Exhibit (h)(ix) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
SUB-ADMINISTRATIVE SERVICES AGREEMENT
This Sub-Administrative Services Agreement is made as of this 1st day of
January, 2000, between XXXXXXXX & XXXXXX TRUST COMPANY, a Wisconsin trust
company bank ("M&I"), and FEDERATED SERVICES COMPANY, a Pennsylvania corporation
(herein called "FSC").
WHEREAS, M&I has entered into an Administration Agreement dated January 1,
2000 with The Xxxxxxxx Funds, Inc. (the "Corporation"), pursuant to which M&I
provides certain administrative services to the Corporation;
WHEREAS, the Corporation is a Wisconsin corporation consisting of one or
more portfolios, which operates as an open-end management investment company and
is registered under the Investment Company Act of 1940; and
WHEREAS, M&I desires to retain FSC as Sub-Administrator to provide it with
Sub-Administrative Services through its affiliate Federated Administrative
Services ("FAS"), and FSC is willing to render such services with respect to
each of the Corporation's current portfolios listed on Schedule A hereto and any
future portfolios of the Corporation which may be created from time to time
(each a "Fund" and collectively, the "Funds");
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF SUB-ADMINISTRATOR. M&I hereby appoints FSC as
its Sub-Administrator on the terms and conditions set forth in this Agreement;
and FSC hereby accepts such appointment and agrees to perform the services and
duties set forth in this Agreement in consideration of the compensation provided
for herein.
SECTION 2. SERVICES AND DUTIES. As Sub-Administrator, FSC will provide
facilities, equipment, and personnel to provide and carry out the
sub-administrative services listed on Exhibit A hereto (the "Sub-Administrative
Services") on behalf of M&I, for the operation of the business and affairs of
the Corporation and its portfolios. Sub-Administrative Services shall not
include any duties, functions, or services to be performed for the Corporation
by the Corporation's investment adviser, distributor, custodian, fund accountant
(recordkeeper), or transfer agent pursuant to their respective contracts with
M&I or the Corporation.
SECTION 3. RECORDS. FSC shall create and maintain all necessary books and
records in accordance with all applicable laws, rules and regulations, including
but not limited to records required by Section 31(a) of the 1940 Act and the
rules thereunder, as the same may be amended from time to time, pertaining to
the Sub-Administrative Services performed by it and not otherwise created and
maintained by another party pursuant to agreement with the Corporation. Where
applicable, such records shall be maintained by FSC for the periods and in the
places required by Rule 31a-2 under the 1940 Act. The books and records
pertaining to the Corporation which are in the possession of FSC shall be the
property of the Corporation. The Corporation, or the Corporation's authorized
representatives, shall have access to such books and records at all times during
FSC's normal business hours. Upon the reasonable request of the Corporation,
copies of any such books and records shall be provided promptly by FSC to M&I,
the Corporation, or the Corporation's authorized representatives.
SECTION 4. DUTIES OF THE FUNDS. Except as provided in Section 7 hereof,
the Corporation and each of its portfolios assumes full responsibility for
complying with all applicable requirements of the 1940 Act, the Internal Revenue
Code, and any other laws, rules and regulations of governmental authorities
having jurisdiction over the Funds.
SECTION 5. EXPENSES. FSC shall be responsible for expenses incurred in
providing office space, equipment, and personnel as may be necessary or
convenient to provide the Sub-Administrative Services, including the
compensation of FSC employees who serve as Directors or officers of the
Corporation. The Corporation shall be responsible for all other expenses
incurred by FSC on behalf of the Corporation, including without limitation
postage and courier expenses, printing expenses, travel expenses, registration
fees, filing fees, fees of outside counsel and independent auditors or other
professional services, insurance premiums, fees payable to persons who are not
FSC employees, trade association dues, and other out-of-pocket or other expenses
properly payable by the Corporation and its portfolios.
SECTION 6. COMPENSATION. For the Sub-Administrative Services provided, M&I
hereby agrees to pay and FSC hereby agrees to accept as full compensation for
the Sub-Administrative Services rendered hereunder an fee as specified in
Exhibit B hereto, such Exhibit to be signed by a duly authorized officer of M&I
and a duly authorized officer of FSC.
The compensation and out-of-pocket expenses attributable to the Funds
shall be accrued by each Fund and paid to FSC no less frequently than monthly.
FSC will maintain detailed information about the compensation and out-of-pocket
expenses of each Fund.
SECTION 7. RESPONSIBILITY OF SUB-ADMINISTRATOR.
(a) FSC shall not be liable for any error of judgment or mistake of law or
for any loss suffered by M&I or the Corporation 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. FSC shall be entitled to rely on and may act upon advice of counsel
(who may be counsel for the Corporation) 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
FSC, who may be or become an officer, director, employee or agent of the
Corporation, shall be deemed, when rendering services to the Corporation or
acting on any business of the Corporation (other than services or business in
connection with the duties of FSC hereunder) to be rendering such services to or
acting solely for the Corporation and not as an officer, trustee, partner,
employee or agent or one under the control or direction of FSC even though paid
by FSC.
