Exhibit 9 (ii) under 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
SERVICES COMPANY on behalf of itself and its subsidiaries ("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 (as hereafter defined) of
mutual funds for which Federated or its affiliates act as transfer agent; and
administrator, distributor or adviser ("the Funds");
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 Certificate of Authorized Persons. Institution shall
provide a certificate signed by two authorized officers of Institution,
setting forth the name and specimen signature of each Authorized Person (the
"Certificate"). Institution shall promptly notify Federated if any such
present Authorized Person ceases to be an Authorized Person and shall send to
Federated a new Certificate in similar form in the event that other or
additional Authorized Persons are elected or appointed. Until Federated
receives any such new Certificate, Federated may rely upon Instructions
received from or reasonably believed to be received from the present
Authorized Persons as set forth in the Certificate or in any subsequently
issued Certificate.
SECTION 2.3 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 2.4 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 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 2.5 Reconciling to Fund Records. The book entry records of the
shareholder recordkeeping agent for each Fund shall be determinative with
respect to each Account. 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 2.6 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 under the Transfer Agency Agreement 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 corporation duly organized in its state of
incorporation and has the power and authority to conduct its business.
Institution is a bank chartered under the laws of the Commonwealth of
Pennsylvania. 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 such authorization or notification will inform the Shareholder
of all material facts relating to Federated's electronic
communication and recordkeeping systems, including (i) that
Institution is the agent of the Shareholder and that errors by
Institution in providing Instructions or in the use of Federated's
electronic communication and recordkeeping systems are the
responsibility of Institution, and not the Funds or Federated; (ii)
that only Institution is liable to the Shareholder for actions
taken or initiated by Institution; and (iii) that Institution, the
Funds, and Federated are not liable to the Shareholder for any loss
resulting from an erroneous transaction if the Shareholder does not
challenge the transaction within 30 days after a confirmation of
the transaction is sent to the Shareholder;
4.3.3 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;
4.3.4 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
4.3.5 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 SERVICES COMPANY AND ITS
SUBSIDIARY FEDERATED SERVICES COMPANY
SECTION 5.1 Organization and Authority. Federated Services Company
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 Services Company of this
Agreement has been duly authorized by all necessary corporate action of
Federated Services Company. This Agreement, when executed and delivered,
will constitute the legal, valid and binding obligation of Federated Services
Company, enforceable against it in accordance with its terms.
SECTION 5.2 Proper Registration. Federated Services Company 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 Services Company warrant
and represent that they have adequate facilities, equipment, procedures,
controls and skilled personnel to responsibly perform their duties and
obligations hereunder.
SECTION 5.4 Confidentiality. Federated Services Company 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 Institution's action or inaction relating to any duties, functions,
procedures or responsibilities undertaken by Institution pursuant to this
Agreement or otherwise, including that which may arise out of the malfunction
of equipment, systems, programs and telephone lines; (f) the failure by
Institution to obtain written authorization from a Shareholder to facilitate
any transaction through Federated's electronic communication and
recordkeeping systems; and (g) Federated's reasonable acceptance of and
reliance on any Instruction without supporting documentation. Institution
shall make all payments hereunder promptly upon presentation by an
Indemnified Fund Party of an invoice therefor, which invoice relates to 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. 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. In no event shall Institution be
liable for demands, damages, liabilities and losses arising out of failure of
its equipment or force majeure.
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,
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 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 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 Institution Parties, Federated shall
provide for an appropriate defense against 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 Federated 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.
SECTION 6.3 Contribution, Cooperation, Good Faith. The parties
recognize that certain circumstances will arise where 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. Federated and 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 of 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 SERVICES COMPANY
By:
Name:
Title:
Attest: By:
Name:
Title:
DAUPHIN DEPOSIT BANK AND TRUST COMPANY
By:
Name:
Title:
Attest: By:
Name:
Title:
SCHEDULE A
CERTIFICATE OF AUTHORIZED INDIVIDUALS
January 1, 1996
NAME, TITLE SIGNATURE, FACSIMILE SIGNATURE
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 Services Company this designation to be effective
as of 1st day of January, 1996.
By:
Name:
Title:
By:
Name:
