Exhibit 9(ii) on Form N-1A
Exhibit 10 Under Item 601 Reg S/K
ELECTRONIC COMMUNICATIONS AND RECORDKEEPING
AGREEMENT
BETWEEN
FEDERATED SERVICES COMPANY
AND
DAUPHIN DEPOSIT BANK AND TRUST COMPANY
AGREEMENT, made this 1st day of January, 1996, between FEDERATED
SHAREHOLDER SERVICES COMPANY on behalf of itself and its affiliates
("Federated"), with offices at Federated Investors Tower, Pittsburgh,
Pennsylvania 15222-3779, and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, on
behalf of itself and its affiliates and subsidiaries (the "Institution"),
with offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WHEREAS, Institution desires to perform certain services on behalf of
its customers who are or may become Shareholders of mutual funds for which
Federated provides transfer agency services; and
WHEREAS, performance of such services may require access to
Federated's electronic communication and recordkeeping systems or may
require Federated or the Funds to act upon information about Shareholders
(as hereafter defined) or their Accounts (as hereafter defined) supplied by
Institution;
WHEREAS, Federated is willing to provide such access or rely upon such
information as hereinafter provided, subject to the agreement of
Institution to provide indemnification to Federated;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for good and valuable consideration, receipt of which is hereby
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
SECTION 1
CERTAIN DEFINITIONS
SECTION 1.1 Account. "Account" shall mean any shareholder account in
any Fund for which Institution provides services on behalf of its customers
who are or may become shareholders of the Funds.
SECTION 1.2 Authorized Person. "Authorized Person" shall mean each
agent or employee of Institution who is duly authorized to give
Instructions (as such term is defined below at Section 1.3) pursuant to
this Agreement.
SECTION 1.3 Instruction(s). "Instruction(s)" shall mean any
instruction or communication including, but not limited to, an oral or
written instruction or communication, and any such instruction or
communication originated by facsimile indicating that such transmission
originated from Institution, and instructions or communications received
electronically. Instructions may include, but are not limited to, the
following:
(a) communicating account openings through computer terminals located
on the Institution's premises (the "computer terminals"), through
a toll-free telephone number or otherwise;
(b) communicating account closings via the computer terminals,
through a toll-free telephone number or otherwise;
(c) entering purchase transactions through the computer terminals,
through a toll-free telephone number or otherwise;
(d) entering redemption transactions through the computer terminals,
through a toll-free telephone number or otherwise;
(e) electronically transferring and receiving funds for purchasing
and redeeming shares of a Fund, and confirming and reconciling
all such transactions; and
(f) account maintenance activity in Fund accounts.
SECTION 1.4 Shareholder. "Shareholder" shall mean the shareholder of
record of any Account.
SECTION 2
OBLIGATIONS OF INSTITUTION
SECTION 2.1 Authorization by Institution; Confirmation of Oral
Instructions. Institution hereby authorizes Federated to accept, rely upon
and act upon all Instructions received by Federated from or reasonably
believed to be from Institution, all without the delivery by Institution of
written authorization of the Shareholder. Institution authorizes Federated
to accept, rely upon and act upon oral Instructions by any person
identifying himself as an Authorized Person and to tape record such
Instructions. Institution shall confirm all oral Instructions on the same
day as given by facsimile, however, Federated may rely on the oral
Instructions regardless of whether such facsimile is received.
SECTION 2.2 Duties, Functions and Responsibilities. Institution shall
undertake the duties, functions and responsibilities contemplated hereby in
a businesslike and competent manner. Institution shall conduct its
activities under this Agreement in accordance with (a) all applicable laws,
rules and regulations; (b) the then-current registration statements of the
Funds; and (c) industry standards.
SECTION 2.3 Information about Shareholders. Institution shall
provide to Federated, with respect to each Account, the following
information, and any subsequent changes to such information, which
Institution hereby certifies, to the extent of its knowledge, information
and belief, is, and shall remain, true and correct: (a) the full and
complete name of the Shareholder for Internal Revenue Service information
reporting; (b) the Shareholder's address; (c) the Shareholder's Taxpayer
Identification Number or notice of foreign status and applicable backup or
penalty withholding status; and (d) the state or country code of tax
residence of the Shareholder (if different from address). Institution
shall provide Federated with such information in writing or by electronic
transmission and any other medium that Federated reasonably requests.
