SUB-CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of November 1, 1999 among PFPC TRUST COMPANY,
a limited purpose trust company ("PFPC Trust"), WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as custodian ("Custodian") and WT MUTUAL FUND, a
Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, Custodian serves as custodian for the Fund pursuant to a
custody agreement with the Fund; and
WHEREAS, Custodian, with the consent of the Fund, wishes to retain PFPC
Trust to provide sub-custodian services, and PFPC Trust wishes to furnish
sub-custodian services, either directly or through an affiliate or affiliates,
as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as
amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934,
as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund, the
Custodian and any other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written
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Instructions on behalf of the Fund and listed on the Authorized Persons Appendix
attached hereto and made a part hereof or any amendment thereto as may be
received by PFPC Trust. An Authorized Person's scope of authority may be limited
by the Fund by setting forth such limitation in the Authorized Persons Appendix.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury
book-entry system for United States and federal agency securities, its successor
or successors, and its nominee or nominees and any book-entry system maintained
by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "ORAL INSTRUCTIONS" mean oral instructions received by
PFPC Trust from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person.
(g) "PFPC TRUST" means PFPC Trust Company or a subsidiary or
affiliate of PFPC Trust Company.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the
1940 Act and the CEA.
(j) "SHARES" mean the shares of beneficial interest of
any series or class of the Fund.
(k) "PROPERTY" means:
(i) any and all securities and other investment
items which the Fund may from time to time
deposit, or cause to be deposited, with PFPC
Trust or which PFPC Trust may from time to
time hold for the Fund;
(ii) all income in respect of any of such
securities or other investment items;
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(iii) all proceeds of the sale of any of such
securities or investment items; and
(iv) all proceeds of the sale of securities
issued by the Fund, which are received by
PFPC Trust from time to time, from or on
behalf of the Fund.
(l) "WRITTEN INSTRUCTIONS" mean written instructions signed by
one Authorized Person and received by PFPC Trust. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. Custodian, with the consent of the Fund, hereby
appoints PFPC Trust to provide sub-custodian services to the Fund, on behalf of
each of its investment portfolios (each, a "Portfolio"), and PFPC Trust accepts
such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where
applicable, will provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC
Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution agreement with respect to each
class of Shares;
(e) a copy of each Portfolio's administration agreement if PFPC
Trust is not providing the Portfolio with such services;
(f) copies of any shareholder servicing agreements made in respect
of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by PFPC Trust
hereunder. Except as specifically set forth herein, PFPC Trust assumes no
responsibility for such compliance by the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust
shall act only upon Oral Instructions and Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral
Instructions and Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC Trust to be an Authorized Person)
pursuant to this Agreement. PFPC Trust may assume that any Oral Instructions or
Written Instructions received hereunder are not in any way inconsistent with the
provisions of organizational documents of the Fund or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's shareholders, unless
and until PFPC Trust receives Written Instructions to the contrary.
(c) Custodian and the Fund, as applicable, agree to forward to
PFPC Trust Written Instructions confirming Oral Instructions (except where such
Oral Instructions are given by PFPC Trust or its affiliates) so that PFPC Trust
receives the Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC Trust shall in no way invalidate the
transactions or
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enforceability of the transactions authorized by the Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC Trust shall incur no liability to the
Fund in acting upon such Oral Instructions or Written Instructions provided that
PFPC Trust's actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Trust is in doubt as to any
action it should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from Custodian or
the Fund, as applicable.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to
any question of law pertaining to any action it should or should not take, PFPC
Trust may request advice at its own cost from such counsel of its own choosing
(who may be counsel for Custodian, the Fund, the Fund's investment adviser or
PFPC Trust, at the option of PFPC Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund or WTC, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and, after notice to Custodian and the
Fund, to follow the advice of counsel. In the event PFPC Trust so relies on the
advice of counsel, PFPC Trust remains liable for any action or omission on the
part of PFPC Trust which constitutes willful misfeasance, bad faith, negligence
or reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be protected in
any action it takes or does not take in reliance upon Oral Instructions or
Written Instructions it receives from the
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Fund or directions or advice from counsel and which PFPC Trust believes, in good
faith, to be consistent with those directions, advice or Oral Instructions or
Written Instructions. Nothing in this section shall be construed so as to impose
an obligation upon PFPC Trust (i) to seek such directions, advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance with such
directions, advice or Oral Instructions or Written Instructions unless, under
the terms of other provisions of this Agreement, the same is a condition of PFPC
Trust's properly taking or not taking such action. Nothing in this subsection
shall excuse PFPC Trust when an action or omission on the part of PFPC Trust
constitutes willful misfeasance, bad faith, negligence or reckless disregard by
PFPC Trust of any duties, obligations or responsibilities set forth in this
Agreement.
