EXHIBIT 8(VI) UNDER FORM N-1A
EXHIBIT 10 UNDER ITEM 601/REG. S-K
SUB-TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the 22nd day of August, 1997, by and among FEDERATED
SERVICES COMPANY, a Delaware business trust having its principal office and
place of business at Federated Investors Tower, Pittsburgh, Pennsylvania
15222-3779, (the "TA"), RETIREMENT PLAN SERVICES COMPANY OF AMERICA, a Delaware
business trust having its principal office and place of business at Federated
Investors Tower, Pittsburgh, Pennsylvania 15222-3779, (the "Agent") and TOWER
MUTUAL TRUSTS, a registered investment company having its principal office and
place of business at Federated Investors Tower, Pittsburgh, Pennsylvania
15222-3779 (the "Trust", or individually, the "Fund").
WHEREAS, Agent is a registered Transfer Agent.
WHEREAS, TA has entered into an Agreement for Fund Accounting, Shareholder
Recordkeeping and Custody Service Procurement ("TA Agreement") with the Trust,
pursuant to which the Trust has appointed TA as transfer agent, with regard to
the Trust and each portfolio thereunder; and
WHEREAS, the Agent provides recordkeeping, valuation and processing
services for various retirement plans (the "Plans"); and WHEREAS, certain
of the Plans intend to invest in the Funds; and WHEREAS, the Trust desires
and instructs TA to appoint Agent as its sub-transfer agent for the
limited purposes set forth herein; NOW THEREFORE, in consideration of the
premises and mutual promises set forth herein, TA, the Trust and Agent
agree as follows:
Article 1. Appointment of Agent.
TA appoints Agent as sub-transfer agent for the purposes of receiving and
transmitting orders for the purchase and redemption of Fund shares. Agent agrees
to accept such appointment.
Article 2. Duties of Agent.
Agent agrees that it will perform its duties in accordance with the
operating procedures (the "Procedures") attached hereto as Exhibit A.
Article 3. Fees and Expenses.
A. Annual Fee
For performance by Agent pursuant to this Appointment, the Trust agrees
to pay Agent an annual fee of $12.00 per participant account. Such fees
may be changed from time to time by mutual written agreement.
B. Payment
Agent will provide TA with
1. Total number of participants invested in the Funds.
2. Number of participants in the Funds.
3. An invoice for the total fee due to the Agent.
Article 4. Representations and Warranties.
A. Representations and Warranties of Agent
Agent represents and warrants to TA and the Trust that:
(1) It is a business trust, duly organized and existing and in good
standing under the laws of the state of Delaware.
(2) It is empowered under applicable laws and by its charter and by-laws
to enter into and perform under this Agreement.
(3) All requisite corporate proceedings have been taken to authorize it to
enter into and perform under this Agreement.
(4) It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
B. Representations and Warranties of TA
TA represents and warrants to Agent that:
(1) It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
(2) It is empowered under applicable laws and by its charter and by-laws
and by the Trust to enter into and perform this Appointment.
(3) All requisite corporate proceedings have been taken to authorize it to
enter into and perform under this Appointment.
(4) It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Appointment.
(5) It is in compliance with federal securities law requirements and in
good standing as a transfer agent.
It is understood and agreed that TA makes no representation or warranty
as to whether payment of the fees contemplated herein with respect to a
retirement plan constitutes a prohibited transaction as defined in
ss.406 of The Employee Retirement Income Security Act of 1974 (ERISA)
(29 U.S.C. 1106), or ss.4975 of The Internal Revenue Code of 1986 as
amended (IRC) (26 U.S.C. ss.4975).
C. Representations and Warranties of the Trust
The Trust hereby represent and warrant that:
(1) The Trust is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
(2) The Trust is empowered under applicable laws and by its Declaration of
Trust ("Declaration of Trust") and By-Laws to enter into the TA
Agreement.
(3) All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform
under this Agreement.
(4) The Trust is an open-end investment company registered under the 1940
Act ("Investment Company").
(5) A registration statement under the 1933 Act will be effective, and
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Trust being
offered for sale.
Article 5. Covenants.
A. Covenants of Agent
Agent covenants that Agent shall utilize and employ all reasonable
control procedures available in its performance of the services rendered
hereunder, and Agent shall promptly advise TA of any errors or mistakes
in the data or information transmitted to TA, the records maintained or
output generated hereby and, using normal audit and control procedures,
Agent shall verify all information received from TA;
B. Covenants of TA
TA covenants that TA shall promptly advise Agent of any errors or
mistakes in the data or information transmitted to Agent, the records or
output generated thereby, and, using normal audit and control
procedures, TA shall verify all information received from Agent.
Article 6. Standard of Care/Indemnification.
A. Standard of Care
Agent shall be held to a standard of reasonable care in carrying out the
provisions of this Agreement; provided, however that Agent shall be held
to any higher standard of care which would be imposed upon Agent by any
applicable law or regulation.
B. Indemnification by Agent
TA and the Trust and their officers, directors and employees shall not
be responsible for and Agent shall indemnify and hold TA and the Trust
and their officers directors and employees harmless against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(1) The Agent's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Agent's lack of good faith,
gross negligence or willful misconduct or which arise out of the
breach of any material representation or warranty of Agent
hereunder.
(2) The reliance on or use by Trust or TA or their sub-transfer
agents or subcontractors of information, records and documents in
proper form which:
(a) are received by Trust or TA or their sub-transfer agents or
subcontractors and furnished to them by or on behalf of
Agent, regarding the purchase, redemption or transfer of
shares, or
(b) have been prepared and/or maintained by Agent or its
affiliates or any other person or firm on behalf of Agent.
Notwithstanding the above, the TA shall not be protected by this Article
6.B. from liability for any act or omission resulting from TA's lack of
good faith, negligence, or willful misconduct.
C. Reliance
At any time TA or Agent may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by TA or
Agent under this Agreement, and TA and its sub-transfer agents or
subcontractors and Agent and its agents or subcontractors shall not be
liable and shall be indemnified by the Trust for any action reasonably
taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel provided such action is not in violation of
applicable Federal or state laws or regulations.
D. Notification
In order that the indemnification provisions contained in this Article 6
shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the
other party advised with respect to all developments concerning such
claim. The party who may be required to indemnify shall have the option
to participate with the party seeking indemnification in the defense of
such claim. The party seeking indemnification shall in no case confess
any claim or make any compromise in any case in which the other party
may be required to indemnify it except with the other party's prior
written consent.
Article 7. Amendment.
TA shall not agree to any amendment or waiver of the provisions of the TA
Agreement which would effect Agent's interests hereunder without the written
consent of Agent, which shall not be unreasonably withheld. This Agreement may
be terminated at any time by sixty (60) days' written notice given by Agent to
TA or by TA to Agent; provided, however, that this Agreement may be terminated
immediately at any time by TA in the event that the TA Agreement is terminated,
or in the event that Agent fails to cure a breach of, or a failure to perform
its duties under this Appointment within thirty (30) days following written
notice of such breach or failure. Article 8. Miscellaneous.
A. Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof. This
Agreement may be executed simultaneously in counterparts, each of which
taken together shall constitute one and the same instrument.
B. The provisions of this Agreement shall in no way limit the authority of
the Trust or its representatives to take such action as it or they may
deem appropriate or advisable in connection with all matters relating to
the operations of such Fund and/or sale of its shares.
Article 9. Notices.
Except as otherwise specifically provided herein, Notices and other
writings may be delivered or mailed postage prepaid to the Trust at Federated
Investors Tower, Pittsburgh, Pennsylvania, 15222-3779, to TA at Federated
Investors Tower, Pittsburgh, Pennsylvania 15222-3779, and to Agent at Federated
Investors Tower, Pittsburgh, Pennsylvania 15223-3779.. Article 10. Merger of
Agreement.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject hereof whether
oral or written.
Article 11. Force Majeure.
No party to this agreement shall have any liability for cessation of
services hereunder or any damages resulting therefrom to any other party
hereunder as a result of work stoppage, power or other mechanical failure,
natural disaster, governmental action, communication disruption or other
impossibility of performance. Article 12. Limitation of Liability.
Agent is hereby expressly put on notice of the limitation of liability as
set forth in the Declaration of Trust of the Trust and TA and agrees that the
obligations assumed by the Trust and TA pursuant to this Agreement shall be
limited in any case to the Trust and TA and their respective assets, and Agent
shall not seek satisfaction of any such obligation from the shareholders of the
Trust or TA, the Trustees, officers, employees or sub-transfer agents of the
Trust or TA, or any of them. Article 13. Severability.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
FEDERATED SERVICES COMPANY
By: /s/ Xxxxxx X. Xxxx
Senior Vice President
RETIREMENT PLAN SERVICES COMPANY OF AMERICA
By: /s/ Xxxxxxx Xxxxxxx
Assistant Vice President
TOWER MUTUAL FUNDS
By: /s/ Xxxxxxx X. Xxxxxxxx
Vice President
EXHIBIT A
OPERATING PROCEDURES
TA will establish a single, separate account for the interest of each Plan
in each of the Funds selected. Agent will maintain Plan participant accounts.
Agent will separately place purchase orders and redemption orders for each Plan
with TA in accordance with the procedures listed below. 1. All orders accepted
and transmitted by Agent hereunder with respect to each Plan on any business day
will be based upon instructions that it received from the Plan or Plan
participants in proper form prior to 3:00 p.m. Central Standard Time on that
business day (day 1).
2. TA will furnish Agent by 6:00 p.m. (day 1) the net asset value per share as
of the close of business and any appropriate accrual/dividend factors for
all Funds.
3. TA will accept net trade orders from the Agent until 7:00 a.m. on the
following business day (day 2). These trades will be entered at the net asset
value as of the close of business on day 1.
4. The settlement date for all trades is day 2. Settlements shall be made by
Fed Wire transfer between the trustee or custodian of the Plan and the
Fund.
5. TA will furnish Agent a confirmation with respect to each order placed
hereunder. Upon receipt of each confirmation Agent shall verify its accuracy
and shall notify TA of any errors appearing thereon.
6. TA shall promptly furnish Agent with notice of any dividends or distributions
payable on shares of the Funds. All such dividends and distributions shall be
automatically reinvested in additional shares of the Funds. TA shall notify
Agent as to the number of shares so issued.
7. TA shall provide Agent with semi-annual and annual reports and proxy
materials for the Funds and other such information with respect to the Funds
as Agent may reasonably request.
8. Agent shall transmit to TA such information concerning the Plans and
participants in the Plans as TA shall reasonably request to perform its
duties under this Agreement and the TA Agreements and to enable Trust to
compy with applicable state Blue Sky laws, and all other laws and
regulations.
