Exhibit 23(g)
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WACHOVIA
WACHOVIA BANK NATIONAL ASSOCIATION
MUTUAL FUND CUSTODY AGREEMENT
THIS AGREEMENT is made as of the 5th day of February, 2005, by and between
WY FUNDS, an Ohio business trust (the "Trust"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association ("WACHOVIA").
1. Definitions.
"Authorized Person" means the Trust's President, Vice-President, Treasurer
and any other person, whether or not that person is an officer or employee of
the Trust, duly authorized by the Trustees of the Trust to give Proper
Instructions on behalf of a 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 Trust's 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.
"Fund" shall mean any series of shares of the Trust listed on Attachment C
hereto, as it may be amended from time to time.
"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. A 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
a 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 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).
"Wachovia" shall include any office, branch or subsidiary of Wachovia
Bank, National Association.
2. Appointment. The Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "l 940 Act"),
and the Trust desires to retain Wachovia to serve as each Fund's custodian and
Wachovia is willing to furnish these services. The Trust 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 Trust 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 Trust's Trustees authorizing the appointment of
Wachovia as custodian of the Property of the Funds and approving this Agreement;
b. Incumbency and signature certificates identifying and containing the
signatures of the Trust's Authorized Persons;
c. The Trust's Declaration of Trust filed with the State of Ohio and all
amendments thereto (the Articles or Declaration);
d. The Trust's By-Laws and all amendments thereto (the By-Laws);
e. Resolutions of the Trust's Trustees approving the investment advisory
agreement between each Fund and the Fund's investment adviser (the Advisory
Agreement);
f. The Advisory Agreement; and the Trust's current Registration Statement
on Form N-1A under the 1940 Act and the Securities Act of 1933, as amended ("xxx
0000 Xxx") as filed with the SEC; and
g. Each Fund's most recent prospectus including all amendments and
supplements thereto (the "Prospectus").
The Trust will furnish Wachovia from time to time with copies of all
amendments of or supplements to the foregoing, if any. The Trust 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 Funds and the status of the Shares under the 1933 Act as
registered with the SEC, and under any other applicable federal law or
regulation.
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. Each 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. Each 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 an 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 a Fund or act for a Fund in any legal proceedings, including
bankruptcies, involving Securities a Fund holds or previously held or the
issuers of these Securities, except as the Trust and Wachovia expressly agree
upon in writing.
b. Wachovia shall transmit promptly to each 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 each Fund all written information Wachovia receives from issuers of
the Securities whose tender or exchange is sought and from the party (or its
agents) making the tender or exchange offer. If a 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.
c. Wachovia shall notify a 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 each 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, a Fund 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 in the case of this clause (ix), upon receipt
of, in addition to Proper Instructions, a certified copy of a resolution of the
Board of Trustees or of the Executive Committee of the Trust signed by an
officer of the Trust 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 a Fund.
7. Receipt and Delivery of Securities.
a. Except as provided in this Xxxxxxxxx 0, Xxxxxxxx shall hold and
physically segregate all Securities and non-cash Property it receives for each
Fund. Wachovia will hold or dispose of all Securities and non-cash Property for
each Fund pursuant to the terms of this Agreement. In the absence of Proper
Instructions accompanied by a certified resolution of the Trust'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 Trust withdraw
any Securities. Wachovia may, subject to the following two sentences, 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 a 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 only employ subcustodians upon receipt of Proper Instructions, but only in
accordance with an applicable vote of the Board of Trustees.
b. Promptly after the close of business on each day Wachovia shall furnish
each 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 a Fund established at a Securities Depository or Book-Entry System
pursuant to this Xxxxxxxxx 0, Xxxxxxxx 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's account on the books of a Securities Depository or Book-Entry System.
At least monthly and from time to time, Wachovia shall furnish each 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 a Fund's prior written consent.
9. Pricing Services. 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
Trust 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
each 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/or 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 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 Trustees or of the Executive Committee signed by an officer of
the Trust 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 Trust, 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. Each 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 a 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
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 a Fund, without interest, for the Fund's other proper corporate
purposes. If Wachovia advances cash for any purpose, or if an overdraft in a
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) such 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 a 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 Board
of Trustees 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 each 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 each 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 a 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 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 each 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, unless a Fund has given Wachovia Proper
Instructions to the contrary.
c. Upon receipt of Proper Instructions, Wachovia shall pay for Securities
purchased for the account of each 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 transfer Securities sold for the
account of a 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 each Fund shall identify the Fund, and Wachovia shall maintain
these copies for each Fund and provide them to the Fund at its request. Upon
request, Wachovia shall furnish each 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 Trust 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 a Fund's
participation in a Securities Depository or Book-Entry System will at all times
during Wachovia's regular business hours be open to the inspection of the
Trust's duly authorized employees or agents, and the Trust 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 each 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
Declaration of Trust or By-Laws of the Trust or any vote or resolution of the
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 Trust 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. Each Fund agrees to forward to Wachovia Proper Instructions confirming
or disavowing oral instructions by the close of business of the same day that
the oral instructions are given to Wachovia. However, each 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 a 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
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. Each 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. Each 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. In the event that a Fund uses
electronic means to communicate transaction instructions to Wachovia, each Fund
agrees that Wachovia is not responsible for the consequences of the failure of
any 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 any such system or network is
inoperable, the Fund agrees that it will send 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 Proper Instructions:
a. Collection of Income and Other Payments. Wachovia shall:
i. collect and receive on a timely basis for the account of each
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 a 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 a 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 a Fund,
checks, drafts, or other orders for the payment of money on the same day as
received;
iii. receive and hold for the account of a 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. Each 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 the industry). Wachovia shall have no duty to notify a 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 each 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 a 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 a 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.
