and will currently report the same to the Underwriter.
15. 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 or the Underwriter, with copies to the Underwriter. Upon receipt of
any check drawn or endorsed to the Trust (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 compute the respective portions of such deposit which represent
the sales charge and the net asset value of the shares so purchased, will cause
the Custodian to transfer federal funds in an amount equal to the net asset
value of the shares so purchased to the Trust's account with the Custodian, and
will notify the Trust and the Underwriter before noon of each business day of
the total amount deposited in the Trust'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, will prepare
an NASD "notice of failure of dealer to make payment" and forward such
notification to the Underwriter.
16. 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 Trust as are now provided
for in the Trust's 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.
17. 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 Trust. All such records shall be the property of the Trust at
all times and shall be available for inspection and use by the Trust. 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 Trust. 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 Trust, any
person retained by the Trust, or any regulatory agency having authority over the
Trust.
18. 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 Trust 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 received by Countrywide 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.
19. 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 Trust such returns for reporting dividends and
distributions paid by the Trust 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.
20. OTHER INFORMATION TO THE TRUST.
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Subject to such instructions, verification and approval of the
Custodian and the Trust as shall be required by any agreement or applicable law,
Countrywide will also maintain such records as shall be necessary to furnish to
the Trust 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.
21. ACCESS TO SHAREHOLDER INFORMATION.
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Upon request, Countrywide shall arrange for the Trust'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.
Countrywide agrees on behalf of itself and its agents and employees to
treat confidentially all records and other information relating to the Trust and
its various series and any prior, present or potential shareholders thereof,
except after prior notification to, and approval of release of information in
writing by, the Trust, which approval shall not be unreasonably withheld where
Countrywide may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust.
22. COOPERATION WITH ACCOUNTANTS.
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Countrywide shall cooperate with the Trust'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 Trust.
23. FURTHER ACTIONS.
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Each party agrees to perform such further acts and execute such
further documents as are reasonably necessary to effectuate the purposes hereof.
24. COMPENSATION.
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For the performance of Countrywide's obligations under this Agreement,
XxxxxXxxxxx.xxx, the investment advisor to the Trust (the "Advisor") 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. The
Advisor shall promptly reimburse Countrywide for any out-of-pocket expenses and
advances which are to be paid by the Trust in accordance with Paragraph 25.
25. EXPENSES.
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Countrywide shall furnish, at its expense and without cost to the
Trust (i) the services of its personnel to the extent that such services are
required to carry out its obligations under this Agreement and (ii) the use of
data processing equipment as required to carry out its services hereunder. All
costs and expenses not expressly assumed by Countrywide under this Paragraph 25
shall be paid by the Advisor, including, but not limited to, costs and expenses
of officers and employees of Countrywide in attending meetings of the Board of
Trustees and shareholders of the Trust, 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 pricing services, 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, reports and other mailings to all shareholders shall be advanced to
Countrywide three business days prior to the mailing date of such materials.
26. 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 Trust
which services could
cause Countrywide to be deemed an "investment adviser" of the Trust within the
meaning of Section 2(a)(20) of the 1940 Act or to supersede or contravene the
Trust'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 or in any other agreement between the Trust and Countrywide, and
except for the accuracy of information furnished to it by Countrywide, the Trust
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.
27. REFERENCES TO COUNTRYWIDE.
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The Trust shall not circulate any printed matter which contains any
reference to Countrywide without the prior written approval of Countrywide
(which approved shall not be withheld unreasonably), excepting solely such
printed matter as merely identifies Countrywide as Administrative Services
Agent, Transfer, Shareholder Servicing and Dividend Disbursing Agent and
Accounting Services Agent. The Trust will submit printed matter requiring
approval to Countrywide in draft form, allowing reasonable time for review by
Countrywide and its counsel prior to any deadline for printing.
28. 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.
Countrywide represents and warrants that it has taken reasonable steps
to make its transaction processing and recordkeeping and other systems and
equipment compatible with the change in the year 1999 to 2000 without any
related errors in reports or material disruption to services provided hereunder
and Countrywide expects full compatibility before December 31, 1999.
29. INDEMNIFICATION.
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A. In performing its services hereunder, 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 Trust 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 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, trustee or employee of the Trust, shall be deemed, when
rendering services to the Trust or acting on any business of the Trust, to be
rendering such services to or acting solely as an officer, trustee or employee
of the Trust 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 Trust 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 Trust or upon the opinion of legal counsel for the Trust 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 negligence, willful misconduct, bad faith, or reckless disregard of its or
their own duties hereunder.
