Exhibit (h) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
WACHOVIA VARIABLE INSURANCE FUNDS
AGREEMENT
for
FUND ACCOUNTING SERVICES,
ADMINISTRATIVE SERVICES
and
TRANSFER AGENCY SERVICES
AGREEMENT made as of March 3, 2000, by and between WACHOVIA VARIABLE
INSURANCE FUNDS, having its principal office and place of business at 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (together, the
"Investment Company"), on behalf of its separate investment portfolios
(individually referred to herein as a "Fund" and collectively as "Funds"),
listed on Exhibit 1 as may be amended from time to time, and FEDERATED
SERVICES COMPANY, a Pennsylvania corporation, having its principal office
and place of business at Federated Investors Tower, Pittsburgh,
Pennsylvania 15222-3779 on behalf of itself and its subsidiaries (the
"Company").
WHEREAS, the Investment Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), with authorized and issued shares of beneficial interest
("Shares");
WHEREAS, the Investment Company desires to retain the Company as fund
accountant to provide fund accounting services (as herein defined)
including certain pricing, accounting and recordkeeping services for each
of the Funds, including any classes of shares issued by any Fund
("Classes"), and the Company desires to accept such appointment;
WHEREAS, the Investment Company desires to appoint the Company as its
administrator to provide it with administrative services (as herein
defined), and the Company desires to accept such appointment; and
WHEREAS, the Investment Company desires to appoint the Company as its
transfer agent and dividend disbursing agent to provide it with transfer
agency services (as herein defined), and agent in connection with certain
other activities, and the Company desires to accept such appointment;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION ONE: Fund Accounting.
Article 1. Appointment.
The Investment Company hereby appoints the Company to provide certain
pricing and accounting services to the Funds, and/or the Classes, for the
period and on the terms set forth in this Agreement. The Company accepts
such appointment and agrees to furnish the services herein set forth in
return for the compensation set forth in Exhibit 1 to this Agreement.
Article 2. The Company's Duties.
Subject to the supervision and control of the Investment Company's
Board of Trustees ("Board"), the Company will assist the Investment
Company with regard to fund accounting for the Investment Company, and/or
the Funds, and/or the Classes, and in connection therewith undertakes to
perform the following specific services;
A. Value the assets of the Funds using: primarily, market quotations,
including the use of matrix pricing, supplied by the independent
pricing services selected by the Company in consultation with the
Investment Company's investment adviser ("Adviser") and/or investment
sub-adviser ("Sub-Adviser"), or sources selected by the Adviser and/or
Sub-Adviser, and reviewed by the Board; secondarily, if a designated
pricing service does not provide a price for a security which the
Company believes should be available by market quotation, the Company
may obtain a price by calling brokers designated by the Adviser and/or
Sub-Adviser of the Fund holding the security, or if the Adviser and/or
Sub-Adviser does not supply the names of such brokers, the Company
will attempt on its own to find brokers to price those securities;
thirdly, for securities for which no market price is available, the
Investment Company's Pricing Committee (or, in the absence of a
Pricing Committee, the Board) will determine a fair value in good
faith. Consistent with Rule 2a-4 under the 1940 Act, estimates may be
used where necessary or appropriate. The Company's obligations with
regard to the prices received from outside pricing services and
designated brokers or other outside sources, is to exercise reasonable
care in the supervision of the pricing agents. The Company is not the
guarantor of the securities prices received from such agents and the
Company is not liable to the Fund for potential errors in valuing a
Fund's assets or calculating the net asset value per share of such
Fund or Class attributable to such prices. All of the above sources of
prices used as described are deemed by the Company to be authorized
sources of security prices. The Company provides daily to the Adviser
and/or Sub-Adviser the securities prices used in calculating the net
asset value of the Fund, for its use in preparing exception reports
for those prices on which the Adviser and/or Sub-Adviser has comment.
Further, upon receipt of the exception reports generated by the
Adviser and/or Sub-Adviser, the Company diligently pursues
communication regarding exception reports with the designated pricing
agents;
B. Determine the net asset value per share of each Fund and/or Class, at
the time and in the manner from time to time determined by the Board
and as set forth in the Prospectus and Statement of Additional
Information ("Prospectus") of each Fund;
C. Calculate the net income of each Fund, if any;
D. Calculate realized capital gains or losses of each Fund resulting from
sale or disposition of assets, if any;
E. Maintain the general ledger and other accounts, books and financial
records of the Investment Company, including for each Fund and/or Class,
as required under Section 31(a) of the 1940 Act and the rules thereunder
in connection with the services provided by the Company;
F. Preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the
records to be maintained by Rule 31a-1 under the 1940 Act in connection
with the services provided by the Company. The Company further agrees
that all such records it maintains for the Investment Company are the
property of the Investment Company and further agrees to surrender
promptly to the Investment Company such records upon the Investment
Company's request;
G. At the request of the Investment Company, prepare various reports or
other financial documents in accordance with generally accepted
accounting principles as required by federal, state and other
applicable laws and regulations; and
H. Such other similar services as may be reasonably requested by the
Investment Company.
The foregoing, along with any additional services that the Company shall
agree in writing to perform for the Investment Company under this Section One,
shall hereafter be referred to as "Fund Accounting Services."
SECTION TWO: ADMINISTRATIVE SERVICES.
Article 3. Appointment.
The Investment Company hereby appoints the Company as Administrator for the
period on the terms and conditions set forth in this Agreement. The Company
hereby accepts such appointment and agrees to furnish the services herein set
forth in return for the compensation set forth in Exhibit 1 to this Agreement.
Article 4. The Company's Duties.
As Administrator, and subject to the supervision and control of the Board and
in accordance with Proper Instructions (as defined hereafter) from the
Investment Company, the Company will provide facilities, equipment, and
personnel to carry out the following administrative services for operation of
the business and affairs of the Investment Company and each of its Funds:
A. Prepare, file, and maintain the Investment Company's governing
documents and any amendments thereto, including the declaration of
trust (which has already been prepared and filed), the by-laws and
minutes of meetings of the Board and shareholders;
B. Prepare and file with the Securities and Exchange Commission ("SEC") the
registration statements for the Investment Company and the Investment
Company's Shares and all amendments thereto, reports to regulatory
authorities and shareholders, prospectuses, proxy statements, and such
other documents all as may be necessary to enable the Investment Company
to make a continuous offering of its Shares;
C. Prepare, negotiate, and administer contracts (if any) on behalf of the
Investment Company with, among others, the Adviser and/or Sub-Adviser
and the Investment Company's distributor(s), subject to any applicable
restrictions of the Board or the 1940 Act;
D. Calculate performance data of the Investment Company for dissemination
to information services covering the investment company industry;
E. Prepare and file the Investment Company's tax returns;
F. Coordinate the layout and printing of publicly disseminated
prospectuses and reports;
G. Perform internal audit examinations in accordance with a charter
adopted by the Company and the Investment Company;
H. Assist with the design, development, and operation of the Investment
Company and the Funds;
I. Provide individuals reasonably acceptable to the Board for nomination,
appointment, or election as officers of the Investment Company, who
will be responsible for the management of certain of the Investment
Company's affairs as determined by the Investment Company's Board; and
J. Consult with the Investment Company and its Board on matters
concerning the Investment Company and its affairs.
The foregoing, along with any additional services that the Company shall
agree in writing to perform for the Investment Company under this Section Two,
shall hereafter be referred to as "Administrative Services."
Article 5. Records.
The Company shall create and maintain all necessary books and records in
accordance with all applicable laws, rules and regulations, including but not
limited to records required by Section 31(a) of the 1940 Act and the rules
thereunder, as the same may be amended from time to time, pertaining to the
Administrative Services performed by it and not otherwise created and maintained
by another party pursuant to contract with the Investment Company. Where
applicable, such records shall be maintained by the Company for the periods and
in the places required by Rule 31a-2 under the 1940 Act. The books and records
pertaining to the Investment Company which are in the possession of the Company
shall be the property of the Investment Company. The Investment Company, or the
Investment Company's authorized representatives, shall have access to such books
and records at all times during the Company's normal business hours. Upon the
reasonable request of the Investment Company, copies of any such books and
records shall be provided promptly by the Company to the Investment Company or
the Investment Company's authorized representatives.
Article 6. Expenses.
Notwithstanding the Company's duties as set forth in Article 4 of this
Agreement, the Investment Company assumes full responsibility for the
preparation, contents and distribution of its own offering documents and for
complying with all applicable requirements the 1940 Act, the Internal Revenue
Code, and any other laws, rules and regulations of government authorities having
jurisdiction.
A. The Company shall be responsible for expenses incurred in providing
office space, equipment, and personnel as may be necessary or
convenient to provide the Administrative Services to the Investment
Company, including the compensation of the Company employees who serve
as officers of the Investment Company. The Investment Company shall be
responsible for all other expenses incurred by the Company on behalf
of the Investment Company, including without limitation postage and
courier expenses, printing expenses, travel expenses, registration
fees, filing fees, fees of outside counsel and independent auditors,
or other professional services, organizational expenses, insurance
premiums, fees payable to persons who are not the Company's employees,
trade association dues, and other expenses properly payable by the
Funds and/or the Classes.
Article 7. Standard of Care and Indemnification.
A. The Company shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Investment Company in
connection with the matters to which Section Two of 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. The Company shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Investment Company) on
all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice provided that such action is
not in violation of applicable federal or state laws or regulations,
and is in good faith and without negligence. Any person, even though
also an officer, director, trustee, partner, employee or agent of the
Company, who may be or become an officer, director, trustee, partner,
employee or agent of the Investment Company, shall be deemed, when
rendering services to the Investment Company or acting on any business
of the Investment Company (other than services or business in
connection with the duties of the Company hereunder) to be rendering
such services to or acting solely for the Investment Company and not
as an officer, director, trustee, partner, employee or agent or one
under the control or direction of the Company even though paid by the
Company.
B. Subject to the conditions set forth below; the Investment Company
agrees to indemnify and hold harmless the Company against any and all
loss, liability, claim, damage or expense whatsoever (including the
reasonable cost of investigating or defending any alleged loss,
liability, damages, claim or expense and reasonable counsel fees
incurred in connection therewith) arising by reason of any action
taken or thing done by the Company in performing Administrative
Services pursuant to Section Two of this Agreement if not resulting
from the Company's 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.
If any action is brought against the Company to which indemnity may be
sought against the Investment Company pursuant to the foregoing
paragraph, The Company shall promptly notify the Investment Company in
writing of the institution of such action and, if provided such notice
has been given, the Investment Company shall assume the defense of such
action, including the employment of counsel selected by the Investment
Company and payment of expenses. The Company shall have the right to
employ separate counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Company unless the
employment of such counsel shall have been authorized in writing by the
Investment Company in connection with the defense of such action or the
Investment Company shall not have employed counsel to have charge of the
defense of such action, in any of which events such fees and expenses
shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Investment Company shall not be liable for
any settlement of any such claim or action effected without its written
consent. The Investment Company agrees promptly to notify the Company of
the commencement of any litigation or proceedings against the Investment
Company or any of its officers or Trustees in connection with the
Administrative Services.
C. The Company agrees to indemnify and hold harmless the Investment
Company, each of its Trustees and each of its officers against any
loss, liability, damages, claim or expense (including the reasonable
cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fee incurred in
connection therewith) arising by reason of any action taken or thing
done by the Company in performing Administrative Services pursuant to
Section Two of this Agreement if resulting from the Company's 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 case any action shall
be brought against the Investment Company or any other person so
indemnified based on the foregoing at described in this subsection
(C), and with respect to which indemnity may be sought against the
Company, the Company shall have the rights and duties given to the
Investment Company, and the Investment Company and each other person
so indemnified shall have the rights and duties given to the Company
by the provisions of subsection B above.
SECTION THREE: TRANSFER AGENCY SERVICES.
Article 8. Terms of Appointment.
Subject to the terms and conditions set forth in this Agreement, the
Investment Company hereby appoints the Company to act as Transfer Agent
and Dividend Disbursing Agent for each Fund's Shares, and agent in
connection with any accumulation, open-account or similar plans provided
to the shareholders of any Fund ("Shareholder(s)"), including without
limitation any periodic investment plan or periodic withdrawal program.
Article 9. Duties of the Company.
The Company shall perform the following services in accordance with
Proper Instructions as may be provided from time to time by the Investment
Company as to any Fund:
A. Purchases
(1) The Company shall receive orders and payment for the purchase of
Shares and promptly deliver payment and appropriate documentation
therefor to the custodian of the relevant Fund, (the "Custodian").
The Company shall notify the Fund the Custodian on a daily basis
of the total amount of orders and payments so delivered.
(2) Pursuant to purchase orders and in accordance with the Fund's
current Prospectus, the Company shall compute and issue the
appropriate number of Shares of each Fund and/or Class and hold
such Shares in the appropriate Shareholder accounts.
(3) For certificated Funds and/or Classes, if a Shareholder or its
agent requests a certificate, the Company, as Transfer Agent,
shall countersign and mail by first class mail, a certificate to
the Shareholder at its address as set forth on the transfer books
of the Funds, and/or Classes, subject to any Proper Instructions
regarding the delivery of certificates.
(4) In the event that any check or other order for the purchase of
Shares of a Fund and/or Class is returned unpaid for any reason,
the Company shall debit the Share account of the Shareholder by
the number of Shares that had been credited to its account upon
receipt of the check or other order, promptly mail a debit advice
to the Shareholder, and notify the Fund and/or Class of its
action. In the event that the amount paid for such Shares exceeds
proceeds of the redemption of such Shares plus the amount of any
dividends paid with respect to such Shares, the Fund and/or Class
or its distributor will reimburse the Company in the amount of
such excess.
B. Distribution
(1) Upon notification by a Fund of the declaration of any distribution
to Shareholders, the Company shall act as Dividend Disbursing
Agent for the Fund in accordance with the provisions of its
governing document and the then-current Prospectus of the Fund.
The Company shall prepare and mail or credit income, capital gain,
or any other payments to Shareholders. As the Dividend Disbursing
Agent, the Company shall, on or before the payment date of any
such distribution, notify the Custodian of the estimated amount
required to pay any portion of said distribution which is payable
in cash and request the Custodian to make available sufficient
funds for the cash amount to be paid out. The Company shall
reconcile the amounts so requested and the amounts actually
received by the Custodian on a daily basis. If a Shareholder is
entitled to receive additional Shares by virtue of any such
distribution or dividend, appropriate credits shall be made to the
Shareholder's account, or for certificated Funds and/or Classes,
certificates for such Shares shall be delivered where requested;
and
(2) The Company shall maintain records of account for each Fund and
Class and advise the Investment Company, each Fund and Class and
its Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) The Company shall receive redemption requests and redemption
directions and, if such redemption requests comply with the
procedures as may be described in the Fund Prospectus or set forth
in Proper Instructions, deliver the appropriate instructions
therefor to the Custodian. The Company shall notify the Funds on a
daily basis of the total amount of redemption requests processed
and monies paid to the Company by the Custodian for redemptions.
(2) At the appropriate time upon receiving redemption proceeds from
the Custodian with respect to any redemption, the Company shall
pay or cause to be paid the redemption proceeds in the manner
instructed by the redeeming Shareholders, pursuant to procedures
described in the then-current Prospectus of the Fund.
(3) If any certificate returned for redemption or other request for
redemption does not comply with the procedures for redemption
approved by the Fund, the Company shall promptly notify the
Shareholder of such fact, together with the reason therefor, and
shall effect such redemption at the price applicable to the date
and time of receipt of documents complying with said procedures.
(4) The Company shall effect transfers of Shares by the registered
owners thereof.
(5) The Company shall identify and process abandoned accounts and
uncashed checks for state escheat requirements on an annual basis
and report such actions to the Fund.
D. Recordkeeping
(1) The Company shall record the issuance of Shares of each Fund,
and/or Class, and maintain pursuant to applicable rules of the SEC
a record of the total number of Shares of the Fund and/or Class
which are authorized, based upon data provided to it by the Fund,
and issued and outstanding. The Company shall also provide the
Fund on a regular basis or upon reasonable request with the total
number of Shares which are authorized and issued and outstanding.
(2) The Company shall establish and maintain records pursuant to
applicable rules of the SEC relating to the services to be
performed under this Section Three in the form and manner as
agreed to by the Investment Company to include a record for each
Shareholder's account of the following:
(a) Name, address and tax identification number (and whether
such number has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account, including
dividends paid and date and price for all transactions;
(d) Any stop or restraining order placed against the account;
(e) Information with respect to withholding in the case of a
foreign account or an account for which withholding is
required by the Internal Revenue Code;
(f) Any dividend reinvestment order, plan application, dividend
address and correspondence relating to the current
maintenance of the account;
(g) Certificate numbers and denominations for any Shareholder
holding certificates (if share certificates are issued);
(h) Any information required in order for the Company to perform
the calculations contemplated or required by this Agreement.
(3) The Company shall preserve any such records required to be
maintained pursuant to the rules of the SEC for the periods
prescribed in said rules as specifically noted below. Such record
retention shall be at the expense of the Company, and such records
may be inspected by the Fund at reasonable times. The Company may,
at its option at any time, and shall forthwith upon the Fund's
demand, turn over to the Fund and cease to retain in the Company's
files, records and documents created and maintained by the Company
pursuant to this Agreement, which are no longer needed by the
Company in performance of its services or for its protection. If
not so turned over to the Fund, such records and documents will be
retained by the Company for six years from the year of creation,
during the first two of which such documents will be in readily
accessible form. At the end of the six year period, such records
and documents will either be turned over to the Fund or destroyed
in accordance with Proper Instructions.
E. Confirmations/Reports
(1) The Company shall furnish to the Fund periodically the following
information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in each
state for "blue sky" purposes as determined according to
Proper Instructions delivered from time to time by the Fund
to the Company;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution
agreements, allocations of sales loads, redemption fees, or
other transaction- or sales-related payments;
(f) Such other information as may be agreed upon from time to
time.
(2) The Company shall prepare in the appropriate form, file with the
Internal Revenue Service and appropriate state agencies, and, if
required, mail to Shareholders, such notices for reporting
dividends and distributions paid as are required to be so filed
and mailed and shall withhold such sums as are required to be
withheld under applicable federal and state income tax laws, rules
and regulations.
(3) In addition to and not in lieu of the services set forth above, the
Company shall:
(a) Perform all of the customary services of a transfer agent,
dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan
or periodic withdrawal program), including but not limited
to: maintaining all Shareholder accounts, mailing
Shareholder reports and Prospectuses to current
Shareholders, withholding taxes on accounts subject to
back-up or other withholding (including non-resident alien
accounts), preparing and filing reports on U.S. Treasury
Department Form 1099 and other appropriate forms required
with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other
conformable transactions in Shareholder accounts, preparing
and mailing activity statements for Shareholders, and
providing Shareholder account information; and
(b) Provide a system which will enable the Fund to monitor the
total number of Shares of each Fund (and/or Class) sold in
each state ("blue sky reporting"). The Fund shall by Proper
Instructions (i) identify to the Company those transactions
and assets to be treated as exempt from the blue sky
reporting for each state and (ii) verify the classification
of transactions for each state on the system prior to
activation and thereafter monitor the daily activity for
each state. The responsibility of the Company for each
Fund's (and/or Class's) state blue sky reporting status is
limited to the recording of the classification of
transactions or accounts with regard to blue sky compliance
and the reporting of such transactions and accounts to the
Fund as provided above.
