EXHIBIT G(I)
Custodian Agreement
Between
(a) [WT Mutual Fund/WT Investment Trust I]
and
Wilmington Trust Company
Dated as of November 1, 1999
TABLE OF CONTENTS
(a) Employment of Custodian and Property to be Held by It 3
(b) Duties of the Custodian with Respect to Property of the Fund Held by 3
the Custodian
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 Calculation of Net 12
Asset Value and Net Income
IV. 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
(b) 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
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."
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 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;
(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.
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.
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 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.
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.
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.
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.
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
(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.
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.
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.
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
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.
DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEMS
(i) 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;
(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.
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.
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.
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.
COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES
(ii) 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.
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 the Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the Fund's assets.
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.
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
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.
(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
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.
(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.
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____________________________________
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:
