EXHIBIT 9(b)
MANAGEMENT AND ADMINISTRATION AGREEMENT
As of October 1, 1993
The Winsbury Company Limited Partnership
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Gentlemen:
CFB MarketWatch Funds, a Massachusetts business trust (the "Trust"),
herewith confirms its Agreement with The Winsbury Company Limited Partnership,
d/b/a The Winsbury Company ("Administrator") as follows:
The Trust desires to employ a portion of its capital by investing and
reinvesting the same in investments of the type and in accordance with the
limitations specified in its Declaration of Trust and in the Prospectuses and
Statements of Additional Information relating to each of the investment
portfolios and any additional investment portfolios of the Trust, as each are or
will be identified on Schedule A hereto as such Schedule may be amended from
time to time (such investment portfolios and any additional investment
portfolios individually referred to as a "Fund" and collectively the "Funds"),
copies of which have been or will be submitted to Administrator, and in
resolutions of the Trust's Board of Trustees. The Trust and Administrator
hereby agree that Administrator will serve as the manager and administrator for
the Funds upon the following terms and conditions.
1. Services as Manager and Administrator
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Subject to the direction and control of the Board of Trustees of the Trust,
Administrator will assist in supervising all aspects of the operations of the
Funds except those performed by the investment adviser for the Funds under its
Investment Advisory Agreement, the custodian for the Funds under its Custodian
Agreement, the transfer agent for the Funds under its Transfer Agency Agreement
and the fund accountant for the Funds under its Fund Accounting Agreement.
Administrator will maintain office facilities (which may be in the offices
of Administrator or an affiliate but shall be in such location as the Trust
shall reasonably determine); furnish statistical and research data, clerical and
certain bookkeeping services and stationery and office supplies; prepare the
periodic reports to the Securities and Exchange Commission (the "Commission") on
Form N-SAR or any replacement forms therefor; compile data for, prepare for
execution by the Funds and file all the Funds' federal and state tax returns and
required tax
filings other than those required to be made by the Funds' custodian and
transfer agent; prepare compliance filings pursuant to state securities laws
with the advice of the Trust's counsel; assist to the extent requested by the
Trust with the Trust's preparation of its Annual and Semi-Annual Reports to
Shareholders and its Registration Statements (on Form N-1A or any replacement
therefor); compile data for, prepare and file timely Notices to the Commission
required pursuant to Rule 24f-2 under the Investment Company Act of 1940 (the
"1940 Act"); keep and maintain the financial accounts and records of the Funds,
including calculation of daily expense accruals; in the case of money market
funds, periodic review of the amount of the deviation, if any, of the current
net asset value per share (calculated using available market quotations or an
appropriate substitute that reflects current market conditions) from each money
market fund's amortized cost price per share; and generally assist in all
aspects of the operations of the Funds. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, Administrator hereby agrees that all records
which it maintains for the Trust are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
request. Administrator further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule 31a-
1 under the 1940 Act. Administrator may delegate some or all of its
responsibilities under this Agreement.
Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that Administrator shall not be relieved of any of its obligations
under this Agreement by the appointment of such subcontractor and provided
further, that Administrator shall be responsible, to the extent provided in
Section 4 hereof, for all acts of such subcontractor as if such acts were its
own.
2. Fees; Expenses; Expense Reimbursement
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In consideration of services rendered and expenses assumed pursuant to this
Agreement, each of the Funds will pay Administrator on the first business day of
each month, or at such time(s) as Administrator shall request and the parties
hereto shall agree, a fee computed daily and paid as specified below at the
applicable annual rates set forth on Schedule A hereto. The fee for the period
from the day of the month this Agreement is entered into until the end of that
month shall be prorated according to the proportion which such period bears to
the full monthly period. Upon any termination of this Agreement before the end
of any month, the fee for such part of a month shall be prorated according to
the proportion which such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement.
For the purpose of determining fees payable to Administrator, the value of
the net assets of a particular Fund shall be computed in the manner described in
the Trust's Declaration of Trust or in the Prospectus or Statement of Additional
Information respecting that Fund as from time to time is in effect for the
computation of the value of such net assets in connection with the determination
of the liquidating value of the shares of such Fund.
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Administrator will from time to time employ or associate with itself such
person or persons as Administrator may believe to be particularly fitted to
assist it in the performance of this Agreement. Such person or persons may be
partners, officers, or employees who are employed by both Administrator and the
Trust. The compensation of such person or persons shall be paid by
Administrator and no obligation may be incurred on behalf of the Funds in such
respect. Other expenses to be incurred in the operation of the Funds including
taxes, interest, brokerage fees and commissions, if any, fees of Trustees who
are not partners, officers, directors, shareholders or employees of
Administrator or the investment adviser or distributor for the Funds, commission
fees and state Blue Sky qualification and renewal fees and expenses, investment
advisory fees, custodian fees, transfer and dividend disbursing agents' fees,
fund accounting fees including pricing of portfolio securities, certain
insurance premiums, outside and, to the extent authorized by the Trust, inside
auditing and legal fees and expenses, costs of maintenance of corporate
existence, typesetting and printing prospectuses for regulatory purposes and for
distribution to current Shareholders of the Funds, costs of Shareholders' and
Trustees' reports and meetings and any extraordinary expenses will be borne by
the Funds; provided, however, that the Funds will not bear, directly or
indirectly, the cost of any activity which is primarily intended to result in
the distribution of shares of the Funds.
If in any fiscal year the aggregate expenses of a particular Fund (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, Administrator will
reimburse such Fund for a portion of such excess expenses equal to such excess
times the ratio of the fees respecting such Fund otherwise payable to
Administrator hereunder to the aggregate fees respecting such Fund otherwise
payable to Administrator hereunder and to Central Fidelity Bank under the
Investment Advisory Agreements between Central Fidelity Bank and the Trust. The
expense reimbursement obligation of Administrator is limited to the amount of
its fees hereunder for such fiscal year, provided, however, that notwithstanding
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the foregoing, Administrator shall reimburse a particular Fund for such
proportion of such excess expenses regardless of the amount of fees paid to it
during such fiscal year to the extent that the securities regulations of any
state having jurisdiction over the Trust so require. Such expense
reimbursement, if any, will be estimated daily and reconciled and paid on a
monthly basis.
3. Proprietary and Confidential Information
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Administrator agrees on behalf of itself and its partners and employees to
treat confidentially and as proprietary information of the Trust all records and
other information relative to the Trust and prior, present, or potential
Shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Trust, which approval shall
not be unreasonably withheld and may not be withheld where Administrator 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.
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4. Limitation of Liability of Administrator
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Administrator shall not be liable for any loss suffered by the Funds in
connection with the matters to which this Agreement relates, except for a loss
resulting from willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Any person, even though also a
partner, employee, or agent of Administrator, who may be or become an officer,
Trustee, employee, or agent of the Trust or the Funds shall be deemed, when
rendering services to the Trust or the Funds, or acting on any business of that
party, to be rendering such services to or acting solely for that party and not
as a partner, employee, or agent or one under the control or direction of
Administrator even though paid by it.
5. Term, Duration and Termination
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This Agreement shall become effective with respect to each Fund listed on
Schedule A hereof as of the date first written above (or, if a particular Fund
is not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed) and unless sooner terminated as
provided herein, shall continue until March 31, 1994. Thereafter, if not
terminated, this Agreement shall continue with respect to a particular Fund
automatically for successive one-year terms, unless written notice not to renew
is given by the non-renewing party to the other party at least 60 days prior to
the expiration of the then-current term; provided that such continuance is
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specifically approved at least annually (a) by the vote of a majority of those
members of the Trust's Board of Trustees who are not parties to this Agreement
or interested persons of any such party, cast in person at a meeting called for
the purpose of voting on such approval, and (b) by the vote of a majority of the
Trust's Board of Trustees or by the vote of a majority of the outstanding voting
securities of such Fund. Written notice not to renew may be given for any
reason, with or without "cause" (as defined below). This Agreement is
terminable with respect to a particular Fund through a failure to renew the
Agreement at the end of a one-year term; upon mutual agreement of the parties
hereto; or for "cause" by the party alleging "cause", in any case on not less
than 60-days prior written notice to the party against which termination is
sought. (As used in this Agreement, the terms "majority of the outstanding
voting securities", "interested persons" and "assignment" shall have the same
meanings as ascribed to such terms in the 1940 Act.)
For purposes of this Agreement, "cause" shall mean (a) willful misfeasance,
bad faith, gross negligence or reckless disregard on the part of the party to be
terminated with respect to its obligations and duties set forth herein; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; (c) financial difficulties on the part
of the party to be terminated which is evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent, or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors; or (d) any
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circumstance which substantially impairs the performance of the obligations and
duties of the party to be terminated, or the ability to perform those
obligations and duties, as contemplated herein. Notwithstanding the foregoing,
the absence of either or both an annual review or ratification of this Agreement
by the Board of Trustees shall not, in and of itself, constitute "cause" as used
herein.
If Administrator is replaced as fund manager and administrator during a
term of this Agreement for any reason other than mutual agreement of the parties
or "cause" as defined above, then the Trust shall make a one-time cash payment,
as liquidated damages, to Administrator equal to the balance due Administrator
for the remainder of such term, assuming for purposes of calculation of the
payment that the asset level of the Trust on the date Administrator is replaced
will remain constant for the balance of the contract term.
6. Assignment.
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This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Section 6 shall not limit Winsbury's right to appoint a
subcontractor pursuant to Section 1 hereof.
7. Governing Law. This Agreement shall be governed by and provisions
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shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
8. Limitation of Liability of Trustees and Shareholders.
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The names "CFB MarketWatch Funds" and "Trustees of CFB MarketWatch Funds"
refer respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under the Agreement and
Declaration of Trust dated as of June 4, 1992, to which reference is hereby made
and a copy of which is on file at the office of the Secretary of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "CFB
MarketWatch Funds" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders or
representatives of the Trust personally, but bind only the assets of the Trust,
and all persons dealing with any series of shares of the Trust must look solely
to the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
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If the foregoing is in accordance with your understanding, kindly so
indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
CFB MARKETWATCH FUNDS
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
Accepted:
THE WINSBURY COMPANY LIMITED PARTNERSHIP
By: The Winsbury Corporation, General Partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Dated: October 1, 1993
Schedule A
to the
Management and Administration Agreement
between CFB MarketWatch Funds and
The Winsbury Company Limited Partnership
Name of Fund Compensation*
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CFB MarketWatch Treasury Annual Rate of twenty one-hundredths
Money Market Fund of one percent (.20%) of the CFB
MarketWatch Treasury Money Market
Fund's average daily net assets
CFB MarketWatch Short-Term Annual Rate of twenty one-hundredths
Fixed Income Fund of one percent (.20%) of the CFB
Income Fund's average daily net assets
CFB MarketWatch Intermediate Annual Rate of twenty one-hundredths
Fixed Income Fund of one percent (.20%) of the CFB
MarketWatch Intermediate Fixed
Income Fund's average daily net assets
CFB MarketWatch Virginia Annual Rate of twenty one-hundredths
Municipal Bond Fund of one percent (.20%) of the CFB
MarketWatch Virginia Municipal Bond
Fund's average daily net assets
CFB MarketWatch Annual Rate of twenty one-hundredths
Equity Fund of one percent (.20%) of the CFB
MarketWatch Equity Fund's average
daily net assets
THE WINSBURY COMPANY CFB MARKETWATCH FUNDS
LIMITED PARTNERSHIP
By: The Winsbury Corporation, General Partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
*All fees are computed daily and paid periodically.
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