F. Other Duties
(1) The Company shall answer correspondence from Shareholders relating
to their Share accounts and such other correspondence as may from
time to time be addressed to the Company;
(2) The Company shall prepare Shareholder meeting lists, mail proxy
cards and other material supplied to it by the Fund in connection
with Shareholder meetings of each Fund; receive, examine and
tabulate returned proxies, and certify the vote of the
Shareholders; and
(3) The Company shall establish and maintain facilities and procedures
for safekeeping of Share certificates (if issued), check forms and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such certificates,
forms and devices.
The foregoing, along with any additional services that the Company shall
agree in writing to perform for the Investment Company under this Section Three,
shall hereafter be referred to as "Transfer Agency Services."
Article 10. Duties of the Investment Company.
A. Compliance
Notwithstanding, the duties of the Company as set forth in Article 9 of
this Agreement, the Investment Company or Fund assume full
responsibility for the preparation, contents and distribution of their
own and/or their classes' Prospectus and for complying with all
applicable requirements of the Securities Act of 1933, as amended (the
"1933 Act"), the 1940 Act and any laws, rules and regulations of
government authorities having jurisdiction.
B. Share Certificates
If Share certificates are issued, the Investment Company shall supply
the Company with a sufficient supply of blank Share certificates and
from time to time shall renew such supply upon request of the Company.
Such blank Share certificates shall be properly signed, manually or by
facsimile, if authorized by the Investment Company and shall bear the
seal of the Investment Company or facsimile thereof; and notwithstanding
the death, resignation or removal of any officer of the Investment
Company authorized to sign certificates, the Company may continue to
countersign certificates which bear the manual or facsimile signature of
such officer until otherwise directed by the Investment Company.
C. Distributions
The Fund shall promptly inform the Company of the declaration of any
dividend or distribution on account of any Fund's Shares.
SECTION FOUR: GENERAL PROVISIONS.
Article 11. Proper Instructions.
As used throughout this Agreement, a "Proper Instruction" means a
writing signed or initialed by one or more persons as the Board shall have
from time to time authorized. Each such writing shall set forth the
specific transaction or type of transaction involved. Oral instructions
will be deemed to be Proper Instructions if (a) the Company reasonably
believes them to have been given by a person previously authorized in
Proper Instructions to give such instructions with respect to the
transaction involved, and (b) the Investment Company, or the Fund, and the
Company promptly cause such oral instructions to be confirmed in writing.
Proper Instructions may include communications effected directly between
electro-mechanical or electronic devices provided that the Investment
Company, or the Fund, and the Company are satisfied that such procedures
afford adequate safeguards for the Fund's assets. Proper Instructions may
only be amended in writing.
Article 12. Assignment.
Except as provided below, neither this Agreement nor any of the rights
or obligations under this Agreement may be assigned by either party
without the written consent of the other party.
A. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
B. With regard to Transfer Agency Services, the Company may, without
further consent of the Investment Company, subcontract for the
performance of Transfer Agency Services with
(1) its subsidiary, Federated Shareholder Service Company, a Delaware
business trust, which is duly registered as a transfer agent
pursuant to Section 17A(c)(1) of the Securities Exchange Act of
1934, as amended, or any succeeding statute ("Section 17A(c)(1)");
or
(2) such other provider of services duly registered as a transfer
agent under Section 17A(c)(1) as Company shall select.
C. With regard to Fund Accounting Services and Administrative Services, the
Company may, without further consent of the Investment Company,
subcontract for the performance of such services with Federated
Administrative Services, a wholly-owned subsidiary of the Company, or
such other service provider as Company may select.
D. Except as provided in E below, the Company shall be as fully responsible
to the Investment Company for the acts and omissions of any
subcontractor as it is for its own acts and omissions. The compensation
of such person or persons shall be paid by the Company and no obligation
shall be incurred on behalf of the Investment Company, the Funds, or the
Classes in such respect.
E. The Company shall upon instruction from the Investment Company
subcontract for the performance of services under this Agreement with
an agent selected by the Investment Company, other than as described
in B. and C. above; provided, however, that the Company shall in no
way be responsible to the Investment Company for the acts and
omissions of the agent.
F. Either party may assign all of or a substantial portion of its
business to a successor, or to a party controlling, controlled by, or
under common control with such party.
