EXHIBIT (g)(1)
CUSTODIAN AGREEMENT
BETWEEN
[WT MUTUAL FUND/WT INVESTMENT TRUST I]
AND
WILMINGTON TRUST COMPANY
DATED AS OF NOVEMBER 1, 1999
TABLE OF CONTENTS
PAGE
I. Employment of Custodian and Property to be Held by It................. 3
II. Duties of the Custodian with Respect to Property of the
Fund Held by the Custodian............................................ 3
A. Holding Securities................................................ 3
B. Delivery of Securities............................................ 3
C. Registration of Securities........................................ 5
D. Bank Accounts..................................................... 5
E. Payments for Shares............................................... 6
F. Investment and Availability of Federal Funds...................... 6
G. Collection of Income.............................................. 6
H. Payment of Fund Moneys............................................ 7
I. Liability for Payment in Advance of Receipt of Securities
Purchased......................................................... 8
J. Payments for Repurchases or Redemptions of Shares of the Fund..... 8
K. Appointment of Agents............................................. 8
L. Deposit of Fund Assets in Securities Systems...................... 9
M. Segregated Accounts for FCMs...................................... 10
N. Ownership Certificates for Tax Purposes........................... 11
O. Proxies........................................................... 11
P. Communications Relating to Fund Portfolio Securities.............. 11
Q. Proper Instructions............................................... 11
R. Actions Permitted Without Express Authority....................... 12
S. Evidence of Authority............................................. 12
III. Duties of Custodian With Respect to Books of Account and
of Net Asset Value and Net Income..................................... 12
IV. Calculation Records.. ................................................ 13
V. Opinion of Fund's Independent Accountant.............................. 13
VI. Reports to Fund by Independent Public Accountants..................... 13
VII. Compensation of Custodian............................................. 14
VIII. Responsibility of Custodian........................................... 14
IX. Effective Period, Termination and Amendment........................... 14
X. Successor Custodian................................................... 15
XI. Interpretive and Additional Provisions................................ 16
XII. Trustees.............................................................. 16
XIII. Delaware Law to Apply................................................. 16
XIV. Limitation of Shareholder Liability................................... 16
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CUSTODIAN AGREEMENT
This Agreement between [WT Mutual Fund/WT Investment Trust I], a
Delaware business trust, (hereinafter called the "Fund"), and Wilmington Trust
Company, a Delaware corporation, (hereinafter called the "Custodian"),
WITNESSETH: That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
I. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
The Fund hereby employs the Custodian as the custodian of its assets
pursuant to the provisions of the Agreement and Declaration of Trust. The Fund
agrees to deliver to the Custodian all securities and cash owned by it, and all
payments of income, payments of principal or capital distributions received by
it with respect to all securities owned by the Fund from time to time, and the
cash consideration received by it for such new or treasury shares of beneficial
interest ("Shares") of the Fund as may be issued or sold from time to time. The
Custodian shall not be responsible for any property of the Fund held or
received by the Fund and not delivered to the Custodian.
The Custodian may from time to time employ one or more sub-custodians,
but only in accordance with an applicable vote by the Trustees of the Fund, and
provided that the employment of any sub-custodian shall not relieve the
Custodian of any of its responsibilities or liabilities hereunder.
The Fund may from time to time issue separate series or portfolios. The
Custodian shall identify to each such portfolio the property belonging to such
portfolio in the reports, confirmations and notices to the Fund called for
under this Agreement and shall identify the portfolio to which such report,
confirmation or notice pertains.
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUND HELD BY
THE CUSTODIAN
A. HOLDING SECURITIES
The Custodian shall hold, earmark and physically segregate for the
account of the Fund all non-cash property, including all securities
owned by the Fund, other than securities which are maintained pursuant
to Section L of this Article II, in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as
"Securities Systems."
B. DELIVERY OF SECURITIES
The Custodian shall release and deliver securities owned by the Fund
held by the Custodian or in a Securities System account of the
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Custodian only upon receipt of proper instructions, which may be
continuing instructions when deemed appropriate by the parties, and
only in the following cases:
(1) Upon sale of such securities for the account of the Fund and
receipt of payment therefor;
(2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
(3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section L hereof;
(4) To the depository agent in connection with tender or other similar
offers for securities of the Fund;
(5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in
any such case, the cash or other consideration is to be delivered
to the Custodian;
(6) To the issuer thereof, or its agent, for transfer into the name of
the Fund or into the name of any nominee or nominees of the
Custodian or into the name of nominee name of any agent appointed
pursuant to Section K of this Article II or into the name or
nominee name of any sub-custodian appointed pursuant to Article I;
or for exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new
securities are to be delivered to the Custodian;
(7) To the broker selling the same for examination in accordance with
the "street delivery" custom; provided that the Custodian shall
adopt such procedures, as the Fund from time to time shall approve,
to ensure their prompt return to the Custodian by the broker in the
event the broker elects not to accept them;
(8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of
the securities of the issuer of securities, or pursuant to
provisions for conversion contained in such securities, or pursuant
to any deposit agreement; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
(9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that, in
any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
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(10) For delivery in connection with any loans of securities made by
the Fund, but only against receipt of adequate collateral, as
agreed upon from time to time by the Custodian and the Fund, which
may be in the form of cash or obligations issued by the United
States government, its agencies or instrumentalities;
(11) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund against receipt of
amounts borrowed;
(12) Upon receipt of instructions from the transfer agent for the Fund,
for delivery to such transfer agent or to holders of shares in
connection with distributions in kind in satisfaction of requests
by holders of shares for repurchase or redemption; and
(13) For any other proper corporate purposes, but only upon receipt of,
in addition to proper instructions, a certified copy of a
resolution of the Board of Trustees 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 such delivery is to be made, declaring such
purposes to be proper corporate purposes, and naming the person or
persons to whom delivery of such securities shall be made.
C. REGISTRATION OF SECURITIES
Securities held by the Custodian (other than bearer securities) shall
be registered in the name of the Fund, or in the name of any nominee of
the Fund, or of any nominee of the Custodian, provided the Custodian
maintains a mechanism for identifying all securities belonging to the
Fund, wherever held or registered, or in the name or nominee name of
any agent appointed pursuant to Sections K of Article II hereof or in
the name or nominee name of any sub-custodian appointed pursuant to
Article I. All securities accepted by the Custodian on behalf of the
Fund under the terms of this Agreement shall be in "street name" or
other good delivery form.
D. BANK ACCOUNTS
The Custodian shall open and maintain a separate bank account or
accounts in the name of the Fund, subject only to draft or order by the
Custodian acting pursuant to the terms of this Agreement, and shall
hold in such account or accounts, subject to the provisions hereof, all
cash received by it from or for the account of the Fund, other than
cash maintained by the Fund in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940, as
amended (the "1940 Act"). Funds held by the Custodian for the Fund may
be deposited by it to its credit as Custodian in the Banking Department
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of the Custodian or in such other banks or trust companies as it may in
its discretion deem necessary or desirable; provided, however, that
every such bank or trust company shall be qualified to act as a
custodian under the 1940 Act and that each such bank or trust company
and the funds to be deposited with each such bank or trust company
shall be approved by vote of a majority of the Trustees of the Fund.
Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that
capacity.
E. PAYMENT FOR SHARES
The Custodian shall receive from the distributor of the Fund's Shares
or from the transfer agent of the Fund (the "Transfer Agent") and
deposit into the Fund's account such payments as are received for
Shares of the Fund issued or sold from time to time by the Fund. The
Custodian will provide timely notification to the Fund and the Transfer
Agent of any receipt by it of cash payments for Shares of the Fund.
F. INVESTMENT AND AVAILABILITY OF FEDERAL FUNDS
Upon mutual agreement between the Fund and the Custodian, the Custodian
shall, upon the receipt of proper instructions, which may be continuing
instructions when deemed appropriate by the parties,
(1) invest in such instruments as may be set forth in such
instructions, on the same day as received, all federal funds
received after a time agreed upon between the Custodian and the
Fund; and
(2) make federal funds available to the Fund as of specified times
agreed upon from time to time by the Fund and the Custodian in the
amount of checks received in payment for Shares of the Fund which
are deposited into the Fund's account.
