Exhibit 23(h)(v) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
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SECOND AMENDED AND RESTATED SERVICES AGREEMENT
THIS AGREEMENT, amended and restated as of December 1, 2001, is entered
into between each Fund listed on Schedule 1, as may be amended from time to
time, severally and not jointly, and Federated Shareholder Services Company,
("FSSC"). Unless otherwise defined herein, Section 10 sets forth the
definition of capitalized terms used in this Agreement.
WHEREAS, Schedule 1 to this Agreement sets forth the classes of Shares
for which the Funds will compensate persons who agree to provide services to
Shareholders and assist in the maintenance of Shareholder accounts
("Services");
WHEREAS, FSSC and certain of the Funds entered into a Shareholder
Services Agreement dated March 1, 1994 and amended September 1, 1995, (the
"Prior Agreement") which provided for FSSC to enter into agreements for
Services with third parties ("Third-Party Agreements") and to utilize fees
received under the Prior Agreement to compensate third parties pursuant to
such Third-Party Agreements;
WHEREAS, it is contemplated that hereafter, the Funds will compensate
third-parties for Services directly, and that FSSC will no longer enter into
Third-Party Agreements;
WHEREAS, FSSC will continue to compensate third parties pursuant to any
Third-Party Agreements and the Funds will continue to make payments to FSSC
to fund those obligations; and
WHEREAS, FSSC will also receive fees for Services it provides to
Shareholders under this Agreement.
NOW THEREFORE, the parties agree to amend and restate the Agreement as
follows:
SECTION 1. Agreement to Provide Services
(a) Services. FSSC agrees to provide Services for Shareholders of the
Funds that have fully-disclosed accounts in the Funds for which either
(i) Federated Securities Corp. or any other affiliate of FSSC is the
dealer of record; or (ii) for which the dealer of record does not
provide Services (collectively, the "FSSC Accounts"). FSSC shall also
provide Services or cause Services to be provided to Shareholders whose
accounts are subject to Third-Party Agreements. Services shall include,
but are not limited to, telephone, mail or electronic communications
with Shareholders.
(b) Delivery of Disclosure Documents. Upon request by a customer that is a
Shareholder of the Funds, FSSC will send a copy of the current
Prospectus (and, if expressly requested, Statement of Additional
Information), annual report or semi-annual report for any Fund
("Disclosure Documents") to the customer within three (3) business days
of such request.
(i) The Funds will furnish to FSSC at the Funds' own expense such number of
copies of the then-current Disclosure Documents as
FSSC requests to satisfy its obligations under this
paragraph.
(ii) FSSC covenants to the Funds that it will not make any representations
concerning any Shares other than those contained in
the Disclosure Documents of the applicable Fund.
(iii) The parties may agree from time to time to set appropriate security
procedures and to perform electronically certain of
their obligations under this Agreement, including
without limitation the delivery of requested
Disclosure Documents.
(c) FSSC shall not have any obligation to pay the cost of producing or
delivering Disclosure Documents or any other costs incurred by the
Funds in connection with the Services provided hereunder.
SECTION 2. Service Fees Payable to FSSC
(a) During the term of this Agreement, FSSC will be entitled to receive
from each Fund as full compensation for Services rendered hereunder a
fee calculated daily at an annual rate, as set forth Schedule 1 to this
Agreement, of up to 0.25% of average net assets held in FSSC Accounts
of each Fund. Service fees paid by the Funds are in addition to other
fees paid by the Funds such as those paid pursuant to an Agreement for
Fund Accounting Services, Administrative Services, Transfer Agency
Services and Custody Services Procurement and fees paid pursuant to
each Fund's Distributor's Contract.
(b) For so long as any Third-Party Agreement remains in effect, FSSC shall
be entitled to receive fees from the Funds calculated daily at an
annual rate, as set forth in Schedule 1 to this Agreement, of up to
0.25% on the average net assets held in accounts of each Fund for which
Services are provided by such third-parties which amount shall be paid
by FSSC in accordance with such Third-Party Agreements.
(c) The Funds shall pay service fees to FSSC in accordance with their
regular payment schedules. For the payment period in which this
Agreement becomes effective or terminates with respect to any Fund,
there shall be an appropriate proration of the fee on the basis of the
number of days that this Agreement is in effect with respect to such
Fund during the period.
SECTION 3. Agreements with Other Service Providers
Each Fund hereby appoints FSSC as the Fund's agent to enter into
agreements with financial intermediaries that are not registered as
broker/dealers under the 1934 Act (each an "Unregistered Intermediary") to
provide Services to their customers that are Shareholders of the Fund. Each
Fund agrees to pay Service Fees at an annual rate as set forth in Schedule 1
to this Agreement of up to 0.25% of the average net assets held in Fund
accounts for which an Unregistered Intermediary has agreed to provide
Services. Any such accounts shall not be treated as FSSC Accounts for
purposes of this Agreement.
SECTION 4. Representations
(a) Each party represents and warrants to the other party that:
(i) Status. It is duly organized and validly existing under the laws of the
jurisdiction of its organization or incorporation and,
if relevant under such laws, in good standing.
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it
is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is
required by this Agreement to deliver and to perform
its obligations under this Agreement and has taken all
necessary action to authorize such execution, delivery
and performance.
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any
order or judgment of any court or other agency of
government applicable to it or any contractual
restriction binding on or affecting it.
(iv) Obligations Binding. Its obligations under this Agreement constitute
its legal, valid and binding obligations, enforceable
in accordance with their respective terms (subject to
applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to
equitable principles of general application regardless
of whether enforcement is sought in a proceeding in
equity or law).
(v) Compliance with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject
if failure to so comply would materially impair its
ability to perform its obligations under this
Agreement.
SECTION 5. Indemnification and Limitation of Liability
(a) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of
FSSC and its trustees, officers, employees, agents and representatives,
the Funds agree to indemnify FSSC and its trustees, officers,
employees, agents and representatives against any and all claims,
demands, liabilities and reasonable expenses (including attorneys'
fees), related to or otherwise connected with (i) any breach by the
Funds of any provision of this Agreement; or (ii) any action by a
Fund's Shareholder against FSSC.
(b) FSSC shall not be liable for any error of judgment or mistake of law or
for any loss suffered by any Fund in connection with the matters to
which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. In no event shall FSSC be
liable for indirect or consequential damages.
(c) Any person, even though also an officer, trustee, partner, employee or
agent of FSSC, who may be or become an officer, employee or agent of
any Fund or a member of a Fund's Board, shall be deemed, when rendering
services to such Fund or acting on any business of such Fund (other
than services or business in connection with the duties of FSSC
hereunder) to be rendering such services to or acting solely for such
Fund and not as an officer, trustee, partner, employee or agent or one
under the control or direction of FSSC even though paid by FSSC.
(d) FSSC is expressly put on notice of the limitation of liability as set
forth in the Declaration of Trust of each Fund that is a Massachusetts
business trust and agrees that the obligations assumed by each such
Fund pursuant to this Agreement shall be limited in any case to such
Fund and its assets and that FSSC shall not seek satisfaction of any
such obligations from the Shareholders of such Fund, the Trustees,
Officers, Employees or Agents of such Fund, or any of them.
(e) The provisions of this Section shall survive the termination of this
Agreement.
SECTION 6.
Privacy Policy
(a) The parties acknowledge that:
(i) The Securities and Exchange Commission has adopted Regulation S-P at 17
CFR Part 248 to protect the privacy of individuals who
obtain a financial product or service for personal,
family or household use;
(ii) Regulation S-P permits financial institutions, such as the Funds, to
disclose "nonpublic personal information" ("NPI") of
its "customers" and "consumers" (as those terms are
therein defined in Regulation S-P) to affiliated and
nonaffiliated third parties of the Funds, without
giving such customers and consumers the ability to opt
out of such disclosure, for the limited purposes of
processing and servicing transactions (17 CFR ss.
248.14); for specified law enforcement and
miscellaneous purposes (17 CFR ss. 248.15); and to
service providers or in connection with joint
marketing arrangements (17 CFR ss. 248.13); and
(iii) Regulation S-P provides that the right of a customer and consumer to
opt out of having his or her NPI disclosed pursuant to
17 CFR ss. 248.7 and 17 CFR ss. 248.10 does not apply when
the NPI is disclosed to service providers or in
connection with joint marketing arrangements, provided
the Fund and third party enter into a contractual
agreement that prohibits the third party from
disclosing or using the information other than to
carry out the purposes for which the Fund disclosed
the information (17 CFR ss. 248.13).
(b) The parties agree that the Funds may disclose Shareholder NPI to FSSC
as agent of the Funds and solely in furtherance of fulfilling FSSC's
contractual obligations under the Agreement in the ordinary course of
business to support the Funds and their Shareholders.
(c) FSSC hereby agrees to be bound to use and redisclose such NPI only for
the limited purpose of fulfilling its duties and obligations under the
Agreement, for law enforcement and miscellaneous purposes as permitted
in 17 CFR ss.248.15, or in connection with joint marketing arrangements
that the Funds may establish with FSSC in accordance with the limited
exception set forth in 17 CFR 248.13.
(d) FSSC represents and warrants that, in accordance with 17 CFR ss. 248.30,
it has implemented, and will continue to carry out for the term of the
Agreement, policies and procedures reasonably designed to:
(i) Insure the security and confidentiality of records and NPI of Fund
customers;
(ii) Protect against any anticipated threats or hazards to the security or
integrity of Fund customer records and NPI; and
(iii) Protect against unauthorized access or use of such Fund customer
records or NPI that could result in substantial harm
or inconvenience to any Fund customer.
(e) FSSC may redisclose Section 248.13 NPI only to: (a) the Funds and
affiliated persons of the Funds ("Fund Affiliates"); (b) affiliated
persons of FSSC ("Service Provider Affiliates") (which in turn may
disclose or use the information only to the extent permitted under the
original receipt); (c) a third party not affiliated with FSSC or the
Funds ("Nonaffiliated Third Party") under the service and processing
(ss.248.14) or miscellaneous (ss.248.15) exceptions, but only in the
ordinary course of business to carry out the activity covered by the
exception under which FSSC received the information in the first
instance; and (d) a Nonaffiliated Third Party under the service
provider and joint marketing exception (ss.248.13), provided FSSC enters
into a written contract with the Nonaffiliated Third Party that
prohibits the Nonaffiliated Third Party from disclosing or using the
information other than to carry out the purposes for which the Funds
disclosed the information in the first instance.
(f) FSSC may redisclose Section 248.14 NPI and Section 248.15 NPI to: (a)
the Funds and Fund Affiliates; (b) Service Provider Affiliates (which
in turn may disclose the information to the same extent permitted under
the original receipt); and (c) a Nonaffiliated Third Party to whom the
Funds might lawfully have disclosed NPI directly.
(g) The provisions of this Section shall survive the termination of the
Agreement.
SECTION 7. Notices
(a) All notices of any kind to be given hereunder shall be given in writing
and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested,
overnight courier services, or by fax or e-mail (with confirming copy
by mail).
(b) Unless otherwise notified in writing, all notices to any Fund shall be
given or sent to such Fund at:
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Attention: President
(c) Unless otherwise notified in writing, all notices to FSSC shall be
given or sent to:
Federated Investors Tower
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Attention: President
SECTION 8. Assignments and No Third-Party Rights
(a) Except for any Third-Party Agreements entered into prior to the date of
this Agreement, this Agreement will not be assigned or subcontracted by
either party, without prior written consent of the other party, except
that either party may assign or subcontract this Agreement to an
affiliate controlled, controlled by, or under common control with the
assigning or subcontracting party without such consent. Subject to the
preceding, this Agreement will apply to, be binding in all respects
upon, and inure to the benefit of permitted assigns and subcontractors
of the parties. In no event shall the Funds be obligated to make any
payment under this Agreement to any person other than FSSC.
