ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT, dated as of this 1st day of October,
1999, the "Agreement"), between EQSF ADVISERS, INC., a New York corporation
("EQSF") and THIRD AVENUE TRUST (the "Fund"), an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act").
WHEREAS, the Fund desires to retain EQSF to render certain administrative
services with respect to each investment portfolio listed in Schedule A hereto,
as the same may be amended from time to time by the parties hereto
(collectively, the "Portfolios"), and EQSF is willing to render such services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any officer of
the Fund; or (ii) any person, whether or not such person is an officer or
employee of the Fund, duly authorized to give Oral Instructions or Written
Instructions on behalf of the Fund as indicated in writing to EQSF from
time to time.
(c) "Board Members" shall mean the Directors or Trustees of the
governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or Board of
Trustees of the Fund, as the case may be.
(e) "Commission" shall mean the Securities and Exchange Commission.
(f) "Custodian" refers to any custodian or subcustodian of securities
and other property which the Fund may from time to time deposit, or cause
to be deposited or held under the name or account of such a custodian
pursuant to a Custody Agreement.
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(g) "1933 Act" shall mean the Securities Act of 1933 and the rules and
regulations promulgated thereunder, all as amended from time to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(i) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by EQSF from a person reasonably believed
by EQSF to be an Authorized Person.
(j) "Portfolio" shall mean each separate series of shares offered by
the Fund representing interests in a separate portfolio of securities and
other assets.
(k) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements thereto
if any, which has become effective under the 1933 Act and the 1940 Act.
(l) "Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class thereof, of each
respective Portfolio of the Fund as may be issued from time to time.
(m) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(n) "Written Instructions" shall mean a written communication signed
by a person reasonably believed by EQSF to be an Authorized Person and
actually received by EQSF. Written Instructions shall include manually
executed originals and authorized electronic transmissions, including
telefacsimile of a manually executed original or other process.
Article 2 Appointment of EQSF.
The Fund hereby appoints EQSF to act as Administrator of the Fund on
the terms set forth in this Agreement. EQSF accepts such appointment and agrees
to render the services herein set forth for the compensation herein provided.
Article 3 Duties of EQSF.
3.1 EQSF shall be responsible for the following: performing the customary
services of an Administrator, including treasury and blue sky for the Fund, as
more fully described in the written schedule of Duties of EQSF annexed hereto as
Schedule B and incorporated herein, and subject to the supervision and direction
of the Fund.
3.2 In performing its duties under this Agreement, EQSF: (a) will act in
accordance with the Articles of Incorporation, By-Laws, Prospectuses and with
the Oral Instructions and
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Written Instructions of the Fund and will conform to and comply with the
requirements of the 1940 Act and all other applicable federal or state laws and
regulations; and (b) will consult with legal counsel to the Fund, as necessary
and appropriate. Furthermore, EQSF shall not, pursuant to this Agreement, have
or be required to have any authority to supervise the investment or reinvestment
of the securities or other properties which comprise the assets of the Fund or
any of its Portfolios and shall not provide any investment advisory services to
the Fund or any of its Portfolios.
3.3 In addition to the duties set forth herein, EQSF shall perform such
other duties and functions, and shall be paid such amounts therefor, as may from
time to time be agreed upon in writing between the Fund and EQSF.
Article 4 Recordkeeping and Other Information.
4.1 EQSF shall create and maintain all records required of it pursuant to
its duties hereunder and as set forth in Schedule B in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the 1940 Act. Where applicable, such records shall be maintained by
EQSF for the periods and in the places required by Rule 31a-2 under the 1940
Act.
4.2 To the extent required by Section 31 of the 1940 Act, EQSF agrees that
all such records prepared or maintained by EQSF relating to the services to be
performed by EQSF hereunder are the property of the Fund and will be preserved,
maintained and made available in accordance with such section, and will be
surrendered promptly to the Fund on and in accordance with the Fund's request.
Article 5 Fund Instructions.
5.1 EQSF will have no liability when properly acting upon Written or Oral
Instructions reasonably believed to have been executed or orally communicated by
an Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from the
Fund.
5.2 At any time, EQSF may request Written Instructions from the Fund and
may seek advice from legal counsel for the Fund, or its own legal counsel, with
respect to any matter arising in connection with this Agreement, and it shall
not be liable for any action properly taken or not taken or suffered by it in
good faith in accordance with such Written Instructions or in accordance with
the opinion of counsel for the Fund or for EQSF. Written Instructions requested
by EQSF will be provided by the Fund within a reasonable period of time.
