Exhibit 9
ADMINISTRATION AGREEMENT
Agreement dated as of , 1995 by and between State Street Bank and Trust
Company, a Massachusetts trust company (the "Administrator"), and Lebenthal
Funds, Inc. (the "Fund").
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund desires to retain the Administrator to furnish
certain administrative services to the Fund, and the Administrator is willing to
furnish such services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Appointment of Administrator
The Fund hereby appoints the Administrator to act as administrator with
respect to the Fund for purposes of providing certain administrative services
for the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to render the services stated herein.
The Fund will initially consist of the portfolio(s) and/or class(es) of
shares (each an "Investment Fund") listed in Schedule A to this Agreement. In
the event that the Fund establishes one or more additional Investment Funds with
respect to which it wishes to retain the Administrator to act as administrator
hereunder, the Fund shall notify the Administrator in writing. Upon written
acceptance by the Administrator, such Investment Fund shall become subject to
the provisions of this Agreement to the same extent as the existing Investment
Funds, except to the extent that such provisions (including those relating to
the compensation and expenses payable by the Fund and its Investment Funds) may
be modified with respect to each additional Investment Fund in writing by the
Fund and the Administrator at the time of the addition of the Investment Fund.
2. Delivery of Documents
The Fund will promptly deliver to the Administrator copies of each of
the following documents and all future amendments and supplements, if any:
a. The Fund's charter document and by-laws;
b. The Fund's currently effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act and the
Fund's Prospectus(es) and Statement(s) of Additional Information relating to all
Investment Funds and all amendments and supplements thereto as in effect from
time to time;
c. Certified copies of the resolutions of the Board of Directors of the
Fund (the "Board") authorizing (1) the Fund to enter into this Agreement and (2)
certain individuals on behalf of the Fund to (a) give instructions to the
Administrator pursuant to this Agreement and (b) sign checks and pay expenses;
d. A copy of the investment advisory agreement between the Fund and its
investment adviser; and
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e. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem necessary or appropriate
in the proper performance of its duties.
3. Representation and Warranties of the Administrator
The Administrator represents and warrants to the Fund that:
a. It is a Massachusetts trust company, duly organized, existing and in
good standing under the laws of The Commonwealth of Massachusetts;
b. It has the corporate power and authority to carry on its business in
The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to perform its duties
and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material breach
or be in material conflict with any other agreement or obligation of the
Administrator or any law or regulation applicable to it.
4. Representations and Warranties of the Fund
The Fund represents and warrants to the Administrator that:
a. It is a corporation, duly organized and existing and in good
standing under the laws of ;
b. It has the corporate power and authority under applicable laws and
by its charter and by-laws to enter into and perform this Agreement;
c. All requisite proceedings have been taken to authorize it to enter
into and perform this Agreement;
d. It is an investment company properly registered under the 1940 Act;
e. A registration statement under the 1933 Act and the 1940 Act has
been filed and will be effective and remain effective during the term of this
Agreement. The Fund also warrants to the Administrator that as of the effective
date of this Agreement, all necessary filings under the securities laws of the
states in which the Fund offers or sells its shares have been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties and
obligations under this Agreement;
g. Its entrance into this Agreement shall not cause a material breach
or be in material conflict with any other agreement or obligation of the Fund or
any law or regulation applicable to it; and
h. As of the close of business on the date of this Agreement, the Fund
is authorized to issue shares of capital stock, and it will initially offer
shares, in the authorized amounts as set forth in Schedule A to this Agreement.
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5. Administration Services
The Administrator shall provide the following services, in each case,
subject to the control, supervision and direction of the Fund and the review and
comment by the Fund's auditors and legal counsel and in accordance with
procedures which may be established from time to time between the Fund and the
Administrator:
a. Oversee the determination and publication of the Fund's net asset
value in accordance with the Fund's policy as adopted from time to time by the
Board;
b. Oversee the maintenance by the Fund's custodian of certain books and
records of the Fund as required under Rule 31a-1(b) of the 1940 Act;
c. Prepare the Fund's federal, state and local income tax returns for
review by the Fund's independent accountants and filing by the Fund's treasurer;
d. Review calculation, submit for approval by officers of the Fund and
arrange for payment of the Fund's expenses;
e. Prepare for review and approval by officers of the Fund financial
information for the Fund's semi-annual and annual reports, proxy statements and
other communications required or otherwise to be sent to Fund shareholders, and
arrange for the printing and dissemination of such reports and communications to
shareholders;
f. Prepare for review by an officer of and legal counsel for the Fund
the Fund's periodic financial reports required to be filed with the Securities
and Exchange Commission ("SEC") on Form N-SAR and financial information required
by Form N-1A and such other reports, forms or filings as may be mutually agreed
upon;
g. Prepare reports relating to the business and affairs of the Fund as
may be mutually agreed upon and not otherwise prepared by the Fund's investment
adviser, custodian, legal counsel or independent accountants;
h. Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may reasonably request;
i. Make such reports and recommendations to the Board concerning the
performance and fees of the Fund's custodian and transfer and dividend
disbursing agent ("Transfer Agent") as the Board may reasonably request or deems
appropriate;
j. Oversee and review calculations of fees paid to the Fund's
investment adviser, custodian and Transfer Agent;
k. Consult with the Fund's officers, independent accountants, legal
counsel, custodian and Transfer Agent in establishing the accounting policies of
the Fund;
l. Review implementation of any dividend reinvestment programs
authorized by the Board;
m. Respond to, or refer to the Fund's officers or Transfer Agent,
shareholder inquiries relating to the Fund;
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n. Provide periodic testing of portfolios to assist the Fund's
investment adviser in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the 1940 Act and Fund prospectus
limitations as may be mutually agreed upon;
o. Subject to review and comment by the fund's legal counsel, prepare
and file with the SEC Rule 24f-2 notices; and
p. Prepare and file state registrations of the Fund's securities
pursuant to the specific instructions of the Fund and as detailed in Schedule C
to this Agreement.
The Administrator shall provide the office facilities and the personnel
required by it to perform the services contemplated herein.
6. Fees; Expenses; Expense Reimbursement
The Administrator shall receive from the Fund such compensation for the
Administrator's services provided pursuant to this Agreement as may be agreed to
from time to time in a written fee schedule approved by the parties and
initially set forth in Schedule B to this Agreement. The fees are accrued daily
and billed monthly and shall be due and payable upon receipt of the invoice.
Upon the termination of this Agreement before the end of any month, the fee for
the part of the month before such termination shall be prorated according to the
proportion which such part bears to the full monthly period and shall be payable
upon the date of termination of this Agreement. In addition, the Fund shall
reimburse the Administrator for its out-of-pocket costs incurred in connection
with this Agreement.
The Fund agrees promptly to reimburse the Administrator for any
equipment and supplies specially ordered by or for the Fund through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Fund's behalf at the Fund's request or with
the Fund's consent.
The Fund will bear all expenses that are incurred in its operation and
not specifically assumed by the Administrator. Expenses to be borne by the Fund,
include, but are not limited to: organizational expenses; cost of services of
independent accountants and outside legal and tax counsel (including such
counsel's review of the Fund's registration statement, proxy materials, federal
and state tax qualification as a regulated investment company and other reports
and materials prepared by the Administrator under this Agreement); cost of any
services contracted for by the Fund directly from parties other than the
Administrator; cost of trading operations and brokerage fees, commissions and
transfer taxes in connection with the purchase and sale of securities for the
Fund; investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings of
shareholders including, but not limited to, legal and accounting fees, proxy
filing fees and the costs of preparation, printing and mailing of any proxy
materials; costs incidental to Board meetings, including fees and expenses of
Board members; the salary and expenses of any officer, director\trustee or
employee of the Fund; costs incidental to the preparation, printing and
distribution of the Fund's registration statements and any amendments thereto
and shareholder reports; cost of typesetting and printing of prospectuses; cost
of preparation and filing of the Fund's tax returns, Form N-1A or N-2 and Form
N-SAR, and all notices, registrations and amendments associated with applicable
federal and state tax and securities laws; all applicable registration fees and
filing fees required under federal and state securities laws; fidelity bond and
directors' and officers' liability insurance; and cost of independent pricing
services used in computing the Fund's net asset value.
The Administrator is authorized to and may employ or associate with
such person or persons as the Administrator may deem desirable to assist it in
performing its duties under this Agreement; provided,however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator
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shall be as fully responsible to the Fund for the acts and omissions of any such
person or persons as it is for its own acts and omissions.
7. Instructions and Advice
At any time, the Administrator may apply to any officer of the Fund for
instructions and may consult with its own legal counsel or outside counsel for
the Fund or the independent accountants for the Fund at the expense of the Fund,
with respect to any matter arising in connection with the services to be
performed by the Administrator under this Agreement. The Administrator shall not
be liable, and shall be indemnified by the Fund, for any action taken or omitted
by it in good faith in reliance upon any such instructions or advice or upon any
paper or document believed by it to be genuine and to have been signed by the
proper person or persons. The Administrator shall not be held to have notice of
any change of authority of any person until receipt of written notice thereof
from the Fund. Nothing in this paragraph shall be construed as imposing upon the
Administrator any obligation to seek such instructions or advice, or to act in
accordance with such advice when received.
8. Limitation of Liability and Indemnification
The Administrator shall be responsible for the performance of only such
duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Administrator shall have
no liability for any error of judgement or mistake of law or for any loss or
damage resulting from the performance or nonperformance of its duties hereunder
unless solely caused by or resulting from the gross negligence or willful
misconduct of the Administrator, its officers or employees. The Administrator
shall not be liable for any special, indirect, incidental, or consequential
damages of any kind whatsoever (including, without limitation, attorneys' fees)
under any provision of this Agreement or for any such damages arising out of any
act or failure to act hereunder. In any event, the Administrator's liability
under this Agreement shall be limited to its total annual compensation earned
and fees paid hereunder during the preceding twelve months for any liability or
loss suffered by the Fund including, but not limited to, any liability relating
to qualification of the Fund as a regulated investment company or any liability
relating to the Fund's compliance with any federal or state tax or securities
statute, regulation or ruling.
The Administrator shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its control, including
without limitation, work stoppage, power or other mechanical failure, computer
virus, natural disaster, governmental action or communication disruption, nor
shall any such failure or delay give the Fund the right to terminate this
Agreement.
The Fund shall indemnify and hold the Administrator harmless from all
loss, cost, damage and expense, including reasonable fees and expenses for
counsel, incurred by the Administrator resulting from any claim, demand, action
or suit in connection with the Administrator's acceptance of this Agreement, any
action or omission by it in the performance of its duties hereunder, or as a
result of acting upon any instructions reasonably believed by it to have been
duly authorized by the Fund, provided that this indemnification shall not apply
to actions or omissions of the Administrator, its officers or employees in cases
of its or their own gross negligence or willful misconduct.
The Fund will be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any liability subject to the indemnification provided above. In the
event the Fund elects to assume the defense of any such suit and retain counsel,
the Administrator or any of its affiliated persons, named as defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Fund shall have specifically
authorized the retaining of such
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counsel or (ii) the Administrator shall have determined in good faith that the
retention of such counsel is required as a result of a conflict of interest.
The indemnification contained herein shall survive the termination of
this Agreement.
9. Confidentiality
The Administrator agrees that, except as otherwise required by law or
in connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential all records and information in its
possession relating to the Fund or its shareholders or shareholder accounts and
will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. Compliance with Governmental Rules and Regulations; Records
The Fund assumes full responsibility for complying with all securities,
tax, commodities and other laws, rules and regulations applicable to it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Administrator agrees that all records which it maintains for the Fund shall
at all times remain the property of the Fund, shall be readily accessible during
normal business hours, and shall be promptly surrendered upon the termination of
the Agreement or otherwise on written request. The Administrator further agrees
that all records which it maintains for the Fund pursuant to Rule 31a-1 under
the 1940 Act will be preserved for the periods prescribed by Rule 31a-2 under
the 1940 Act unless any such records are earlier surrendered as provided above.
Records shall be surrendered in usable machine-readable form.
11. Services Not Exclusive
The services of the Administrator to the Fund are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Fund from
time to time, have no authority to act or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
12. Term, Termination and Amendment
This Agreement shall become effective on December 1, 1995. The
Agreement shall remain in effect for a period of one year from the effective
date, and shall automatically continue in effect thereafter with respect to the
Fund unless terminated in writing by either party at the end of such period or
thereafter on sixty (60) days' prior written notice given by either party to the
other party. Termination of this Agreement with respect to any given Investment
Fund shall in no way affect the continued validity of this Agreement with
respect to any other Investment Fund. Upon termination of this Agreement, the
Fund shall pay to the Administrator such compensation and any reimbursable
expenses as may be due under the terms hereof as of the date of such
termination, including reasonable out-of-pocket expenses associated with such
termination. This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto.
