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
1st day of January, 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 January 1,
1996.
By:
Name:
Title:
By:
Name:
