SUB-ADMINISTRATION AGREEMENT
THIS SUB-ADMINISTRATION AGREEMENT, dated as of this 1st day of October,
1999, the "Agreement"), between FIRST DATA INVESTOR SERVICES GROUP, INC., a
Massachusetts corporation ("Investor Services Group"), and EQSF ADVISERS, INC.,
a New York corporation (the "Administrator").
WHEREAS, the Administrator provides administration services to Third Avenue
Trust (the "Fund"), an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Administrator desires to retain Investor Services Group to
render certain sub-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 Investor
Services Group 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 Administrator; or (ii) any person, whether or not such person is an
officer or employee of the Administrator, duly authorized to give Oral
Instructions or Written Instructions on behalf of the Administrator as
indicated in writing to Investor Services Group 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.
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(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.
(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 Investor Services Group from a person
reasonably believed by Investor Services Group 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 Investor Services Group to be an
Authorized Person and actually received by Investor Services Group. 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 Investor Services Group.
The Administrator hereby appoints Investor Services Group to act as
Sub-Administrator of the Fund on the terms set forth in this Agreement. Investor
Services Group accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
Article 3 Duties of Investor Services Group.
3.1 Investor Services Group shall be responsible for the following:
performing the customary services of a sub-administrator, including treasury and
blue sky for the Fund, as more
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fully described in the written schedule of Duties of Investor Services Group
annexed hereto as Schedule B and incorporated herein, and subject to the
supervision and direction of the Administrator.
3.2 In performing its duties under this Agreement, Investor Services Group:
(a) will act in accordance with the Articles of Incorporation, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the
Administrator 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, Investor Services Group shall not 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, Investor Services Group
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
Administrator and Investor Services Group.
Article 4 Recordkeeping and Other Information.
4.1 Investor Services Group 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 Investor Services Group 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, Investor Services
Group agrees that all such records prepared or maintained by Investor Services
Group relating to the services to be performed by Investor Services Group
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 Administrator's request.
Article 5 Administrator Instructions.
5.1 Investor Services Group 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 Administrator.
5.2 At any time, Investor Services Group may request Written Instructions
from the Administrator 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
Investor
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Services Group. Written Instructions requested by Investor Services Group will
be provided by the Administrator within a reasonable period of time.
5.3 Investor Services Group, 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 Administrator only if said
representative is an Authorized Person. The Administrator agrees that all Oral
Instructions shall be followed within one business day by confirming Written
Instructions, and that the Administrator's failure to so confirm shall not
impair in any respect Investor Services Group's right to rely on Oral
Instructions.
Article 6 Compensation.
6.1 Investor Services Group will from time to time employ or associate with
itself such person or persons as Investor Services Group 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
Investor Services Group and the Administrator. The compensation of such person
or persons shall be paid by Investor Services Group and no obligation shall be
incurred on behalf of the Administrator in such respect.
6.2 Investor Services Group shall not be required to pay any of the
following expenses incurred by the Administrator or 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 Investor Services Group; 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 Administrator or
the Fund. Investor Services Group 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 Administrator.
6.3 The Administrator will compensate Investor Services Group 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
Administrator agrees to pay, and will be billed separately for, out-of-pocket
expenses actually incurred by Investor Services Group 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 Investor
Services Group in the performance of its obligations hereunder.
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6.5 The Administrator agrees to pay all fees, charges and out-of-pocket
expenses to Investor Services Group 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, Investor Services Group 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 Administrator in good faith legitimately disputes any invoice amount in
which case the Administrator shall do the following within thirty (30) days of
the postmark date: (a) pay Investor Services Group the undisputed amount of the
invoice; and (b) provide Investor Services Group a detailed written description
of the disputed amount and the basis for the Administator's dispute with such
amount. In addition, the Administrator shall cooperate with Investor Services
Group 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.
Article 7 [RESERVED]
Article 8 Fund Accounting System.