SECTION 2.4 Reconciling to Fund Records. The book entry records of
the shareholder recordkeeping agent for each Fund shall be determinative
with respect to each Account. In the event Institution maintains records,
e.g. for omnibus accounts, Institution will notify Federated in writing of
any discrepancy between its records and the records of Federated and the
Fund within a reasonable period of time after it becomes aware of such
discrepancy. Notwithstanding anything to the contrary, Institution solely
shall be responsible and liable for any discrepancies between its records
and the records of Federated and the Funds, provided that such discrepancy
is not solely a result of the negligence of Federated or the Funds.
SECTION 2.5 Retirement Accounts To the extent Institution provides
any processing required in connection with acceptance of retirement plan
accounts, including Individual Retirement Accounts ("IRA's") as defined
under section 408 of the Internal Revenue Code, as amended, Institution
agrees to be responsible for all required documentation in connection with
such accounts, specifically including acceptance on behalf of the
retirement plan custodian. Federated hereby authorizes Institution to
provide such authorization in the name of such custodian or trustee.
ARTICLE 3
OBLIGATIONS OF FEDERATED
SECTION 3.1 Acceptance of Instructions. Federated may, for all
Accounts, accept, rely upon and act upon all Instructions received by
Federated from or reasonably believed to be from Institution, all without
the delivery by Institution of written Instructions executed by a
Shareholder.
SECTION 3.2 Reliance by Federated. Federated may conclusively rely
upon any Instructions received by it by any person whom Federated
reasonably believes to be an Authorized Person.
SECTION 3.3 Incomplete or Unclear Instructions. Federated shall not
be required to act on any Instructions that, in its sole determination, are
incomplete or unclear, and may defer action on such Instructions until
Federated has resolved any question to its reasonable satisfaction.
Federated shall notify Institution, by telephone or by facsimile, within
one business day after it fails to act on any Instructions that it has
determined are incomplete or unclear.
SECTION 3.4 Limitation of Access to Federated's Electronic
Communication and Recordkeeping Systems. Federated may limit access to its
electronic communication and recordkeeping systems. Notwithstanding any
such limitation, Federated may act and rely upon all Instructions in any
form received by Federated from or reasonably believed to be from an
Authorized Person.
SECTION 3.5 Processing Instructions and Communications. Federated
shall correctly process any Instructions from Institution and execute the
Institution's Instructions within a reasonable period of time of receipt,
subject to any conditions or restrictions in the currently effective
registration statement of each Fund or other applicable restrictions.
SECTION 3.6 Performance as Transfer Agent. Federated shall perform
all of its obligations properly assigned to it under the Agreement for Fund
Accounting, Shareholder Recordkeeping, and Custody Services Procurement
dated as of January 1, 1996.
ARTICLE 4
WARRANTIES AND REPRESENTATIONS OF INSTITUTION
SECTION 4.1 Organization and Authority. Institution warrants and
represents that it is a Bank and Trust company duly organized in the
Commonwealth of pennsylvania and has the power and authority to conduct its
business. The execution, delivery and performance by Institution of this
Agreement has been duly authorized by all necessary corporate action of
Institution. This Agreement, when executed and delivered, will constitute
the legal, valid and binding obligation of Institution, enforceable against
it in accordance with its terms.
SECTION 4.2 Adequate Facilities. Institution warrants and represents
that it has adequate facilities, equipment, procedures, controls and
skilled personnel to responsibly perform its duties and obligations
hereunder.
SECTION 4.3 Authorization from Shareholders; and Notification to
Shareholders. Institution warrants and represents that:
4.3.1 each Shareholder has authorized Institution to act as
Shareholder's agent and to take any actions contemplated in this
Agreement with respect to each Account of each Shareholder;
4.3.2 Institution shall refrain from issuing Instructions
with respect to a Shareholder's Account immediately upon receipt
of notice that the Shareholder has revoked authorization to give
such Instructions;
4.3.3 all Instructions, including, but not limited to,
changes in registration, transfers, exchanges and liquidations,
will be duly authorized by the Shareholder of such Account and
shall be lawful and not submitted for any improper, inappropriate
or illegal purpose; and
4.3.4 Federated is properly authorized to effect changes in
its or the Funds records upon receipt of Instructions.
SECTION 4.4 Insurance. Institution warrants and represents that
Institution maintains adequate fidelity insurance, errors and omissions
insurance and other insurance coverage appropriate for the Institution's
duties and obligations under this Agreement. Upon written request,
Institution will provide evidence of such insurance coverage and on each
such policy or bond.
SECTION 4.5 Taxpayer Identification. Institution warrants and
represents that each Taxpayer Identification Number or certificate of
foreign status provided by Institution to the Funds and Federated has been
certified, under penalties of perjury, by the Shareholder on the
appropriate Internal Revenue Service form or an acceptable substitute.
Institution agrees that it shall promptly advise the Funds or Federated of
any other matter that may affect the responsibilities of the Funds or
Federated to Shareholders pursuant to the Internal Revenue Code of 1986, as
amended. Institution further agrees that it shall maintain adequate
documentation to verify the foregoing for each Account.
SECTION 4.6 Authority of Authorized Persons. Institution warrants
and represents that:
4.6.1 each Authorized Person set forth on the Certificate has
been duly authorized by a duly elected officer of Institution to
provide Instructions pursuant to this Agreement;
4.6.2 Institution shall adopt, implement and maintain
procedures reasonably designed to ensure the accuracy and
integrity of all Instructions, including, but not limited to,
procedures (i) requiring all Instructions on behalf of
Institution to originate from a specific office (or offices)
designated by Institution; and (ii) limiting the use of each
computer terminal used for transmitting Instructions to
Federated's electronic communication and recordkeeping systems
to Authorized Persons with adequate training and supervision.
Upon Federated's request, Institution shall provide Federated
with copies of its security procedures with respect to the
foregoing and shall use and safeguard any access passwords,
codes, manuals or other information it obtains with respect to
Federated's electronic communication and recordkeeping systems
and the data thereon in a manner consonant with the protection of
its own proprietary business records.
SECTION 4.7 Institution's Financial Condition. Institution
represents and warrants that it shall deliver to Federated its audited
annual report, its quarterly financial reports and such other financial
statements as Federated shall reasonably request which indicate the
Institution's financial condition and, if applicable, net capital ratio.
Institution further represents and warrants that such statements fairly
represent its financial condition and/or net capital ratio on the date of
such statements and that there has been no material adverse change in its
financial condition and/or net capital ratio since that date.
SECTION 4.8 Confidentiality. Institution shall treat as confidential
all data it receives through Federated's electronic communication and
recordkeeping systems, except to the extent required by applicable law,
rule or regulation.
ARTICLE 5
WARRANTIES AND REPRESENTATIONS OF FEDERATED
SECTION 5.1 Organization and Authority. Federated warrants and
represents that it is a business trust duly organized in the State of
Delaware and has the power and authority to conduct its business. The
execution, delivery and performance by Federated of this Agreement has been
duly authorized by all necessary corporate action of Federated. This
Agreement, when executed and delivered, will constitute the legal, valid
and binding obligation of Federated, enforceable against it in accordance
with its terms.
SECTION 5.2 Proper Registration. Federated warrants that it has duly
registered as transfer agent pursuant to the Securities Exchange Act of
1934, that its registration remains in full force and effect, and that it
will take all action required to maintain such registration as a transfer
agent, including, without limitation, making all required filings to the
Securities and Exchange Commission and complying with all rules of the
Securities and Exchange Commission applicable to transfer agents.
SECTION 5.3 Adequate Facilities. Federated warrant and represent
that they have adequate facilities, equipment, procedures, controls and
skilled personnel to perform their duties and obligations hereunder.
SECTION 5.4 Confidentiality. Federated shall treat as confidential
all data they receive from Institution through Federated's electronic
communication and recordkeeping systems, except to the extent required by
applicable law, rule or regulation.
ARTICLE 6
INDEMNIFICATION
SECTION 6.1 Indemnification by Institution. Institution shall
indemnify and hold harmless the Funds, the Funds' custodian, the Funds'
transfer agent, the Funds' underwriter, the Funds' investment adviser,
Federated, each of their affiliated companies, and all of the divisions,
subsidiaries, directors, trustees, officers, agents, subcontractors,
employees and assigns of each of the foregoing (collectively, "Indemnified
Fund Parties"), against and from any and all demands, damages, liabilities,
and losses, or any threatened, pending or completed actions, claims, suits,
complaints, proceedings, or investigations (including reasonable attorneys'
fees and other costs, including all expenses of litigation or arbitration,
judgments, fines or amounts paid in settlement), to which any of them may
be or become subject as a result or arising out of: (a) any action
reasonably taken by Federated in reliance upon the Institution's
Instructions; (b) any act or omission by Institution or its agents which
constitutes negligence, gross negligence, or willful misconduct; (c) any
breach of the Institution's representations or warranties contained in this
Agreement; (d) the Institution's failure to comply with any of the terms of
this Agreement; (e) the failure by Institution to obtain authorization from
a Shareholder to facilitate any transaction through Federated's electronic
communication and recordkeeping systems; and (f) Federated's reasonable
acceptance of and reliance on any Instruction, in accordance with Article 3
of this Agreement without supporting documentation. An Indemnified Fund
Party may make demand for indemnification for any payment, including any
partial payment, made by the Indemnified Fund Party in respect of any and
all demands, damages, liabilities, and losses, or any threatened, pending
or completed actions, claims, suits, complaints, proceedings, or
investigations (including reasonable attorneys fees and other costs,
including all expenses of litigation or arbitration, judgments, fines or
amounts paid in settlement), to which any of them may be or become subject
which give rise to indemnification by Institution under this Agreement. At
the request of any of the Indemnified Fund Parties, Institution shall
provide for an appropriate defense against any circumstances which may give
rise to indemnification by Institution under this Agreement. In no event
shall Institution be liable for demands, damages, liabilities and losses
arising out of failure of its equipment or force majeure. Institution
represents and warrants that at all times it has sufficient financial
resources, whether through a fidelity bond or otherwise, to meet all of its
indemnification obligations arising under this Agreement.
SECTION 6.2 Indemnification by Federated. Federated shall indemnify
and hold harmless Institution, each of the Institution's affiliated
companies, and all of the divisions, subsidiaries, directors, officers,
agents, subcontractors, employees and assigns of each of the foregoing
(collectively, "Indemnified Institution Parties"), against and from any and
all demands, damages, liabilities, and losses, or any threatened, pending
or completed actions, claims, suits, complaints, proceedings, or
investigations (including reasonable attorneys fees and other costs,
including all expenses of litigation or arbitration, judgments, fines or
amounts paid
in settlement) to which any of them may be or become subject as a result or
arising out of: (a) any act or omission by Federated or its agents which
constitutes negligence, gross negligence or willful misconduct; (b) any
breach of Federated's representations or warranties contained in this
Agreement; or (c) Federated's failure to obtain proper Instructions from
Institution; or (d) Federated's failure to comply with any of the terms of
this Agreement. An Indemnified Institution Party may make demand for
indemnification for any payment, including any partial payment, made by the
Indemnified Institution Party in respect of any and all demands, damages,
liabilities, and losses, or any threatened, pending or completed actions,
claims, suits, complaints, proceedings, or investigations (including
reasonable attorneys fees and other costs, including all expenses of
litigation or arbitration, judgments, fines or amounts paid in
settlement), to which any of them may be or become subject which give rise
to indemnification by Institution under this Agreement. At the request of
any of the Indemnified Institution Parties, Federated shall provide for an
appropriate defense against any circumstances which which give rise to
indemnification by Institution under this Agreement. In no event shall
Federated be liable for demands, damages, liabilities and losses arising
out of failure of its equipment or force majeure. Federated represents and
warrants that at all times it has sufficient financial resources, whether
through a fidelity bond or otherwise, to meet all of its indemnification
obligations arising under this Agreement.
SECTION 6.3 Contribution, Cooperation, Good Faith. The parties
recognize that certain circumstances will arise a loss may not be clearly
attributable to one party or the other. The parties agree to cooperate
with each other and to act in good faith in examining the facts of such
situations, and understand that in certain of such situations it will be
appropriate for both the Fund Indemnified Parties and the Indemnified
Institution Parties to contribute to effect a resolution of the matter.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Termination. Either party may terminate this Agreement
upon 30 days' written notice to the other party. The obligations of Article
6 shall survive the termination of this Agreement.
SECTION 7.2 Force Majeure. Neither Federated nor Institution shall
have no liability for cessation of services hereunder or any damages
resulting therefrom to Institution as a result of work stoppage, power or
other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
SECTION 7.3 Choice of Law and Venue. This Agreement shall be
governed by, and construed in accordance with, the laws of The Commonwealth
of Pennsylvania, without regard to conflict of law. The venue shall be The
Western District of Pennsylvania.
SECTION 7.4 Assignment. This Agreement may not be transferred or
assigned by either party without the prior written consent of the other
party (other than pursuant to a consolidation, merger, transfer of all or
substantially all the assets or other business combination transaction) and
any purported transfer or assignment without such consent will be void.
SECTION 7.5 Notice. Whenever notice is required under this
Agreement, it shall be given in writing by first class mail, return receipt
requested, to Federated at Federated Investors Tower, Pittsburgh,
Pennsylvania 15222-3779, attention: Vice President, Transfer Agency
Services, Federated Services Company, attention: Xxx Xxxxxxx; and to
Dauphin Deposit Bank and Trust Company at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, attention: Manager- Trust and Financial Services.
SECTION 7.6 Integrity of Data. Institution shall take all reasonable
steps to protect and insure the integrity of the data it transmits into
Federated's electronic communication and recordkeeping systems and to
prevent the damage of records maintained by others, including the Funds or
Federated.
SECTION 7.7 Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter
hereof and supersedes all oral communications and prior writings with
respect thereto, and neither of the parties shall be bound by any
conditions, warranties, or representations with respect to such subject
matter other than as expressly provided herein, or as duly set forth on or
subsequent to the effective date hereof in writing and signed by a proper
and duly authorized representative of the party to be bound thereby.
SECTION 7.8 Attorneys' Fees. If any dispute arising out of this
Agreement is litigated between the parties hereto, the prevailing party
shall be entitled to recover its reasonable attorneys' fees in addition to
any other relief to which it may be entitled.
SECTION 7.9 Waiver of Remedies. A waiver of a breach or a default
under this Agreement shall not be a waiver of any subsequent default.
Failure of either party to enforce compliance with any term or condition of
this Agreement shall not constitute a waiver of such term or condition.
SECTION 7.10 Captions. Captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
SECTION 7.11 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original.
SECTION 7.12 Severability. If any provision of this Agreement is
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 7.13 Amendment. No amendment, modification or waiver in
respect of this Agreement will be effective unless in writing and executed
by each of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written by their respective officers
hereunto duly authorized.
FEDERATED SHAREHOLDER SERVICES COMPANY
By: /s/ R. Xxxxxxx Xxxx
Name: R. Xxxxxxx Xxxx
Title: President
DAUPHIN DEPOSIT BANK AND TRUST COMPANY
By: /s/ Xxxx X. Gold
Name: Xxxx X. Gold
Title: Executive Vice President
Attest: /s/ Xxxxxxx Xxxxx, Xx.
Name: Xxxxxxx Xxxxx, Xx.
Title: Assistant Secretary
SCHEDULE A
CERTIFICATE OF AUTHORIZED INDIVIDUALS
November 14, 1996
NAME, TITLE SIGNATURE, FACSIMILE SIGNATURE
Xxxx X. Xxxxxx, MV Clerk /s/ Xxxx X. Xxxxxx
June Black, Mut Fd Clerk /s/ June V. Black
Xxx Xxxxxxxxx, Mut Fd Clerk /s/ Xxx Xxxxxxxxx
Xxxxxx Xxxxxxx, Sec Supv /s/ Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx, VP /s/ Xxxxx X. Xxxxx
The undersigned hereby attest that they are officers of Dauphin Deposit
Bank and Trust Company and are duly authorized to, and do so designate the
aforelisted individuals as Authorized Persons under the Electronic
Communications and Recordkeeping Agreement between Dauphin Deposit Bank and
Trust Company and Federated Shaeholder Services Company this designation to
be effective as of November 14, 1996.
By: /s/ E. Xxxxxx Xxxxxxx
Name: E. Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
ATTEST:
/s/ Xxxxxxx Xxxxx, Xx.
Assistant Secretary