5.3 EQSF, its officers, agents or employees, shall accept Oral Instructions
or Written Instructions given to them by any person representing or acting on
behalf of the Fund only if said representative is an Authorized Person. The Fund
agrees that all Oral Instructions shall be followed within one business day by
confirming Written Instructions, and that the Fund's failure to so confirm shall
not impair in any respect EQSF's right to rely on Oral Instructions.
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Article 6 Compensation.
6.1 EQSF will from time to time employ or associate with itself such person
or persons as EQSF may believe to be particularly suited to assist it in
performing services under this Agreement. Such person or persons may be officers
and employees who are employed by both EQSF and the Fund. The compensation of
such person or persons shall be paid by EQSF and no obligation shall be incurred
on behalf of the Fund in such respect.
6.2 EQSF shall not be required to pay any of the following expenses
incurred by the Fund: membership dues in the Investment Company Institute or any
similar organization; investment advisory expenses; costs of printing and
mailing stock certificates, prospectuses, reports and notices; interest on
borrowed money; brokerage commissions; stock exchange listing fees; taxes and
fees payable to Federal, state and other governmental agencies; fees of Board
Members of the Fund who are not affiliated with EQSF; outside auditing expenses;
outside legal expenses; Blue Sky registration or filing fees; or other expenses
not specified in this Section 6.2 which are properly payable by the Fund. EQSF
shall not be required to pay any Blue Sky registration or filing fees unless and
until it has received the amount of such fees from the Fund.
6.3 The Fund will compensate EQSF for the performance of its obligations
hereunder in accordance with the fees and other charges set forth in the written
Fee Schedule annexed hereto as Schedule C and incorporated herein.
6.4 In addition to those fees set forth in Section 6.3 above, the Fund
agrees to pay, and will be billed separately for, out-of-pocket expenses
actually incurred by EQSF in the performance of its duties hereunder.
Out-of-pocket expenses shall include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket charges annexed hereto as
Schedule D and incorporated herein. Schedule D may be modified by written
agreement between the parties. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by EQSF in the
performance of its obligations hereunder.
6.5 The Fund agrees to pay all fees, charges and out-of-pocket expenses to
EQSF by Federal Funds Wire within fifteen (15) business days following the
receipt of the respective invoice. In addition, with respect to all fees under
this Agreement, EQSF may charge a service fee equal to the lesser of (i) one and
one half percent (1 1/2%) per month or (ii) the highest interest rate legally
permitted on any past due invoiced amounts, provided however, the foregoing
service fee shall not apply if the Fund in good faith legitimately disputes any
invoice amount in which case the Fund shall do the following within thirty (30)
days of the postmark date: (a) pay EQSF the undisputed amount of the invoice;
and (b) provide EQSF a detailed written description of the disputed amount and
the basis for the Administrator's dispute with such amount. In addition, the
Fund shall cooperate with EQSF in resolving disputed invoice amounts and then
promptly paying such amounts determined to be due.
6.6 Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule C a revised Fee Schedule executed and dated by the
parties hereto.
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Article 7 [RESERVED]
Article 8 Fund Accounting System.
8.1 EQSF shall retain title to and ownership of any and all data bases,
computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by EQSF in connection with the services
provided by EQSF to the Fund herein (the "EQSF System").
8.2 EQSF hereby grants to the Fund a limited license to the EQSF System for
the sole and limited purpose of having EQSF provide the services contemplated
hereunder and nothing contained in this Agreement shall be construed or
interpreted otherwise and such license shall immediately terminate with the
termination of this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the EQSF System, such direct access capability shall be limited to
direct entry to the EQSF System by means of on-line mainframe terminal entry or
PC emulation of such mainframe terminal entry and any other non-conforming
method of transmission of information to the EQSF System is strictly prohibited
without the prior written consent of EQSF.
Article 9 Representations and Warranties.
9.1 EQSF represents and warrants to the Fund that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement; and
(d) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
9.2 The Fund represents and warrants to EQSF that:
(a) it is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized;
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(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement; and
(c) all corporate proceedings required have been taken to authorize it
to enter into this Agreement.
Article 10 Indemnification.
10.1 The Fund shall indemnify and hold EQSF harmless from and against any
and all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which may be
asserted against EQSF or for which EQSF may be held to be liable in connection
with this Agreement or EQSF's performance hereunder (a "Claim"), unless such
Claim resulted from a negligent act or omission to act or bad faith by EQSF in
the performance of its duties hereunder.
10.2 EQSF shall indemnify and hold the Fund harmless from and against any
and all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which may be
asserted against the Fund or for which the Fund may be held to be liable in
connection with this Agreement (a "Claim"), provided that such Claim resulted
from a negligent act or omission to act, bad faith, willful misfeasance or
reckless disregard by EQSF in the performance of its duties hereunder.
10.3 In any case in which one party (the "Indemnifying Party") may be asked
to indemnify or hold the other party (the "Indemnified Party") harmless, the
Indemnified Party will notify the Indemnifying Party promptly after identifying
any situation which it believes presents or appears likely to present a claim
for indemnification against the Indemnified Party although the failure to do so
shall not prevent recovery by the Indemnified Party and shall keep the
Indemnifying Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying
Party shall take over complete defense of the Claim and the Indemnified Party
shall sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.4 Any claim for indemnification under this Agreement must be made prior
to the earlier of:
(a) one year after the Indemnified Party becomes aware of the event
for which indemnification is claimed; or
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(b) one year after the earlier of the termination of this Agreement or
the expiration of the term of this Agreement.
10.4 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
EQSF's sole and exclusive remedy for claims or other actions or proceedings to
which the Fund's indemnification obligations pursuant to this Article 10 may
apply.
Article 11 Standard of Care.
11.1 EQSF shall at all times act in good faith and agrees to use its best
efforts within commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility for loss
or damage to the Fund unless said errors are caused by EQSF's own negligence,
bad faith or willful misconduct or that of its employees.
11.2 Neither party may assert any cause of action against the other party
under this Agreement that accrued more than three (3) years prior to the filing
of the suit (or commencement of arbitration proceedings) alleging such cause of
action.
11.3 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
11.5 Without in any way limiting the foregoing, in the event EQSF shall
provide Blue Sky services to the Fund, EQSF shall have no liability for failing
to file on a timely basis any material to be provided by the Fund or its
designee that it has not received on a timely basis from the Fund or its
designee, nor shall EQSF have any responsibility to review the accuracy or
adequacy of materials it receives from the Fund or its designee for filing or
bear any liability arising out of the timely filing of such materials; nor shall
EQSF have any liability for monetary damages for the sale of securities in
jurisdictions where Shares are not properly registered, or in jurisdictions
where Shares are sold in excess of the lawfully registered amount unless such
failure of proper registration or excess sales is due to the willful
misfeasance, bad faith or negligence of EQSF and provided EQSF has requested
such information from the Fund in a timely fashion.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES.
As used in the preceding paragraph "incidental, indirect or consequential
damages" means damages which do not flow directly from the act of the party or
which arise from the
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intervention of special circumstances not ordinarily predictable, and does not
include direct damages which arise naturally or ordinarily from a breach of
contract.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first written above and
shall continue for a period of three (3) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal Terms") each,
unless the Fund or EQSF provides written notice to the other of its intent not
to renew. Such notice must be received not less than ninety (90) days and not
more than one-hundred eighty (180) days prior to the expiration of the Initial
Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion thereof to a
successor Fund will be borne by the Fund.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If the material failure is one for which the
Non-Defaulting Party has previously given the Defaulting Party notice as
provided in the previous sentence, the Agreement may be terminated by the
Non-Defaulting Party upon thirty (30) days written notice without giving the
Defaulting Party a second opportunity to cure such material failure. If EQSF is
the Non-Defaulting Party, its termination of this Agreement shall not constitute
a waiver of any other rights or remedies of EQSF with respect to services
performed prior to such termination of rights of EQSF to be reimbursed for
out-of-pocket expenses. In all cases, termination by the Non-Defaulting Party
shall not constitute a waiver by the Non-Defaulting Party of any other rights it
might have under this Agreement or otherwise against the Defaulting Party.
13.5 Notwithstanding anything contained in this Agreement to the contrary
and except as provided in Section 13.4, should the Fund desire to move any of
the services provided by EQSF hereunder to a successor service provider prior to
the expiration of the then current Initial or Renewal Term, or should the Fund
or any of its affiliates take any action which would result in EQSF ceasing to
provide administration services to the Fund or the Fund prior
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to the expiration of the Initial or any Renewal Term, EQSF shall make a good
faith effort and use all commercially reasonable efforts to facilitate the
conversion on such prior date, however, there can be no guarantee that EQSF will
be able to facilitate a conversion of services on such prior date. In connection
with the foregoing, should services be converted to a successor service provider
or should the Fund or any of its affiliates take any action which would result
in EQSF ceasing to provide administration services to the Fund or the Fund prior
to the expiration of the Initial or any Renewal Term, the payment of fees to
EQSF as set forth herein shall be accelerated to a date prior to the conversion
or termination of services and calculated as if the services had remained with
EQSF until the expiration of the then current Initial or Renewal Term and
calculated at the asset and/or Shareholder account levels, as the case may be,
on the date notice of termination was given to EQSF.
