Exhibit (g) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
CUSTODY AGREEMENT
THIS AGREEMENT, is made effective as of March 3, 2000, by and between
WACHOVIA VARIABLE INSURANCE FUNDS (the "Trust"), a business trust organized
under the laws of the Commonwealth of Massachusetts and WACHOVIA BANK, N.A. a
national banking association (the "Custodian").
WITNESSETH:
WHEREAS, the Trust is an open-end management series investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires to retain the Custodian to serve as the Trust's
custodian to its existing series: Wachovia Balanced Fund II, Wachovia Equity
Fund II, and Wachovia Special Values Fund II (such series, together with all
other series subsequently established by the Trust and made subject to this
Agreement in accordance with Section 3.22 being herein referred to as the
"Funds") and the Custodian is willing to furnish such services;
NOW THEREFORE, in consideration of the mutual agreements herein made, the
Trust and the Custodian hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly authorized
by resolution of the Board of Trustees to give Proper Instructions on behalf of
the Funds and named in Exhibit B hereto or in such resolutions of the Board of
Trustees, certified by an Officer, as may be received by the Custodian from time
to time. The Trust will provide the Custodian with authenticated specimen
signatures of each Authorized Person.
1.2 "Board of Trustees" means the Trustees from time to time serving under
the Trust's Agreement and Declaration of Trust, dated March 3, 2000, as from
time to time amended.
1.3 "Securities System" means a federal book-entry system as provided in
Subpart O of Treasury Circular No. 300, CFR 306, in Subpart B of 31 CFR Part
350, or in such book-entry regulations of federal agencies as are substantially
in the form of such Subpart O, the Depository Trust Company ("DTC"),
Participants Trust Company and (provided that Custodian shall have received a
copy of a resolution of the Board of Trustees, certified by an Officer,
specifically approving the use of such clearing agency as a depository for the
Funds) any other clearing agency registered with the Securities and Exchange
Commission ("SEC") under Section 17A of the Securities Exchange Act of 1934
("1934 Act"), which acts as a system for the central handling of Securities
where all securities of any particular class or series of an issuer deposited
within the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of the Securities.
1.4 "Business Day" means any day recognized as a settlement day by The New
York Stock Exchange, Inc. and any other day for which the Trust computes the net
asset value of a Fund.
1.5 "NASD" means The National Association of Securities Dealers, Inc.
1.6 "Officer" means the Chairman, President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer of
the Trust.
1.7 "Fund Custody Account" means any of the accounts in the name of the
Trust, which are provided for in Section 3.2 below.
1.8 "Proper Instructions" means:
(i) a writing (including, without limitation, a facsimile transmission or
tested telex) constituting a request, direction, instruction or
certification signed or initiated by or on behalf of a Fund by one or more
Authorized Persons or reasonably believed by the Custodian to have been
signed by such Authorized Persons;
(ii) a telephonic or other oral communication by one or more Authorized
Persons or reasonably believed by the Custodian to have been communicated
by such Authorized Persons; or
(iii) communications transmitted electronically through the Institutional
Delivery System (IDS), or any other similar electronic instruction system
acceptable to Custodian and approved by resolutions of the Board of
Trustees, a copy of which, certified by an Officer, shall have been
delivered to the Custodian.
The Trust shall cause all Proper Instructions in the form of oral communications
to be promptly confirmed in writing, as specified in clause (i) of this
paragraph. In the event that an oral communication is not so confirmed, or in
the event that a written confirmation differs from the related oral
communication, the Trust will hold the Custodian harmless and without liability
for any claims or losses in connection with such oral communication. Proper
Instructions may be in the form of standing instructions. In respect of trades
reported on the Trust's behalf through DTC, instructions from DTC (whether in a
DTC report or otherwise), shall be Proper Instructions.
1.9 "Securities" include, without limitation, common and preferred stocks,
bonds, call options, put options, debentures, notes, bank certificates of
deposit, bankers' acceptances, mortgage-backed securities, other money market
instruments or other obligations, and any certificates, receipts, warrants or
other instruments or documents representing rights to receive, purchase or
subscribe for the same, or evidencing or representing any other rights or
interests therein, or any similar property or assets that the Custodian has the
facilities to clear and to service.