13. Notices
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Fund: ________________________________ , Attn: ______________, fax: ; if to the
Administrator: State Street Bank and Trust Company, 0000 Xxxxxxxx Xxxxx,
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North Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, Vice President and
Senior Counsel, fax: (000) 000-0000.
14. Non-Assignability
This Agreement shall not be assigned by either party hereto without the
prior consent in writing of the other party, except that the Administrator may
assign this Agreement to a successor of all or a substantial portion of its
business, or to a party controlling, controlled by or under common control with
the Administrator.
15. Successors
This Agreement shall be binding on and shall inure to the benefit of
the Fund and the Administrator and their respective successors and permitted
assigns.
16. Entire Agreement
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. Waiver
The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver must be in writing signed by
the waiving party.
18. Severability
If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
19. Governing Law
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
LEBENTHAL FUNDS, INC.
By: __________________________
Name: ________________________
Title: _______________________
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STATE STREET BANK AND TRUST COMPANY
By: __________________________
Name: ________________________
Title: _______________________
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ADMINISTRATION AGREEMENT
LEBENTHAL FUNDS, INC.
SCHEDULE A
Listing of Investment Funds and Authorized Shares
Investment Fund Authorized Shares
New York Municipal Bond Fund
New Jersey Municipal Bond Fund
Taxable Municipal Bond Fund
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ADMINISTRATION AGREEMENT
LEBENTHAL FUNDS, INC.
SCHEDULE B
Fees and Expenses
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ADMINISTRATION AGREEMENT
LEBENTHAL FUNDS, INC.
SCHEDULE C
Registration of Fund Shares
with State Securities Administrators
At the specific direction of the Fund, the Administrator will prepare required
documentation and register Fund shares in accordance with the securities laws of
each jurisdiction in which Fund shares are to be offered or sold pursuant to
instructions given to the Administrator by the Fund.
The Fund shall be solely responsible for the determination (i) of those
jurisdictions in which Fund shares are to be registered and (ii) the number of
Fund shares to be registered in each such jurisdiction. In the event that the
Administrator becomes aware of (a) the sale of Fund shares in a jurisdiction in
which Fund shares are not registered for offer and sale or (b) the sale of Fund
shares in excess of the number of Fund shares registered in such jurisdiction,
the Administrator shall report such information to the Fund, and it shall be the
Fund's responsibility to determine appropriate corrective action and instruct
the Administrator with respect thereto.
The registration services shall consist of the following:
1. Filing of Fund's Application to Register Securities and
amendments, if directed by the Fund;
2. Filing of amendments to the Fund's registration statement;
3. Filing Fund sales reports and advertising literature where
required;
4. Payment at the expense of the Fund of all Fund state
registration and filing fees;
5. Filing the Prospectuses and Statements of Additional
Information and any amendments or supplements thereto;
6. Filing of annual reports and proxy statements where required;
and
7. The performance of such additional services as the
Administrator and the Fund may agree upon in writing.
Unless otherwise specified in writing by the Administrator, registration
services by the Administrator shall not include determining the availability of
exemptions under a jurisdiction's blue sky law. Any such determination shall be
made by the Fund or its legal counsel. In connection with the services described
herein, the Fund shall issue in favor of the Administrator a power of attorney
to register Fund shares on behalf of the Fund, which power of attorney shall be
substantially in the form of Exhibit I attached hereto.
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of , 199 that the undersigned LEBENTHAL
FUNDS, INC. with principal offices at (individually the "Fund") makes,
constitutes, and appoints STATE STREET BANK AND TRUST COMPANY (the
"Administrator") with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were itself
acting, the following:
1. REGISTRATION OF FUND SHARES. The power to register shares of the Fund in each
jurisdiction in which Fund shares are offered or sold and in connection
therewith the power to prepare, execute, and deliver and file any and all Fund
applications, including without limitation, applications to register shares,
consents, including consents to service of process, reports, including without
limitation, all periodic reports, claims for exemption, or other documents and
instruments now or hereafter required or appropriate in the judgement of the
Administrator in connection with the registration of Fund shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney, individuals
holding the titles of Officer, Blue Sky Manager, or Senior Blue Sky
Administrator at the Administrator shall have authority to act on behalf of the
Fund with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Administrator of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Administrator as or otherwise authorize the Administrator to
act as an officer, director or employee of the Fund.
IN WITNESS WHEREOF, the Fund has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
LEBENTHAL FUNDS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
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