(b) Nothing expressed or referred to in this Agreement will be construed to
give anyone other than the parties to this Agreement any legal or
equitable right, remedy or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their permitted assigns and
subcontractors.
SECTION 9. Force Majeure
If either party is unable to carry out any of its obligations under
this Agreement because of conditions beyond its reasonable control,
including, but not limited to, acts of war or terrorism, work stoppages,
fire, civil disobedience, delays associated with hardware malfunction or
availability, riots, rebellions, storms, electrical failures, acts of God,
and similar occurrences ("Force Majeure"), this Agreement will remain in
effect and the non-performing party's obligations shall be suspended without
liability for a period equal to the period of the continuing Force Majeure
(which period shall not exceed fifteen (15) business days), provided that:
(i) the non-performing party gives the other party prompt notice describing
the Force Majeure, including the nature of the
occurrence and its expected duration and, where
reasonably practicable, continues to furnish regular
reports with respect thereto during the period of
Force Majeure;
(ii) the suspension of obligations is of no greater scope and of no longer
duration than is required by the Force Majeure;
(iii) no obligations of either party that accrued before the Force Majeure
are excused as a result of the Force Majeure;
(iv) the non-performing party uses all reasonable efforts to remedy its
inability to perform as quickly as possible.
SECTION 10. Definition of Terms
(a) "1934 Act" means the Securities Exchange Act of 1934, and "1940 Act"
means the Investment Company Act of 1940, in each case as amended and
in effect at the relevant time.
(b) "Fund" means an investment company registered under the 1940 Act and,
in the case of a "series company" as defined in Rule 18f-2(a) under the
1940 Act, each individual portfolio of the series company, set forth on
Schedule 1 to this Agreement from time to time. "Funds" means the Funds
listed on Schedule 1 collectively.
(c) "Prospectus" means, with respect to any Shares the most recent
Prospectus and Statement of Additional Information ("SAI") and any
supplement thereto, pursuant to which a Fund publicly offers the
Shares; provided, however, that this definition shall not be construed
to require FSC, Dealer or any Fund to deliver any SAI other than at the
express request of Dealer's customer.
(d) "Shares" means (1) shares of beneficial interest in a Fund organized as
a business trust; and (2) shares of capital stock in a Fund organized
as a corporation. With respect to a Fund that has established separate
classes of Shares in accordance with Rule 18f-3 under the 1940 Act,
Shares refers to the relevant class. "Shareholder" means the beneficial
owner of any Share.
SECTION 11. Miscellaneous
(a) This Agreement may be terminated by either party by giving the other
party at least sixty (60) days' written notice thereof.
(b) This Agreement may be amended only by a writing signed by both parties,
provided that, any Fund may amend Schedule 1 from time to time by
sending a copy of the amended Schedule to FSSC. Any such amendment
shall be effective ten (10) days after notice thereof.
(c) This Agreement constitutes (along with its Schedules) a complete and
exclusive statement of the terms of the agreement between the parties
and supersedes any prior agreement with respect to its subject matter.
(d) This Agreement has been entered into between FSSC and each Fund
severally and not jointly, and the provisions this Agreement shall
apply separately to each Fund. No Fund shall be obligated to make any
payments to FSSC under this Agreement other than with respect to its
Shares. No breach of this Agreement by a Fund, or by FSSC against a
Fund, shall constitute a breach of this Agreement with respect to any
other Fund.
(e) 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.
(f) If any provision of this Agreement is held invalid or unenforceable,
the other provisions of this Agreement will remain in full force and
effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the
extent not held invalid and unenforceable.
(g) This Agreement will be governed by the laws of the Commonwealth of
Pennsylvania, without regard to conflicts of laws principles thereof.
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against the
parties in the courts of the Commonwealth of Pennsylvania, County of
Allegheny, or, if it has or can acquire jurisdiction, in the United
States District Court for the Western District of Pennsylvania, and
each of the parties consents to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Each party waives its right
to a jury trial.
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.
Attest: Funds (listed on Schedule 1)
By:
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Secretary Chairman
Attest: Federated Shareholder Services Company
By:
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Secretary President