Administrative Services Contract
THIS AGREEMENT (this "Agreement") is made this ___ day of
______________, 2004, by and between Texas Capital Value Funds,
Inc., a Maryland corporation (the "Fund"), and First Austin Capital
Management, Inc., a Delaware corporation (the "Administrator").
WITNESSETH:
WHEREAS, the Fund engages in the business of investing and
reinvesting its assets and property in various stocks and
securities; and
WHEREAS, the Fund wishes to engage the Administrator to provide,
or arrange for the provision of, certain administrative services
necessary for the day-to-day operations of the Fund in the manner
and on the terms and conditions hereinafter set forth, and the
Administrator wishes to accept such engagement.
NOW THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Administrative Services. The Administrator 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 Administrator may contract with
third parties to perform all or part of the Administrative Services.
2. (a) Compensation. As compensation for the Administrative
Services to be rendered to the Fund by the Administrator under the
provisions of this Agreement, the Fund shall pay to the Administrator
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 (iii) 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 (iv)
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 (v) 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 Administrator shall
begin on the execution date of this Agreement. All fee accruals are
accounted separately for each series.
(b) Expenses. All 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 Administrator
as part of this Agreement. In addition, the Administrator 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 Administrator
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 Administrator as part of this Agreement.
If any Fund expenses which the Administrator has agreed to bear
hereunder are incurred by the Fund pursuant to separate agreements with
third parties, the Fund shall provide the Administrator with copies of
such agreements and any amendments thereto and shall either ▇▇▇▇ the
Administrator for the costs insured by the Fund thereunder or direct the
Administrator to pay any such costs incurred directly to the third
parties involved as provided by the applicable agreements.
3. Books and Records. All books and records prepared and maintained
by the Administrator for the Fund under this Agreement shall be the
property of the Fund and, upon request therefore, the Administrator shall
surrender to the Fund such books and records so requested.
4. Non-Exclusive. The services to be rendered by the Administrator to
the Fund under this Agreement are not to be deemed to be exclusive, and
the Administrator shall be free to render similar or different services
to other investment companies and other third parties so long as its
ability to render the services provided for in this Agreement shall
not be impaired thereby.
5. Term. This agreement shall remain in effect until no later than
the first annual meeting of the Fund's Board of Directors following the
Agreement's initial adoption, and from year to year thereafter, provided
such continuance is approved at least annually by the vote of a majority
of the directors of Fund who are not parties to this Agreement or
"interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any such party.
6. 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.
7. Fidelity Bond. As part of this Agreement, the Adminstrator shall
bear the cost of the fidelity bond required to be maintained by the Fund
for employees, officers, or directors of the Administrator 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 ▇▇▇▇ ▇▇▇.
8. Liability of the Administrator. The Administrator 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 Administrator in the performance of its obligations and
duties or by reason of its reckless disregard of its obligations and
duties under this Agreement.
9. 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.
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The Administrator:
First Austin Capital Management, Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Either party may specify a different address for notice purposes
by written notice to the other.
10. 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.
11. 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. This Agreement
may be modified only by a future writing that is duly executed by both
parties.
12. 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.
13. 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.
14. 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.
15. Mandatory Arbitration. All disputes arising under this Agreement
shall be arbitrated pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.
16. 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______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
First Austin Capital Management, Inc.,
a Delaware corporation
By_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President