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 a Fund as owner of any Securities may be exercised;
b. Deliver any Securities held for a 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 a 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 a 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 a Fund to any bank or trust company for
the purpose of pledge or hypothecation to secure any loan a 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 a 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/or 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 a 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;
h. Deliver Securities against payment or other consideration or written
receipt therefore for transfer of Securities into the name of a 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
a 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 Trust 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 a 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, a 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 Fund for which the purchase was made. Wachovia shall upon receipt of
Securities purchased by or for a 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, a 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 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 for payment in accordance with the
customs prevailing among dealers in Securities.
c. Each Fund understands that when Wachovia is instructed to deliver
Securities against payment, under some circumstances, delivery of the Securities
and receipt of payment therefor may not be completed simultaneously. Wachovia
will only settle transactions by means other than payment versus delivery when
specifically so instructed in Proper Instructions received from the Fund. The
Fund assumes full responsibility for all credit risks involved in connection
with Wachovia's delivery of Securities pursuant to such Proper Instructions.
d. Upon 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 a Fund directs.
Wachovia shall not be liable for the acts or omissions of any broker or agent
(except an affiliate of Wachovia). Upon 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
a 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/or 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 a 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 a 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 a 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 a 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 a 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
transactions.
(iv) Wachovia's responsibility as to futures, puts, and calls traded on
commodities exchanges, any futures commission merchant account, and any account
of a 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 each 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. A 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 a 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 a 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-CSR, and other reports to the SEC and for any other
requirement of the SEC.
21. Reports to Trust by Independent Public Accountants. Wachovia shall provide
the Trust, at times as the Trust 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 Trust 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 each 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. A Fund 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 any Fund.
23. Equipment.
a. Wachovia represents and warrants that each and every commercial and
noncommercial hardware, software, and firmware used with any services provided
under this Agreement shall, at no additional costs to the Trust, 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 Trust's benefit.
b. Wachovia shall notify a 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 any 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 Trust 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 Trust or Wachovia, at the option
of Wachovia). If Wachovia receives conflicting advice from the Trust 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 reasonable 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, 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 Trust 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 each Fund's Securities hereunder and the transfer of
Securities and records kept in connection with this Agreement, reimbursement of
any taxes or other charges which may be imposed upon a 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 a 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 Trust 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) reasonable 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 any 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
Trust or any 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, 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
Trust from all liabilities and expenses, including (without limitation)
reasonable attorney's fees and disbursements, 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 (other than taxes it may owe as a result of its compensation
hereunder), 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 such 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 a 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 Proper Instructions if
Wachovia believes that to do so will or may contravene any law or regulation,
any relevant market practice, or Wachovia's general practice in performing
custody services. Each 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 a 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 Trust assumes full responsibility for insuring that the contents of
each Registration Statement of the Trust 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 the Trust shall not amend or
terminate this Agreement in contravention of any applicable federal or state
regulations, or any provision of the Declaration of Trust, and further provided,
that the Trust may at any time by action of its Board of 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 jurisdiction. Upon termination of the Agreement,
the Trust shall pay to Wachovia all compensation as may be due as of the date of
termination and shall likewise reimburse Wachovia for its reasonable costs,
expenses and disbursements.
29. Successor Custodian. If the Board of 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 Securities held in a Securities Depository
or Book-Entry System. If the Trust 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
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 a Fund remains in the possession of Wachovia after the
date of termination of this Agreement owing to the Trust's failure to procure
the certified copy of the vote referred to or of the Board of 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 000 X. Xxxxx Xxxxxx, XX0000, Xxxxxxxxxxxx, XX 00000; (b) if to the
Trust, at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000, Attn: Xxxxx York; 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 Funds. In the event that the Trust establishes one or more series
of shares in addition to the Funds listed on Attachment C, for 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 series of shares shall become a Fund 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 Commonwealth
of Pennsylvania and governed by law of the Commonwealth of Pennsylvania. 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 Trust's Declaration of Trust is on file
with the Secretary of the State of Ohio. The Trust's officers have executed this
Agreement on behalf of the Trust as officers and not individually and the
obligations this Agreement imposes upon the Trust are not binding upon any of
the Trust's Trustees, officers or shareholders individually but are binding only
upon the assets and Property of the particular Fund as to which the obligation
relates, and no other 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.
WY FUNDS
By: /s/ Xxxxxxxx X. York
--------------------------
Name: Xxxxxxxx X. York
Title: President, WY Funds
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: V.P.
Section 1.1. ATTACHMENT A
ARTICLE II Fee Schedule
Section 2.1. WY Funds
Custody Administrative Fees:
..75 basis points on market value
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 Physical Securities.
$15.00 per option.
$8.00 Futures contracts.
$6.50 cash wire transfers.
$5.50 Fed Wire Charge on Repo collateral in / out.
$4.00 Paydowns on mortgage backed securities.
Minimum Annual Fee:
$4,800 minimum annual account fee charged on a monthly basis ($400 per month)
Wachovia Bank, National Association The WY Funds
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx X.York
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Xxxx X. Xxxxxx Xxxxxxxx X. York
Title: V.P. Title: President, WY Funds
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Date: 1/27/05 Date: January 25, 2005
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Attachment B
Authorized Persons
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(a) NAME (b) TITLE SPECIMEN SIGNATURE
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Xxxxxxxx X. York Portfolio Manager
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M. Xxxxx Xxxxx Portfolio Manager
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Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxx
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Attachment C
List of Funds of the WY Funds
The Core Fund
Dated: January 18, 2005
