EXHIBIT 9.1
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
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THIS AGREEMENT is made as of this 29th day of October, 1996, by and between
The Purisima 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 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 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, in a timely manner: (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
1940 Act and Semi-Annual Reports on Form N-SAR; (3) 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; (4) prepare the financial statements for the
Annual and Semi-Annual Reports required pursuant to Section 30(d) under the 1940
Act; (5) 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; (6) determine and periodically monitor the Funds' income and
expense accruals and cause all appropriate expenses to be paid from Trust assets
on proper authorization from the Trust; (7) calculate daily net asset values and
income factors of the Funds, (8) maintain all general ledger accounts and
related subledgers; (9) perform security valuations; (10) 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;
(11) from time to time as the Administrator deems appropriate, check the Funds'
compliance with the policies and limitations of the Funds 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);
(12) 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; (13) prepare and/or file all documents
required to be filed with states to register and maintain the registration of
the Shares in the states and in the amounts identified by the Trust; (14)
develop with legal counsel and secretary of the Trust an agenda and related
materials and resolutions for each board and committee meeting and, if requested
by the Trustees, attend board meetings and prepare minutes; (15) 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; (16) prepare Form 1099s for Trustees and other fund
vendors; (17) calculate dividend and capital gains distributions subject to
review and approval by the Trust and its independent accountants; (18)
periodically oversee the activities of the Fund's transfer agent and custodian;
and (19) 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, investment adviser,
legal counsel, independent accountants and custodian for the Trust 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, and not withstanding anything herein to the contrary, the
Administrator shall be entitled to rely in good faith, and shall be held
harmless by the Trust when acting in reliance, upon the instruction, advice,
information or any documents relating to the Trust provided to the Administrator
by an "Authorized Person" of the Trust (as defined herein) or by any of the
aforementioned persons. Fees charged by such persons shall be an expense of the
Trust. 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. "Authorized Persons" of the Trust shall mean those individuals
identified as such in writing to the Administrator. The Administrator shall not
be held to have notice of any change of authority of any Authorized Person of
the Trust until receipt of written notice thereof from the Trust.
(c) In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Administrator hereby agrees that all records which 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 1940 Act the records described in (a) above
which are maintained by the Administrator for the Trust.
(d) It is understood that 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.
The Administrator shall identify to the Trust and the Board of Trustees any
such pricing service utilized on behalf of the Trust. The Administrator is
authorized to rely on the prices provided by such service(s) or by the Funds'
investment adviser or other authorized representative of the Trust, and shall
not be liable for losses to the Trust or its security holders as a result of its
reasonable and good faith reliance on the valuations provided by the approved
pricing service(s) or the representative.
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. The Trust shall
also pay the Administrator for organizational start-up services provided on
behalf of the Funds as specified in Schedule B. 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 of pricing services, and
photocopying, postage and overnight delivery expenses. Administrator shall
endeavor to provide advance notice to the Trust before incurring any out-of-
pocket expense, other than those identified in the preceding sentence, which
will exceed $5,000. Fees shall be paid by the Funds at a rate that would
aggregate at least the applicable minimum fee for the respective Funds.
(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 Trust,
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 in connection with the electronic
transmission of documents and information including electronic filings with the
Commission and the states; expenses incidental to holding meetings of the
Trust's shareholders and Trustees; and any extraordinary expenses; will be borne
by the Funds or their investment adviser. 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 Trust's investment adviser, except for such expenses permitted to be paid by
the Trust under a distribution plan adopted in accordance with applicable laws.
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 and other
information relative to the Trust and 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 and may not be withheld 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 with proper jurisdiction, when
subject to governmental or regulatory audit or investigation, or when so
requested by the Trust.
5. LIABILITY; INDEMNIFICATION; REPRESENTATIONS AND WARRANTIES
(a) The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust or 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 gross negligence in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Furthermore, notwithstanding
anything else herein to the contrary, 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 or other person identified in
Paragraph 2(b).
(b) The Administrator assumes no responsibility hereunder, and shall not be
liable, for any damage, loss of data, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control and that are not a result of
actions of the Administrator constituting its willful misfeasance, bad faith or
negligence. The Administrator will, however, take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Administrator's control.
(c) Each party represents to the other that all necessary proceedings
required by their respective charters have been taken to authorize them to enter
into and perform this Agreement. The Administrator represents that it is
currently in compliance, and will for the duration of this Agreement comply, in
all material respects, with all applicable laws and regulations governing its
performance of its duties under this Agreement. The Trust represents that it is
currently in compliance, and will for the duration of this Agreement comply, in
all material respects, with its Registration Statement and with all applicable
laws and regulations including those governing its registration and operation as
an investment company.
(d) The Administrator will hold the Trust harmless against any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) which are the result of Sunstone's willful misfeasance, bad
faith or negligence in the performance of its duties hereunder or its reckless
disregard by it of its obligations and duties under this Agreement.
(e) The Trust will hold the Administrator harmless against any and all
losses, claims damages, liabilities or expenses (including reasonable counsel
fees and expenses) not resulting from the Administrators' willful misfeasance,
bad faith or negligence in the performance of its duties hereunder or by
reckless disregard by it of its obligations and duties under this Agreement, and
harmless against any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from the
Administrator's reliance on instructions, advice, information or documents as
provided in section 2(b) of this Agreement.
6. 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 October 29, 1997 (the "Initial Term"). 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 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 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), that such other entities may include the name of the
Administrator as part of their name and that the Administrator or its affiliates
may enter into investment advisory or other agreements with such other entities.
8. GOVERNING LAW; INVALIDITY
This Agreement shall be governed by and construed in accordance with the
laws of the State of Wisconsin. 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 in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9. NOTICE OF DECLARATION OF TRUST
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 Delaware.
10. 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., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000, Attention Xxxxxx
X. Xxxxxxx, and notice to the Trust shall be sent to The Purisima Funds, 00000
Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000, Attention: Xxxxxxx X. Xxxxxx.
11. 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.
THE PURISIMA FUNDS
(the "Trust")
By: /s/ Xxxxxx Xxxxxxx
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President
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By: /s/ Xxxxxxx Xxxxxx
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President
SCHEDULE A
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
THE PURISIMA FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
NAME OF FUND
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PURISIMA TOTAL RETURN FUND
SCHEDULE B
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
THE PURISIMA FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
Intending to be legally bound, the undersigned hereby amend and restate Schedule
B to the aforesaid Agreement to include the following fees for the following
investment portfolios:
MINIMUM
NAME OF FUND ANNUAL FEES ANNUAL FEE
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Total Return Fund Up to $50 Million 22.0 basis points $75,000
$50 Million to $100 Million 15.0 basis points
Over $100 Million 7.0 basis points
The minimum annual fee is subject to an automatic annual escalation of 5%.
Sunstone will notify the Trust of each such escalation but no amendment of this
Schedule B shall be required. The Trust shall pay the Administrator $45,000
for its initial start-up services for the 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 Fund and a single class
of shares.