Nothing in this Article 12 shall prevent the Company from delegating its
responsibilities to another entity to the extent provided herein.
Article 13. Documents.
A. In connection with the appointment of the Company under this
Agreement, the Investment Company shall file with the Company the
following documents:
(1) A copy of the declaration of trust and by-laws of the Investment
Company and all amendments thereto;
(2) A copy of the resolution of the Board of the Investment Company
authorizing this Agreement;
(3) Specimens of all forms of outstanding Share certificates of the
Investment Company or the Funds in the forms approved by the Board
of the Investment Company with a certificate of the Secretary of
the Investment Company as to such approval;
(4) All account application forms and other documents relating to
Shareholders accounts; and
(5) A copy of the current Prospectus for each Fund.
B. The Fund will also furnish from time to time the following documents:
(1) Each resolution of the Board of the Investment Company authorizing
the original issuance of each Fund's and/or Class's Shares;
(2) Each registration statement filed with the SEC and amendments
thereof and orders relating thereto in effect with respect to the
sale of Shares of any Fund, and/or Class;
(3) A certified copy of each amendment to the declaration of trust
and the by-laws of the Investment Company;
(4) Certified copies of each vote of the Board authorizing officers to
give Proper Instructions to the Custodian and agents for fund
accounting and shareholder recordkeeping or transfer agency
services;
(5) If issued, specimens of all new Share certificates representing
Shares of any Fund, accompanied by Board resolutions approving
such forms;
(6) Such other certificates, documents or opinions which the Company
may, in its discretion, deem necessary or appropriate in the
proper performance of its duties; and
(7) Revisions to the Prospectus of each Fund.
Article 14. Representations and Warranties.
A. Representations and Warranties of the Company
The Company represents and warrants to the Fund that:
(1) it is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania;
(2) It is duly qualified to carry on its business in each jurisdiction
where the nature of its business requires such qualification, and
in the Commonwealth of Pennsylvania;
(3) it is empowered under applicable laws and by its articles of
incorporation and by-laws to enter into and perform this
Agreement;
(4) all requisite corporate proceedings have been taken to authorize
it to enter into and perform its obligations under this Agreement;
(5) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
(6) it is in compliance with federal securities law requirements and
in good standing as an administrator, fund accountant and transfer
agent.
B. Representations and Warranties of the Investment Company
The Investment Company represents and warrants to the Company that:
(1) It is an investment company duly organized and existing and in
good standing under the laws of its state of organization;
(2) It is empowered under applicable laws and by its declaration of
trust and by-laws to enter into and perform its obligations under
this 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 its obligations under this Agreement;
(4) The Investment Company is an open-end management investment
company registered under the 1940 Act; and
(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 each Fund being
offered for sale.
Article 15. Standard of Care and Indemnification.
A. Standard of Care
With regard to Sections One and Three, the Company shall be held to a
standard of reasonable care in carrying out the provisions of this
Agreement, provided however, that the Company shall be held to any
higher standard of care that would be imposed upon the Company, by an
applicable law or regulation even though such stated standard of care
was not part of this Agreement. The Company shall be entitled to rely on
and may act upon advice of counsel (who may be counsel for the
Investment Company) on all matters, and shall be without liability for
any action reasonably taken or omitted pursuant to such advice, provided
that such action is not in violation of applicable federal or state laws
or regulations, and is in good faith and without negligence. Any person,
even though also an officer, trustee, partner, employee or agent of the
Company, who may be or become an officer, trustee, partner, employee or
agent of the Investment Company, shall be deemed, when rendering
services to the Investment Company or acting on any business of the
Investment Company (other than services or business in connection with
the duties of the Company hereunder) to be rendering such services to or
acting solely for the Investment Company and not as an officer,
director, trustee, partner, employee or agent or one under the control
or direction of the Company even though paid by the Company.
B. Indemnification by Investment Company
The Company shall not be responsible for and the Investment Company or
Fund shall indemnify and hold the Company, including its officers,
directors, shareholders and their agents, employees and affiliates,
harmless against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liabilities arising out of or attributable
to:
(1) The Investment Company's refusal or failure to comply with the
terms of this Agreement, or which arise out of the Investment
Company's lack of good faith, gross negligence or willful
misconduct or which arise out of the breach of any representation
or warranty of the Investment Company hereunder;
(2) The acts or omissions of any Custodian, Adviser, Sub-Adviser or
other party contracted or approved by the Investment Company or
Fund;
(3) The reliance on or use by the Company or its agents or
subcontractors of information, records and documents in proper
form which:
(a) are received by the Company or its agents or subcontractors
and furnished to it by or on behalf of the Investment
Company or Fund, its Shareholders or investors regarding the
purchase, redemption or transfer of Shares and Shareholder
account information;
(b) are received by the Company from independent pricing
services or sources for use in valuing the assets of the
Investment Company or Fund; or
(c) are received by the Company or its agents or subcontractors
from Advisers, Sub-Advisers or other third parties
contracted or approved by the Investment Company or Fund for
use in the performance of services under this Agreement; or
(d) have been prepared and/or maintained by the Investment
Company or Fund or its affiliates or any other person or
firm on behalf of the Investment Company.