(b) FSC shall be kept indemnified by M&I and be without liability for any
action taken or thing done by it in performing the Sub-Administrative Services
in accordance with the above standards; provided, however, that the M&I will not
indemnify FSC for the portion of any loss or claim caused, directly or
indirectly, by the gross negligence of FSC. In order that the indemnification
provisions contained in this Section 7 shall apply, however, it is understood
that if in any case M&I may be asked to indemnify or save FSC harmless, M&I
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that FSC will use all
reasonable care to identify and notify M&I promptly concerning any situation
which presents or appears likely to present the probability of such a claim for
indemnification against M&I. M&I shall have the option to defend FSC against any
claim which may be the subject of this indemnification. In the event that M&I so
elects, it will so notify FSC and thereupon M&I shall take over complete defense
of the claim, and FSC shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this Section. FSC shall
in no case confess any claim or make any compromise in any case in which M&I
will be asked to indemnify FSC except with M&I's written consent.
SECTION 8. DURATION AND TERMINATION.
(a) The term of this Agreement shall commence on the date hereof, and
extend for a period of three (3) years (the "Contract Term"). Each one-year
period during the Contract Term shall be referred to as a "Contract
Anniversary".
(b) During the Contract Term, this Agreement shall be automatically
renewed each Contract Anniversary for an additional term of one year, unless
notice of termination has been delivered by either party to the other no less
than ninety (90) days before the start of any subsequent Contract Anniversary.
(c) This Agreement shall be automatically renewed each year after the
expiration of the Contract Term for an additional term of one year ("Additional
Terms") under the same terms and conditions of the Contract Anniversary ending
on December 31, 2002, unless notice of termination has been delivered by either
party to the other no less than ninety (90) days before the expiration of the
Contract Anniversary ending on December 31, 2002, or any subsequent Additional
Term.
(d) In the event the Corporation exercises its right to terminate this
Agreement pursuant to this Section 8, all out-of pocket expenses associated with
the movement of records and materials will be borne by the Corporation or
appropriate portfolio. Additionally, the Sub-Administrator reserves the right to
charge for any other reasonable expenses associated with such termination. The
provisions of Section 8 shall survive the termination of this Agreement
SECTION 9. AMENDMENT. This Agreement may be amended or modified only by a
written agreement executed by both parties.
SECTION 10. LIMITATIONS OF LIABILITY OF TRUSTEES OF FSC. The execution and
delivery of this Agreement has been signed by an authorized officer of FSC,
acting as such, and such execution and delivery by such officer shall not be
deemed to have been made by any of the Board members of FSC or such officer
individually or to impose any liability on any of them personally, and the
obligations of this Agreement are not binding upon any of the members of the
Board or officers of FSC, but bind only the corporate property of FSC as
provided in the Articles of Incorporation of FSC.
SECTION 11. NOTICES. Notices of any kind to be given hereunder shall be in
writing (including facsimile communication) and shall be duly given if delivered
to M&I at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX, Attention: Xxxx X. Xxxxxx,
President, facsimile number 000-000-0000, with a copy to M&I's Legal Department,
facsimile number 000-000-0000; and if delivered to FSC at Federated Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: President, facsimile number
000-000-0000.
SECTION 12. 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 Sections
6, 7, and 8, hereof, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. The
Sub-Administrator shall have no liability for cessation of services hereunder or
any damages to the Corporation as a result of work stoppage, power or other
mechanical failure, natural disaster, government action, communication
disruption or other impossibility of performance. The services of FSC to M&I
and/or the Corporation hereunder shall not be deemed exclusive and FSC shall be
free to render similar or other services to others.
SECTION 13. 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.
SECTION 14. MERGER. This Agreement constitutes the entire agreement between
the parties hereto and supercedes any prior agreement with respect to the
subject hereof whether oral or written.
SECTION 15. INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, M&I and FSC may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a writing
signed by both parties and shall be annexed hereto, PROVIDED that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Corporation's Articles of
Incorporation. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
SECTION 16. ASSIGNMENT; SUCCESSORS. This Agreement shall not be assigned
by either party without the prior written consent of the other party, except
that either party may assign all of or a substantial portion of its business to
a successor, or to a party controlling, controlled by, or under common control
with such party. Nothing in this Section 16 shall prevent FSC from delegating
its responsibilities to another entity to the extent provided herein.
SECTION 17. GOVERNING LAW AND VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to the conflict of laws principles thereof. The parties hereto
irrevocably consent to the jurisdiction and venue of any federal or state court
in Allegheny County in the Commonwealth of Pennsylvania, in connection with any
action or proceeding arising out of or in connection with this Agreement, and
the parties hereto irrevocably waive the right to object to the venue of any
such court on the ground of forum non conveniens.
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.