1.10 "Shares" means, with respect to a Fund, the units of beneficial
interest issued by the Trust on account of such Fund.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Trust hereby constitutes and appoints the Custodian
as custodian for the term and subject to the provisions of this Agreement.
2.2 Acceptance. The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of a Fund, except Securities maintained in a
Securities System pursuant to Section 3.6 herein, shall be physically segregated
from other Securities and non-cash property in the possession of the Custodian
(including the Securities and non-cash property of another Fund) and shall be
identified as subject to this Agreement.
3.2 Fund Custody Accounts. As to each Fund, the Custodian shall open and
maintain in its trust department a custody account or accounts in the name of
the Trust coupled with the name of such Fund, subject only to draft or order of
the Custodian, in which the Custodian shall enter and carry all Securities, cash
and other assets of such Fund which are delivered to it.
3.3 Appointment of Sub-custodians. In its discretion, the Custodian may
appoint, and at any time remove, any domestic bank or trust company, which has
been approved by the Board of Trustees and is qualified to act as a custodian
under the 1940 Act, as sub-custodian to hold Securities and cash of the Funds
and to carry out such other provisions of this Agreement as it may determine,
and may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of the Custodian on behalf of
its customers and subject only to its draft or order pursuant to the terms of
this Agreement), provided, however, that the Custodian shall have no more or
less responsibility or liability to the Trust on account of any actions or
omissions of such Sub-custodian so employed than any such sub-custodian has to
the Custodian.
3.4 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust company
which is itself qualified under the Investment Company Act of 1940, as amended,
to act as a custodian, as its agent to carry out such of the provisions of this
Article 2 as the Custodian may from time to time direct; provided, however, that
the appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
3.5 Delivery of Assets to Custodian. The Trust shall deliver, or cause to
be delivered, to the Custodian all of the Funds' Securities, cash and other
assets, including (a) all payment of income, payments of principal and capital
distributions received by the Funds with respect to such Securities, cash or
other assets owned by the Funds at any time during the period of this Agreement,
and (b) all cash received by the Funds for the issuance, at any time during such
period, of Shares. The Custodian shall not be responsible for such Securities,
cash or other assets until actually received by it.
3.6 Securities Systems. The Custodian may deposit and/or maintain
Securities of the Funds in a Securities System, subject to the following
provisions:
(a) Prior to a deposit of Securities of the Funds in any Securities
System, the Trust shall deliver to the Custodian a resolution of the
Board of Trustees, certified by an Officer, authorizing and
instructing the Custodian on an on-going basis to deposit in such
Securities System all Securities eligible for deposit therein and to
make use of such Securities System to the extent possible and
practical in connection with its performance hereunder, including,
without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns
of collateral consisting of Securities. So long as such Securities
System shall continue to be employed for the deposit of Securities of
the Funds, the Trust shall annually re-adopt such resolution and
deliver a copy thereof, certified by an Officer, to the Custodian.
(b) Securities of the Funds kept in a Securities System shall be kept
in an account ("Depository Account") of the Custodian in such
Securities System which includes only assets held by the Custodian as
a fiduciary, custodian or otherwise for customers.
(c) The records of the Custodian with respect to Securities of a Fund
maintained in a Securities System shall, by book-entry, identify such
Securities as belonging to such Fund.
(d) If Securities purchased by a Fund are to be held in a Securities
System, the Custodian shall pay for such Securities upon (i) receipt
of advice from the Securities System that such Securities have been
transferred to the Depository Account, and (ii) the making of any
entry on the records of the Custodian to reflect such payment and
transfer for the account of such Fund. If Securities sold by a Fund
are held in a Securities System, the Custodian shall transfer such
Securities upon (i) receipt of advice from the Securities System that
payment for such Securities has been transferred to the Depository
Account, and (ii) the making of an entry on the records of the
custodian to reflect such transfer and payment for the account of such
Fund.
(e) Upon request, the Custodian shall provide the Trust with copies of
any report (obtained by the Custodian from a Securities System in
which Securities of the Funds are kept) on the internal accounting
controls and procedures for safeguarding Securities deposited in such
Securities System.
