EXHIBIT 9(a).1
Administration Agreement between DEVCAP Trust and
Sunstone Financial Group, Inc.
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 4th day of November, 1997, by and
between DEVCAP Trust, a Massachusetts business trust (the "Trust"), and Sunstone
Financial Group, Inc., a Wisconsin corporation (the "Administrator").
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Act") and is authorized to
issue shares of beneficial ownership (the "Shares") in separate series with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Trust and the Administrator desire to enter into an
agreement pursuant to which the Administrator shall provide administration
services to such investment portfolios of the Trust as are listed on Schedule A
hereto and any additional investment portfolios the Trust and Administrator may
agree upon and include on Schedule A as such Schedule may be amended from time
to time (such investment portfolios and any additional investment portfolios are
individually referred to as a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Appointment
The Trust hereby appoints the Administrator as administrator of the Funds
for the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to render the services herein set forth, for
the compensation herein provided.
2. Services as Administrator
(a) Subject to the direction and control of the Trust's Board of Trustees
and utilizing information provided by the Trust and its agents, the
Administrator will: (1) provide office space, facilities, equipment and
personnel to carry out its services hereunder; (2) compile data for and prepare
with respect to the Funds timely Notices to the Securities and Exchange
Commission (the "Commission") required pursuant to Rule 24f-2 under the Act and
Semi-Annual Reports on Form N-SAR; (3) prepare the financial statements for the
Annual and Semi-Annual Reports required pursuant to Section 30(d) under the Act;
(4) assist the Trust's legal counsel in the preparation of the Registration
Statement for the Trust (on Form N-1A or any replacement therefor) and any
amendments thereto; (5) determine and periodically monitor each Fund's income
and expense accruals and cause all appropriate expenses to be paid from Trust
assets on proper authorization from the Trust; (6) assist in the acquisition of
the Trust's fidelity bond required by the Act, monitor the amount of the bond
and make the necessary Commission filings related thereto; (7) from time to time
as the Administrator deems appropriate, check each Fund's
compliance with the policies and limitations of each Fund relating to the
portfolio investments as set forth in the Prospectus and Statement of Additional
Information and monitor each Fund's status as a regulated investment company
under Subchapter M of the Internal Revenue Code of 1986, as amended (but these
functions shall not relieve the Trust's investment adviser and sub-advisers, if
any, of their primary day-to-day responsibility for assuring such compliance);
(8) maintain, and/or coordinate with the other service providers the maintenance
of, the accounts, books and other documents required pursuant to Rule 31a-1(a)
and (b) under the Act; (9) prepare and/or file documents with the states
necessary to maintain the Funds' securities registration in the states and in
the amounts identified by the Funds; (10) develop with legal counsel and
secretary of the Trust an agenda for each board meeting and, if requested by the
Trustees, attend board meetings and prepare minutes; (11) coordinate preparation
of other matters required to be reported to the board, including, without
limitation, details of Rule 12b-1 payments, codes of ethics compliance and
broker commissions; (12) prepare Form 1099s for directors and other fund
vendors; (13) calculate dividend and capital gains distributions subject to
review and approval by the Trust and its independent accountants; and (14)
generally assist in the Trust's administrative operations as mutually agreed to
by the parties. 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.
(b) The Trustees of the Trust shall cause the officers, adviser,
distributor, if any, legal counsel, independent accountants, custodian and
transfer agent for the Funds to cooperate with the Administrator and to provide
the Administrator, upon request, with such information, documents and advice
relating to the Funds and the Trust as is within the possession or knowledge of
such persons, in order to enable the Administrator to perform its duties
hereunder. In connection with its duties hereunder, the Administrator shall be
entitled to rely, and shall be held harmless by the Trust when acting in
reliance, upon the instruction, advice, information or any documents relating to
the Funds provided to the Administrator by an Authorized Person. Authorized
Person means any officer of the Fund and any other person duly authorized by the
Fund's Board of Directors to give oral and written instructions on behalf of the
Fund and listed on the Authorized Persons Appendix attached hereto and made a
part hereof or any amendment thereto as may be received by Sunstone. An
Authorized Person's scope of authority may be limited by the Fund by setting
forth limitation in the Authorized Person's Appendix. The Administrator shall be
entitled to rely on any document which it reasonably believes to be genuine and
to have been signed or presented by the proper party. Fees charged by such
persons shall be an expense of the Trust. The Administrator shall not be held to
have notice of any change of authority of any Authorized Person until receipt of
written notice thereof from the Trust.
(c) In compliance with the requirements of Rule 31a-3 under the Act, the
Administrator hereby agrees that all records that it maintains for the Trust are
the property of the Trust and further agrees to surrender promptly to the Trust
any of such records upon the Trust's request. Subject to the terms of Section 6,
the Administrator further agrees to preserve for the periods prescribed by Rule
31a-2 under the Act the records described in (a) above which are maintained by
the Administrator for the Trust.
(d) The Trust's Board of Trustees and the Funds' investment adviser have
and retain primary responsibility for all compliance matters relating to the
Funds including but not limited to compliance with the Investment Company Act of
1940, as amended, the Internal Revenue Code of 1986, as amended, and the
policies and limitations of each Fund relating to their portfolio investments as
set forth in the
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Prospectus and Statement of Additional Information. Sunstone's monitoring and
other functions hereunder shall not relieve the Board and the investment adviser
of their primary day-to-day responsibility for assuring such compliance.
3. Fees; Delegation; Expenses
(a) In consideration of the services rendered pursuant to this Agreement,
the Trust will pay the Administrator a fee, computed daily and payable monthly,
as provided in Schedule B hereto, plus out-of-pocket expenses. Out-of-pocket
expenses include, but are not limited to, travel, lodging and meals in
connection with travel on behalf of the Trust, programming and related expenses
(previously incurred or to be incurred by Administrator) in connection with
providing electronic transmission of data between the Administrator and the
Funds' other service providers, brokers, dealers and depositories, fees and
expenses of pricing services, and photocopying, postage, proof reading and
overnight delivery expenses. Fees shall be paid by each Fund at a rate that
would aggregate at least the applicable minimum fee for each Fund.
(b) For the purpose of determining fees payable to the Administrator, net
asset value shall be computed in accordance with the Trust's Prospectuses and
resolutions of the Trust's Board of Trustees. The fee for the period from the
day of the month this Agreement is entered into until the end of that month
shall be pro-rated according to the proportion which such period bears to the
full monthly period. Upon any termination of this Agreement before the end of
any month, the fee for such part of a month shall be pro-rated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement. Should the Trust be
liquidated, merged with or acquired by another fund or investment company, any
accrued fees shall be immediately payable. Such fee as is attributable to each
Fund shall be a separate charge to each Fund and shall be the several (and not
joint or joint and several) obligation of each such Fund.
(c) The Administrator will bear all expenses in connection with the
performance of its services under this Agreement except as otherwise provided
herein. Other costs and expenses to be incurred in the operation of the Funds,
including, but not limited to: taxes; interest; brokerage fees and commissions,
if any; salaries, fees and expenses of officers and Trustees; Commission fees
and state Blue Sky fees; advisory fees; charges of custodians, transfer agents,
dividend disbursing and accounting services agents; security pricing services;
insurance premiums; outside auditing and legal expenses; costs of organization
and maintenance of corporate existence; typesetting, printing, proofing and
mailing of prospectuses, statements of additional information, supplements,
notices and proxy materials for regulatory purposes and for distribution to
current shareholders; typesetting, printing, proofing and mailing and other
costs of shareholder reports; expenses incidental to holding meetings of the
Fund's shareholders and Trustees; and any extraordinary expenses; will be borne
by the Funds or their investment adviser. Expenses incurred for distribution of
fund shares, including the typesetting, printing, proofing and mailing of
prospectuses for persons who are not shareholders of the Trust, will be borne by
the Trust or its investment adviser, except for such expenses permitted to be
paid by the Trust under a distribution plan adopted in accordance with
applicable laws.
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4. Proprietary and Confidential Information
The Administrator agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records relative
to the Funds and prior, present or potential shareholders of the Trust (and
clients of said shareholders), and not to use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld, except that the Administrator may
disclose such information where the Administrator may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, when subject to governmental or
regulatory audit or investigation, or when so requested by the Trust. Records
and information which have become known to the public through no wrongful act of
the Administrator or any of its employees, agents or representatives shall not
be subject to this paragraph.
5. Limitation of Liability
(a) The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Funds in connection with the
matters to which this Agreement relates, except for a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Furthermore, the Administrator shall not be
liable for any action taken or omitted to be taken in accordance with
instructions received by the Administrator from an Authorized Person.
(b) The Administrator assumes no responsibility hereunder, and shall not
be liable, for any damage, loss of data, errors, failures, delay or any other
loss whatsoever caused by events beyond its reasonable control. The
Administrator will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond the
Administrator's control.
6. Term
(a) This Agreement shall become effective as with respect to each Fund
listed on Schedule A hereof as of the date hereof and, with respect to each Fund
not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed. This Agreement shall continue in
effect with respect to each Fund for a period of one year from the date hereof.
Thereafter, if not terminated as provided herein, this Agreement shall continue
automatically in effect as to each Fund for successive annual periods.
