Exhibit 8(a)
ADMINISTRATION AGREEMENT
AGREEMENT, made as of September 1, 2002 between THE MATTERHORN GROWTH FUND,
INC., a Maryland corporation (the "Fund"), and XXXXXXX PLACE FINANCIAL, a
California corporation (the "Administrator")
WITNESSETH
WHEREAS, the Fund is an open-end, non-diversified, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain Administrator to provide certain
administrative services in connection with the management of the Fund's
operations and the Administrator is willing to furnish such services;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
it is agreed between the Fund and Distributor as follows:
1. APPOINTMENT. The Fund hereby appoints the Administrator to provide
certain administrative services, hereunder enumerated, in connection with the
management if the Fund's operations for the period and on the terms set forth in
this Agreement. The Administrator accepts such appointments and agrees to comply
with all relevant provisions of the 1940 Act, applicable rules and regulations
thereunder, and other applicable law.
2. SERVING ON A CONTINUING BASIS. Subject to all overall supervision of the
Board of Directors of the Fund and Matterhorn Asset Management Corporation
(formerly MDB Asset Management Corporation) (the "Manager"), the Administrator
will perform the following services on a regular basis which would be daily,
weekly or as otherwise appropriate.
(A) Perform the services in Schedule I as attached; and
(B) Such additional services as may be agreed upon by the Fund and the
Administrator.
3. RESPONSIBILITY OF THE ADMINISTRATOR. The Administrator shall be under no
duty to take any action on behalf of the Fund except as set forth herein or as
may be agreed to by the Administrator in writing. In the performance of its
duties hereunder, the Administrator shall be obligated to exercise reasonable
care and diligence and to act in good faith and to use its best efforts. Without
limiting the generality if the foregoing or any other provision of the
Agreement, the Administrator shall not be liable for delays or errors or loss of
data occurring by reasonable circumstances beyond the Administrator's control.
1
4. RELIANCE UPON INSTRUCTIONS. The Fund agrees that the Administrator shall
be entitled to rely upon any restrictions, oral or written, actually received by
the Administrator from the Board of Directors of the Fund and shall incur on
liability to the Fund or the Fund's Manager in acting upon such oral or written
instructions, provided such instructions reasonably appear to have been received
from a person duly authorized by the Board of Directors of the Fund to give oral
or written instructions on behalf of the Fund.
5. CONFIDENTIALITY. The Administrator agrees on behalf of itself and its
employees to treat confidentially all records and other information relative to
the Fund and all prior, present or potential shareholders of the Fund, except
after prior notification to, and approval of release of information in writing,
the Fund, which approval shall not be unreasonably withheld where the
Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
6. EQUIPMENT FAILURES. In the event of equipment failures if the occurrence
of events beyond the Administrator's control which render the performance of the
Administrator's functions under this Agreement impossible, the Administrator
shall take reasonable steps to minimize service interruptions and is authorized
to engage the services of third parties (at the Administrator's expense) to
prevent or remedy such service interruptions.
7. COMPENSATION. As compensation for services rendered by the Administrator
during the term of this agreement, the Fund will pay to the Administrator a fee
at an annualized rate of 0.10% of the Fund's average daily net assets or
$22,500, whichever is greater. The fee is computed daily and payable monthly by
the fifth business day of the month.
8. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless the
Administrator from all taxes, filing fees, charges, expenses, assessments,
claims and liabilities (including without limitation) arising under the 1933
Act, the 1940 Act, any state or and foreign securities laws (all as amended from
time to time) and expenses, including (without limitation) reasonable attorney
fees and disbursements, arising directly or indirectly from all action or thing
which the Administrator takes or does or omits to take or do at the request at
the request of or in reliance upon the advice of the Board of Directors of the
Fund, provided, that the Administrator will not be indemnified against any
liability to the Fund of to shareholders of the Fund (or any expenses incident
to such liability) arising out of the Administrator's own willful misfeasance,
bad faith , gross negligence, or reckless disregard of its duties and
obligations under this Agreement. The administrator agrees to indemnify and hold
harmless, the Fund, and each of its Directors from all claims and liabilities
(including, without limitation, liabilities arising under the Securities Act of
1933, the Securities Exchange Act of 1934, the 1940 Act, and any state and
foreign securities laws, all as amended from time to time) and expenses
including (without limitation) reasonable attorneys fees and disbursements,
arising directly or indirectly from any action or thing which the Administrator
2
takes or does or omits to take or do which is in violation of this Agreement or
not in accordance with instructions properly given to the Administrator, or
arising out of the Administrator's own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement.
9. DURATION AND TERMINATION. This agreement shall continue until
termination by the Fund (through the Board of Directors of the Fund) or the
Administrator on 60 days written notice to the other. All notices and other
communications hereunder shall be in writing. This Agreement cannot be assigned
without the prior written consent of the other party hereto.
10. AMENDMENTS. This Agreement or any part hereof may be changed or waived
only by instrument in writing signed by the party against which enforcement of
such change or waiver is sought.
11. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the services to be
performed hereunder, and supersedes all prior agreements and understandings
relating to the subject matter hereof. 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. This
Agreement shall be deemed to be a contract made in Delaware and governed by
Delaware law. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
will not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first written
above.
THE MATTERHORN GROWTH FUND, INC.
By /s/
-----------------------------------------
President
XXXXXXX PLACE FINANCIAL
By /s/
-----------------------------------------
President
3
SCHEDULE I
XXXXXXX PLACE FINANCIAL ("BPF")
ADMINISTRATIVE SERVICES
BPF typically performs the following services on a regular basis, which would be
daily, weekly or as otherwise appropriate.
1. Prepare and coordinate reports and other materials to be supplied to
the Board of Directors of the Fund;
2. Prepare and/or supervise the preparation and filing of all securities
filings (i.e. N-SARs, 24f-2 notices, etc.), periodic financial
reports, prospectuses, statements of additional information, marketing
materials, tax returns, shareholder reports and other regulatory
reports or filings required of the Fund;
3. Coordinate the preparation, printing and mailing of all materials
(e.g. Annual Reports) required to be sent to shareholders;
4. Coordinate the preparation and payment of Fund related expenses;
5. Monitor and oversee the activities of the Fund's servicing agents
(i.e. transfer agent, custodian, fund accountants, etc.);
6. Review and adjust as necessary the fund's daily expense accruals;
7. Monitor daily, monthly and periodic compliance with respect to SEC
(40' Act), IRS and prospectus guidelines and restrictions;
8. Send periodic information (i.e. performance figures) to service
organizations that track investment company information; and
9. Perform such additional services as may be agreed upon by the Fund and
BPF.
4