(4) The reliance on, or the carrying out by the Company or its agents
or subcontractors of, Proper Instructions of the Investment
Company or the Fund.
(5) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws
or regulations of any state that such Shares be registered in such
state or in violation of any stop order or other determination or
ruling by any federal agency or any state with respect to the
offer or sale of such Shares in such state.
Provided, however, that the Company shall not be protected by this
Article 15.B. from liability for any act or omission resulting
from the Company's willful misfeasance, bad faith, negligence or
reckless disregard of its duties or failure to meet the standard
of care set forth in Article 15.A. above.
C. Indemnification by the Company
The Company shall indemnify and hold the Investment Company and each
Fund harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of
or attributed to the Company's lack of good faith, negligence, willful
misconduct, or failure to meet the standard of care set forth in Article
15A above.
D. Reliance
At any time the Company may apply to any officer of the Investment
Company or Fund for instructions, and may consult with legal counsel
with respect to any matter arising in connection with the services to be
performed by the Company under this Agreement, and the Company and its
agents or subcontractors shall not be liable and shall be indemnified by
the Investment Company or the appropriate Fund 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 and is taken in good
faith and without negligence. The Company, its agents and subcontractors
shall be protected and indemnified in recognizing Share certificates
which are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Investment Company or the Fund, and
the proper countersignature of any former transfer agent or registrar,
or of a co-transfer agent or co-registrar.
E. Notification
In order that the indemnification provisions contained in this Article
15 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 in writing 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 or settlement in any case
in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 16. Term and Termination of Agreement.
This Agreement shall be effective from the date first written above and
shall continue through November 30, 2001 ("Initial Term"). Thereafter,
this Agreement shall be automatically renewed each year for an additional
term of one year ("Additional Term") provided that either party may
terminate this Agreement by written notice delivered at least six months
prior to the expiration of the Initial or any Additional Term. In the
event, however, of a material breach by the Company of its obligations
under this Agreement, including a failure by the Company to meet the
applicable standard of care set forth herein, the Investment Company shall
promptly notify the Company in writing of such breach and, upon receipt of
such notice, the Company shall promptly cure the breach, and, if the
breach is not so cured within 30 days after the Company's receipt of
notice thereof, the Investment Company may terminate this Agreement on not
less than 30 days' written notice. The termination date for all original
or after-added Funds which are, or become, a party to this Agreement shall
be coterminous.
Upon the termination of this Agreement by the Investment Company, the
Investment Company shall pay to the Company such compensation as may be
payable prior to the effective date of such termination. In the event that
the Investment Company designates a successor to any of the Company's
obligations hereunder, the Company shall, at the expense and direction of
the Investment Company, transfer to such successor all relevant books,
records and other data established or maintained by the Investment Company
under the foregoing provisions. Additionally, the Company reserves the
right to charge for any other reasonable expenses associated with such
termination. The provisions of Articles 7 and 15 shall survive the
termination of this Agreement.
Article 17. Amendment.
This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 18. Interpretive and Additional Provisions.
In connection with the operation of this Agreement, the Company and the
Investment Company may from time to time agree on such provisions
interpretive of or in addition to the provisions of this Agreement as may
in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a
writing signed by both parties and shall be annexed hereto, provided that
no such interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the Investment
Company's declaration of trust.
Article 19. Governing Law.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Pennsylvania,
provided however, that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by
the SEC thereunder.
Article 20. Notices.
Except as otherwise specifically provided herein, notices and other
writings delivered or mailed postage prepaid to the Investment Company at
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 or to the
Company at Federated Investors Tower, Pittsburgh, Pennsylvania, 15222-3779
or to such other address as the Investment Company or the Company may
hereafter specify, shall be deemed to have been properly delivered or
given hereunder to the respective address.
Article 21. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original.
Article 22. 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 23. Successor Agent.
If a successor agent for the Investment Company shall be appointed by
the Investment Company, the Company shall upon termination of this
Agreement deliver to such successor agent at the office of the Company all
properties of the Investment Company held by it hereunder. If no such
successor agent shall be appointed, the Company shall at its office upon
receipt of Proper Instructions deliver such properties in accordance with
such instructions.
In the event that no written order designating a successor agent or
Proper Instructions shall have been delivered to the Company on or before
the date when such termination shall become effective, then the Company
shall have the right to deliver to a bank or trust company, which is a
"bank" as defined in the 1940 Act, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $2,000,000, all properties held by the
Company under this Agreement. Thereafter, such bank or trust company shall
be the successor of the Company under this Agreement.
Article 24. Force Majeure.
