ADMINISTRATION AGREEMENT
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AGREEMENT dated as of , 1998 between Clearbrook Investment Trust, a
Delaware business trust (the "Trust"), and Countrywide Fund Services, Inc., an
Ohio corporation ("Countrywide").
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 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 and
the Trust may jointly 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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Countrywide shall:
Maintain Records
o Maintain all books and records of the Trust as are required
by applicable federal or state law;
Coordinate Operational Activities
o Coordinate with and monitor services provided by the
independent public accountants, outside attorneys and other
third party providers;
o Coordinate with the Trust's Custodian and monitor the
custodial services provided to the Trust;
o Schedule the Board of Trustees' Meetings and prepare the
agenda and necessary materials;
Perform Compliance and Reporting
o Prepare and file post-effective amendments to the Trust's
registration statement and other documents with the SEC and
other federal and state regulatory authorities as may be
required by applicable law;
o Prepare, file and distribute proxy materials and periodic
reports to shareholders of the Trust as required by
applicable law;
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o Take such other administrative action with respect to the
Trust as may be required by applicable law, including the
rules and regulations of the Securities and Exchange
Commission, state securities commissions and other
regulatory authorities;
o Establish and maintain procedures and perform activities to
ensure compliance with applicable federal, state and IRS
rules and regulations;
o Prepare and file any and all new, and maintain all existing
state "blue sky" compliance;
Perform and Coordinate Audits
o Perform internal audits of the Trust's books and records;
o Coordinate, organize and prepare the Trust's responses to
SEC audits;
o Coordinate and support the external audits performed by the
Trust's independent public accountants;
o Provide office facilities and appropriate administrative
services to the SEC, independent public accountants, and if
necessary other groups to perform audit activities;
Support Other Activities
o Provide the Trust with trained personnel to perform
administrative and clerical functions and with necessary
office space, telephones and other communications
facilities;
o Supervise and coordinate the typesetting and printing of the
Trust's retirement plan documents;
o Coordinate and prepare industry and rating agency
questionnaires to include performance, distribution, and
corporate developments.
In addition, Countrywide shall provide personnel to serve as officers of
the Trust if so elected by the Board of Trustees. The Trust shall reimburse
Countrywide for the reasonable out-of-pocket expenses incurred by Countrywide
personnel in attending Board of 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. 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 .15% of
such series' average daily net assets up to $25 million; .125% of such assets
from $25 to $50 million; and .10% of such assets in excess of $50 million;
provided, however, that the minimum fee shall be $1,500 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. CONFIDENTIALITY
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Countrywide agrees on behalf of itself and its employees and agents to
treat confidentially all information relating to the Trust's business which is
received by Countrywide during the course of rendering any service hereunder.
Countrywide agrees on behalf of itself and its employees and agents to treat
confidentially all records and other information relative to the Trust and its
shareholders and shall not disclose to any other party, 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 Countrywide may be
exposed to civil or criminal contempt proceedings for failure to comply after
being requested to divulge such information by duly constituted authorities.
9. 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.
10. PERFORMANCE OF SERVICE: LIMITED LIABILITY AND INDEMNIFICATION.
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A. Countrywide shall exercise reasonable care and act in good faith in
the performance of its duties under this Agreement. Countrywide may rely on
information, regarding the Trust, 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 the 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 for any refusal or failure to comply with the terms of
this Agreement or by reason of willful misfeasance, bad faith or gross
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.
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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 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. 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 own gross negligence,
willful misconduct, bad faith, or reckless disregard of its or their own duties
hereunder. In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, Countrywide shall take all reasonable steps
to minimize service interruptions for any period that such interruption
continues beyond Countrywide's control. Countrywide will make every reasonable
effort to restore any lost or damaged data and correct any errors resulting from
such a breakdown at the expense of Countrywide. Countrywide agrees that it
shall, at all times, have reasonable contingency plans with appropriate parties,
making reasonable provision for emergency use of electrical data processing
equipment to the extent appropriate equipment is available. Representatives of
the Trust shall be entitled to inspect Countrywide's premises and operating
capabilities at any time during regular business hours of Countrywide, upon
reasonable notice to Countrywide.
D. In order that the indemnification provisions contained in this
section shall apply, it is understood that in any case in which the Trust may be
asked to indemnify or hold Countrywide harmless, the Trust shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that Countrywide will use
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all reasonable care to notify the Trust promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the Trust.
E. Countrywide shall indemnify and hold the Trust harmless from and
against any and all claims, demands, losses, expenses, and liabilities (whether
with or without basis in fact or law) of any and every nature (including
reasonable attorneys' fees) which the Trust may sustain or incur or which may be
asserted against the Trust by any person arising out of or attributed to any
action taken or omitted to be taken by Countrywide as a result of Countrywide's
refusal or failure to comply with the terms of this Agreement, or from its bad
faith, gross negligence, or willful misconduct of Countrywide or any of its
employees and agents.
11. 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 a) by the Trust (1) 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 (2) by vote of a majority of the Trust's Board of Trustees
or a majority of the Trust's outstanding voting securities, and b) by
Countrywide.
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, prorated, 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, and otherwise subject to reimbursement hereunder. Termination of this
Agreement pursuant to this Section 11 shall be without the payment of any
penalty.
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 knowledgeable personnel in the
establishment of books, records and other data by such successor.
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12. 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.
13. 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 authorized 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.
14. 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.
15. 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 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.
16. 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
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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: Clearbrook Investment Trust
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
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 16. 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.
17. AMENDMENT.
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This Agreement may not be amended or modified except by a written
agreement executed by both parties.
18. 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.
19. 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.
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,
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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. Countrywide shall take all
reasonable steps to minimize service interruptions and have reasonable
contingency plans with appropriate parties to address any periods that such
interruptions continue beyond Countrywide's control.
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.
CLEARBROOK INVESTMENT TRUST
By:
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Its: President
COUNTRYWIDE FUND SERVICES, INC.
By:
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Its: President
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