WACHOVIA BANK NATIONAL ASSOCIATION
MUTUAL FUND CUSTODY AGREEMENT
THIS AGREEMENT is made as of December 2, 2004 , by and between AGILEX Fund,
a Delaware business trust (the "Fund"), and WACHOVIA BANK, NATIONAL ASSOCIATION,
a National Bank ("WACHOVIA").
1. DEFINITIONS.
Authorized Person means the Fund's President, Vice-President, Treasurer and
any other person, whether or not that person is an officer or employee of the
Fund, duly authorized by the Directors or Trustees of the Fund to give Proper
Instructions on behalf of the Fund and listed on Attachment B hereto, which may
be amended from time to time in writing.
Book-Entry System shall mean the Federal Reserve/Treasury book-entry system
for United States and federal agency securities, its successor or successors and
its nominee or nominees.
Business Day shall mean any day on which Wachovia, the Book-Entry System,
and relevant Depositories are open for business.
Depository shall include the Book-Entry System, the Depository Trust
Company, and any other domestic securities depository, book-entry system or
clearing agency registered with the Securities and Exchange Commission (the SEC)
or its successor or successors and its nominee or nominees, and shall also mean
any other registered clearing agency, its successor or successors, specially
identified in a certified copy of a resolution of the Funds Directors or
Trustees approving deposits by Wachovia therein. Wachovia shall hold Securities
through a Depository only if (a) the Depository and any of its creditors may not
assert any right, charge, security interest, lien, encumbrance or other claim of
any kind to Securities except a claim of payment for their safe custody or
administration, and (b) beneficial ownership of Securities may be freely
transferred without the payment of money or value other than for safe custody or
administration.
Wachovia shall include any office, branch or subsidiary of Wachovia Bank,
National Association.
Proper Instructions shall mean any notices, instructions or other
instruments in writing Wachovia receives from an Authorized Person or from a
person Wachovia reasonably believes to be an Authorized Person by letter, telex,
facsimile transmission, Wachovia's on-line communication system, or any other
method whereby Wachovia is able to verify with a reasonable degree of certainty
the identity of the sender of the communications or the sender is required to
provide a password or other identification code. Oral instructions will be
considered Proper Instructions if Wachovia reasonably believes that an
Authorized Person has given the oral instructions. The Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions that conflict with
earlier Proper Instructions will supersede earlier Instructions unless Wachovia
has already acted in reliance on the earlier Instructions.
"Property" shall mean any and all Securities, cash, and other property of
the Fund which the Fund may from time to time deposit, or cause to be deposited,
with Wachovia or which Wachovia may from time to time hold for the Fund; all
income of any Securities or other property; all proceeds of the sales of any
Securities or other
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property; and all proceeds of the sale of securities issued by the Fund, which
Wachovia receives from time to time from or on behalf of the Fund.
"Securities" shall include, without limitation, any common stock and other
equity securities; bonds, debentures and other debt securities; forwards, swaps,
futures, derivatives, mortgages or other obligations; and any instruments
representing rights to receive, purchase, or subscribe for the same, or
representing any other rights or interests therein (whether represented by a
certificate or held in a Depository or a subcustodian).
2. APPOINTMENT. The Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "l 940 Act"),
and the Fund desires to retain Wachovia to serve as the Fund's custodian and
Wachovia is willing to furnish these services. The Fund hereby appoints Wachovia
to act as custodian of its Securities, cash and other Property on the terms set
forth in this Agreement. Wachovia accepts this appointment and agrees to furnish
the services set forth below for the compensation as provided in Paragraph 25 of
this Agreement.
3. DELIVERY OF DOCUMENTS. The Fund will promptly furnish to Wachovia copies,
properly certified or authenticated, of contracts, documents and other related
information that Wachovia may request or requires to properly discharge its
duties. These documents may include but are not limited to the following:
a. Resolutions of the Fund's Directors or Trustees authorizing the
appointment of Wachovia as custodian of the Property of the Fund and approving
this Agreement;
b. Incumbency and signature certificates identifying and containing the
signatures of the Fund's Authorized Persons;
c. The Fund's Articles of Incorporation or Declaration of Trust filed with
the State of Delaware and all amendments thereto (the Articles or Declaration);
d. The Fund's By-Laws and all amendments thereto (the By-Laws);
e. Resolutions of the Fund's Directors or Trustees approving the investment
advisory agreement between the Fund and the Fund's investment adviser (the
Advisory Agreement);
f. The Advisory Agreement; and the Fund's current Registration Statement on
Form N-1A under the 1940 Act and the Securities Act of 1933, as amended ("▇▇▇
▇▇▇▇ ▇▇▇") as filed with the SEC; and
g. The Fund's most recent prospectus including all amendments and
supplements thereto (the "Prospectus").
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The Fund will furnish Wachovia from time to time with copies of all
amendments of or supplements to the foregoing, if any. The Fund also will
furnish Wachovia with a copy of the opinion of counsel for the Fund on the
validity of the shares of common stock or units of beneficial interest (the
"Shares") of the Fund and the status of the Shares under the 1933 Act as
registered with the SEC, and under any other applicable federal law or
regulation.
h. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to
obtain, verify and record information that identifies each client who opens an
account.
4. DELIVERY AND REGISTRATION OF THE PROPERTY. The Fund will deliver or cause
to be delivered to Wachovia all Property it owns, including cash received for
the issuance of its Shares, at any time during the period of this Agreement,
except for Securities and monies to be delivered to any subcustodian appointed
pursuant to Paragraph 7. Wachovia will not be responsible for Securities and
monies until Wachovia or any subcustodian actually receives them. All Securities
delivered to Wachovia or to any subcustodian (other than in bearer form) shall
be registered in the name of the Fund or in the name of a nominee of the Fund,
in the name of Wachovia or any nominee of Wachovia (with or without indication
of fiduciary status), in the name of any subcustodian or any nominee of a
subcustodian appointed pursuant to Paragraph 7, or shall be properly endorsed
and in form for transfer satisfactory to Wachovia.
5. VOTING RIGHTS.
a. The Fund shall exercise voting and other rights and powers for all
Securities, however registered. Wachovia's only duty shall be to mail for
delivery on the next Business Day to the Fund any documents received, including
proxy statements and offering circulars, with any proxies for Securities
registered in a nominee name executed by the nominee. Wachovia shall vote or
cause proxies to be voted only as expressly directed in writing pursuant to
Proper Instructions of the Fund's Authorized Person. In the absence of Proper
Instructions, neither Wachovia nor any subcustodian shall vote or cause proxies
to be voted, and they shall expire without liability to Wachovia. Wachovia will
not advise the Fund or act for the Fund in any legal proceedings, including
bankruptcies, involving Securities the Fund holds or previously held or the
issuers of these Securities, except as the Fund and Wachovia expressly agree
upon in writing.
b. Wachovia shall transmit promptly to the Fund 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 the Fund writes and the maturity of futures contracts the
Fund purchases or sells) Wachovia receives from issuers of the Securities the
Fund holds. For tender or exchange offers, Wachovia shall transmit promptly by
facsimile to the Fund all written information Wachovia receives from issuers of
the Securities whose tender or exchange is sought and from the party (or his
agents) making the tender or exchange offer. If the Fund desires to take action
on any tender offer, exchange offer or any other similar transaction, the Fund
shall notify Wachovia at least three business days before the date on which
Wachovia is to take action or upon the date the Fund first receives the
notification, if later. Absent Wachovia's timely receipt of Proper Instructions,
Wachovia shall not be liable for failure to take any action relating to or to
exercise any rights the Securities confer.
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c. Wachovia shall notify the Fund of any rights or discretionary actions or
of the date or dates by when the rights must be exercised or action must be
taken provided that Wachovia has received, from the issuer or otherwise, timely
notice of rights, discretionary corporate action, or dates. Absent actual
receipt of this notice, Wachovia shall have no liability for failing to so
notify the Fund.
6. RECEIPT AND DISBURSEMENT OF MONEY.
a. Wachovia shall open and maintain a custody account for the Fund (the
"Account") subject only to draft or order by Wachovia acting pursuant to the
terms of this Agreement, and shall hold in the Account, subject to the
provisions in this Paragraph 6, all cash it receives by or for the Fund, other
than cash the Fund maintains in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940, as amended.
Wachovia shall make payments of cash to, or for the account of, the Fund from
cash only (i) for the purchase of Securities; (ii) in the case of a purchase of
Securities effected through a Book-Entry System or Securities Depository, in
accordance with the conditions set forth in Paragraph 14; (iii) in the case of
repurchase agreements entered into between the Fund and Wachovia, or another
bank, or a broker-dealer which is a member of The National Association of
Securities Dealers, Inc. ("NASD"), either (a) against delivery of the Securities
either in certificate form or through an entry crediting Wachovia's account at
the Federal Reserve Bank with the Securities or (b) against delivery of the
receipt evidencing the Fund's purchase of Securities Wachovia owns along with
written evidence of Wachovia's agreement to repurchase the Securities from the
Fund; (iv) for transfer to a time deposit account of the Fund in any bank,
whether domestic or foreign; the transfer may be effected before receipt of a
confirmation from a broker and/or the applicable bank pursuant to Proper
Instructions from the Fund; (v) for the payment of dividends or other
distributions on shares declared pursuant to the governing documents of the
Fund, or for the payment of interest, taxes, administration, distribution or
advisory fees or expenses which the Fund is to bear under the terms of this
Agreement, any Advisory Agreement, or any administration agreement; (vi) for
payments in connection with the conversion, exchange or surrender of Securities
the Fund owns or subscribes to and Wachovia holds or is to deliver ; (vii) to a
subcustodian pursuant to Paragraph 7; (viii) for common expenses the Fund incurs
in the ordinary course of its business, including but not limited to printing
and mailing expenses, legal fees, accountants' fees, exchange fees; or (ix) for
any other proper purpose, but only upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Board of Directors or
Trustees or of the Executive Committee of the Fund signed by an officer of the
Fund and certified by its Secretary or an Assistant Secretary, specifying the
amount of the payment, setting forth the purpose for which the payment is to be
made, declaring the purpose to be a proper purpose, and naming the person or
persons to whom the payment is to be made.
b. Wachovia is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the Fund.
7. RECEIPT AND DELIVERY OF SECURITIES.
a. Except as provided in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ shall hold and
physically segregate all Securities and non-cash Property it receives for the
Fund. Wachovia will hold or dispose of all Securities and non-cash Property for
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the Fund pursuant to the terms of this Agreement. In the absence of Proper
Instructions accompanied by a certified resolution of the Fund's Board
authorizing the specific transaction, Wachovia shall have no power or authority
to withdraw, deliver, assign, hypothecate, pledge or otherwise dispose of any
Securities and other Property, except in accordance with this Agreement. In no
case may any director, trustee, officer, employee or agent of the Fund withdraw
any Securities. Wachovia may, at its own expense, enter into subcustodian
agreements with other banks or trust companies for the receipt of certain
Securities and cash Wachovia is to hold for the account of the Fund pursuant to
this Agreement; provided that each bank or trust company has an aggregate
capital, surplus and undivided profits, as shown by its last published report,
of not less than twenty million dollars ($20,000,000) and that such bank or
trust company agrees with Wachovia to comply with all relevant provisions of the
1940 Act and applicable rules and regulations thereunder. Wachovia will be
liable for acts or omissions of any subcustodian. Wachovia shall employ
subcustodians upon receipt of Proper Instructions, but only in accordance with
an applicable vote of the Board of Directors or Trustees of the Fund.
b. Promptly after the close of business on each day Wachovia shall furnish
the Fund with confirmations and a summary of all transfers to or from the
account of the Fund during said day. Where Securities are transferred to the
account of the Fund established at a Securities Depository or Book-Entry System
pursuant to this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ shall also by book-entry or otherwise
identify as belonging to the Fund the quantity of Securities in a fungible bulk
of Securities registered in the name of Wachovia (or its nominee) or shown in
Wachovia Union's account on the books of a Securities Depository or Book-Entry
System. At least monthly and from time to time, Wachovia shall furnish the Fund
with a detailed statement of the Property held for the Fund under this
Agreement.
8. PLEDGE OR ENCUMBRANCE OF SECURITIES OR CASH. Except as provided in this
Agreement, Wachovia may not pledge, assign, hypothecate or otherwise encumber
Securities or cash in any Account without the Fund's prior written consent.
9. PRICING SERVICES. [TO BE USED IF ADVISORY AGREEMENT IS SILENT]: Wachovia is
authorized to use any vendor (including brokers and dealers of Securities)
Wachovia reasonably believes to be reliable to provide pricing and other
information regarding Securities in the Account. The Fund understands that
certain pricing information for complex financial instruments (e.g.,
derivatives) or thinly-traded Securities may be based on calculated amounts
rather than actual market transactions and may not reflect actual market values,
and that the variance between the calculated amounts and actual market values
may be material. Where vendors do not provide information for particular
Securities, an Authorized Person may advise Wachovia regarding the fair market
value of, or provide other information about, the Securities as the Authorized
Person determines in good faith. Wachovia shall not be liable for any loss,
damage or expense incurred as a result of errors or omissions for any pricing or
other information Wachovia uses under this Agreement.
10. SEGREGATED ACCOUNT. Wachovia shall upon receipt of Proper Instructions
establish and maintain a segregated account or accounts for and on behalf of the
Fund, into which account or accounts may be transferred cash and/or Securities,
including Securities Wachovia maintains in an account pursuant to Paragraph 7,
(i) in accordance with the provisions of any agreement among the Fund, Wachovia
and a broker-dealer registered under the Securities Exchange Act of 1934 (the
Exchange 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
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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 Fund transactions,
(ii) for purposes of segregating cash or government securities in connection
with options the Fund purchases, sells or writes or commodity futures contracts
or options thereon the Fund purchases or sells, (iii) for the purposes of the
Fund's compliance with the procedures set out in Investment Company Act Release
No. 10666, or any subsequent release or releases of the SEC relating to
registered investment companies' maintenance of segregated accounts and (iv) for
other proper corporate purposes, but only, in the case of clause (iv), upon
receipt of, in addition to Proper Instructions, a certified copy of a resolution
of the Board of Directors or Trustees or of the Executive Committee signed by an
officer of the Fund and certified by the Secretary or an Assistant Secretary,
setting forth the purpose or purposes of the segregated account and declaring
the purposes to be proper corporate purposes.
11. NON-CUSTODY SECURITIES. As an accommodation to the Fund, Wachovia may
provide consolidated recordkeeping services pursuant to which Wachovia reflects
on account statements Securities positions for which Wachovia has no safekeeping
or other responsibility under this Agreement ("Non-Custody Securities").
Non-Custody Securities shall be designated on Wachovia's books as "shares not
held" or by other similar characterization. The Fund acknowledges and agrees
that Wachovia shall rely, without independent verification, on information the
Fund provides regarding Non-Custody Securities (including but not limited to
Account positions and market valuations) and shall have no responsibility
whatsoever with respect to Non-Custody Securities or the accuracy of any
information maintained on Wachovia's books or set forth on account statements
concerning Non-Custody Securities.
12. LENDING OF SECURITIES.
a. Promptly after the Fund or its agent lends Securities in the Fund's
account, the Fund shall deliver or cause to be delivered to Wachovia a
certificate specifying (a) the name of the issuer and the title of the
Securities; (b) the number of shares or principal amount loaned; (c) the date of
the loan and delivery; (d) the total amount to be delivered to Wachovia against
the loan of the Securities, including the amount of the cash collateral and the
premium, if any, separately identified; and (e) the name of the broker-dealer or
financial institution to which the loan was made. Wachovia shall not lend
Securities except as the Fund or its agent instructs. Wachovia shall deliver
Securities so designated to the broker-dealer or financial institution to which
the loan was made upon the receipt of the total amount designated as to be
delivered against the loan of Securities. Wachovia may accept payment in
connection with a delivery otherwise than through the Book-Entry System or a
Depository only in the form of a certified or bank cashier's check payable to
the order of the Fund or Wachovia drawn on New York Clearing House funds and may
deliver Securities in accordance with the customs prevailing among dealers in
Securities.
b. Promptly after each termination of a loan of Securities, the Fund shall
deliver to Wachovia a certificate specifying (a) the name of the issuer and the
title of the Securities to be returned; (b) the number of shares or principal
amount to be returned; (c) the date of termination; (d) the total amount
Wachovia is to deliver, including the amount of the cash collateral less any
offsetting credits as described in the certificate; (e) the name of the
broker-dealer or financial institution from which the Securities will be
returned; and (f) whether the return is to be effected through the Book-Entry
System or a Depository. Wachovia shall receive all Securities returned from a
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broker-dealer or other financial institution to which the Securities were
loaned, and upon receipt thereof shall pay the total amount payable upon the
return of the Securities as set forth in the certificate. Securities returned to
Wachovia shall be held as they were before the loan.
13. OVERDRAFTS OR INDEBTEDNESS. Wachovia may from time to time agree to advance
cash to the Fund, without interest, for the fund's other proper corporate
purposes. If Wachovia advances cash for any purpose, or if an overdraft in the
Fund's Account shall arise for any reason (including, without limitation,
overdrafts incurred in connection with the settlement of Securities
transactions, funds transfers, or foreign exchange transactions) the Fund shall
and hereby does grant to Wachovia a security interest in Securities the Fund
holds equal in value to the amount of the cash advance but in no event shall the
value of Securities the Fund holds in which a security interest has been granted
exceed 20% of the value of the Fund's total assets at the time of the pledge.
Should the Fund fail to repay Wachovia promptly, Wachovia shall be entitled to
use available cash and to reasonably dispose of any Securities in which it has a
security interest to the extent necessary to obtain reimbursement.
14. USE OF DEPOSITORY OR THE BOOK-ENTRY SYSTEM.
a. The Fund shall deliver to Wachovia a certified resolution of the
Directors or Trustees of the Fund approving, authorizing and instructing
Wachovia on a continuous and ongoing basis, until Wachovia actually receives
Proper Instructions to the contrary, (i) to deposit in a Depository or the
Book-Entry System all Securities of the Fund eligible for deposit therein and
(ii) to use a Depository or the Book-Entry System to the extent possible in
connection with the performance of its duties hereunder, including without
limitation, settlements of the Fund's purchases and sales of Securities, and
deliveries and returns of securities collateral in connection with borrowings.
Without limiting the generality of this use, it is agreed that the following
provisions shall apply thereto:
b. Securities and any cash of the Fund deposited in a Securities Depository
or Book-Entry System or subcustodian will at all times (1) be represented in an
account of Wachovia in the Securities Depository or Book-Entry System (the
"Account") and (2) be segregated from any assets and cash Wachovia controls in
other than a fiduciary or custodian capacity but may be commingled with other
assets held in these capacities. Securities and cash Wachovia deposits in a
Depository or Book-Entry System will be held subject to the rules, terms and
conditions of the Depository or Book-Entry System. Securities and cash held
through subcustodians shall be held subject to the terms and conditions of
Wachovia's agreements with the subcustodians. Wachovia shall identify on its
books and records the Securities and cash belonging to the Fund, whether held
directly or indirectly through Depositories, the Book-Entry System, or
subcustodians. Wachovia shall not be responsible for Securities or cash until
actually received. Wachovia will effect payment for Securities and receive and
deliver Securities in accordance with accepted industry practices as set forth
in (b) below, unless the Fund has given Wachovia Proper Instructions to the
contrary.
c. Wachovia shall pay for Securities purchased for the account of the Fund
upon (i) receipt of advice from the Securities Depository or Book-Entry System
that the Securities have been transferred to the Fund, and (ii) the making of an
entry on the records of Wachovia to reflect the payment and transfer for the
account of the Fund. Upon receipt of Proper Instructions, Wachovia shall
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transfer Securities sold for the account of the Fund upon (i) receipt of advice
from the Securities Depository or Book-Entry System that payment for the
Securities has been transferred to the Account, and (ii) the making of an entry
on the records of Wachovia to reflect the transfer and payment for the account
of the Fund. Copies of all advices from the Securities Depository or Book-Entry
System of transfers of Securities for the account of the Fund shall identify the
Fund, and Wachovia shall maintain these copies for the Fund and provide them to
the Fund at its request. Upon request, Wachovia shall furnish the Fund
confirmation of each transfer to or from the account of the Fund in the form of
a written advice or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in a Securities Depository
or Book-Entry System for the account of the Fund.
d. Wachovia shall provide the Fund with any report Wachovia obtains on the
Securities Depository or Book-Entry System's accounting system, internal
accounting controls and procedures for safeguarding Securities deposited in the
Securities Depository or Book-Entry System.
e. All books and records Wachovia maintains that relate to the Fund's
participation in a Securities Depository or Book-Entry System will at all times
during First Union's regular business hours be open to the inspection of the
Fund's duly authorized employees or agents, and the Fund will be furnished with
all information in respect of the services rendered to it as it may require.
f. Anything to the contrary in this Agreement notwithstanding, Wachovia
shall be liable to the Fund for any loss or damage to the Fund resulting from
any negligence, misfeasance or misconduct of Wachovia or any of its agents or of
any of its or their employees in connection with its or their use of the
Securities Depository or Book-Entry Systems or from failure of Wachovia or any
agent to enforce effectively the rights it may have against the Securities
Depository or Book-Entry System; at the election of the Fund, it shall be
entitled to be subrogated to the rights of Wachovia for any claim against the
Securities Depository or Book-Entry System or any other person which Wachovia
may have as a consequence of any loss or damage if and to the extent that the
Fund has not been made whole for any loss or damage.
15. INSTRUCTIONS CONSISTENT WITH THE ARTICLES, ETC.
a. Unless otherwise provided in this Agreement, Wachovia shall act only
upon Proper Instructions. Wachovia may assume that any Proper Instructions
received hereunder are not in any way inconsistent with any provision of the
Articles or Declaration or By-Laws of the Fund or any vote or resolution of the
Fund's Directors or Trustees, or any committee thereof. Wachovia shall be
entitled to rely upon any Proper Instructions it actually receives pursuant to
this Agreement and which it reasonably believes an Authorized Person has given.
The Fund agrees that Wachovia shall incur no liability in acting in good faith
upon Proper Instructions that Wachovia reasonably believes an Authorized Person
has given to Wachovia. The Fund agrees to forward to Wachovia Proper
Instructions confirming oral instructions by the close of business of the same
day that the oral instructions are given to Wachovia. However, the Fund agrees
that where Wachovia does not receive confirming Proper Instructions or receives
contrary Proper Instructions, the validity or enforceability of transactions the
oral instructions authorize and which Wachovia carries out shall not be
affected.
b. In accordance with instructions from the Fund, as accepted industry
practice requires or as Wachovia may elect in effecting Proper Instructions,
Wachovia shall be deemed to make a loan to the Fund, payable on demand, bearing
interest at a rate it customarily charges for similar loans, when Wachovia
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advances cash or other Property, arising from the purchase, sale, redemption,
transfer or other disposition of Property of the Fund, or in connection with the
disbursement of funds to any party, or in payment of fees, expenses, claims or
liabilities the Fund owes to Wachovia, or to any other party that has secured
judgment in a court of law against the Fund which creates an overdraft in the
accounts or over-delivery of Property.
c. The Fund agrees that test arrangements, authentication methods or other
security devices to be used for Proper Instructions which the Fund may give by
telephone, telex, facsimile transmission, bank wire or through an electronic
instruction system, shall be processed in accordance with terms and conditions
for the use of the arrangements, methods or devices as Wachovia may put into
effect and modify from time to time. The Fund shall safeguard any test keys,
identification codes or other security devices which Wachovia makes available to
the Fund and agrees that the Fund shall be responsible for any loss, liability
or damage Wachovia or the Fund incurs as a result of Wachovia's acting in
accordance with instructions from any unauthorized person using the proper
security device unless the loss, liability or damage was incurred as a result of
Wachovia's negligence or willful misconduct. Wachovia may, but is not obligated
to, electronically record any instructions given by telephone and any other
telephone discussions about the Account. [IF WACHOVIA HAS A COMPUTER NETWORK TO
WHICH THE FUND HAS ACCESS: IN THE EVENT THAT THE FUND USES WACHOVIA'S [NAME OF
SYSTEM OR NETWORK], THE FUND AGREES THAT WACHOVIA IS NOT RESPONSIBLE FOR THE
CONSEQUENCES OF THE FAILURE OF THE [SYSTEM OR NETWORK] TO PERFORM FOR ANY
REASON, BEYOND THE REASONABLE CONTROL OF WACHOVIA, OR THE FAILURE OF ANY
COMMUNICATIONS CARRIER, UTILITY, OR COMMUNICATIONS NETWORK. IN THE EVENT THE
[SYSTEM OR NETWORK] IS INOPERABLE, THE FUND AGREES THAT IT WILL ACCEPT THE
COMMUNICATION OF TRANSACTION INSTRUCTIONS BY TELEPHONE, FACSIMILE TRANSMISSION
ON EQUIPMENT COMPATIBLE TO WACHOVIA'S FACSIMILE RECEIVING EQUIPMENT OR BY
LETTER, AT NO LESS OR ADDITIONAL CHARGE TO THE FUND.]
16. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Wachovia is authorized to take the
following action without Instructions:
a. COLLECTION OF INCOME AND OTHER PAYMENTS. Wachovia shall:
i. collect and receive on a timely basis for the account of the Fund,
all income and other payments and distributions, including (without limitation)
stock dividends, rights, warrants and similar items, included or to be included
in the Property of the Fund, and promptly advise the Fund of the receipt and
shall credit the income, as collected, to the Fund. Without limiting the
generality of the foregoing, Wachovia 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. Income due
the Fund on Securities loaned pursuant to the provisions of Paragraph 12 shall
be the responsibility of the Fund. Wachovia will have no duty or responsibility
in connection therewith, other than to provide the Fund with information or data
as may be necessary to assist the Fund in arranging for the timely delivery to
Wachovia of the income to which the Fund is properly entitled. From time to
time, Wachovia may elect, but shall not be so obligated, to credit the Account
with interest, dividends or principal payments on payable or contractual
settlement date, in anticipation of receiving the same from a payor, central
depository, broker or other agent the Fund or Wachovia employs. Any such
crediting and posting shall be at the Fund's sole risk, and Wachovia shall be
authorized to reverse any advance posting in the event Wachovia does not receive
good funds from any payor, central depository, broker or agent of the Fund;
ii. endorse and deposit for collection in the name of the Fund,
checks, drafts, or other orders for the payment of money on the same day as
received;
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iii. receive and hold for the account of the Fund all Securities the
Fund receives as a result of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or distribution of rights
or similar securities issued with respect to any Securities of the Fund Wachovia
holds hereunder;
iv. present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or otherwise
become payable on the date the Securities become payable;
v. take any action which may be necessary and proper in connection
with the collection and receipt of the income and other payments and the
endorsement for collection of checks, drafts and other negotiable instruments;
vi. effect an exchange of the shares where the par value of stock is
changed, and to surrender Securities at maturity or when advised of an earlier
call for redemption or when Securities otherwise become available, against
payment therefor in accordance with accepted industry practice. The Fund
understands that Wachovia subscribes to one or more nationally recognized
services that provide information on calls for redemption of bonds or other
corporate actions. Wachovia shall not be liable for failure to redeem any called
bond or to take other action if any service to which it subscribes did not
provide notice of the call or action, provided that Wachovia shall have acted in
good faith without negligence and in accordance with "Street Practice" (as is
customary in industry). Wachovia shall have no duty to notify the Fund of any
rights, duties, limitations, conditions or other information set forth in any
Security (including mandatory or optional put, call and similar provisions), but
Wachovia shall forward to the Fund any notices or other documents subsequently
received in regard to any security. When fractional shares of stock of a
declaring corporation are received as a stock distribution, unless specifically
instructed to the contrary in writing, Wachovia is authorized to sell the
fraction received and credit the Fund's account. Unless specifically instructed
to the contrary in writing, Wachovia is authorized to exchange Securities in
bearer form for Securities in registered form. If the issuer of any Property
registered in the name of a nominee of Wachovia calls the Property for partial
redemption, Wachovia is authorized to allot the called portion to the beneficial
holders of the Property in a manner it deems fair and equitable in its sole
discretion;
vii. forward to the Fund copies of all information or documents that
it may receive from an issuer of Securities which, in the opinion of Wachovia,
are intended for the Fund as the beneficial owner of Securities; and
viii. execute, as Wachovia, any certificates of ownership, affidavits,
declarations or other certificates for all federal and state tax purposes in
connection with the collection or receipt of income, bond and note coupons, or
other payments from Securities or in connection with transfers of Securities.
b. MISCELLANEOUS TRANSACTIONS. Wachovia is authorized to deliver or cause
to be delivered Property against payment or other consideration or written
receipt therefor in the following cases:
i. for examination by a broker selling for the Account of the Fund in
accordance with street delivery custom;
ii. for the exchange of interim receipts or temporary Securities for
definitive securities; and
iii. for transfer of Securities into the name of the Fund or Wachovia
or a nominee of either, or for exchange of Securities for a different number of
10
bonds, certificates, or other evidence, representing the same aggregate face
amount or number of units bearing the same interest rate, maturity date and call
provisions, if any; provided that, in any case, the new Securities are to be
delivered to Wachovia.
17. TRANSACTIONS REQUIRING INSTRUCTIONS. In addition to the actions requiring
Proper Instructions set forth in this Agreement, upon receipt of Proper
Instructions and not otherwise, Wachovia, directly or through the use of a
Depository or the Book-Entry System, shall:
a. Execute and deliver to the persons as may be designated in Proper
Instructions, proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as owner of any Securities may be exercised;
b. Deliver any Securities held for the Fund against receipt of other
Securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege;
c. Deliver any Securities held for the Fund to any protective committee,
reorganization committee or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or sale of assets of any
corporation, against receipt of certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to evidence delivery;
d. Make transfers or exchanges of the assets of the Fund and take such
other steps as shall be stated in the instructions to effectuate any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund;
e. Release Securities belonging to the Fund to any bank or trust company
for the purpose of pledge or hypothecation to secure any loan the Fund incurs;
provided, however, that securities shall be released only upon payment to
Wachovia of the monies borrowed or upon receipt of adequate collateral as the
Fund and Wachovia agree, which may be in cash or obligations issued by the U.S.
government, its agencies, or instrumentalities, except that in cases where
additional collateral is required to secure a borrowing already made, subject to
proper prior authorization, further securities may be released for that purpose;
and pay the loan upon redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing the loan;
f. Deliver Securities in accordance with the provisions of any agreement
among the Fund, Wachovia and a broker-dealer registered under the Exchange 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 Fund transactions;
g. Deliver Securities in accordance with the provisions of any agreement
among the Fund, Wachovia 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
Fund transactions;
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h. Deliver Securities against payment or other consideration or written
receipt therefore for transfer of Securities into the name of the Fund or
Wachovia or a nominee of either, or for exchange of Securities for a different
number of bonds, certificates, or other evidence, representing the same
aggregate face amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that, in any case, the new
Securities are to be delivered to Wachovia;
i. Exchange Securities in temporary form for Securities in definitive form;
j. Surrender, in connection with their exercise, warrants, rights or
similar Securities, provided that in each case, the new Securities and cash, if
any, are to be delivered to Wachovia;
k. Deliver Securities upon receipt of payment for any repurchase agreement
the Fund enters into;
l. Deliver Securities pursuant to any other proper corporate purpose, but
only upon receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees or of the Executive Committee signed by an
officer of the Fund and certified by the Secretary or an Assistant Secretary,
specifying the Securities to be delivered, setting forth the purpose for which
the delivery is to be made, declaring the purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of the Securities
shall be made; and
m. Deliver Securities held for the Fund pursuant to separate security
lending agreements concerning the lending of the Fund's Securities into which
the Fund may enter, from time to time.
18. PURCHASE AND SALE OF SECURITIES.
a. Promptly after the investment adviser (or any sub-adviser) purchases
Securities, the Fund shall deliver to Wachovia (as custodian) Proper
Instructions specifying for each purchase: (a) the name of the issuer and the
title of the Securities, (b) the number of shares or the principal amount
purchased and accrued interest, if any, (c) the dates of purchase and
settlement, (d) the purchase price per unit, (e) the total amount payable upon
the purchase, (f) the name of the person from whom or the broker through whom
the purchase was made and (g) the Portfolio of the Fund for which the purchase
was made. Wachovia shall upon receipt of Securities purchased by or for the Fund
pay out of the monies held for the account of the Fund the total amount payable
to the person from whom or the broker through whom the purchase was made,
provided that the same conforms to the total amount payable as set forth in
Proper Instructions.
b. Promptly after the investment adviser (or any sub-adviser) sells
Securities, the Fund shall deliver to Wachovia (as Wachovia) Proper
Instructions, specifying for each sale: (a) the name of the issuer and the title
of the security, (b) the number of shares or principal amount sold, and accrued
interest, if any, (c) the dates of sale and settlement, (d) the sale price per
unit, (e) the total amount payable to the Fund upon sale, (f) the name of the
broker through whom or the person to whom the sale was made and (g) the
Portfolio of the Fund for which the sale was made. Wachovia shall deliver the
Securities upon receipt of the total amount payable to the Fund upon sale,
provided that the same conforms to the total amount payable as set forth in
Proper Instructions. Subject to the foregoing, Wachovia may accept payment in
any form as shall be satisfactory to it, and may deliver Securities and arrange
12
for payment in accordance with the customs prevailing among dealers in
Securities.
c. The Fund understands that when Wachovia is instructed to deliver
Securities against payment, delivery of the Securities and receipt of payment
therefor may not be completed simultaneously. The Fund assumes full
responsibility for all credit risks involved in connection with Wachovia's
delivery of Securities pursuant to instructions of the Fund.
d. Upon the Fund's Proper Instructions, Wachovia shall purchase or sell
Securities and is authorized to use any broker or agent in connection with these
transactions, but shall use affiliates of Wachovia only as the Fund directs.
Wachovia shall not be liable for the acts or omissions of any broker or agent
(except an affiliate of Wachovia). Upon the Fund's Proper Instructions (which
may include standing instructions), Wachovia shall also invest cash balances in
certificates of deposit, savings accounts or other similar instruments Wachovia
issues or in money market or other mutual funds for which Wachovia or an
affiliate may serve as investment adviser, administrator, custodian, shareholder
servicing agent, or other capacity notwithstanding that Wachovia or its
affiliate collects fees from these mutual funds for providing the services.
e. Except as otherwise provided by law, a cash account (including
subdivisions of accounts maintained in different currencies) shall constitute
one single and indivisible Account. Consequently, Wachovia has the right, among
others, to transfer the balance of any subaccount of a cash account to any other
subaccount at any time and without prior notice.
f.
(i) For puts and calls traded on securities exchanges, NASDAQ, or
over-the-counter, Wachovia shall take action as to put options and call options
the Fund purchases or sells (writes) regarding escrow or other arrangements in
accordance with the provisions of any agreement entered into upon receipt of
Proper Instructions among Wachovia, any broker-dealer that is a member of the
NASD, and, if necessary, the Fund, relating to compliance with rules of the
Options Clearing Corporation and of any registered national securities exchange,
or of any similar organization or organizations.
(ii) Unless another agreement requires it to do so, Wachovia shall be
under no obligation or duty to see that the Fund has deposited or is maintaining
adequate margin, if required, with any broker in connection with any option, nor
shall Wachovia be under any obligation or duty to present the option to the
broker for exercise unless it receives Proper Instructions from the Fund.
Wachovia shall have no responsibility for the legality of any put or call option
sold on the Funds behalf, the propriety of any purchase or sale, or the adequacy
of any collateral delivered to a broker in connection with an option or
deposited to or withdrawn from any account. Wachovia specifically, but not by
way of limitation, shall not be under any obligation or duty to: (x)
periodically check with or notify the Fund that the amount of collateral a
broker holds is sufficient to protect the broker or the Fund against any loss;
(y) effect the return of any collateral delivered to a broker; or (z) advise the
Fund that any option it holds has expired or is about to expire. These
obligations and duties shall be the Fund's sole responsibility.
(iii) For puts, calls, and futures traded on commodities exchanges,
Wachovia shall take action as to put options and call options the Fund purchases
or sells (writes) regarding escrow or other arrangements in accordance with the
provisions of any agreement entered into upon receipt of Proper Instructions
among Wachovia, any futures commission merchant registered under the Commodity
Exchange Act, and the Fund, relating to compliance with rules of the Commodity
Futures Trading Commission and/or any Contract Market, or of any similar
organization or organizations, regarding account deposits for the Fund's
13
transactions.
14
(iv) Wachovia's responsibility as to futures, puts, and calls traded
on commodities exchanges, any futures commission merchant account, and any
account of the Fund shall be limited as set forth in subparagraph (f)(ii) of
this Paragraph 18 as if the subparagraph referred to futures commission
merchants rather than brokers, and futures and puts and calls thereon instead of
options.
19. RECORDS. The books and records pertaining to the Fund which are in the
possession of Wachovia shall be the property of the Fund. Wachovia shall prepare
and maintain these books and records as the 1940 Act and other applicable
federal securities laws and rules and regulations require. The Fund or the
Fund's authorized representatives shall have access to Wachovia's books and
records pertaining to the Fund at all times during Wachovia's normal business
hours, and Wachovia shall surrender these books and records to the Fund promptly
upon request. Upon reasonable request of the Fund, Wachovia shall provide copies
of any books and records to the Fund or the Fund's authorized representative at
the Fund's expense.
20. COOPERATION WITH ACCOUNTANTS. Wachovia shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure that the necessary
information is made available to the accountants for the expression of their
unqualified opinion, including but not limited to the opinion included in the
Fund's Form N-1A, Form N-SAR, and other reports to the SEC and for any other
requirement of the SEC.
21. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS. Wachovia shall provide
the Fund, at times as the Fund may reasonably require, with reports from
Wachovia's independent public accountants on the accounting system, internal
accounting controls and procedures for safeguarding Securities, futures
contracts and options on futures contracts, including Securities deposited
and/or maintained in a Securities Depository or Book-Entry System, relating to
the services Wachovia provides under this Agreement. These reports shall be of
sufficient scope and in sufficient detail as the Fund may reasonably require to
provide reasonable assurance that the examination would disclose any material
inadequacies and, if there are no material inadequacies, the reports shall so
state.
22. CONFIDENTIALITY. Wachovia agrees on behalf of itself and its employees to
treat confidentially and as the proprietary information of the Fund all records
and other information related to the Fund and its prior, present or potential
Shareholders, and to the investment adviser and its prior, present or potential
customers, and not to use these records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to the Fund and the Fund's written approval. The Fund shall
not unreasonably withhold this approval, and may not withhold its approval where
Wachovia may be exposed to civil or criminal contempt proceedings for failure to
comply, when duly constituted authorities request Wachovia to divulge this
information, or when the Fund so requests. Nothing contained herein, however,
shall prohibit Wachovia from advertising or soliciting the public generally for
other products or services, regardless of whether the advertisement or
solicitation may include prior, present or potential shareholders of the Fund.
23. EQUIPMENT.
a. Wachovia represents and warrants that each and every commercial and
noncommercial hardware, software, and firmware used with any services provided
15
under this Agreement shall, at no additional costs to the Fund, be able to store
and process accurately any and all date and date-related data (including, but
not limited to, calculating, comparing, storing, processing, recording, valuing,
recognizing, validating, presenting, and sequencing) without error or
malfunction before, during, and after the twentieth ("20th") and twenty-first
("21st") centuries, including but not limited to, changing accurately the
calendar year to the year 2000, processing leap year calculations, and
processing any other dates with unique digit arrangements such as, by way of
example, 9/9/99. These representations and warranties shall be in effect so long
as Wachovia provides the services under this Agreement for the Funds benefit.
b. Wachovia shall notify the Fund of any errors, omissions or interruptions
in, or delay or unavailability of Wachovia's ability to safeguard and hold
Securities and cash in accordance with this Agreement as promptly as
practicable, and proceed to correct the same as soon as is reasonably possible
at no less or additional expense to the Fund.
c. In the event of equipment failures beyond Wachovia's control, Wachovia
shall, at no additional expense to the Fund, take reasonable steps to minimize
service interruptions but shall not have liability with respect thereto.
Wachovia shall enter into and shall maintain in effect with appropriate parties
one or more agreements making reasonable provision for back up emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
24. RIGHT TO RECEIVE ADVICE.
a. If Wachovia shall be in doubt as to any action it may take or omit to
take, it may request, and shall receive, from the Fund clarification or advice.
If Wachovia shall be in doubt as to any question of law involved in any action
it may take or omit to take, it may request advice at its own cost from counsel
of its own choosing (who may be counsel for the Fund or Wachovia, at the option
of Wachovia). If Wachovia receives conflicting advice from the Fund and from
counsel of its choosing, Wachovia shall be entitled to rely on and follow the
advice of its counsel, and shall be fully protected for anything it does or
omits to do in good faith in conformity with this advice.
b. Wachovia shall be protected in any action or inaction which it takes or
omits to take in reliance on any directions or advice received pursuant to
subparagraph (a) of this Paragraph 24 which Wachovia, after receipt of any
directions or advice, in good faith believes to be consistent with these
directions or advice. However, nothing in this Paragraph shall be construed as
imposing upon Wachovia any obligation (i) to seek directions or advice, or (ii)
to act in accordance with directions or advice when received, unless, under the
terms or another provision of this Agreement, the same is a condition to
Wachovia's properly taking or omitting to take action. Nothing in this
subparagraph shall excuse Wachovia when an action or omission on the part of
Wachovia constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties under this Agreement.
25. COMPENSATION. As compensation for the services described in this Agreement
that Wachovia shall provide during the term of this Agreement, the Fund will pay
to Wachovia (a) monthly fees as outlined in Attachment A, and (b) out-of-pocket
expenses, including but not limited to all costs associated with the conversion
of the Fund's Securities hereunder and the transfer of Securities and records
kept in connection with this Agreement, reimbursement of any taxes or other
16
charges which may be imposed upon the Fund or its income and fees, or on
Wachovia in connection with any acquisition, holding, sale, transfer, delivery,
or receipt of Securities or cash under this Custody Agreement (other than income
or other taxes imposed upon Wachovia in connection with its provision of the
custodial services contemplated hereunder); and expenses of third parties
providing services to the Fund (other than services of third parties as are
already compensated as described in this Agreement), including the services of
legal counsel (other than as described in Paragraph 24) and independent
accountants, appraisers, and brokers. These fees and charges will be payable
quarterly in arrears.
26. INDEMNIFICATION. The Fund, as sole owner of the Property, agrees to
indemnify and hold harmless Wachovia and its nominees from all taxes, charges,
assessments, claims, and liabilities (including, without limitation, liabilities
arising under the 1933 Act, the 1934 Act, the 1940 Act, and any state and
foreign securities and blue sky laws, all as or to be amended from time to time)
and expenses, including (without limitation) attorney's fees and disbursements,
arising directly or indirectly from any action or thing which Wachovia takes or
does or omits to take or do (i) at the request or on the direction of or in
reliance on the advice of the Fund given in accordance with the terms of this
Agreement, or (ii) upon Proper Instructions; provided, however, that neither
Wachovia nor any of its nominees or subcustodian shall be indemnified against
any liability to the Fund or to its Shareholders (or any expenses incident to
this liability) arising out of (x) Wachovia's or its nominee's or subcustodian's
own willful misfeasance, bad faith, gross negligence or reckless disregard of
its duties under this Agreement or any agreement between Wachovia and any
nominee or subcustodian or (y) Wachovia's own negligent failure to perform its
duties under this Agreement. Wachovia similarly agrees to indemnify and hold
harmless the Fund from all liabilities and expenses arising directly or
indirectly from Wachovia's or its nominee's or sub-custodian's willful
misfeasance, bad faith, negligence or reckless disregard in performing its
duties under this agreement. If Wachovia advances any cash for any purpose
resulting from Proper Instructions, or if Wachovia or its nominee or
subcustodian shall incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection with the performance of this
Agreement, except as may arise from its or its nominee's or subcustodian's own
negligent action, negligent failure to act, willful misconduct, or reckless
disregard of its duties under this Agreement or any agreement between Wachovia
and any nominee or subcustodian, the Fund shall promptly reimburse Wachovia for
the advance of cash or taxes, charges, expenses, assessments, claims or
liabilities.
27. PERFORMANCE OF DUTIES AND STANDARD OF CARE.
a. In the performance of its duties hereunder, Wachovia shall be obligated
to exercise care and diligence and act in good faith to ensure the accuracy and
completeness of all services performed under this Agreement.
b. Wachovia shall be under no duty to take any action on behalf of the Fund
except as specifically set forth herein or as Wachovia may specifically agree to
in writing.
c. Wachovia may enter into subcontracts, agreements and understandings with
affiliates, whenever and on any terms and conditions as it deems necessary or
appropriate to perform its services under this Agreement, consistent with the
1940 Act and other applicable law. No subcontract, agreement or understanding
shall discharge Wachovia from its obligations under this Agreement.
d. Wachovia shall not be obligated to execute any of the Fund's Proper
Instructions if Wachovia believes that to do so will or may contravene any law
17
or regulation, any relevant market practice, or Wachovia's general practice in
performing custody services. The Fund hereby agrees to hold Wachovia harmless
from loss, claims, liability or expense asserted against Wachovia as a result of
any contravention undertaken at the Fund's request.
e. Wachovia shall be responsible for its own negligent failure or that of
any subcustodian it shall appoint to perform its duties under this Agreement but
to the extent that duties, obligations and responsibilities are not expressly
set forth in this Agreement, Wachovia shall not be liable for any act or
commission which does not constitute willful misfeasance, bad faith, or
negligence on the part of Wachovia or any subcustodian it appoints or reckless
disregard of such duties, obligations and responsibilities. Without limiting the
generality of the foregoing or of any other provision of this Agreement,
Wachovia in connection with its duties under this Agreement shall, so long as
and to the extent it is in the exercise of reasonable care, not be under any
duty or obligation to inquire into and shall not be liable for or in respect of
(i) the validity or invalidity or authority or lack thereof of any advice,
direction, notice or other instrument which conforms to the applicable
requirements of this Agreement, if any, and which Wachovia believes to be
genuine, (ii) the validity of the issue of any Securities the Fund purchases or
sells, the legality of the purchase or sale thereof or the propriety of the
amount paid or received therefor, (iii) the legality of the issue or sale of any
Shares, or the sufficiency of the amount to be received therefor, (iv) the
legality of the redemption of any Shares, or the propriety of the amount to be
paid therefor, (v) the legality of the declaration or payment of any dividend or
distribution on Shares, or (vi) delays or errors or loss of data occurring by
reason of circumstances beyond Wachovia's control, including acts of civil or
military authority, national emergencies, labor difficulties, fire, mechanical
breakdown (except as provided in Paragraph 23), flood or catastrophe, acts of
God, insurrection, war, riots, or failure of the mail, transportation systems,
communication systems or power supply.
f. The Fund assumes full responsibility for insuring that the contents of
each Registration Statement of the Fund complies with all applicable
requirements of the 1933 Act, the 1940 Act, and any laws, rules and regulations
of governmental authorities having jurisdiction.
28. EFFECTIVE PERIOD; TERMINATION AND AMENDMENT. This Agreement shall become
effective as of its execution and shall continue in full force and effect until
terminated as hereinafter provided. The parties may mutually agree to amend this
Agreement at any time. Either party may terminate this Agreement by an
instrument in writing delivered or mailed, postage prepaid to the other party,
the termination to take effect not sooner than thirty (30) days after the date
of delivery or mailing; provided, however, that Wachovia shall not act under
Paragraph 7 in the absence of receipt of an initial certificate of the Secretary
or an Assistant Secretary that the Board of Directors or Trustees of the Fund
has approved the initial use of a particular Securities Depository or Book-Entry
System and the receipt of an annual certificate of the Secretary or an Assistant
Secretary that the Board of Directors or Trustees has reviewed the Fund's use of
the Securities Depository and/or Book-Entry System, as Rule 17f-4 under the 1940
Act requires, provided further, however, that the Fund shall not amend or
terminate this Agreement in contravention of any applicable federal or state
regulations, or any provision of the Articles of Incorporation or Declaration of
Trust, and further provided, that the Fund may at any time by action of its
Board of Directors or Trustees (i) substitute another bank or trust company for
Wachovia by giving notice as described above to Wachovia or (ii) immediately
terminate this Agreement in the event the Comptroller of the Currency appoints a
conservator or receiver for Wachovia or upon the happening of a like event at
the direction of an appropriate regulatory agency or court of competent
18
jurisdiction. Upon termination of the Agreement, the Fund shall pay to Wachovia
all compensation as may be due as of the date of termination and shall likewise
reimburse Wachovia for its costs, expenses and disbursements.
29. SUCCESSOR CUSTODIAN. If the Board of Directors or Trustees shall appoint a
successor custodian, Wachovia shall, upon termination, deliver to the successor
custodian at the office of the custodian, duly endorsed and in the form for
transfer, all Securities it then holds under this Agreement and shall transfer
to an account of the successor custodian all of the Fund's Securities held in a
Securities Depository or Book-Entry System. If the Fund does not deliver to
Wachovia a written order designating a successor custodian or certified copy of
a vote of the Board of Trustees on or before the date when the termination shall
become effective, then Wachovia shall have the right to deliver to a bank or
trust company, which is a "bank" as defined in the 1940 Act, doing business in
New York, New York, of its own selection, having an aggregate capital, surplus,
and undivided profits, as shown by its last published report, of not less than
$25,000,000, all Securities, monies, and other Property Wachovia holds and all
instruments Wachovia holds relative thereto and all other Property it holds
under this Agreement and to transfer to an account of the successor custodian
all of the Fund's Securities held in any Securities Depository or Book-Entry
System. Thereafter, that bank or trust company shall be the successor of
Wachovia under this Agreement. If Property of the Fund remains in the possession
of Wachovia after the date of termination of this Agreement owing to the Fund's
failure to procure the certified copy of the vote referred to or of the Board of
Directors or Trustees to appoint a successor custodian, Wachovia shall be
entitled to fair compensation for its services during the period as Wachovia
retains possession of the Property and the provisions of this Agreement relating
to the duties and obligations of Wachovia shall remain in full force and effect.
30. NOTICES. All notices and other communications ("Notice" or "Notices" in
this Paragraph) hereunder shall be in writing and shall first be sent by
telegram, cable, telex, or facsimile sending device, and thereafter by overnight
mail for delivery on the next business day. Notices shall be addressed (a) if to
Wachovia, at Wachovia's address, _________; (b) if to the Fund, at the address
of the Fund, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; or (c)
if to neither of the foregoing, at another address as shall have been notified
to the sender of any such Notice or other communication. If the location of the
sender of a Notice and the address of the addressee thereof are, at the time of
sending, more than 100 miles apart, the Notice may be sent by first-class mail,
in which case it shall be deemed to have been given three days after it is sent,
or if sent by confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately, and, if the location of the
sender of a Notice and the address of the addressee thereof are, at the time of
sending, not more than 100 miles apart, the Notice may be sent by first-class
mail, in which case it shall be deemed to have been given two days after it is
sent, of if sent by messenger, it shall be deemed to have been given on the day
it is delivered, or if sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. The sender
shall pay all postage, cable, telegram, telex and facsimile sending device
charges arising from the sending of a Notice.
31. FURTHER ACTIONS. Each party agrees to perform further acts and execute
further documents as are necessary to effectuate the purposes of this Agreement.
32. ADDITIONAL PORTFOLIOS. In the event that the Fund establishes one or more
portfolios of a Fund in addition to the Portfolios listed on Attachment C, for
19
which it desires Wachovia to render services as custodian under the terms
hereof, it shall so notify Wachovia in writing, and if the Custodian agrees in
writing to provide these services, the portfolios shall become a Portfolio
hereunder.
33. MISCELLANEOUS. This Agreement embodies the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the parties hereto. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement shall be deemed to be a contract made in the state of
Delaware and governed by Delaware state law. If a court decision, statute, rule
or otherwise holds or invalidates any provision of this Agreement, the remainder
of this Agreement shall not be affected. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective successors.
The Fund's Articles of Incorporation or Declaration of Trust is on file with the
Secretary of the State/Commonwealth of Delaware. The Funds officers have
executed this Agreement on behalf of the Fund as officers and not individually
and the obligations this Agreement imposes upon the Fund are not binding upon
any of the Fund's Directors or Trustees, officers or shareholders individually
but are binding only upon the assets and Property of the Fund.
IN WITNESSES WHEREOF, the parties hereto have caused their officers
designated below to execute this Agreement as of the day and year first above
written.
AGILEX FUND
Attest:/s/ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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TITLE: President
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WACHOVIA BANK, NATIONAL ASSOCIATION
Attest:/s/ By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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ATTACHMENT C
List of Portfolios of the AGILEX Fund
Principal Protected 500 Series I
Principal Protected 100 Series I
Principal Protected 2000 Series I
Principal Protected 400 Series I
Principal Protected LS Series I
500 Protected Growth Fund II
100 Protected Growth Fund II
400 Protected Growth Fund II
2000 Protected Growth Fund II
Total Index Protected Growth Fund II
LS Protected Growth Fund II
Total Index Growth Fund III
Dated 1/4/05
ATTACHMENT A
FEE SCHEDULE
CUSTODY ADMINISTRATIVE FEES:
1.00 basis points in first $2.5 billion
.75 basis points on the next $2.5 billion
.50 basis points on the next $5.0 billion
.40 basis points on the remainder
TRANSACTION FEES:
$4.00 per transaction through Depository Trust Company (advisor affirms trades)
$7.50 per transaction through Depository Trust Company (Wachovia affirms trades)
$10.00 per transaction through Federal Reserve.
$30.00 per transaction for GIC contracts / Physical Securities.
$15.00 per option.
$4.00 paydowns on mortgage backed securities.
$5.50 Fed wire charge on Repo collateral in/out.
$5.50/$7.50 cash wire transfers in/out.
$5.50 dividend reinvestment.
$2.50 Fed charge for sale/return of collateral.
$8.00 futures contracts.
MINIMUM ANNUAL FEE:
$5,000 minimum annual account fee charged on a monthly basis
Wachovia Bank, National Association AGILEX FUND
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President President