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EXHIBIT 99.h-1
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of this 16th day of February, 2000, by and
between Lend Lease Funds, a Delaware 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 "1940 Act") and is authorized to
issue shares of beneficial interests (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 and
fund accounting 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 and fund
accountant 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 provide the services listed on Schedule B hereto. The duties
of the Administrator shall be confined to those expressly set forth therein, 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, investment
adviser, legal counsel, independent accountants, transfer agent, custodian and
other service providers for the Funds to cooperate with the Administrator and to
provide the Administrator with such information, documents and advice relating
to the Funds and the Trust as requested by the Administrator, 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 (without investigation or
verification) upon the instruction, advice, information or any documents
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relating to the Funds or the Trust provided to the Administrator by an officer
or representative of the Funds or by any of the aforementioned persons. The
Administrator shall be entitled to rely on any document that 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 officer,
agent, representative or employee of the Trust until receipt of written notice
thereof from the Trust.
(c) To the extent required by Rule 31a-3 under the 1940 Act, the
Administrator hereby agrees that all records which it maintains for the Trust
pursuant to its duties hereunder 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, and where applicable, the
Administrator further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records described in Schedule B which are
maintained by the Administrator for the Trust.
(d) In determining security valuations, the Administrator employs one or
more pricing services to determine valuations of portfolio securities for
purposes of calculating net asset values of the Funds provided the use of each
such service has been approved by the Board of Trustees and such use is
consistent with such security valuation procedures as may be in effect from time
to time for the Trust. The Administrator shall identify to the Trust and the
Board of Trustees any such pricing service(s) utilized on behalf of the Trust
subject to compliance with such securities valuation procedures as may be in
effect from time to time and subject to the supervision of the Board of
Trustees, the Administrator is authorized to rely on the prices provided by such
service(s) or by the Funds' investment adviser(s) or other authorized
representatives of the Funds, and shall not be liable for losses to the Trust,
its securityholders or otherwise as a result of its reliance on the valuations
provided by the approved pricing service(s) or representatives or its reliance
on security valuation procedures established by the Trust.
(e) 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 1940 Act, the Internal
Revenue Code of 1986, as amended (the "Code"), and the policies and limitations
of each Fund relating to the portfolio investments as set forth in the
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,
plus out-of-pocket expenses, each as provided in Schedule C hereto. 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 current
Prospectuses, Statements of Additional Information, the Trust's Declaration of
Trust, as amended, and the 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 that such
period bears to the full monthly period. Upon
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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.
(c) The Administrator will bear all expenses incurred by it in connection
with the performance of its services under Section 2, except as otherwise
provided herein. The Administrator shall not be required to pay or finance any
costs and expenses incurred in the operation of the Funds, including, but not
limited to: taxes; interest; brokerage fees and commissions; salaries, fees and
expenses of officers and Trustees (except in the case of Trustees and officers
who are employees of the Administrator, their salaries and benefits as employees
of the Administrator); Commission fees and state Blue Sky fees; advisory fees;
charges of custodians, transfer agents, dividend disbursing and accounting
services agents and other service providers; security pricing services;
insurance premiums; outside auditing and legal expenses; costs of organization
and maintenance of corporate existence; taxes and fees payable to federal, state
and other governmental agencies; preparation, 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; preparation, typesetting, printing, proofing and mailing
and other costs of shareholder reports; expenses in connection with the
electronic transmission of documents and information including electronic
filings with the Securities and Exchange Commission (the "Commission") and the
states; research and statistical data services; expenses incidental to holding
meetings of the Fund's shareholders and Trustees; fees and expenses associated
with internet, e-mail and other related activities; and extraordinary expenses.