8.1 Investor Services Group 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 Investor Services Group in connection
with the services provided by Investor Services Group to the Administrator
herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Administrator a limited
license to the Investor Services Group System for the sole and limited purpose
of having Investor Services Group 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 Administrator, including any affiliate or agent
of the Administrator or any third party acting on behalf of the Administrator is
provided with direct access to the Investor Services Group System, such direct
access capability shall be limited to direct entry to the Investor Services
Group 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 Investor Services Group System is strictly
prohibited without the prior written consent of Investor Services Group.
Article 9 Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Administrator
that:
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(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(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 Administrator represents and warrants to Investor Services
Group that:
(a) it is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized;
(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 Administrator shall indemnify and hold Investor Services Group
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 Investor Services Group or for
which Investor Services Group may be held to be liable in connection with this
Agreement or Investor Services Group's performance hereunder (a "Claim"), unless
such Claim resulted from a negligent act or omission to act or bad faith by
Investor Services Group in the performance of its duties hereunder.
10.2 Investor Services Group shall indemnify and hold the Administrator
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 Administrator or for which
the Administrator 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 Investor Services
Group 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
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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
(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
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Administrator's indemnification obligations pursuant
to this Article 10 may apply.
Article 11 Standard of Care.
11.1 Investor Services Group 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 Administrator unless said errors are
caused by Investor Services Group'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 Investor
Services Group shall provide Blue Sky services to the Administrator, Investor
Services Group shall have no
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liability for failing to file on a timely basis any material to be provided by
the Administrator or its designee that it has not received on a timely basis
from the Administrator or its designee, nor shall Investor Services Group have
any responsibility to review the accuracy or adequacy of materials it receives
from the Administrator or its designee for filing or bear any liability arising
out of the timely filing of such materials; nor shall Investor Services Group
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 Investor Services Group and provided
Investor Services Group has requested such information from the Administrator 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 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 Administrator or Investor Services Group 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 Administrator, all
expenses associated with movement of records and materials and conversion
thereof to a successor administrator will be borne by the Administrator.
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
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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 Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group 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 esxcept as provided in Section 13.4, should the Fund or the Administrator
desire to move any of the services provided by Investor Services Group hereunder
to a successor service provider prior to the expiration of the then current
Initial or Renewal Term, or should the Administrator or any of its affiliates
take any action which would result in Investor Services Group ceasing to provide
administration services to the Administrator or the Fund prior to the expiration
of the Initial or any Renewal Term, Investor Services Group 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 Investor
Services Group 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 Administrator or any of its affiliates
take any action which would result in Investor Services Group ceasing to provide
administration services to the Administrator or the Fund prior to the expiration
of the Initial or any Renewal Term, the payment of fees to Investor Services
Group 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
Investor Services Group 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 Investor
Services Group.
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
Administrator desires to have Investor Services Group render services as
sub-administrator under the terms hereof, the Administrator shall so notify
Investor Services Group in writing, and if Investor Services Group 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 Investor Services Group 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
Administrator and Investor Services Group shall
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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 Administrator and Investor Services Group 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 Administrator
and Investor Services Group 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 Administrator and
Investor Services Group 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 Administrator or Investor Services Group
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 Administrator or Investor
Services Group, their respective subsidiaries and affiliated companies and
the customers, clients and suppliers of any of them;
(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 Administrator or Investor
Services Group 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
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(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 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
Investor Services Group 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. Investor Services Group may, in
its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services
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Group 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 Administrator or Investor Services Group, 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.
To the Administrator:
EQSF Advisers, Inc.
767 Third Avenue
New York, New York 10017
Attention: Ian M. Kirschner, General Counsel
To Investor Services Group:
First Data Investor Services Group, Inc.
4400 Computer Drive
Westboro, Massachusetts 01581
Attention: President
with a copy to Investor Services Group's General Counsel
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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 Investor Services Group nor the Administrator 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.
24.2 During the term of this Agreement and for one (1) year afterward,
neither Party shall recruit, solicit, employ or engage, for itself or others,
the other Party's employees.
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 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 Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. 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.
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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: __________________________________
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
-15-