The Company shall have no liability for cessation of services hereunder
or any damages resulting therefrom to the Fund as a result of work
stoppage, power or other mechanical failure, natural disaster,
governmental action, communication disruption or other impossibility of
performance.
Article 25. Severability.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
Article 26. Limitations of Liability of Trustees and Shareholders of the
Investment Company.
The execution and delivery of this Agreement have been authorized by
the trustees of the Investment Company and signed by an authorized officer
of the Investment Company, acting as such, and neither such authorization
by such trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose any
liability on any of them personally, and the obligations of this Agreement
are not binding upon any of the trustees or shareholders of the Investment
Company, but bind only the property of the Fund, or Class, as provided in
the declaration of trust of the Investment Company.
Article 27. Compensation.
A. The Funds will compensate the Company for the services described herein
in accordance with the fees agreed upon from time to time between the
parties hereto. Such fees do not include out-of-pocket disbursements of
the Company for which the Funds shall reimburse the Company.
Out-of-pocket disbursements shall include, but shall not be limited to,
the items agreed upon between the parties from time to time, including
those items listed on Exhibit 1 attached hereto.
B. The Fund and/or the Classes, and not the Company, shall bear the cost
of: custodial fees and expenses; membership dues in the Investment
Company Institute or any similar organization; transfer agency fees
and expenses; investment advisory fees; costs of printing and mailing
Share certificates (if issued); Prospectuses, reports and notices;
administrative fees and expenses; interest on borrowed money;
brokerage commissions; taxes and fees payable to federal, state and
other governmental agencies; fees and expenses of the trustees of the
Investment Company who are not employees of the Company; independent
auditors fees and expenses; legal and audit department expenses billed
to the Company for work performed related to the Investment Company,
the Funds, or the Classes; law firm fees and expenses; organizational
expenses; or other expenses not specified in this Article 27 which may
be properly payable by the Funds and/or Classes.
C. The compensation and out-of-pocket expenses attributable to the Fund
shall be accrued by the Fund and shall be paid to the Company no less
frequently than monthly, and shall be paid daily upon request of the
Company. The Company will maintain detailed information about the
compensation and out-of-pocket expenses by Fund and Class.
D. Any schedule of compensation agreed to hereunder, as may be adjusted
from time to time, shall be dated and signed by a duly authorized
officer of the Investment Company and/or the Funds and a duly authorized
officer of the Company.
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.
WACHOVIA VARIABLE INSURANCE FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FEDERATED SERVICES COMPANY
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT 1
to the Agreement for
Fund Accounting Services,
Administrative Services
and
Transfer Agency Services
The Agreement for Fund Accounting Services, Administrative Services and
Transfer Agency Services dated March 3, 2000, between WACHOVIA VARIABLE
INSURANCE FUNDS, and FEDERATED SERVICES COMPANY shall apply to the following
Portfolios:
Wachovia Balanced Fund II
Wachovia Equity Fund II
Wachovia Special Values Fund II
I. General Fee
For all Fund Accounting, Administrative, and Transfer Agency Services provided
pursuant to this Agreement, the Investment Company agrees to pay and the Company
hereby agrees to accept as full compensation for its services rendered hereunder
a fee as follows:
10.0 basis points on average daily net assets* up to $3.5 billion 6.0 basis
points on average daily net assets* of $3.5 to $5.0 billion 4.0 basis points on
average daily net assets* of $5.0 to $10.0 billion 3.0 basis points on average
daily net assets* of $10.0 to $20.0 billion 2.0 basis points on average daily
net assets* over $20.0 billion
*Of Wachovia Variable Insurance Funds, The Wachovia Funds and The Wachovia
Municipal Funds, excluding Wachovia Prime Money Market Fund
II. Fund Accounting Services Out-of-Pocket Expenses
Out-of-pocket expenses include, but are not limited to, the following: postage
(including overnight courier service), statement stock, envelopes, telephones,
telecommunication charges (including Fax), travel, duplicating, forms, supplies,
microfiche, computer access charges, client specific system enhancements ,access
to the shareholder recordkeeping system, security pricing services, variable
rate change notification services, paydown factor notification services
III. Transfer Agency Services Out-of-Pocket Expenses
Out-of-pocket expenses include but are not limited to postage (including
overnight courier service), statement stock, envelopes, telecommunication
charges (including Fax), travel, duplicating, forms, supplies, microfiche,
computer access charges, client specific enhancements, disaster recovery,
closed account fees, processing fees (including check encoding), and
expenses incurred at the specific direction of the Fund. Postage for mass
mailings is due seven days in advance of the mailing date. IV. Payment
Payment is due thirty days after the date of the invoice.
IN WITNESS WHEREOF, the parties hereto have caused this Schedule to be
executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of March 3, 2000.
WACHOVIA VARIABLE INSURANCE FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FEDERATED SERVICES COMPANY
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