XXXXXXXX & ILSLEY TRUST COMPANY FEDERATED SERVICES COMPANY
By: /S/ XXXX X. XXXXXX By: /S/ XXXXX X. XXXXXXX
-------------------------- ----------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Vice President Title: Senior Vice President
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Securities General
EXHIBIT A
TO
SUB-ADMINISTRATIVE SERVICES AGREEMENT
Pursuant to Section 2 of the Agreement, FSC agrees to perform the following
Sub-Administrative Services:
A. review of the Corporation's governing documents and any amendments thereto,
including its Articles of Incorporation ("Charter"), its By-laws, and
minutes of meetings of the Board and Shareholders;
B. review drafts of, and file with the Securities and Exchange Commission
("SEC") and the appropriate state securities authorities, the registration
statements for the Corporation and the Corporation's Shares and all
amendments thereto, reports to regulatory authorities and shareholders,
Prospectus(es), routine proxy statements (other than combined
registration/proxy statements on Form N-14 for which FSC would review), and
such other documents all as may be necessary to enable the Corporation to
make a continuous offering of its Shares;
D monitor expenses, calculate the per share dividend and capital gains or
losses, if any, for declaration and payment in the manner determined from
time to time by the Corporation's Board, and monitor compliance with the
distribution requirements of a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended;
E. review performance data of the Corporation for dissemination to information
services covering the investment company industry;
F. prepare the Corporation's tax returns;
G. coordinate the layout and printing of publicly disseminated Prospectus(es)
and reports;
H. perform internal audit examinations in accordance with a charter to be
adopted by M&I and the Corporation, and coordinate and facilitate external
audits by the Corporation's independent auditors and regulatory
examinations of the Corporation;
I. assist with the design, development, and operation of the Corporation and
its portfolios;
J. obtain CUSIPS, NASDAQ symbols, and IRS tax identification numbers for the
Corporation;
K. consult with and advise the Corporation and its Officers and Board on
matters concerning the Corporation and its affairs;
L. assist in obtaining acceptable fidelity bond and directors &
officers/errors & omissions insurance policies pursuant to Rules 17g-1 and
17d-1 under the 1940 Act;
M. supervise the preparation of the Funds' financial statements, including
oversight of expense accruals and payments;
N. provide, upon request, market research and, as available, white papers on
industry topics and products; and
O. perform such other and further services as may be mutually agreed upon in
writing between M&I and FSC.
EXHIBIT B
TO
SUB-ADMINISTRATIVE SERVICES AGREEMENT
Pursuant to Section 4 of the Agreement, M&I agrees to pay Federated a
sub-administration fee using the following schedule: Fees are based upon the
aggregate average daily net assets (ADNA) of the Corporation.
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CONTRACT TERM
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FEE SCHEDULE 1/1/2000 1/1/2001 1/1/2002
THROUGH THROUGH THROUGH
12/31/2000 12/31/2001 12/31/2002
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First $5,000,000,000 of ADNA 5.5 bp 5.0 bp 4.5 bp
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Next $5,000,000,000 of ADNA 5.0 bp 4.5 bp 4.0 bp
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Next $5,000,000,000 of ADNA 4.5 bp 4.0 bp 3.5 bp
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Next $5,000,000,000 of ADNA 4.0 bp 3.5 bp 3.0 bp
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Over $20,000,000,000 of ADNA 3.5 bp 3.0 bp 2.5 bp
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MINIMUM FEES:
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Sub-Administration (per $40,000 $35,000 $30,000
portfolio)
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Each Additional Class (per $12,000 $10,000 $8,000
portfolio)
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Federated Services Company
Mutual Fund Services
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
###-##-#### Phone
xxx.xxxxxxxxxxxxxxxxxx.xxx
December 10, 1999
Xx. Xxxx X. Xxxxxx
Vice President
Xxxxxxxx & Ilsley Trust Company
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Dear Xxxx,
The purpose of this letter is to confirm our understanding of the terms agreed
to by you and I during our telephone conversations, regarding the
sub-administration agreement between M&I Trust Company and affiliates of
Federated Services Corporation.
In recognition of M&I Trust Company retaining Federated Services
Corporation as sub-administrator and Federated Securities Corporation as
distributor of the Xxxxxxxx Funds, Federated has agreed to the following for the
calendar year 2000: 1. Federated will waive $110,000 of Sub-Administrative Fee
2. Federated and M&I will review the proposed waiver of sub-administration fee
minimums for new funds or classes as new Funds are created.
We both understand the waiver of sub-administration fee would discontinue under
any of the following circumstances:
1. Notification that M&I is to be acquired by a company that advises a mutual
fund family with a servicing arrangement with any service provider other
than Federated;
2. M&I provides notice of sub-administration contract termination; or
3. Notice that The Xxxxxxxx Funds are to be liquidated, dissolved, or acquired
by another investment company.
For your information, Federated has agreed to make available certain service
fees on qualified assets invested in the Federated Max-Cap Fund, as discussed in
a letter to Xxxxx Xxxxxxxx from Xxx Xxxx, dated December 10, 1999. Call me if
you would like a copy of the letter.
I have enclosed two originals of this letter. Please date and sign and return
one original to me, along with a copy of the executed sub-administration
agreement, in the space provided below if the terms outlined in this letter are
acceptable.
Sincerely,
By: /S/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Senior Vice President
AGREED and ACCEPTED
this 15th day of December, 1999
By: /S/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
Vice President, Xxxxxxxx & Ilsley
Trust Company