Expenses incurred for distribution of shares, including the typesetting,
printing, proofing and mailing of prospectuses for persons who are not
shareholders of the Trust, will be borne by the Funds' investment adviser,
except for such expenses permitted to be paid by the Trust under a distribution
plan adopted in accordance with applicable laws. Administrator shall not be
required to pay any Blue Sky fees unless and until it has received the amount of
such fees from the Trust.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION
The Administrator agrees on behalf of itself, its employees and
representatives to treat confidentially and as proprietary information of the
Trust all records relative to the Funds' shareholders, and not to use such
information for any purpose other than performance of its responsibilities and
duties hereunder or exercising its rights hereunder. The Administrator agrees on
behalf of itself, its employees and its representatives, to treat confidentially
and as proprietary information, information relating to the Trust and its
activities, the Trustees, Fund shareholders, and the Trust's other service
providers acquired in the course of negotiating and performing this Agreement,
and not to use such information for any purpose other than performance of its
responsibilities and duties hereunder. In the case of any request or demand for
the inspection or disclosure of such information by another party, the
Administrator shall notify the Trust and follow the Trust's instructions as to
permitting or refusing such inspection or disclosure; provided, however, the
Administrator may permit the inspection or make such disclosures without the
approval of the Trust to any person in any case where it is advised by its
counsel that it may be exposed to potential liability, loss or damage resulting
from or relating to the failure to do so (the costs of counsel in considering
the matter to be borne by the Trust). Notwithstanding anything herein to the
contrary, the Administrator may disclose that the Trust has instructed it not to
permit the inspection
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or make the disclosures or otherwise limited or restricted its ability to do so.
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, and information which was already in the possession of the
Administrator prior to the receipt thereof shall not be subject to this
paragraph.
5. USE OF TRUST AND FUND NAMES
The Administrator shall not use the name of the Trust or any Fund (other
than for use in connection with performing its duties under the Agreement) in a
manner not approved by the Trust prior thereto in writing; provided, however,
that the approval of the Trust shall not be required for the use of the Trust's
name or the name of any Fund in connection with performing its duties and
obligations or exercising its rights under this Agreement or which is required
by the Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority, provided, further, that in no
event shall such approval be unreasonably withheld or delayed and that the
foregoing shall not limit the ability of the Administrator or its affiliates to
use Trust and Fund names pursuant to any agreement among them and the Trust.
6. 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 the
Administrator's willful misfeasance, bad faith or negligence 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 written or oral
instructions received by the Administrator from an officer or representative of
the Trust.
(b) The Administrator assumes no responsibility hereunder, and shall not
be liable, for any default, damage, loss of data, errors, 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 its
control.
(c) In no event and under no circumstances shall the Administrator, its
affiliates or any of its or their officers, directors, members, agents or
employees be liable to anyone, including, without limitation, the other party,
under any theory of tort, contract, strict liability or other legal or equitable
theory for lost profits, exemplary, punitive, special, indirect or consequential
damages for any act or failure to act under any provision of this Agreement
regardless of whether such damages were foreseeable and even if advised of the
possibility thereof.
7. TERM
(a) This Agreement shall become effective 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 until February 16, 2002 (the "Initial Term").
Thereafter, if
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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 with respect to any one or more
particular Funds without penalty after the Initial Term (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.
(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 at the Trust's cost and expense, 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.
8. 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 other agreements with such other entities.
9. GOVERNING LAW; INVALIDITY
This Agreement shall be governed by Wisconsin law, excluding the laws on
conflicts of laws. 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 1940 Act, the latter shall control, and nothing herein shall
be construed in a manner inconsistent with the 1940 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 without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the parties.
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10. NOTICES
Any notice required or 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., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000, Attention:
Xxxxxx X. Xxxxxxx, with a copy to General Counsel, and notice to the Trust shall
be sent to Lend Lease Funds, c/o Lend Lease Xxxxx Real Estate Securities, LLC,
c/o Lend Lease Xxxxx Real Estate Securities, LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000, Attention: President.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement of the parties hereto.
12. TRUST LIMITATIONS
This Agreement is executed by 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 Fund to
which such obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assets of one Fund shall not be liable for the obligations of
another Fund.
13. 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.
