ADMINISTRATION AGREEMENT
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AGREEMENT dated as of September 22, 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.
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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.
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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.
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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 Xxxxxxx
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;
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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 "XXXXX")
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;
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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 the reasonable out-of-pocket expenses incurred
by such personnel in attending Trustees' meetings and shareholders'
meetings of the Trust.
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4. RECORDKEEPING AND OTHER INFORMATION.
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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.
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Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
6. COMPENSATION.
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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.
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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.
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8. REFERENCES TO COUNTRYWIDE.
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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.
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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
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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 directors, officers, employees,
shareholders, agents, control persons, or affiliates, 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
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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 0000 Xxx)
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.
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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.
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Nothing in this Agreement shall prevent Countrywide or any affiliated
person (as defined in the 0000 Xxx) 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.
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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.
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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.
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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
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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.
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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
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxxx Xxxx
To Countrywide: Countrywide Fund Services, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
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.
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This Agreement may not be amended or modified except by a written
agreement executed by both parties.
17. BINDING EFFECT.
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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.
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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.
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19. SEPARATE LIABILITIES.
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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.
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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.
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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: /s/ Xxxxxxxx X. Xxxx
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Its: President
COUNTRYWIDE FUND SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: President
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