D. Notwithstanding any other provision of this Agreement, Countrywide
shall indemnify and hold harmless the Trust, its trustees, 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 in law) of any and every nature which any of them may sustain or incur
or which may be asserted against any of them by and person by reason of, or as a
result of, the willful misfeasance, bad faith or negligence on the part of
Countrywide, its employees or agents 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.
E. Upon the assertion of a claim for which a party may be required to
provide indemnification hereunder, the person seeking indemnification shall
promptly notify such party of such assertion and shall keep the such party
advised with respect to all developments concerning such claim. The party who
may be required to indemnify shall have the option to participate with the
person seeking indemnification in the defense of such claim or to defend against
such claim with counsel reasonably acceptable to the indemnified person in such
party's own name or in the name of such person. The person seeking
indemnification shall in no case
confess any claim or make any compromise in any case in which a party may be
required to indemnify it except with the such party's prior written consent. An
indemnifying party shall in no event be liable to bear the expenses of more than
one counsel for all indemnified persons in connection with any matter for which
it is providing indemnification hereunder.
30. 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, and (2) by vote of a majority of the
Trust's Board of Trustees.
B. Either party may terminate this Agreement for any reason, without
penalty, on any date by giving the other party at least sixty (60) days' prior
written notice of such termination specifying the date fixed therefor. Upon
termination of this Agreement, the Advisor 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 and payable to Countrywide
hereunder.
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 Trust by written notice to Countrywide,
Countrywide shall, promptly upon such termination and at the expense of the
Advisor, transfer to such successor all records maintained by Countrywide under
this Agreement and shall cooperate in the transfer of such duties and
responsibilities, including provision for assistance from Countrywide's
cognizant personnel in the establishment of books, records and other data by
such successor.
31. 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 Trust under this Agreement.
32. LIMITATION OF LIABILITY.
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It is expressly agreed that the obligations of the Trust hereunder
shall not be binding personally upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust, but shall bind only the
trust property of the Trust. It is further expressly agreed that the debts,
liabilities, obligations and expenses of any series of the Trust hereunder shall
be enforceable against the assets and property of such series only, and not
against the assets and property of any other series of the Trust. Neither the
authorization of this Agreement by the Trustees of the Trust nor its execution
and delivery by an officer of the Trust, 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 trust property of the Trust.
33. 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.
34. 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 SEC issued pursuant to the 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.
35. 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 Trust: XxxxxXxxxxx.xxx Trust
0000 X. Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
To Countrywide: Countrywide Fund Services, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
or to such other address as any party may designate by notice complying with the
terms of this Section 35. 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.
36. AMENDMENT.
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This Agreement may not be amended or modified except by a written
agreement executed by both parties; provided, however, that no provision of
Sections 24, 25 and 30 hereof which would increase the expenses to be paid by
XxxxxXxxxxx.xxx Investment Advisors, Inc. shall be amended without its prior
written consent.
37. BINDING EFFECT.
---------------
Each of the undersigned expressly warrants and represents that to the
other that it has full power and authority to enter into and perform this
Agreement, that its execution and delivery of this Agreement has been duly
authorized by all necessary corporate or trust action, that the person signing
this Agreement on its behalf is duly authorized and has full power to do so, and
that this Agreement is its valid and binding obligation, duly enforceable
against in accordance with the terms hereof.
38. 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.
39. FORCE MAJEURE.
--------------
Countrywide represents and warrants that it has taken reasonable steps
to make its transaction processing and recordkeeping and other systems and
equipment compatible with the change in the year 1999 to 2000 without any
related errors in reports or material disruption to services provided hereunder
and Countrywide expects full compatibility before December 31, 1999.
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.
40. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXXXXXXX.XXX TRUST
By:_______________________________
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By:_______________________________
Its: President
The undersigned hereby agrees to the provisions of Sections 24, 25 and 30
of the foregoing Agreement.
XXXXXXXXXXX.XXX INVESTMENT
ADVISORS, INC.
By: ______________________________
Its: President
Schedule A
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COMPENSATION
------------
Services FEE
-------- ---
As Transfer Agent,
Dividend Disbursing Agent
and Shareholder Servicing and
Plan Agent: (Per Account)
XxxxxXxxxxx.xxx Market Leaders Payable monthly at a
Growth Fund rate of $15/account; subject to a
minimum of $2,000 per month
XxxxxXxxxxx.xxx Free S&P 500 Payable monthly at a rate of
Index Fund $15/account; subject to a minimum
of $2,000 per month
XxxxxXxxxxx.xxx Pure Play Payable monthly at a rate of
Internet Fund $15/account; subject to a minimum
of $2,000 per month
XxxxxXxxxxx.xxx Community Payable monthly at a rate of
Intelligence Fund $15/account; subject to a minimum
of $2,000 per month