(f) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall not be liable to the Trust for any loss or damage to a
Fund resulting from the use by the Custodian of a Securities System,
unless such loss or damage is caused by or results from the negligence
or willful misconduct on the part of Custodian or its agents or any of
its (or their) employees, provided, however, that in the event of any
such loss or damage the Custodian shall take reasonable steps to
enforce effectively such rights as it may have against the Securities
System. At its election, the Trust shall be subrogated to the rights
of the Custodian with respect to any claim against a Securities System
or any other person for any loss or damage to the Funds arising from
the use of such Securities System, if and to the extent that the Funds
have not been made whole for any such loss or damage.
3.7 Collection of Income. Subject to the provisions of Section 3.15, the
Custodian shall collect on a timely basis all income and other payments with
respect to registered securities held hereunder to which each Fund shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer securities if, on the date of payment by the issuer, such securities are
held by the custodian or its agent thereof and shall credit some income, as
collected, to each Fund's custodian account. Without limiting the generality of
the foregoing, the Custodian shall detach and present for payment all coupons
and other income items requiring presentation as and when they become due and
shall collect interest when due on securities held hereunder. The collection of
income due the Funds on Securities loaned pursuant to the provisions of Section
3.9(j) shall be the responsibility of the Trust. The Custodian will have no duty
or responsibility in connection therewith, other than to provide the Trust with
such information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income of which each Fund is
properly entitled.
The Custodian shall promptly notify the Trust whenever income due on
Securities is not collected in due course and will provide the Trust with
monthly reports of the status of past due income. Except as set forth herein,
the Custodian shall not be required to enforce collection, by legal means or
otherwise, of any money or property due and payable with respect to Securities
held for a Fund if such Securities are in default or payment is not made after
due demand or presentation.
3.8 Disbursement of Moneys from Fund Custody Accounts.
Upon receipt of Proper Instructions, the Custodian shall disburse moneys from a
Fund Custody Account but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures
contracts and options on future contracts), against the delivery to
the Custodian (or any sub-custodian or agent appointed pursuant to
Sections 3.3 and 3.4, respectively, above) of such Securities to be
registered as provided in Section 3.15 below in proper form for
transfer, or if the purchase of such Securities is effected through a
Securities System, in accordance with the conditions set forth in
Section 3.6 above; (ii) in the case of options on Securities, against
delivery to the Custodian (or such sub-custodian) of such receipts as
are required by the customs prevailing among dealers in such options;
(iii) in the case of futures contracts and options on futures
contracts, against delivery to the Custodian (or such sub-custodian)
of evidence of title thereto in favor of the Fund or any nominee
referred to in Section 3.15 below; and (iv) in the case of repurchase
or reverse repurchase agreements entered into between the Trust and
any other party, against delivery of the purchased Securities either
in certificate form or through an entry crediting the Custodian's
account at a Securities System with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.9(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
(d) In payment of the redemption price of Shares as provided in
Section 5.1 below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of
the Fund: interest; taxes; administration, investment management,
investment advisory, accounting, auditing, transfer agent, custodian,
trustee and legal fees; and other operating expenses of the Fund; in
all cases, whether or not such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Trust, the Custodian and a broker- dealer registered under
the 1934 Act and a member of the NASD, relating to compliance with
rules of The Options Clearing Corporation and of any registered
national securities exchange (or of any similar organization or
organizations) regarding escrow or other arrangements in connection
with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Trust, the Custodian, and a futures commission merchant
registered under the Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations)
regarding account deposits in connection with transactions by the
Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the
Custodian), which deposit or account has a term of one year or less;
and
(i) For any other proper purposes, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of
Trustees, certified by an Officer, specifying the amount and purpose
of such payment, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such payment is to
be made.
3.9 Delivery of Securities from Fund Custody Accounts. Upon receipt of
Proper Instructions, the Custodian shall release and delivery Securities from a
Fund Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but only
against receipt of payment therefor;
(b) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 3.6 above;
(c) To an Offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund;
(d) To the issuer thereof or its agent when such securities are
called, redeemed, retired, or otherwise become payable; provided that,
in any such case, the cash or other consideration is to be delivered
to the Custodian;
(e) To the issuer thereof or its agent (i) for transfer into the name
of the Fund, the Custodian or any sub- custodian or agent appointed
pursuant to Sections 3.3 and 3.4, respectively, above, or of any
nominee or nominees of any of the foregoing, or (ii) for exchange for
a different number of certificates or other evidence representing the
same aggregate face amount or number of units; provided that, in any
such case, the new Securities are to be delivered to the Custodian;
(f) To the broker selling Securities or its clearing agent, for
examination in accordance with the "street delivery" custom; provided
that in any such case, the Custodian shall have no responsibility or
liability for any loss arising from the delivery of such securities
prior to receiving payment for such securities except as may arise
from the Custodian's own negligence or willful misconduct;
(g) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, readjustment of the securities,
reorganization or readjustment of the issuer of such Securities, or
pursuant to any deposit agreement, including surrender or receipt of
underlying Securities in connection with the issuance or cancellation
of depository receipts; provided that, in any such case, the new
Securities and cash, if any, are to be delivered to the Custodian;
(h) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement entered into by a Fund;
(i) In the case of warrants, rights or similar Securities, upon the
exercise thereof, the surrender thereof in the exercise of such
warrants, rights or similar securities or the surrender of interim
receipts or temporary securities; provided that, in any such case, the
new Securities and cash, if any, are to be delivered to the Custodian;
(j) For delivery in connection with any loans of Securities of the
Fund, but only against receipt of such collateral as the Trust shall
have specified to the Custodian in Proper Instructions; except that in
connection with any loans for which collateral is to be credited to
the Custodian's account in the book-entry system authorized by the
U.S. Department of the Treasury, the Custodian will not be held liable
or responsible for the delivery of securities owned by the Fund prior
to the receipt of such collateral;
(k) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by such Fund, but only against
receipt by the Custodian of the amounts borrowed;
(l) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Trust or a Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Trust on behalf of a Fund, the Custodian and a broker-dealer
registered under the 1934 Act and a member of the NASD, relating to
compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or of any similar
organization or organizations) regarding escrow or other arrangements
in connection with transactions by the Fund;
(n) For delivery in accordance with the provisions of any agreement
among the Trust on behalf of a Fund, the Custodian, and a futures
commission merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures Trading
commission and/or any contract market (or any similar organization or
organizations) regarding account deposits in connection with
transactions by the Fund; or
(o) Upon receipt of instructions from the transfer agent for a Fund,
for delivery to such transfer agent or to the holders of Shares in
connection with distributions in kind, in satisfaction of requests by
holders of Shares for repurchase redemption;
(p) For any other proper corporate purposes, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of the
Board of Trustees, certified by an Officer, specifying the Securities
to be delivered, setting forth the purpose for which such delivery is
to be made, declaring such purpose to be a proper corporate purpose,
and naming the person or persons to whom delivery of such Securities
shall be made.
3.10 Bank Accounts. The Custodian may open and maintain a separate bank
account or accounts in the name of each Fund, subject only to draft or order by
the Custodian acting pursuant to the terms of this Agreement, and shall hold in
such account or accounts, subject to the provisions hereof, all cash received by
it from or for the account of each Fund, other than cash maintained in a joint
repurchase account with other affiliated funds or by a particular Fund in a bank
account established and used in accordance with Rule 17f-3 under the 1940 Act.
Funds held by the Custodian for a Fund may be deposited by it to its credit as
Custodian in the Banking Department of the Custodian or in such other banks or
trust companies as it may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company shall be qualified to
act as a custodian under the 1940 Act and that each such bank or trust company
and the funds to be deposited with each such bank or trust company shall be
approved by the vote of a majority of the Board of Trustees of the Trust. Such
funds shall be deposited by the Custodian in its capacity as Custodian for the
Fund and shall be withdrawable by the Custodian only in that capacity. If
requested by the Trust, the Custodian shall furnish the Trust, not later than
twenty (20) days after the last business day of each month, an internal
reconciliation of the closing balance as of that day in all accounts described
in this section to the balance shown on the daily cash report for that day
rendered to the Trust.
3.11 Payments for Shares. The Custodian shall make such arrangements with
the transfer agent of each Fund, as will enable the Custodian to receive the
cash consideration due to each Fund and will deposit into each Fund's Custody
Account such payments as are received from the transfer agent. The Custodian
will provide timely notification to the Trust and the transfer agent of any
receipt by it of payments for Shares of the respective Fund.
