EXHIBIT (9)
ADMINISTRATION AGREEMENT
AGREEMENT dated as of , 1998 between The Winter Harbor Fund, a Delaware
business trust (the "Trust"), and Countrywide Fund Services, Inc.
("Countrywide"), an Ohio corporation.
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust wishes to employ the services of Countrywide to
serve as its administrative agent; and
WHEREAS, Countrywide wishes to provide such services under the
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and Countrywide agree as follows:
1. APPOINTMENT.
The Trust hereby appoints and employs Countrywide as agent to
perform those services described in this Agreement for the Trust. Countrywide
shall act under such appointment and perform the obligations thereof upon the
terms and conditions hereinafter set forth.
2. DOCUMENTATION.
The Trust will furnish from time to time the following
documents:
A. Each resolution of the Board of Trustees of the Trust
authorizing the original issue of its shares;
B. Each Registration Statement filed with the Securities and
Exchange Commission (the "SEC") and amendments thereof;
C. A certified copy of each amendment to the Agreement
and Declaration of Trust and the Bylaws of the Trust;
D. Certified copies of each resolution of the Board of
Trustees authorizing officers to give instructions to
Countrywide;
E. Specimens of all new forms of share certificates
accompanied by Board of Trustees' resolutions approving such
forms;
F. Such other certificates, documents or opinions which
Countrywide may, in its discretion, deem necessary or
appropriate in the proper performance of its duties;
G. Copies of all Underwriting and Dealer Agreements in effect;
H. Copies of all Investment Advisory Agreements in effect; and
I. Copies of all documents relating to special investment or
withdrawal plans which are offered or may be offered in the
future by the Trust and for which Countrywide is to act as
plan agent.
3. TRUST ADMINISTRATION.
Subject to the direction and control of the Trustees of the
Trust, Countrywide shall supervise and manage all aspects of the Trust's
operations with respect to each series of the Trust not otherwise supervised by
▇▇▇▇▇▇▇ Investments, Inc., or any other investment adviser or investment
sub-adviser (collectively, the "Adviser"), or any other service provider
retained by the Trust. Without limiting the generality of the foregoing, with
respect to the Trust or each series, as applicable, Countrywide shall:
A. provide the Trust with, or arrange for the provision
of, the services of persons competent to perform such
legal, administrative and clerical functions not
otherwise described in this Section 3 as are necessary
to provide effective operation of the Trust;
B. oversee (i) the preparation and maintenance by the
Adviser and the Trust's custodian, transfer agent,
dividend disbursing agent and fund accountant in such
form, for such periods and in such locations as may be
required by applicable United States law, of all
documents and records relating to the operation of the
Trust required to be prepared or maintained by the
Trust or its agents pursuant to applicable law; (ii)
the reconciliation of account information and balances
among the Adviser and the Trust's custodian, transfer
agent, dividend disbursing agent and fund accountant;
(iii) the transmission of purchase and redemption
orders for shares of any and each series ("Shares");
(iv) the notification to the Adviser of available funds
for investment; and (v) the performance of fund
accounting, including the calculation of the net asset
value of the Shares;
C. oversee the performance of administrative and
professional services rendered to the Trust by others,
including its custodian, transfer agent, dividend
disbursing agent, and fund accountant, as well as
legal, auditing, shareholder servicing and other
services performed for each series;
D. file or oversee the filing of each document required to
be filed by the Trust in either written or, if
required, electronic format (e.g., electronic data
gathering analysis and retrieval system or "▇▇▇▇▇")
with the SEC;
E. assist in and oversee the preparation, filing and
printing and the periodic updating of the Trust's
registration statement and prospectuses;
F. oversee the preparation and filing of the Trust's tax
returns;
G. oversee the preparation of financial statements and
related reports to the Trust's shareholders, the SEC
and state and other securities administrators;
H. assist in and oversee the preparation and printing of
proxy and information statements and any other
communications to shareholders;
I. provide the Trust with adequate general office space
and facilities;
J. assist the Adviser in monitoring series holdings for
compliance with prospectus investment restrictions and
assist in preparation of periodic compliance reports;
K. prepare, file and maintain the Trust's organizational
documents and minutes of meetings of the Trustees,
board committees and shareholders;
L. prepare and disseminate materials for meetings of the
Trustees (with the cooperation of the Trust's counsel,
the Adviser, the officers of the Trust and other
relevant parties);
M. maintain the Trust's existence and good standing under
applicable state law;
N. monitor sales of Shares, ensure that the Shares are
properly and duly registered with the SEC and register,
or prepare applicable filings with respect to, the
Shares with the various state and other securities
commissions;
O. oversee the calculation of performance data for
dissemination to information services covering the
investment company industry, for sales literature of
the Trust and other appropriate purposes;
P. oversee the determination of the amount of, and
supervise the declaration of, dividends and other
distributions to shareholders as necessary to, among
other things, maintain the qualification of each series
as a regulated investment company under the Internal
Revenue Code of 1986, as amended (the "Code"), and
prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other
distributions to shareholders;
Q. advise the Trust and the Trustees on matters concerning
the Trust and its affairs;
R. calculate, review and account for series expenses and
report on series expenses on a periodic basis;
S. authorize the payment of Trust expenses and pay, from
Trust assets, all bills of the Trust (upon approval of
the Adviser);
T. prepare series budgets, pro-forma financial statements,
expense and profit/loss projections and fee
waiver/expense reimbursement projections on a periodic
basis;
U. prepare financial statement expense information;
V. assist the Trust in the selection of other service
providers, such as independent accountants, law firms
and proxy solicitors;
W. perform such other recordkeeping, reporting and other
tasks customarily performed by fund administrators and
as may be specified from time to time in the procedures
adopted by the Trustees; and
X. provide the Trust with personnel suitable to serve as
officers of the Trust if so elected by the Trustees;
provided that the Trust shall reimburse Countrywide for
the reasonable out-of-pocket expenses incurred by such
personnel in attending Trustees' meetings and
shareholders' meetings of the Trust.
