ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this ___ day of _________, 2003, by and
between The CINTRA Select Fund, Inc. (the "Fund"), a Maryland corporation, and
SEI Investments Global Funds Services (the "Administrator"), a Delaware business
trust.
WHEREAS, the Fund is a registered, non-diversified, closed-end management
investment company under the Investment the Company Act of 1940, as amended (the
"1940 Act") issuing shares of common stock (the "Shares"); and
WHEREAS, the Fund desires the Administrator to provide, and the
Administrator is willing to provide, administrative and accounting services to
the Fund on the terms and conditions hereinafter set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and the Administrator hereby agree as follows:
ARTICLE 1. Retention of the Administrator. The Fund hereby retains the
Administrator to furnish the Fund with accounting and administrative services as
set forth in this Agreement, and the Administrator hereby accepts such
employment. The Administrator shall be deemed to be an independent contractor
for all purposes herein.
ARTICLE 2. Administrative and Accounting Services. The Administrator shall
perform or supervise the performance by others of the accounting and
administrative services set forth in Schedule A hereto. In performing its duties
under this Agreement, the Administrator will act in all material respects in
accordance with the Articles of Incorporation and Bylaws (the "Organizational
Documents") and the Fund's policies and procedures as they may be in effect from
time to time (provided copies are delivered to the Administrator). The
Administrator (i) 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 and (ii) shall not provide any investment
advisory services to the Fund, and shall have no liability related to the
foregoing. The Administrator shall provide the Fund with all necessary office
space, equipment, personnel, compensation and facilities (including facilities
for shareholders' and Directors' meetings) for providing such services
identified in Schedule A. The Administrator may sub-contract with third parties
to perform certain of the services to be performed by the Administrator
hereunder; provided, however, that the Administrator shall remain principally
responsible to the Fund for the acts and omissions of such other entities. In
meeting its duties hereunder, the Administrator shall have the general authority
to do all acts deemed in the Administrator's good faith belief to be necessary
and proper to perform its obligations under this Agreement.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to
perform its obligations under this Agreement. The Administrator shall also
pay all compensation, if any, of officers of the Fund who are affiliated
persons of the Administrator or any affiliated corporation of the
Administrator; provided, however, that unless otherwise specifically
provided, the Administrator shall not be obligated to pay the compensation
of any employee of the Fund retained by the Directors of the Fund to
perform services on behalf of the Fund.
(B) Fund Expenses. The Fund assumes and shall pay or cause to be paid
all expenses of the Fund not otherwise allocated in this Agreement,
including, without limitation, organizational costs, taxes, expenses for
legal and auditing services, the expenses of preparing (including
typesetting), printing and mailing reports, prospectuses, statements of
additional information, proxy solicitation and tender offer materials and
notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of pricing services, the costs of
custodial services (which are included in the Administration Fees on
Schedule B), the cost of initial and ongoing registration of the Shares
under Federal and state securities laws, fees and out-of-pocket expenses of
Directors who are not affiliated persons of the Administrator or any
affiliated corporation of the Administrator, the costs of Directors'
meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of service
providers to the Fund. The Fund shall reimburse the Administrator for its
reasonable out-of-pocket expenses, including all reasonable charges for SAS
70 audit charges, and reasonable copying, postage, telephone, and fax
charges incurred by the Administrator in the performance of its duties.
ARTICLE 4. Compensation of the Administrator. The Fund shall pay to the
Administrator compensation at the annual rate specified in Schedule B to this
Agreement until this Agreement is terminated in accordance with Article 6. Such
compensation shall be calculated and accrued monthly, and paid to the
Administrator monthly, within 30 days of month-end, otherwise the Administrator
shall be entitled to charge and/or set-off such amounts against any account of
the Fund. If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of the
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder. (As used in this Article 5, the term "Administrator" shall include
officers, employees and other agents of the Administrator as well as that entity
itself.) Under no circumstances shall the Administrator be liable to the Fund
for consequential, indirect or punitive damages.
So long as the Administrator, or its agents, acts without willful
misfeasance, bad faith or gross negligence in the performance of its duties, and
without reckless disregard of its obligations and duties hereunder, the Fund
assumes full responsibility and shall indemnify the Administrator and hold it
harmless from and against any and all actions, suits and claims, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) arising directly
or indirectly out of any act or omission of Administrator in carrying out its
duties hereunder. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. If in any case the Fund may be asked to indemnify or hold the
Administrator harmless, the Administrator shall promptly advise the Fund of the
pertinent facts concerning the situation in question, and the Administrator will
use all reasonable care to identify and notify the Fund promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification, but failure to do so shall not affect the rights
hereunder.
The Fund shall be entitled to participate at its own expense or, if it so
elects, to assume the defense of any suit brought to enforce any claims subject
to this indemnity provision. If the Fund elects to assume the defense of any
such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to the Administrator, whose approval shall not be unreasonably
withheld. In the event that the Fund elects to assume the defense of any suit
and retain counsel, the Administrator shall bear the fees and expenses of any
additional counsel retained by it. If the Fund does not elect to assume the
defense of a suit, it will reimburse the Administrator for the fees and expenses
of any counsel retained by the Administrator.
The Administrator may apply to the Fund at any time for instructions and
may consult counsel for the Fund or its own counsel and with accountants and
other experts, at the Fund's expense, with respect to any matter arising in
connection with the Administrator's duties, and the Administrator shall not be
liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the opinion of such counsel,
accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. Nor shall the Administrator be held to have
notice of any change of authority of any officers, employee or agent of the Fund
until receipt of written notice thereof from the Fund.
Nothing herein shall make Administrator liable for the performance or
omissions of unaffiliated third parties not under Administrator's reasonable
control such as, by way of example and not limitation, unaffiliated custodians,
investment advisers or sub-advisers, postal or delivery services,
telecommunications providers and processing and settlement services.
The Administrator is entitled to rely on the price information provided by
the underlying funds into which the Fund invests, brokers and custodians in
order to calculate the Fund's net asset value (and the value of shareholders'
capital accounts based upon such valuation) and the Administrator shall not
liable for any valuation errors resulting from the use of such information.
ARTICLE 6. Duration and Termination of this Agreement. This Agreement shall
become effective on the date set forth in Schedule B hereto and shall remain in
effect for the full duration of the Initial Term and each Renewal Term, each as
set forth in Schedule B, unless terminated in accordance with the provisions of
this Article 6. This Agreement may be terminated only: (a) by either party at
the end of the Initial Term or the end of any Renewal Term on 90 days' prior
written notice; (b) by either party hereto on such date as is specified in
written notice given by the terminating party, in the event of a material breach
of this Agreement by the other party, provided the terminating party has
notified the other party of such material breach at least 45 days prior to the
specified date of termination and the breaching party has not remedied such
breach by the specified date; or (c) effective upon the liquidation of the Fund.
For purposes of this paragraph, the term "liquidation" shall mean a transaction
in which the assets of the Fund are sold or otherwise disposed of and proceeds
therefrom are distributed in cash to the shareholders in complete liquidation of
the interests of such shareholders in the Fund.
ARTICLE 7. Activities of the Administrator. The services of the
Administrator rendered to the Fund are not to be deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests.
ARTICLE 8. Confidentiality. The Administrator agrees on behalf of itself
and its employees to treat confidentially all records and other information
relative to the Fund and its shareholders received by the Administrator in
connection with this Agreement, including any non-public personal information as
defined in Regulation S-P, and that it shall not use or disclose any such
information except for the purpose of carrying out the terms of this Agreement;
provided, however, that Administrator may disclose such information as required
by law or after prior notification to and approval in writing by the Fund, which
approval may not be withheld where the Administrator may be exposed to civil or
criminal contempt proceedings or penalties for failure to comply.
ARTICLE 9. Certain Records. The Administrator shall maintain customary
records in connection with its duties as specified in this Agreement. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by the Administrator
on behalf of the Fund shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Fund and will be made available
to or surrendered promptly to the Fund on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Fund and follow the Fund's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Fund has
agreed to indemnify the Administrator against such liability.
ARTICLE 10. Compliance with Governmental Rules and Regulations. The
Administrator undertakes to comply in all material respects with applicable
requirements of the Securities Act of 1933, the Securities Exchange Act of 1934,
the 1940 Act, and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by the
Administrator hereunder including any applicable anti-money laundering laws and
regulations.
ARTICLE 11. Internet Access. Data and information may be made
electronically accessible to the Fund and its adviser and/or sub-adviser(s)
through Internet access to one or more links provided by the Administrator ("Web
Links"). All rights in Web Links (including text and "look and feel" attributes)
are owned by the Administrator. Any commercial use of the content or any other
aspect of Web Link requires the written permission of the Administrator. Use of
the Web Links by the Fund or its agents will be subject to any terms of use set
forth on the web site. All Web Links and the information (including text,
graphics and functionality) in the Web Links is presented "As Is" and "As
Available" without express or implied warranties including, but not limited to,
implied warranties of non-infringement, merchantability and fitness for a
particular purpose. The Administrator neither warrants that the Web Links will
be uninterrupted or error free, nor guarantees the accessibility, reliability,
performance, timeliness, sequence, or completeness of information provided on
the Web Links.
ARTICLE 12. Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties hereto and supersedes any prior agreement,
draft or proposal with respect to the subject matter hereof. This Agreement or
any part hereof may be changed or waived only by an instrument in writing signed
by the party against which enforcement of such change or waiver is sought.
ARTICLE 13. Assignment. This Agreement shall not be assignable by either
party without the prior written consent of the other party.
ARTICLE 14. Agreement for Sole Benefit of the Administrator and the Fund.
This Agreement is for the sole and exclusive benefit of the Administrator and
the Fund and will not be deemed to be for the direct or indirect benefit of the
clients or customers of the Administrator or the Fund. The clients or customers
of the Administrator or the Fund will not be deemed to be third party
beneficiaries of this Agreement nor to have any other contractual relationship
with the Administrator by reason of this Agreement and each party hereto agrees
to indemnify and hold harmless the other party from any claims of its clients or
customers against the other party including any attendant expenses and
attorneys' fees, based on this Agreement or the services provided hereunder.
ARTICLE 15. Waiver. Any term or provision of this Agreement may be waived
at any time by the party entitled to the benefit thereof by written instrument
executed by such party. No failure of either party hereto to exercise any power
or right granted hereunder, or to insist upon strict compliance with any
obligation hereunder, and no custom or practice of the parties with regard to
the terms of performance hereof, will constitute a waiver of the rights of such
party to demand full and exact compliance with the terms of this Agreement.
ARTICLE 16. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, federal express (or substantially similar delivery service), postage
prepaid, addressed by the party giving notice to the other party at the last
address furnished by the other party to the party giving notice: if to the Fund,
at 0000 X Xxxxxx. XX, Xxxxxxxxxx, XX 00000; and if to the Administrator,
Attention: General Counsel, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx, 00000.
ARTICLE 17. Force Majeure. No breach of any obligation of a party to this
Agreement will constitute an event of default or breach to the extent it arises
out of a cause, existing or future, that is beyond the control and without
negligence of the party otherwise chargeable with breach or default, including
without limitation: work action or strike; lockout or other labor dispute;
flood; war; riot; theft; earthquake or natural disaster. Either party desiring
to rely upon any of the foregoing as an excuse for default or breach will, when
the cause arises, give to the other party prompt notice of the facts which
constitute such cause; and, when the cause ceases to exist, give prompt notice
thereof to the other party.
ARTICLE 18. Equipment Failures. In the event of equipment failures beyond
the Administrator's control, the Administrator shall take reasonable and prompt
steps to minimize service interruptions but shall have no liability with respect
thereto. The Administrator shall develop and maintain a plan for recovery from
equipment failures which may include contractual arrangements with appropriate
parties making reasonable provision for emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
ARTICLE 19. Definitions of Certain Terms. The term "affiliated person,"
when used in this Agreement, shall have the meaning specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may be
granted by the Securities and Exchange Commission.
ARTICLE 20. Headings. All Article headings contained in this Agreement are
for convenience of reference only, do not form a part of this Agreement and will
not affect in any way the meaning or interpretation of this Agreement. Words
used herein, regardless of the number and gender specifically used, will be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the contract requires.
ARTICLE 21. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Delaware without giving effect to the conflicts of
laws principles therof, and the applicable provisions of the 1940 Act. To the
extent that the applicable laws of the State of Delaware, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 22. Multiple Originals. This Agreement may be executed in two or
more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 23. Binding Agreement. This Agreement, and the rights and
obligations of the parties hereunder, shall be binding on, and inure to the
benefit of, the parties and their respective successors and assigns.
ARTICLE 24. Severability. If any part, term or provision of this Agreement
is held to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE CINTRA SELECT FUND, INC.
By:
-----------------------------------------
Name:
Title:
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By:
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Name:
Title:
SCHEDULE A
LIST OF SERVICES
1. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following accounting services for the Fund:
(i) Journalize investment, capital and income and expense activities;
(ii) Receive investment activity for hedge fund-of-fund investments
from investment adviser in written form and facilitate notification
and wire movement process to such funds;
(iii) Receive buy/sell trade tickets from the Adviser, process the
activity on the books and records of the funds and reconcile such
activity with the fund's custodian;
(iv) Maintain individual ledgers for each investment fund in which the
Fund is invested and use valuations provided by the underlying funds
in which the Fund is invested or as reported by the Adviser;
(v) Maintain historical tax lots for each security;
(vi) Record and reconcile corporate action activity and all other
capital changes;
(vii) Reconcile cash and investment balances of the Fund with the
Fund's custodian(s), and provide the Adviser with the beginning cash
balance available for investment purposes;
(viii) Calculate contractual expenses, including management fees and
incentive allocation, as applicable, in accordance with the Fund's
prospectus;
(ix) Post to and prepare the Statement of Assets and Liabilities and
the Statement of Operations in U.S. dollar terms;
(x) Prepare and monitor the expense accruals and notify any officer of
the Fund of any proposed adjustments;
(xi) Control all disbursements and authorize such disbursements from
the Fund's account with the custodian(s) upon Written Instructions;
(xii) Calculate capital gains and losses;
(xiii) Determine net income;
(xiv) Determine applicable foreign exchange gains and losses on
payables and receivables, if applicable;
(xv) Transmit or mail copy of the monthly portfolio valuation to the
Adviser;
(xvi) Arrange for the computation of the net asset value in accordance
with the provisions of the Fund's Organizational Documents and
prospectus;
(xvii) Maintain records and other information necessary on a book
basis to facilitate the preparation of the Fund's tax returns and tax
information reports to the shareholders by the audit firm; and
(xviii) As appropriate, compute total return and expenses.
2. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following administration services:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iii) Coordinate with the Adviser contractual relationships and
communications between the Fund and its contractual service providers;
(iv) Prepare and file the Fund's Annual and Semi-Annual Reports with
the SEC on Form N-SAR and Certified Shareholder Reports on Form N-CSR
via XXXXX;
(v) Coordinate with the Adviser the preparation and printing of the
Fund's annual and semi-annual shareholder reports;
(vi) Perform such additional administrative duties relating to the
administration of the Fund as may subsequently be agreed upon in
writing between the Fund and the Administrator;
(vii) Provide such fund accounting and financial reports in connection
with quarterly meetings of the Board of Directors as are required or
as the Board may reasonably request;
(viii) Provide individuals to serve as officers of the Fund, as
requested;
(ix) Coordinate with the Fund's counsel on drafting, reviewing and
filing registration statements and tender offers, and coordinate
printing and delivery of prospectus and tender offers;
(x) Coordinate the Fund's Board of Directors' schedule, agenda and
production of Board meeting materials, and attend Board meetings (if
requested);
(xi) Provide consultation to the Fund and its Adviser on regulatory
matters relating to the operation of the Fund, and update the Fund and
its Adviser on significant regulatory and legislative developments
which may affect the Fund;
(xii) Develop or assist legal counsel to the Fund in the development
of policies and procedures relating to the operation of the Fund;
(xiii) Act as liaison to legal counsel to the Fund and, where
applicable, to legal counsel to the Fund's independent Directors;
(xiv) Coordinate the preparation, review and execution of contracts
between the Fund and third parties;
(xv) Assist the Fund in handling and responding to routine regulatory
examinations with respect to records retained or services provided by
the Administrator, and coordinate with the Fund's legal counsel in
responding to any non-routine regulatory matters with respect to such
matters; and
(xvi) Coordinate as necessary the registration or qualification of
Shares of the Fund with appropriate state securities authorities.
3. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS.
The Administrator will perform the following functions:
(i) Maintain the register of shareholders and enter on such register
all issues, transfers and repurchases of interests in the Fund;
(ii) Arrange for the calculation of the issue and repurchase prices of
Shares in the Fund in accordance with the Fund's Organizational
Documents;
(iii) Allocate income, expenses, gains and losses to individual
shareholders' capital accounts in accordance with the Fund's
Organizational Documents; and
(iv) Calculate the Incentive Allocation in accordance with the Fund's
Organizational Documents and reallocate corresponding amounts from the
applicable shareholders' accounts to the Adviser's account;
(v) Provide statements to shareholders on a monthly basis or as
frequently as may otherwise be agreed that set forth the value of and
appropriate detail for the shareholders' interest in the Fund
[END OF SCHEDULE A]
SCHEDULE B
FEE SCHEDULE
Administration, Accounting and Custody Fee:
Asset Based Fees (based upon the month end net assets of the Fund):
10 Basis points on the first $250 million
8 Basis points on the next $250 million
6 Basis points on assets in excess of $500 million
Annual minimum per Fund is $90,000 (calculated and paid monthly).