3.12 Availability of Federal Funds. Upon mutual agreement between the
Trust and the Custodian, the Custodian shall make federal funds available to the
Funds as of specified times agreed upon from time to time by the Trust and the
Custodian in the amount of checks, clearing house funds, and other non-federal
funds received in payment for Shares of the Funds which are deposited into the
Funds' Custody Accounts.
3.13 Actions Not Requiring Proper Instructions. The Custodian may, in its
discretion and without express authority from the Trust or any Fund:
(a) Make payments to itself or others for minor expenses of handling
Securities or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to
the Fund;
(b) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(c) Surrender interim receipts or Securities in temporary form for
Securities in definitive form; and
(d) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in connection
with sale, exchange, substitution, purchase, transfer and other
dealings with Securities and assets of the Fund.
3.14 Ownership Certificates for Tax Purposes. The Custodian shall execute
any necessary declarations certificates of ownership under the federal income
tax laws or the laws or regulations of any other taxing authority now or
hereafter in effect, and prepare and submit reports to the Internal Revenue
Service ("IRS") and to the Trust at such time, in such manner and containing
such information as is prescribed by the IRS.
3.15 Registration and Transfer of Securities. All Securities held for a
Fund that are issued or issuable only in bearer form shall be held by the
Custodian in that form, provided that any such Securities shall be held in a
Securities System if eligible therefor. All other Securities held for a Fund may
be registered in the name of such Fund, the Custodian, or any sub- custodian or
agent appointed pursuant to Sections 3.3 and 3.4, respectively, above, or in the
name of any nominee of any of them, or in the name of a Securities System or any
nominee thereof. All securities accepted by the Custodian on behalf of the Fund
under the terms of this Agreement shall be in "street name" or other good
delivery form. If, however, the Fund directs the Custodian to maintain
securities in "street name", the Custodian shall utilize its best efforts only
to timely collect income due the Fund on such securities and to notify the Fund
on a best efforts basis only of relevant corporate actions including, without
limitation, pendency of calls, maturities, tender or exchange offers. The Trust
shall furnish to the Custodian appropriate instruments to enable the Custodian
to hold or deliver in proper form for transfer, or to register in the name of
any of the nominees hereinabove referred to or in the name of a Securities
System, any Securities registered in the name of a Fund.
3.16 Records. The Custodian shall create and maintain all records relating
to its activities and obligations under this Contract in such manner as will
meet the obligations of the Fund under the 1940 Act, with particular attention
to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All such records
shall be the property of the Fund and shall at all times during the regular
business hours of the Custodian be open for inspection by duly authorized
officers, employees or agents of the Fund and employees and agents of the SEC.
The Custodian shall, at the Fund's request, supply the Fund with a tabulation of
securities owned by the Fund and held by the Custodian and shall, when requested
to do so by the Fund and for such compensation as shall be agreed upon between
the Fund and the Custodian, include certificate numbers in such tabulations.
3.17 Fund Reports by Custodian. The Custodian shall furnish the Trust with
a daily activity statement by Fund and a summary of all transfers to or from
each Fund Custody Account on the day following such transfers. At least monthly
and from time to time, the Custodian shall furnish the Trust with a detailed
statement, by Fund, of the Securities and moneys held for the Funds under this
Agreement.
3.18 Other Reports by Custodian. The Custodian shall provide the Trust, at
such times as the Trust may reasonably require, with reports by independent
public accountants for each Fund on the accounting system, internal accounting
control and procedures for safeguarding securities, future contracts and options
on future contracts including securities deposited and/or maintained in a
Securities System, relating to the services provided by the Custodian for the
Fund under this Agreement; such reports shall be of sufficient scope and in
sufficient detail as may reasonably be required by the Trust to provide
reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so state.
3.19 Proxies and Other Materials. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of a Fund, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the trust such proxies, all proxy soliciting materials and
all notices to such Securities.
3.20 Information on Corporate Actions. Subject to the provisions of
Section 3.15, the Custodian shall transmit promptly to the Trust all written
information (including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith and notices of
exercise of call and put options written by the Trust, on behalf of a Fund and
the maturity of futures contracts purchased or sold by the Trust on behalf of a
Fund) received by the Custodian from issuers of the Securities being held for
the Funds. With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Trust all written information received by the Custodian
from the issuers of the Securities whose tender or exchange offer is sought from
the party (or his agents) making the tender offer. If the Trust on behalf of a
Fund desires to take action with respect to any tender offer, exchange offer, or
any other similar transaction, the Trust shall notify the Custodian at least
three business days prior to the date on which the Custodian is to take such
action.