4. RECORDKEEPING AND OTHER INFORMATION.
Countrywide shall create and maintain all records required by
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act and the rules thereunder, as the same
may be amended from time to time, pertaining to the various functions performed
by it and not otherwise created and maintained by another party pursuant to
contract with the Trust. All such records shall be the property of the Trust at
all times and shall be available for inspection and use by the Trust. Where
applicable, such records shall be maintained by Countrywide for the periods and
in the places required by Rule 31a-2 under the 1940 Act. The retention of such
records shall be at the expense of the Trust. Countrywide shall make available
during regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the Trust, any
person retained by the Trust, or any regulatory agency having authority over the
Trust.
5. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
6. COMPENSATION.
For the performance of Countrywide's obligations under this
Agreement, each series of the Trust shall pay Countrywide, on the first business
day following the end of each month, a monthly fee at the annual rate of .09% of
such series' average daily net assets up to $100 million; .075% of such assets
from $100 to $200 million; and .05% of such assets in excess of $200 million;
provided, however, that the minimum fee shall be $2,000 per month for each
series.
7. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The parties hereto acknowledge and agree that nothing
contained herein shall be construed to require Countrywide to perform any
services for the Trust which services could cause Countrywide to be deemed an
"investment adviser" of the Trust within the meaning of Section 2(a)(20) of the
1940 Act or to supersede or contravene the Trust's prospectus or statement of
additional information or any provisions of the 1940 Act and the rules
thereunder. Except as otherwise provided in this Agreement and except for the
accuracy of information furnished to it by Countrywide, the Trust assumes full
responsibility for complying with all applicable requirements of the 1940 Act,
the Securities Act of 1933, as amended, and any other laws, rules and
regulations of governmental authorities having jurisdiction.
8. REFERENCES TO COUNTRYWIDE.
The Trust shall not circulate any printed matter which
contains any reference to Countrywide without the prior written approval of
Countrywide, excepting
solely such printed matter as merely identifies Countrywide as Administrative
Services Agent, Transfer, Shareholder Servicing and Dividend Disbursing Agent
and Accounting Services Agent. The Trust will submit printed matter requiring
approval to Countrywide in draft form, allowing sufficient time for review by
Countrywide and its counsel prior to any deadline for printing.
9. INDEMNIFICATION OF COUNTRYWIDE.
A. Countrywide may rely on information reasonably believed by it to be
accurate and reliable. Except as may otherwise be required by the 1940 Act and
the rules thereunder, neither Countrywide nor its shareholders, officers,
directors, employees, agents, control persons or affiliates of any thereof shall
be subject to any liability for, or any damages, expenses or losses incurred by
the Trust in connection with, any error of judgment, mistake of law, any act or
omission connected with or arising out of any services rendered under or
payments made pursuant to this Agreement or any other matter to which this
Agreement relates, except by reason of willful misfeasance, bad faith or
negligence on the part of any such persons in the performance of the duties of
Countrywide under this Agreement or by reason of reckless disregard by any of
such persons of the obligations and duties of Countrywide under this Agreement.
B. Any person, even though also a director, officer, employee, shareholder
or agent of Countrywide, or any of its affiliates, who may be or become an
officer, trustee, employee or agent of the Trust, shall be deemed, when
rendering services to the Trust or acting on any business of the Trust, to be
rendering such services to or acting solely as an officer, trustee, employee or
agent of the Trust and not as a director, officer, employee, shareholder or
agent of or one under the control or direction of Countrywide or any of its
affiliates, even though paid by one of these entities.
C. Notwithstanding any other provision of this Agreement, the Trust shall
indemnify and hold harmless Countrywide, its directors, officers, employees,
shareholders, agents, control persons and affiliates from and against any and
all claims, demands, expenses and liabilities (whether with or
without basis in fact or law) of any and every nature which Countrywide may
sustain or incur or which may be asserted against Countrywide by any person by
reason of, or as a result of: (i) any action taken or omitted to be taken by
Countrywide in good faith in reliance upon any certificate, instrument, order or
share certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized person, upon the oral
instructions or written instructions of an authorized person of the Trust or
upon the opinion of legal counsel for the Trust or its own counsel; or (ii) any
action taken or omitted to be taken by Countrywide in connection with its
appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed. However, indemnification under this
subparagraph shall not apply to actions or omissions of Countrywide or its
directors, officers, employees, shareholders or agents in cases of its or their
negligence, willful misconduct, bad faith, or reckless disregard of its or their
own duties hereunder.
D. Countrywide agrees to indemnify and hold harmless the Trust, its
employees, agents, officers, control persons, affiliates and Trustees, against
and from any and all claims, demands, expenses, judgments, losses, charges
(including attorneys' fees), liabilities (whether with or without basis in fact
or law) and other reasonable expenses arising out of Countrywide's actions or
omissions in the performance of Countrywide's duties or obligations under this
Agreement by reason of Countrywide's, or its director's, officer's, employee's,
shareholder's, agent's, control person's, or affiliate's, willful misfeasance,
bad faith, or negligence, or by reason of reckless disregard by any of such
persons of the obligations and duties of Countrywide under this Agreement.
10. TERMINATION
A. The provisions of this Agreement shall be effective on the
date first above written, shall continue in effect for two years from that date
and shall continue in force from year to year thereafter, but only so long as
such continuance is approved (1) by Countrywide, (2) by vote, cast in person at
a meeting called for the purpose, of a majority of the Trust's trustees who are
not parties to this Agreement or interested persons (as defined in the ▇▇▇▇ ▇▇▇)
of any such party, and (3) by vote of a majority of the Trust's Board of
Trustees or a majority of the Trust's outstanding voting securities.
B. Either party may terminate this Agreement on any date by
giving the other party at least sixty (60) days' prior written notice of such
termination specifying the date fixed therefor. Upon termination of this
Agreement, the Trust shall pay to Countrywide such compensation as may be due as
of the date
of such termination, and shall likewise reimburse Countrywide for any
out-of-pocket expenses and disbursements reasonably incurred by Countrywide to
such date.
C. In the event that in connection with the termination of
this Agreement a successor to any of Countrywide's duties or responsibilities
under this Agreement is designated by the Trust by written notice to
Countrywide, Countrywide shall, promptly upon such termination and at the
expense of the Trust, transfer all records maintained by Countrywide under this
Agreement and shall cooperate in the transfer of such duties and
responsibilities, including provision for assistance from Countrywide's
cognizant personnel in the establishment of books, records and other data by
such successor.
11. SERVICES FOR OTHERS.
Nothing in this Agreement shall prevent Countrywide or any
affiliated person (as defined in the ▇▇▇▇ ▇▇▇) of Countrywide from providing
services for any other person, firm or corporation (including other investment
companies); provided, however, that Countrywide expressly represents that it
will undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Trust under this Agreement.
12. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust, personally, but bind only the trust
property of the Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust and signed by an officer of the Trust,
acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust.
13. SEVERABILITY.
In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder of
this Agreement, which shall continue to be in force.
14. QUESTIONS OF INTERPRETATION.
This Agreement shall be governed by the laws of the State of Delaware. Any
question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations thereof, if any, by the United
States Courts or in the absence of any controlling decision of any such court,
by rules, regulations or orders of the SEC issued pursuant
to said 1940 Act. In addition, where the effect of a requirement of the 1940
Act, reflected in any provision of this Agreement, is revised by rule,
regulation or order of the SEC, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
15. NOTICES.
All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To the Trust: The Winter Harbor Fund
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
To Countrywide: Countrywide Fund Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address as any party may designate by notice complying with the
terms of this Section 15. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
16. AMENDMENT.
This Agreement may not be amended or modified except by a
written agreement executed by both parties.
17. BINDING EFFECT.
Each of the undersigned expressly warrants and represents that
he has the full power and authority to sign this Agreement on behalf of the
party indicated, and that his signature will operate to bind the party indicated
to the foregoing terms.
18. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. SEPARATE LIABILITIES.
Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each series of the Trust are
separate and distinct from the assets and liabilities of each other series and
that no series shall be liable or shall be charged for any debt, obligation or
liability of any other series, whether arising under this Agreement or
otherwise.
20. FORCE MAJEURE.
If Countrywide shall be delayed in its performance of services
or prevented entirely or in part from performing services due to causes or
events beyond its control, including and without limitation, acts of God,
interruption of power or other utility, transportation or communication
services, acts of civil or military authority, sabotages, national emergencies,
explosion, flood, accident, earthquake or other catastrophe, fire, strike or
other labor problems, legal action, present or future law, governmental order,
rule or regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a reasonable
time for performance in connection with this Agreement shall be extended to
include the period of such delay or non-performance.
21. MISCELLANEOUS.
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE WINTER HARBOR FUND
By:___________________________
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By:___________________________
Its: President