Exhibit 9 under Form N-1A
Exhibit 10 under Item 601/Reg. X-X
XXXXXXXXX FUNDS
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement is made as of this 12th day of July,
1995, between Xxxxxxxxx Funds, a Massachusetts business trust (herein called the
"Fund"), and Federated Administrative Services, a Delaware business trust
(herein called "FAS").
WHEREAS, the Fund is a Massachusetts business trust consisting of one or
more portfolios, which operates as an open-end management investment company and
will so register under the Investment Company Act of 1940; and
WHEREAS, the Fund desires to retain FAS as its Administrator to provide it
with Administrative Services (as herein defined), and FAS is willing to render
such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto agree as follows:
1. Appointment of Administrator. The Fund hereby appoints FAS as
Administrator of the Fund on the terms and conditions set forth in this
Agreement; and FAS hereby accepts such appointment and agrees to perform the
services and duties set forth in Section 2 of this Agreement in consideration of
the compensation provided for in Section 4 hereof.
2. Services and Duties. As Administrator, and subject to the supervision and
control of the Fund's Board of Trustees, FAS will provide facilities, equipment,
and personnel to carry out the following administrative services for operation
of the business and affairs of the Fund and each of its portfolios:
(a) prepare, file, and maintain the Fund's governing documents and any
amendments thereto, including the Declaration of Trust (which has
already been prepared and filed), the By-laws and minutes of
meetings of Trustees and shareholders;
(b) prepare and file with the Securities and Exchange Commission and the
appropriate state securities authorities the registration statements
for the Fund and the Fund's shares and all amendments thereto,
reports to regulatory authorities and shareholders, prospectuses,
proxy statements, and such other documents all as may be necessary
to enable the Fund to make a continuous offering of its shares;
(c) prepare, negotiate, and administer contracts on behalf of the Fund
with, among others, the Fund's investment adviser, distributor,
custodian, and transfer agent;
(d) supervise the Fund's custodian in the maintenance of the Fund's
general ledger and in the preparation of the Fund's financial
statements, including oversight of expense accruals and payments, of
the determination of the net asset value of the Fund and of the
declaration and payment of dividends and other distributions to
shareholders;
(e) calculate performance data of the Fund for dissemination to
information services covering the investment company industry;
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(f) prepare and file the Fund's tax returns;
(g) examine and review the operations of the Fund's custodian and
transfer agent;
(h) coordinate the layout and printing of publicly disseminated
prospectuses and reports;
(i) perform internal audit examinations in accordance with a charter to
be adopted by FAS and the Fund;
(j) assist with the design, development, and operation of the Fund;
(k) provide individuals reasonably acceptable to the Fund's Board of
Trustees for nomination, appointment, or election as officers of the
Fund, who will be responsible for the management of certain of the
Fund's affairs as determined by the Fund's Board of Trustees; and
(l) consult with the Fund and its Board of Trustees on matters
concerning the Fund and its affairs.
The foregoing, along with any additional services that FAS shall agree in
writing to perform for the Fund hereunder, shall hereafter be referred to as
"Administrative Services." Administrative Services shall not include any
duties, functions, or services to be performed for the Fund by the Fund's
investment adviser, distributor, custodian, or transfer agent pursuant to their
respective agreements with the Fund.
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3. Expenses. FAS shall be responsible for expenses incurred in providing
office space, equipment, and personnel as may be necessary or convenient to
provide the Administrative Services to the Fund, including the compensation of
FAS employees who serve as Trustees or officers of the Fund. The Fund shall be
responsible for all other expenses incurred by FAS on behalf of the Fund,
including without limitation postage and courier expenses, printing expenses,
travel expenses, registration fees, filing fees, fees of outside counsel and
independent auditors, insurance premiums, fees payable to Trustees who are not
FAS employees, and trade association dues.
4. Compensation. For the Administrative Services provided, the Fund
hereby agrees to pay and FAS hereby agrees to accept as full compensation for
its services rendered hereunder an administrative fee at an annual rate per
portfolio of the Fund's shares, payable daily, as specified below:
Maximum Administrative Average Daily Net Assets
Fee of the Fund
.15% on the first $250 million
.125% on the next $250 million
.100% on the next $250 million
.075% on assets in excess of $750 million
However, in no event shall the administrative fee received during any year
of this Agreement be less than, or be paid at a rate less than would aggregate
(i) for portfolios existing on the date of this Agreement, $75,000 per portfolio
plus $30,000 per each additional class of shares related to such portfolio added
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after the date of this Agreement; and (ii) for portfolios created after the date
of this Agreement, $150,000 per portfolio having a single class of shares, plus
$30,000 per each additional class of shares related to such portfolio.
5. Responsibility of Administrator.
(a) FAS shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with the matters to
which this Agreement relates, except 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. FAS shall be entitled to
rely on and may act upon advice of counsel (who may be counsel for the
Fund) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. Any person, even
though also an officer, trustee, partner, employee or agent of FAS,
who may be or become an officer, Trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting
on any business of the Fund (other than services or business in
connection with the duties of FAS hereunder) to be rendering such
services to or acting solely for the Fund and not as an officer,
trustee, partner, employee or agent or one under the control or
direction of FAS even though paid by FAS.
(b) FAS shall be kept indemnified by the Fund and be without liability for
any action taken or thing done by it in performing the Administrative
Services in accordance with the above standards. In order that the
indemnification provisions contained in this Section 5 shall apply,
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however, it is understood that if in any case the Fund may be asked to
indemnify or save FAS harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in question,
and it is further understood that FAS will use all reasonable care to
identify and notify the Fund promptly concerning any situation which
presents or appears likely to present the probability of such a claim
for indemnification against the Fund. The Fund shall have the option
to defend FAS against any claim which may be the subject of this
indemnification. In the event that the Fund so elects, it will so
notify FAS and thereupon the Fund shall take over complete defense of
the claim, and FAS shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under this
Section. FAS shall in no case confess any claim or make any
compromise in any case in which the Fund will be asked to indemnify
FAS except with the Fund's written consent.
6. Duration and Termination.
(a) The initial term of this Agreement shall commence on the date
hereof, and extend for a period of two years following the first
date upon which each of the Fund's existing portfolios has
sufficient average daily net assets, in each case, such that FAS
will begin to earn a sum not less than its minimum ("annualized")
administrative fee per existing portfolio, pursuant to Section 4 of
this Agreement ("Initial Term").
(b) During any term of this Agreement, each time the Fund adds a new
portfolio, an additional term shall commence on the first date upon
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which the new portfolio has sufficient average daily net assets such
that FAS will begin to earn a sum not less than its minimum
("annualized") administrative fee in connection with the new
portfolio pursuant to Section 4 of this Agreement ("Additional
Term"). Such Additional Term shall extend to the later to occur of
(i) the second anniversary of the commencement of the Additional
Term, or (ii) the expiration of the Initial Term.
(c) During any term of this Agreement, each time the Fund adds a class
of shares to any portfolio, an additional term shall commence on the
later to occur of (i) the first date upon which the relevant
portfolio has sufficient average daily net assets such that FAS will
begin to earn a sum not less than its minimum ("annualized")
administrative fee pursuant to Section 4 of this Agreement, or (ii)
the effective date of the registration statement or post-effective
amendment registering the new class of shares ("Class Term"). Such
Class Term shall extend to the later to occur of (i) the second
anniversary of the commencement of the Class Term, or (ii) the
expiration of the Initial Term.
(d) Upon the expiration of any term, this Agreement shall be
automatically renewed each year for an additional term of one year,
unless notice of termination has been delivered by either party to
the other no less than one year before the beginning of any such
additional term.
7. Amendment. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
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the party against which an enforcement of the change, waiver, discharge or
termination is sought.
8. Limitations of Liability of Trustees or Officers, Employees, Agents and
Shareholders of the Fund. FAS is expressly put on notice of the limitation of
liability as set forth in the Fund's Declaration of Trust and agrees that the
obligations assumed by the Fund pursuant to this Agreement shall be limited in
any case to the Fund and its assets and that FAS shall not seek satisfaction of
any such obligations from the shareholders of the Fund, the Trustees, Officers,
Employees or Agents of the Fund, or any of them.
9. Limitations of Liability of Trustees and Shareholders of FAS. The
execution and delivery of this Agreement have been authorized by the Trustees of
FAS and signed by an authorized officer of FAS, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, and the obligations of this Agreement are
not binding upon any of the Trustees or shareholders of FAS, but bind only the
trust property of FAS as provided in the Declaration of Trust of FAS.
10. Notices. Notices of any kind to be given hereunder shall be in writing
(including facsimile communication) and shall be duly given if delivered to the
Fund and to its investment adviser at the following address: Virtus Capital
Management, Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxx 00000
Attention: President and if delivered to FAS at Federated Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000-0000, Attention: President.
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11. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. If any provision of this
Agreement shall be held or made invalid by a court or regulatory agency
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. Subject to the provisions of Section 5, hereof, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by Pennsylvania
law; provided, however, that nothing herein shall be construed in a manner
inconsistent with the Investment Company Act of 1940 or any rule or regulation
promulgated by the Securities and Exchange Commission thereunder.
12. Counterparts. This Agreement may be executed by different parties on
separate counterparts, each of which, when so executed and delivered, shall be
an original, and all such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
Xxxxxxxxx Funds
By: /s/ Xxxxxx X. Xxxxx
Vice President
Attest: /s/ Xxxx X. XxXxxxxxx
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Secretary
Federated Administrative Services
By: /s/ Xxxxxx X. Xxxxxxxx
Chairman
Attest: /s/ Xxxx X. XxXxxxxxx
Secretary