3.22 Additional Series. In the event that the Trust establishes one or
more series in addition to and with respect to which it desires to have the
Custodian render services as Custodian under the terms set forth in this
Agreement, it shall so notify the Custodian in writing, and if the Custodian
shall agree in writing to provide such services, such series shall become a Fund
hereunder, subject to such fees as the parties may agree.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.1 Purchase of Securities. Promptly upon each purchase of Securities for
a Fund, Proper Instructions shall be delivered to the Custodian, specifying (a)
the Fund for which the purchase was made, (b) the name of the issuer or writer
of such Securities, and the title or other description thereof, (c) the number
of shares, principal amount (and accrued interest if any) or other units
purchased, (d) the date of purchase and settlement, (e) the purchase price per
unit, (f) the total amount payable upon such purchase, and (g) the name of the
person to whom such amount is payable. The Custodian shall, upon receipt of such
Securities purchased by a Fund, pay out of the moneys held for the Fund in the
relevant Fund Custody Account the total amount specified in such Proper
Instructions to the person named therein. The Custodian shall not be under any
obligation to pay out moneys to cover the cost of a purchase of Securities for a
Fund, if in the relevant Fund Custody Account there is insufficient cash
available to the Fund for which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities Purchased.
Except as provided in this Agreement, in any and every case where payment for
the purchase of Securities for a Fund is made by the Custodian in advance of
receipt of the securities purchased but in the absence of Proper Instructions to
so pay in advance, the Custodian shall be liable to the Trust, on behalf of the
Fund, for such Securities to the same extent as if the Securities had been
received by the Custodian.
4.3 Sale of Securities. Promptly upon each sale of Securities by a Fund,
Proper Instructions shall be delivered to the Custodian, specifying (a) the Fund
for which the sale was made, (b) the name of the issuer or writer of such
Securities, and the title or other description thereof, (c) the number of
shares, principal amount (and accrued interest, if any), or other units sold,
(d) the date of sale and settlement (e) the sale price per unit, (f) the total
amount payable upon such sale, and (g) the person to whom such Securities are to
be delivered. Upon receipt of the total amount payable to the Fund as specified
in such Proper Instructions, the Custodian shall deliver such Securities to the
person specified in such Proper Instructions. Subject to the foregoing, the
Custodian may accept payment in such form as shall be satisfactory to it, and
may deliver Securities and arrange for payment in accordance with the customs
prevailing among dealers in Securities.
4.4 Payment for Securities Sold. In its sole discretion and from time to
time, the Custodian may credit the relevant Fund Custody Account, prior to
actual receipt of final payment thereof, with (i) proceeds from the sale of
Securities which it has been instructed to deliver against payment, (ii)
proceeds from the redemption of Securities or other assets of the Fund, and
(iii) income from cash, Securities or other assets of the Fund. Any such credit
shall be conditional upon actual receipt by Custodian of final payment and may
be reversed if final payment is not actually received in full. The Custodian
may, in its sole discretion and from time to time, permit a Fund to use funds so
credited to its Fund Custody Account in anticipation of actual receipt of final
payment. Any such funds shall be repayable immediately upon demand made by the
Custodian at any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Fund Custody Account.
4.5 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Trust to facilitate the
settlement of a Fund's transactions in its Fund Custody Account. Any such
advance shall be repayable immediately upon demand made by Custodian.
ARTICLE V
REDEMPTION OF FUND SHARES
5.1 Transfer of Funds. From such funds as may be available for the purpose
in the relevant Fund Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of a Fund, the Custodian
shall wire each amount specified in such Proper Instructions to or through such
bank as the Trust may designate with respect to such amount in such Proper
Instructions.