(b) This Agreement may be terminated at any time with respect to any one
or more particular Funds without penalty (i) upon mutual consent of the parties,
or (ii) by either party upon not less than sixty (60) days' written notice to
the other party (which notice may be waived by the party entitled to the
notice). The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by a written instrument
signed by the Administrator and the Trust.
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(c) Notwithstanding anything herein to the contrary, upon the termination
of this Agreement or the liquidation of a Fund or the Trust, the Administrator
shall deliver the records of the Fund(s) and/or Trust as the case may be to the
Trust or person(s) designated by the Trust and thereafter the Trust or its
designee shall be solely responsible for preserving the records for the periods
required by all applicable laws, rules and regulations. In addition, in the
event of termination of this Agreement, or the proposed liquidation or merger of
the Trust or a Fund(s), and the Trust requests the Administrator to provide
services in connection therewith, the Administrator shall provide such services
and be entitled to such compensation as the parties may mutually agree.
7. Non-Exclusivity
The services of the Administrator rendered to the Trust are not deemed to
be exclusive. The Administrator may render such services and any other services
to others, including other investment companies. The Trust recognizes that from
time to time directors, officers and employees of the Administrator may serve as
trustees, directors, officers and employees of other entities (including other
investment companies) and that the Administrator or its affiliates may enter
into investment advisory, transfer agency, distribution, marketing or other
agreements with such other entities.
8. Governing Law; Invalidity
This Agreement shall be governed by Wisconsin law (except as to Section 9
hereof which shall be construed in accordance with Massachusetts law). To the
extent that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the Act, the
latter shall control, and nothing herein shall be construed in a manner
inconsistent with the Act or any rule or order of the Commission thereunder. Any
provision of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Miscellaneous
This Agreement is executed by or on behalf of the Trust with respect to
each of the Funds and the obligations hereunder are not binding upon any of the
Trustees, officers or shareholders of the Trust individually but are binding
only upon the Funds to which such obligations pertain and the assets and
property of such Funds. The Trust's Certificate of Trust is on file with the
Secretary of State of Massachusetts.
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10. Backup Facilities
Sunstone shall maintain a disaster recovery plan and procedures including
provisions for emergency use of electronic data processing equipment, which is
reasonable in light of the services to be provided. Sunstone shall, at no
additional expense to the Fund take reasonable steps to minimize service
interruptions. Sunstone shall have no liability with respect to the loss of data
or service interruptions caused by equipment failure, provided it maintains such
plans and procedures.
11. Notices
Any notice required or to be permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return receipt requested, as
follows: Notice to the Administrator shall be sent to Sunstone Financial Group,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, and notice to the Trust shall be sent to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: President, DEVCAP Trust.
12. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original agreement but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
DEVCAP TRUST
(the "Trust")
By: /s/ ▇▇▇▇▇▇ ▇. St. Clair
------------------------
▇▇▇▇▇▇ ▇. St. Clair
President
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By: /s/ ▇▇▇▇▇▇ Alison
-----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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Schedule A
to the
Administration Agreement
by and between
DEVCAP Trust
and
Sunstone Financial Group, Inc.
Name of Funds
DEVCAP Shared Return Fund
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Schedule B
to the
Administration Agreement
by and between
DEVCAP Trust
and
Sunstone Financial Group, Inc.
Minimum
Fund Name Average Net Assets Annual Fees Annual Fee
--------- ------------------ ----------- ----------
DEVCAP Up to $50 Million 15.0 basis points $25,000 Year 1
Shared Return Fund $50 Million to $100 Million 8.0 basis points $30,000 Year 2
$100 Million to $150 Million 5.0 basis points $40,000 Year 3
Over $150 Million 3.0 basis points
In the event additional funds are added to this agreement, the parties shall
determine the fees applicable to such additional fund(s) which fees shall be
reflected in an amended and restated Schedule B to this Agreement. The above fee
schedule will be applied on a per portfolio basis in the event that additional
funds are subject to this agreement. The minimum annual fee is subject to an
automatic annual escalation of 6% after three years. Sunstone will notify the
Trust of each such escalation but no amendment of this Schedule B shall be
required. Fees shall be paid for each Fund at a rate that would aggregate at
least the applicable minimum fee for each Fund. The Trust shall also
pay/reimburse the Administrator's out-of-pocket expenses as described in the
Agreement. The foregoing fee schedule assumes a single class of shares for each
Fund.
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DEVCAP SHARED RETURN FUND
Authorized Persons Appendix
▇▇. ▇▇▇▇▇▇ ▇. St. Clair
President
DEVCAP Shared Return Fund
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
DEVCAP Shared Return Fund
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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