G. COLLECTION OF INCOME
The Custodian shall collect on a timely basis all income and other
payments with respect to registered securities held hereunder to which
the Fund shall be entitled either by law or pursuant to custom in the
securities business and shall collect on a timely basis all income and
other payments with respect to bearer securities if, on the date of
payment by the issuers, such securities are held by the Custodian or
agent thereof and shall credit such income, as collected, to the Fund's
custodian account. Without limiting the generality of the foregoing,
the Custodian shall detach and present for payment all coupons and
other income items requiring presentation as and when they become due
and shall collect interest when due on securities held hereunder.
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H. PAYMENT OF FUND MONEYS
Upon receipt of proper instructions, which may be continuing
instructions then deemed appropriate by the parties, the Custodian
shall pay out moneys of the Fund in the following cases only:
(1) Upon the purchase of securities for the account of the Fund, but
only (a) against the delivery of such securities to the Custodian
(or any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the 1940 Act to
act as a custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the Fund or in
the name of a nominee of the Custodian referred to in Section C of
Article II hereof or in proper form for transfer; (b) in the case
of a purchase effected through a Securities System, in accordance
with the conditions set forth in Section L of Article II hereof or;
(c) in the case of repurchase agreements entered into between the
Fund and the Custodian, or another bank, (i) against delivery of
securities either in certificate form or through an entry crediting
the Custodian's account at the Federal Reserve Bank with such
securities and (ii) against delivery of the receipt evidencing
purchase by the Fund of securities owned by the Custodian or other
bank along with written evidence of the agreement by the Custodian
or other bank to repurchase such securities from the Fund;
(2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section B of Article II hereof;
(3) For the redemption or repurchase of Shares issued by the Fund as
set forth in Section J of Article II hereof;
(4) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account
of the Fund: interest, dividend disbursements, taxes, trade
association dues, advisory, administration, accounting, transfer
agent and legal fees, and operating expenses of the Fund whether or
not such expenses are to be in whole or part capitalized or treated
as deferred expenses;
(5) For the payment of any dividends declared pursuant to the governing
documents of the Fund; and
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(6) For any other proper corporate purposes, but only upon receipt of,
in addition to proper instructions, a certified copy of a
resolution of the Board of Trustees of the Fund signed by an
officer of the Fund and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment, setting forth the
purpose for which such payment is to be made declaring such purpose
to be a proper corporate purpose, and naming the person or persons
to whom such payment is to be made.
I. LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
In any and every case where payment for purchase of securities for the
account of the Fund is made by the Custodian in advance of receipt of
the securities purchased, in the absence of specific written
instructions from the Fund to so pay in advance, the Custodian shall be
absolutely liable to the Fund for such securities to the same extent as
if the securities had been received by the Custodian, except that in
the case of repurchase agreements entered into by the Fund with a bank
which is a member of the Federal Reserve System, the Custodian may
transfer funds to the account of such bank prior to the receipt of (i)
written evidence that the securities subject to such repurchase
agreement have been transferred by book-entry into a segregated
non-proprietary account of the Custodian maintained with The Federal
Reserve Bank of Philadelphia or the safe-keeping receipt and (ii) the
repurchase agreement, provided that such written evidence or documents
are received prior to the close of business on the same day.
J. PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF SHARES OF THE FUND
From such funds as may be available for the purpose but subject to the
limitations of the Agreement and Declaration of Trust, By-laws and any
applicable votes of the Board of Trustees of the Fund pursuant thereto,
the Custodian shall, upon receipt of instructions from the Transfer
Agent, make funds available for payment to holders of Shares who have
delivered to the Transfer Agent a request for redemption or repurchase
of their shares. In connection with the redemption or repurchase of
Shares of the Fund, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to a commercial bank
designated by the redeeming shareholders. In connection with the
redemption or repurchase of Shares of the Fund, the Custodian shall
honor checks drawn on the Custodian by a holder of Shares, which checks
have been furnished by the Fund to the holder of Shares, when presented
to the Custodian in accordance with such procedures and controls as are
mutually agreed upon from time to time between the Fund and the
Custodian.
K. APPOINTMENT OF AGENTS
The Custodian may at any time or times in its discretion appoint (and
may at any time remove) any other bank or trust company which is itself
qualified under the 1940 Act to act as a custodian, as its agent to
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carry out such of the provisions of this Article II as the Custodian
may from time to time direct; provided, however, that the appointment
of any agent shall not relieve the Custodian of any of its
responsibilities or liabilities hereunder.
L. DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEMS
The Custodian may deposit and/or maintain securities owned by the Fund
in a clearing agency registered with the Securities and Exchange
Commission (the "SEC") under Section 17A of the Securities Exchange Act
of 1934, which acts as a securities depository, or in the book-entry
system authorized by the U.S. Department of the Treasury and certain
federal agencies, collectively referred to herein as "Securities
Systems" in accordance with applicable Federal Reserve Board and the
rules and regulations of the SEC, if any, and subject to the following
provisions:
(1) The Custodian may keep securities of the Fund in a Securities
System provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian, or otherwise for customers;
(2) The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Fund;
(3) The Custodian shall pay for securities purchased for the account of
the Fund upon (i) receipt of advice from the Securities System that
such securities having been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Fund. The
Custodian shall transfer securities sold for the account of the
Fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account,
and (ii) the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of the Fund.
Copies of all advices from the Securities System of transfers of
securities for the account of the Fund shall identify the Fund, be
maintained for the Fund by the Custodian and be provided to the
Fund at its request. The Custodian 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 the Securities System for the account of the Fund
on the next business day;
(4) The Custodian shall have received the initial or annual
certificate, as the case may be, required by Article IX hereof;
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(5) The Custodian shall provide the Fund with any report obtained by
the Custodian on the Securities System's accounting system,
internal accounting control and procedures for safeguarding
securities deposited in the Securities System;
(6) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from use of the Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of
its agents or of any of its or their employees or from any failure
of the Custodian or any such agent to enforce effectively such
rights as it may have against the Securities System; at the
election of the Fund, it shall be entitled to be subrogated to the
rights of the Custodian with respect to any claim against the
Securities System or any other person which the Custodian may have
as a consequence of any such loss or damage if and to the extent
that the Fund has not been made whole for any such loss or damage.
The Custodian shall be subject to the same liability with respect
to all securities of the Fund, and all cash, stock dividends,
rights and items of like nature to which the Fund is entitled, held
or received by such securities systems as if the same were held or
received by the Custodian at its own office.
M. SEGREGATED ACCOUNTS FOR FCMS
The Custodian may enter into separate custodial agreements with various
Futures Commission Merchants ("FCMs") which the Fund uses (each, an
"FCM agreement"), pursuant to which the Fund's margin deposits in
certain transactions involving futures contracts and options on futures
contracts will be held by the Custodian in accounts (each, an "FCM
account") subject to the disposition by the FCM involved in such
contracts in accordance with the customer contract between FCM and the
Fund ("FCM contract"), SEC rules governing such segregated accounts,
CFTC rules and the rules of applicable securities or commodities
exchange. Such custodial agreements shall only be entered into upon
receipt of written instructions from the Fund which state that (a) a
customer agreement between the FCM and the Fund has been entered into
and (b) the Fund is in compliance with all the rules and regulations of
the CFTC. Transfers of initial margin shall be made into an FCM account
only upon written instructions; transfers of premium and variation
margin may be made into an FCM account pursuant to Oral Instructions.
Transfers of funds from an FCM account to the FCM for which the
Custodian holds such an account may only occur upon certification by
the FCM to the Custodian that pursuant to the FCM Agreement and the FCM
Contract, all conditions precedent to its right to give the Custodian
such instructions have been satisfied.
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N. OWNERSHIP CERTIFICATES FOR TAX PURPOSES
The Custodian shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in connection with
receipt of income or other payments with respect to securities of the
Fund held by it and in connection with transfers of securities.
O. PROXIES
The Custodian shall, with respect to the securities held by it
hereunder, cause to be promptly executed by the registered holder of
such securities, if the securities are registered otherwise than in the
name of the Fund or a nominee of the Fund, all proxies, without
indication of the manner in which such proxies are to be voted, and
shall promptly deliver to the Fund's investment adviser (the "Adviser")
such proxies, all proxy soliciting materials and all notices relating
to such securities.
P. COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES
The Custodian shall transmit promptly to the Adviser all written
information (including, without limitation, pendency of calls and
maturities of securities and expirations of rights in connection
therewith) received by the Custodian from issuers of the securities
being held for the Fund. With respect to tender or exchange offers, the
Custodian shall transmit promptly to the Adviser all written
information received by the Custodian 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 Adviser desires to take
action with respect to any tender offer, exchange offer or any other
similar transaction, the Adviser shall notify the Custodian at least
three business days prior to the date on which the Custodian is to take
such action.
Q. PROPER INSTRUCTIONS
"Proper instructions" as used throughout this Article II means a
writing signed or initialed by one or more person or persons in such
manner as the Trustees shall have from time to time authorized. Each
such writing shall set forth the transaction involved, including a
specific statement of the purpose for which such action is requested.
Oral instructions will be considered proper instructions if the
Custodian reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction
involved. The Fund shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Trustees or the Fund
accompanied by a detailed description of procedures approved by the
Trustees, "proper instructions" may include communications effected
directly between electro-mechanical or electronic devices provided that
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the Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the Fund's assets.
R. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
The Custodian may in its discretion, without express authority from the
Fund:
(1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for
to the Fund;
(2) surrender securities in temporary form for securities in definitive
form;
(3) endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments; and
(4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Fund except as
otherwise directed by the Board of Trustees of the Fund.
S. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument of paper
reasonably believed by it to be genuine and to have been properly
executed by or on behalf of the Fund. The Custodian may receive and
accept a certified copy of a vote of the Board of Trustees of the Fund
as conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) an any determination or of any action
by the Board of Trustees pursuant to the Agreement and Declaration of
Trust as described in such vote, and such vote may be considered as in
full force and effect until receipt by the Custodian or written notice
to the contrary.
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT AND CALCULATION OF
NET ASSET VALUE AND NET INCOME
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees to keep the books of
account of the Fund and/or compute the net asset value per share of the
outstanding shares of the Fund and/or compute the daily net income of the Fund.
If directed in writing to do so by the Fund, which direction shall be
transmitted to the Custodian reasonably in advance of the date on which it is to
act, the Custodian shall itself keep such books of account and/or compute such
net asset value per share and/or compute the daily net income of the Fund and
shall, upon such written direction, compute daily the Fund's interest received
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and accrued, short-term gains and losses realized upon sale of securities,
long-term gains and losses realized upon sale of securities, and unrealized
gains and losses on portfolio securities. If so instructed in writing, which
written instructions shall be transmitted to the Custodian reasonably in advance
of the date on which it is to act, the Custodian shall supply quotations for all
portfolios securities of the Fund to the entity or entities appointed by the
Board of Trustees to compute the net asset value per share of the outstanding
shares of the Fund on each day on which such net asset value per share is to be
computed under Article X, Section 3 of the Fund's Agreement and Declaration of
Trust.
IV. RECORDS
The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Fund under the 1940 Act, with particular attention to Section
31 thereof and Rules 31a-1 and 31a-2 thereunder, applicable federal and state
tax laws and any other law or administrative rules or procedures which may be
applicable to the Fund. All such records shall be the property of the Fund and
shall at all times during the regular business hours of the Custodian be open
for inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the SEC. The Custodian shall, at the Fund's request,
supply the Fund with a tabulation of securities owned by the Fund and held by
the Custodian and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations.
V. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
The Custodian shall take all reasonable action to obtain from year to
year favorable opinions from the Fund's independent accountants with respect to
its activities hereunder in connection with respect to its activities hereunder
in connection with the preparation of the Fund's Registration Statement on Form
N-1A, as the Fund may from time to time request, and the Fund's form N-SAR or
other annual or semi-annual reports to the SEC and with respect to any other
requirements of such Commission.
VI. RECORDS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall provide the Fund, at such times as the Fund may
reasonable require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, including securities deposited and/or maintained in a Securities
System, relating to the services provided by the Custodian under this Agreement;
such reports, which shall be of sufficient scope and in sufficient detail as may
reasonable be required by the Fund, to provide reasonable assurance that any
material inadequacies would be disclosed, shall state in detail material
inadequacies disclosed by such examination, and, if there are no such
inadequacies, shall so state.
VII. COMPENSATION OF CUSTODIAN
The Fund shall compensate the Custodian as provided for in Schedule A
hereto.
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VIII. RESPONSIBILITY OF CUSTODIAN
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonable
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Fund) on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
Notwithstanding the foregoing, the responsibility of the Custodian with respect
to redemptions effected by check may be set forth in a separate Agreement
entered into between the Custodian and the Fund.
The Custodian shall be held to the exercise of reasonable care in
carrying out the provisions of this Agreement but shall be liable only for its
own negligent or bad faith acts or failures to act. The Fund shall indemnify the
Custodian and hold it harmless from and against all claims, liabilities, and
expenses (including attorneys' fees) which the Custodian may suffer or incur on
account of being Custodian hereunder except such claims, liabilities and
expenses arising from the Custodian's own negligence or bad faith.
Notwithstanding the foregoing, nothing contained in this paragraph is intended
to nor shall it be constructed to modify the standards of care and
responsibility set forth in Article I hereof with respect to sub-custodians and
in Section L(6) of Article II hereof with respect to Securities Systems.
If the Fund required the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the reasonable opinion of the Custodian, result in the Custodian or its nominee
assigned to the Fund being liable for the payment of money or incurring
liability of some other form, the Fund, as a prerequisite to requiring the
Custodian to take such action, shall provide indemnity to the Custodian in an
amount and form satisfactory to it.
IX. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid, to the other party, such termination to take effect not sooner
than sixty (60) days after the date of such delivery or mailing; provided,
however, that the Custodian shall not act under Section L of Article II hereof
in the absence of receipt of an initial certificate from the Fund that the
Trustees of the Fund have approved the initial use of a particular Securities
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System and the receipt of an annual certificate reporting that the Trustees, as
required by Rule 17f-4 under the 1940 Act have reviewed the use by the Fund of
such Securities System; provided further, however, that the Fund shall not amend
or terminate the Agreement in contravention of any applicable federal or state
regulations, or any provision of the Agreement and Declaration of Trust, and
further provided, that the Fund may at any time by action of its Trustees (i)
substitute another bank or trust company for the Custodian by giving notice as
described above to the Custodian, or (ii) immediately terminate this Agreement
in the event of the appointment of a conservator or receiver for the Custodian
by the Comptroller of the Currency 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 Agrreement, the Fund shall reimburse the
Custodian for those costs, expenses and disbursements that are due as of the
date of such termination.
X. SUCCESSOR CUSTODIAN
If a successor custodian is appointed by the Trustees of the Fund, the
Custodian shall, upon termination, deliver to such successor custodian at the
office of the Custodian, duly endorsed and in the form for transfer, all
securities and other assets of the Fund then held by it hereunder. The Custodian
shall also deliver to such successor custodian copies of such books and records
relating to the Fund as the Fund and Custodian may mutually agree.
If no such successor custodian is appointed, the Custodian shall, in
like manner, upon receipt of the certified copy of a vote of the Trustees of the
Fund, deliver at the office of the Custodian such securities, funds and other
properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company doing business in Wilmington, Delaware, 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, funds and other
properties held by the Custodian and all instruments held by the Custodian
relative thereto and all other property held by it under this Agreement.
Thereafter, such bank or trust company shall be the successor of the Custodian
under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of vote referred to or of the
Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect.
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XI. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Agreement, the Custodian and
the Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in writing signed by both parities and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Agreement and Declaration of Trust of the Fund. No interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
XII. TRUSTEES
All references to actions of or by Trustees or herein shall require
action by such Trustees acting as a board or formally constituted group and not
individually.
XIII. DELAWARE LAW TO APPLY
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of Delaware.
XIV. LIMITATION OF SHAREHOLDER LIABILITY
The Custodian is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Agreement and Declaration of Trust of
the Fund and agrees that the obligations assumed by the Fund pursuant to this
Agreement shall be limited in all cases to the Fund and its assets, and if the
liability relates to one or more portfolios, the obligation hereunder shall be
limited to the respective assets of such portfolio or portfolios. The Custodian
shall not seeks satisfaction of any such obligation from the shareholders or any
shareholder of the Fund, nor shall the Custodian seek satisfaction of any such
obligations from the Trustees or any individual Trustee of the Fund.
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IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on behalf by its duly authorized representative and
its seal to be hereunder affixed as of the day of 1st day of November, 1999.
SEAL WT MUTUAL FUND
By________________________
SEAL WILMINGTON TRUST COMPANY
By________________________
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SCHEDULE A
COMPENSATION OF THE CUSTODIAN
For the services to be provided to the Fund pursuant to the attached
Custodian Agreement, the Fund shall pay the Custodian an annual fee calculated
based upon the average net assets of each series or portfolio of the Fund and
payable monthly as follows:
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