5.2 No Duty Regarding Paying Banks. The Custodian shall not be under any
obligation to effect payment or distribution by any bank designated in Proper
Instructions given pursuant to Section 5.1 above of any amount paid by the
Custodian to such bank in accordance with such Proper Instructions.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of a Fund, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
(a) in accordance with the provisions of any agreement among the Trust
on behalf of a Fund, the Custodian and a broker-dealer registered
under the 1934 Act and a member of the NASD (or any futures commission
merchant registered under the Commodity Exchange Act), relating to
compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or the Commodity Futures
Trading commission or any registered contract market), or of any
similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by a Fund,
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Trust, on behalf of a
Fund or in connection with financial futures contracts (or options
thereon) purchased or sold by a Fund,
(c) which constitute collateral for loans of Securities made by a
Fund,
(d) for purposes of compliance by the Funds with requirements under
the 1940 Act for the maintenance of segregated accounts by registered
investment companies in connection with reverse repurchase agreements,
and when-issued, delayed delivery and firm commitment transactions,
and other similar transactions, and
(e) for other proper corporate purposes, but only upon receipt of, in
addition of Proper Instructions, a certified copy of a resolution of
the Board of Trustees, certified by an Officer, setting forth the
purpose of purposes of such segregated account and declaring such
purposes to be proper corporate purposes.
Each segregated account established under this Article VI shall be
established and maintained for a single Fund only. All Proper Instructions
relating to a segregated account shall specify the Fund involved.
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to a standard of
reasonable care in carrying out the provisions of this Agreement. The Custodian
shall be entitled to rely on and may act upon advice of counsel (who may be
counsel for the Trust) on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. Subject to the
limitations set forth in this Agreement, the Custodian shall be kept indemnified
by the Trust and be without liability for any action taken or omitted to be
taken by it in carrying out the terms and provisions of this Agreement in
accordance with the above standards.
7.2 No Responsibility for Title. So long as and to the extent that it is
in the exercise of reasonable care, the Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received for delivered by it pursuant to this Agreement.
7.3 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian shall
be entitled to rely upon any Proper Instructions actually received by it
pursuant to this Agreement.
7.4 Express Duties Only. The Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
7.5 Co-operation. The Custodian shall cooperate with and supply necessary
information, by Fund, to the entity or entities appointed by the Trust to keep
the books of account of the Funds and/or compute the value of the assets of the
Funds. The Custodian shall take all such reasonable actions as the Trust may
from time to time request to enable the Trust to obtain, from year to year,
favorable opinions from the Trust's independent accountants with respect to the
Custodian's activities hereunder in connection with (a) the preparation of the
Trust's report on Form N-1A and Form N-SAR and any other reports required by the
Securities and Exchange Commission, and (b) the fulfillment by the Trust of any
other requirements of the SEC.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Trust shall indemnify and hold harmless the
Custodian, any sub-custodian appointed pursuant to Section 3.3 above, or any
agent, and any nominee of the Custodian or of such sub-custodian from and
against any loss, damage, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any state
securities and/or banking laws) or claim arising directly or indirectly (a) from
the fact that Securities are registered in the name of any such nominee, or (b)
from any action or inaction by the Custodian or such sub-custodian (i) at the
request or direction of or in reliance on the advice of the Trust, or (ii) upon
Proper Instructions, or (c) generally, from the performance of its obligations
under this Agreement or any sub-custody agreement with a sub-custodian appointed
pursuant to Section 3.3 above or, in the case of any such sub-custodian, from
the performance of its obligations under such sub-custody agreement, provided
that neither the Custodian nor any such sub-custodian shall be indemnified and
held harmless from and against any such loss, damage, cost, expense, liability
or claim arising from the Custodian's or such sub-custodian's failure to act in
accordance with the standard of reasonable care set forth in Section 7.1.
8.2 Indemnity to be Provided. If the Trust requests the Custodian to take
any action with respect to Securities, which action involves the payment of
money or which action may, in the opinion of the Custodian, result in the
Custodian or its nominee becoming liable for the payment of money or incurring
liability of some other form, the Custodian shall not be required to take such
action until the Trust shall have provided indemnity therefor to the Custodian
in an amount and form satisfactory to the Custodian.
8.3 Security. If the Custodian advances cash or Securities to a Fund for
any purpose, either at the Trust's request or as otherwise contemplated in this
Agreement, or in the event that the Custodian or its nominee incurs, in
connection with its performance under this Agreement, any loss, damage, cost
expense (including attorneys' fees and disbursements), liability or claim
(except such as may arise from its or its nominee's negligence, bad faith and
willful misconduct), then, in any such event, any property at any time held for
the account of such Fund shall be security therefor, and should such Fund fail
promptly to repay or indemnify the Custodian, the Custodian shall be entitled to
utilize available cash of such Fund and to dispose of other assets of such Fund
to the extent necessary to obtain reimbursement or indemnification.
ARTICLE IX
EFFECTIVE PERIOD; TERMINATION
9.1 Effective Period. This Agreement shall become effective as of its
execution and shall continue in full force and effect until terminated as
hereinafter provided.
9.2 Termination. Either party hereto may terminate this Agreement, with
respect to one or more Funds, by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than ninety
(90) days after the date of the giving of such notice. The notice shall specify
the Funds to which the termination relates ("Terminated Funds"). If a successor
custodian for one or more Terminated Funds shall have been appointed by the
Board of Trustees, the Custodian shall, upon receipt of a notice of acceptance
by the successor custodian, on such specified date of termination (a) deliver
directly to the successor custodian all Securities (other than Securities held
in a Securities System) and cash then owned by the Terminated Funds and held by
the Custodian as custodian, and (b) transfer any Securities held in a Securities
System to an account of or for the benefit of the Funds at the successor
custodian, provided that the Trust on behalf of the Terminated Funds shall have
paid to the Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations under this
Agreement with respect to the Terminated Funds. The Trust may at any time
immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by regulatory authorities in the State
of North Carolina or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
9.3 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Trust on or before the date of termination specified
pursuant to Section 9.2 above, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which is (a) a "Bank"
as defined in the 1940 Act, (b) has aggregate capital, surplus and undivided
profits as shown on its then most recent published report of not less than $25
million, and (c) is doing business in New York, New York, all Securities, cash
and other property held by Custodian under this Agreement and to transfer to an
account of or for the identified Funds at such bank or trust company all
Securities of the Funds held in a Securities System. Upon such delivery and
transfer, such bank or trust company shall be the successor custodian for the
Terminated Funds under this Agreement and the Custodian shall be relieved of all
obligations with respect to such Funds under this Agreement. If, after
reasonable inquiry, Custodian cannot find a successor custodian as contemplated
in this Section 9.3, then Custodian shall have the right to deliver to the Trust
all Securities and cash of the Terminated Funds and to transfer any Securities
held in a Securities System to an account of or for the Trust. Thereafter, the
Trust shall be deemed to be its own custodian with respect to the Securities,
cash and other assets of the Terminated Funds and the Custodian shall be
relieved of all obligations under this Agreement.
9.4 Continuing Obligations. Nothing contained in this Article IX shall be
construed to excuse the Trust from payment of all charges due and payable to the
Custodian. The provisions of section 13.2, "References to Custodian", Article
VII, "Concerning the Custodian" and Article VIII, "Indemnification" shall
survive the termination or expiration of this Agreement for any reason.
ARTICLE X
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from time
to time by the Trust and the Custodian. The fees and other charges in effect on
the date hereof and applicable to the Funds are set forth in Exhibit C attached
hereto.
ARTICLE XI
LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust, dated March 3, 2000, as from time to time amended. The execution and
delivery of this Agreement have been authorized by the Trustees, and this
Agreement has been signed and delivered by an authorized officer of the Trust,
acting as such, and neither such authorization by the 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, but
shall bind only the trust property of the Trust as provided in the
above-mentioned Agreement and Declaration of Trust.
ARTICLE XII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be in writing and shall be sent
or delivered to The receipt at the address set forth after its name herein
below:
To the Trust:
Wachovia Variable Insurance Funds
Federated Investors Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Secretary
To the Custodian:
Wachovia Bank, N.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XII. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIII
MISCELLANEOUS
13.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
13.2 References to Custodian. The Trust shall not circulate any printed
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for a Fund and such other printed matter as
merely identifies Custodian as custodian for a Fund. The Trust shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
13.3 No Waiver. No failure by either party hereto to exercise, and no
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
13.4 Amendments. This Agreement cannot be changed orally and no amendment
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
13.5 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
13.6 Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
13.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
either party hereto without the written consent of the other party hereto.
13.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed an delivered in its name and on its behalf by its representatives
thereunto duly authorized, all 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
WACHOVIA BANK, N.A.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Investment Officer