Article 14 Additional Portfolios
14.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Fund
desires to have EQSF render services as sub-Fund under the terms hereof, the
Fund shall so notify EQSF in writing, and if EQSF agrees in writing to provide
such services, Schedule A shall be amended to include such additional
Portfolios. If after good faith negotiations, the parties are unable to agree
upon the conditions upon which EQSF will service the new Portfolio, either party
shall have the right to terminate this Agreement upon sixty (60) days written
notice to the other party.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below) and
the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and EQSF shall exercise at least the same degree of care, but not less than
reasonable care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect its own confidential
information of a similar nature. The Fund and EQSF shall not duplicate, sell or
disclose to others the Confidential Information of the other, in whole or in
part, without the prior written permission of the other party. The Fund and EQSF
may, however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Fund and EQSF may also disclose the Confidential
Information to independent contractors, auditors, and professional advisors,
provided they first agree in writing to be bound by the confidentiality
obligations substantially similar to this Section 15.1. Notwithstanding the
previous sentence, in no event shall either the Fund or EQSF disclose the
Confidential Information to any competitor of the other without specific, prior
written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive material,
and not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance, operations,
customer relationships, customer profiles, sales estimates, business plans,
portfolio holdings and internal performance results relating to the past,
present or future business activities of the Fund or EQSF, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them;
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(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Fund or EQSF a
competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt thereof,
directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or administrative proceeding
after all reasonable legal remedies for maintaining such information in
confidence have been exhausted including, but not limited to, giving the other
party as much advance notice of the possibility of such disclosure as practical
so the other party may attempt to stop such disclosure or obtain a protective
order concerning such disclosure; or
(e) Is subsequently and independently developed by employees, consultants
or agents of the party without reference to the Confidential Information
disclosed under this Agreement.
Article 16 Force Majeure; Excused Non-Performance.
No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of the other party or any
governmental authority; (iv) any labor disputes (provided that the employees'
demands are not reasonable and within the party's power to satisfy); or (v)
nonperformance by a third party or
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any similar cause beyond the reasonable control of such party, including without
limitation, failures or fluctuations in telecommunications or other equipment.
In addition, no party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the extent that
such default or delay is caused, directly or indirectly, by the actions or
inactions of the other party. In any such event, the non-performing party shall
be excused from any further performance and observance of the obligations so
affected only for as long as such circumstances prevail and such party continues
to use commercially reasonable efforts to recommence performance or observance
as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that EQSF
may, in its sole discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business. EQSF may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this Agreement to
be performed by EQSF but shall not be relieved of its obligations and
responsibilities hereunder by reason of such engagement.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to this Agreement,
or breach hereof, shall be settled by arbitration administered by the American
Arbitration Association in New York, New York in accordance with its applicable
rules, except that the Federal Rules of Evidence and the Federal Rules of Civil
Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or EQSF, shall be sufficiently given if
addressed to that party and received by it at its office set forth below or at
such other place as it may from time to time designate in writing.
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To the Fund:
767 Third Avenue
New York, New York 10017
Attention: Ian M. Kirschner, General Counsel
To EQSF:
767 Third Avenue
New York, New York 10017
Attention: David Barse
Article 20 Governing Law/Venue.
The laws of the State of New York, excluding the laws on conflicts of laws,
shall govern the interpretation, validity, and enforcement of this agreement.
Article 21 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22 Captions.
The captions of 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.
Article 23 Publicity.
Neither EQSF nor the Fund shall release or publish news releases, public
announcements, advertising or other publicity relating to this Agreement or to
the transactions contemplated by it without the prior review and written
approval of the other party; provided, however, that either party may make such
disclosures as are required by legal, accounting or regulatory requirements
after making reasonable efforts in the circumstances to consult in advance with
the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and
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understandings, whether written or oral, between the parties with respect to the
subject matter hereof. No change, termination, modification, or waiver of any
term or condition of the Agreement shall be valid unless in writing signed by
each party. No such writing shall be effective as against EQSF unless said
writing is executed by an officer of EQSF. A party's waiver of a breach of any
term or condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
25.2 The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties shall
in good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph, if a
court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall remain fully effective.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
EQSF ADVISERS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
THIRD AVENUE TRUST
By: ______________________________
Name: ____________________________
Title: ___________________________
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delivered electronically.