LEND LEASE FUNDS
(the "Trust")
By:
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President
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By:
--------------------------------------------
President
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SCHEDULE A
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
LEND LEASE FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
NAME OF FUNDS
Lend Lease U.S. Real Estate Securities Fund
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SCHEDULE B
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
LEND LEASE FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
SERVICES
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:
- provide office space, facilities, equipment and personnel to carry out its
services hereunder;
- compile data for, prepare and file with respect to the Funds timely Notices
to the Securities and Exchange Commission (the "Commission") required
pursuant to Rule 24f-2 under the 1940 Act and Semi-Annual Reports on Form
N-SAR;
- assist in the preparation for execution by the Trust and file all federal
income and excise tax returns and state income tax returns (and such other
required tax filings as may be agreed to by the parties) other than those
required to be made by the Trust's custodian or transfer agent, subject to
review and approval of the Trust and the Trust's independent accountants;
- prepare the financial statements for the Annual and Semi-Annual Reports
required pursuant to Section 30(d) under the 1940 Act;
- prepare initial drafts of the Trust's Registration Statement on Form N-1A,
and thereafter provide financial and Fund performance information for
inclusion in Post-Effective Amendments to the Registration Statement for
the Trust;
- 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;
- calculate daily net asset values and income factors of each Fund;
- maintain all general ledger accounts and related subledgers;
- perform security valuations using pricing services or information provided
by the investment adviser or sub-adviser;
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- assist in the acquisition of the Trust's fidelity bond required by the
1940 Act, monitor the amount of the bond and make the necessary Commission
filings related thereto;
- 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);
- 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 1940 Act;
- prepare and/or file state securities registration compliance filings, with
the advice of the Trust's legal counsel, in accordance with instructions
from the Trust, which instructions will include the states to qualify in,
the amounts of Shares to initially and subsequently qualify and the warning
threshold to be maintained;
- develop with legal counsel and the secretary of the Trust an agenda for
each board meeting and, if requested by the Trustees, attend board
meetings, prepare minutes and provide reports relating to the
Adminstrator's duties and its performance under this Agreement;
- prepare Form 1099s for Trustees and other fund vendors;
- calculate dividend and capital gains distributions subject to review and
approval by the Trust and its independent accountants; and
- 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.
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SCHEDULE C
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
LEND LEASE FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
ASSET BASED FEES
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NAME OF FUND AVERAGE NET ASSETS BASIS POINTS MINIMUM
------------ ------------------ ------------ ANNUAL FEE
------------------------------- -------------------------------------- ----------------------- ----------------------
Lend Lease U.S. Real Estate Up to $50 Million 17.0 $68,750
Securities Fund
------------------------------- -------------------------------------- ----------------------- ----------------------
$50 Million to $100 million 9.0
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$100 Million to $250 Million 8.0
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$250 Million to $500 Million 5.0
------------------------------- -------------------------------------- ----------------------- ----------------------
Over $500 Million 3.0
------------------------------- -------------------------------------- ----------------------- ----------------------
------------------------------- -------------------------------------- ----------------------- ----------------------
The minimum annual fee is subject to an annual escalation of five percent (5%),
which escalation shall be effective commencing one year from the effective date
of each Fund and the corresponding date each year thereafter. No amendment of
this Schedule B shall be required with each escalation. The foregoing fee
schedule assumes two classes of shares for each Fund and a fiscal year of
January 31. Additional fees shall apply when adding any additional Fund(s)
and/or classes including compensation for the Administrator's services in
connection with the organization and registration of the new Fund(s) or classes.
The Administrator shall provide such services and be entitled to such
compensation as the parties may mutually agree in writing.
There shall be a 25% reduction of the minimum annual fee until August 16, 2000,
and a 10% reduction of the minimum annual fee for the six-month period ending
February 16, 2001, until the earlier of 12 months or the Fund's assets reach $25
million in total assets.
OUT-OF-POCKET AND OTHER RELATED EXPENSES
The Trust shall also pay/reimburse the Administrator's out-of-pocket and other
expenses actually incurred in connection with the performance of its duties
hereunder. Out-of-pocket expenses include, but are not limited to, those for
travel, lodging and meals related to attending Board meetings and other travel
requested by 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, fees of research services including Lexis/Nexis, Morningstar and
Lipper,
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NASDAQ and other service interface fees, XXXXX related fees, long distance
telephone charges, and photocopying, faxes, postage and overnight delivery
expenses. Out-of-pocket expenses do not include salaries and benefits or the
Adminstrator's employees.
XXXXX FILING PRODUCTION MANAGEMENT FEES
Annual Registration Statements (e.g., 485) $1,000
Follow-up filings to Annual Registration Statements, $850
excluding 497J (see below)
Annual and Semiannual Reports (N30D) $650
Quarterly Reports (N30B-2) $400
Notice to Accompany SEC Registration Fees (24f-2) $300
Certification of No Change to Prospectus and/or SAI (497J) $300
Certificate of Accounting of Securities (N17f-2) $300
Correspondence $300
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