7. RECORDS; VISITS. The books and records pertaining to Custodian, the
Fund and any Portfolio, which are in the possession or under the control of PFPC
Trust, shall be the property of Custodian and the Fund. Such books and records
shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. Custodian, the Fund and
Authorized Persons shall have access to such books and records at all times
during PFPC Trust's normal business hours. Upon the reasonable request of the
Custodian or the Fund, copies of any such books and records shall be provided by
PFPC Trust to Custodian, the Fund or to an authorized representative of either,
at the Fund's expense.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records
of Custodian, the Fund and information relating to Custodian, the Fund and its
shareholders, unless the release of such records or information is otherwise
consented to, in writing, by Custodian or the Fund, as the case may be. The Fund
and Custodian agree that such consent shall not be unreasonably withheld and
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may not be withheld where PFPC Trust may be exposed to civil or criminal
contempt proceedings or when required to divulge such information or records to
duly constituted authorities, unless PFPC Trust is indemnified by Custodian or
the Fund, as the case may be.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with
Custodian's and the Fund's independent public accountants and shall take all
reasonable action in the performance of its obligations under this Agreement to
ensure that the necessary information is made available to such accountants for
the expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain
in effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment failures,
PFPC Trust shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC Trust shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by PFPC Trust's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for sub-custody services rendered by
PFPC Trust during the term of this Agreement, WTC, on behalf of the Fund and
each of the Portfolios, will pay to PFPC Trust a fee or fees as may be agreed to
in writing from time to time by WTC, the Fund and PFPC Trust.
12. INDEMNIFICATION. The Fund and Custodian, on behalf of each
Portfolio, agree to indemnify and hold harmless PFPC Trust and its affiliates
from all taxes, charges, expenses,
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assessments, claims and liabilities (including, without limitation, liabilities
arising under the Securities Laws and any state and foreign securities and blue
sky laws, and amendments thereto, and expenses, including (without limitation)
attorneys' fees and disbursements, arising directly or indirectly from any
action or omission to act which PFPC Trust takes (i) at the request or on the
direction of or in reliance on the advice of the Fund or Custodian or (ii) upon
Oral Instructions or Written Instructions. The Custodian's indemnification of
PFPC Trust is subject to the Fund's indemnification of Custodian. Neither PFPC
Trust, nor any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) arising out of PFPC Trust's or its
affiliates' own willful misfeasance, bad faith, negligence or reckless disregard
of its duties under this Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on
behalf of Custodian or the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC Trust in writing. PFPC
Trust shall be obligated to exercise care and diligence in the performance of
its duties hereunder, to act in good faith and to use its best efforts, within
reasonable limits, in performing services provided for under this Agreement.
PFPC Trust shall be liable for any damages arising out of PFPC Trust's failure
to perform its duties under this Agreement to the extent such damages arise out
of PFPC Trust's willful misfeasance, bad faith, negligence or reckless disregard
of its duties under this Agreement.
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(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Trust shall not be under any duty or
obligation to inquire into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC Trust reasonably believes to be
genuine; or (B) subject to section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC Trust's control, including acts
of civil or military authority, national emergencies, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, neither PFPC Trust nor its affiliates shall be liable to Custodian or
the Fund or to any Portfolio for any consequential, special or indirect losses
or damages which Custodian or the Fund may incur or suffer by or as a
consequence of PFPC Trust's or its affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or damages was
known by PFPC Trust or its affiliates.
(d) Notwithstanding anything to the contrary contained herein,
PFPC Trust on behalf of itself and any and all of its affiliates or assignees
hereunder, agrees to indemnify and hold harmless Custodian and its directors,
officers and employees from and against any and all damages, losses, costs,
taxes, charges, expenses, assessments, claims and liabilities, including,
without limitation, attorneys' fees and disbursements (collectively, "Losses"),
arising directly from any action or omission to act by PFPC Trust or any of its
affiliates or assignees, as applicable, relating to this Agreement, including
Losses arising out of any threatened, pending or completed claim, action, suit
or proceeding, whether civil, criminal, administrative or investigative, except
to the
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extent such Losses were caused directly by the willful misfeasance, bad faith,
negligence or reckless disregard by Custodian of its duties under this
Agreement.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. Custodian, for the account of
the Fund, will deliver or arrange for delivery to PFPC Trust, all the Property
owned by the Portfolios, including cash received as a result of the distribution
of Shares, during the period that is set forth in this Agreement. PFPC Trust
will not be responsible for such property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon
Written Instructions, shall open and maintain separate accounts in Custodian's
name for the benefit of the Fund using all cash received from or for the account
of the Fund, subject to the terms of this Agreement. In addition, upon Written
Instructions, PFPC Trust shall open separate custodial accounts for each
separate series or Portfolio of the Fund (collectively, the "Accounts") and
shall hold in the Accounts all cash received from or for the Accounts of the
Fund specifically designated to each separate series or Portfolio.
PFPC Trust shall make cash payments from or for the Accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio or
PFPC Trust or PFPC Trust's nominee as provided in
sub-section (j) and for which PFPC Trust has received
a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund
delivered to PFPC Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent for
the shareholders, an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
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the Fund's transfer agent, PFPC Trust may arrange for
the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Fund, PFPC Trust and the Fund's
transfer agent.
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section; and
(viii) payments, upon Written Instructions, made for other
proper Fund purposes.
PFPC Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian for the
Accounts.
(c) RECEIPT OF SECURITIES; SUB-CUSTODIANS.
(i) PFPC Trust shall hold all securities
received by it for the Accounts in a
separate account that physically segregates
such securities from those of any other
persons, firms or corporations, except for
securities held in a Book-Entry System. All
such securities shall be held or disposed of
only upon Written Instructions of the Fund
pursuant to the terms of this Agreement.
PFPC Trust shall have no power or authority
to assign, hypothecate, pledge or otherwise
dispose of any such securities or
investment, except upon the express terms of
this Agreement and upon Written
Instructions, accompanied by a certified
resolution of the Fund's Board of Trustees,
authorizing the transaction. In no case may
any member of the Fund's Board of Trustees,
or any officer, employee or agent of the
Fund withdraw any securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into
sub-custodian agreements with other United
States banks or trust companies to perform
duties described in this sub-section (c).
Such bank or trust company shall have an
aggregate capital, surplus and undivided
profits, according to its last published
report, of at least one million dollars
($1,000,000), if it is a subsidiary or
affiliate of PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank
or trust company is not a subsidiary or
F
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affiliate of PFPC Trust. In addition, such
bank or trust company must be qualified to
act as custodian and agree to comply with
the relevant provisions of the 1940 Act and
other applicable rules and regulations. Any
such arrangement will not be entered into
without prior written notice to the Fund.
PFPC Trust shall remain responsible for the
performance of all of its duties as
described in this Agreement and shall hold
the Fund and each Portfolio harmless from
its own acts or omissions, under the
standards of care provided for herein, or
the acts and omissions of any sub-custodian
chosen by PFPC Trust under the terms of this
sub-section (c).
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust, directly or
through the use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio against
the receipt of payment for the sale of such
securities;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of a
Portfolio as owner of any securities may be
exercised;
(iii) deliver any securities 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 PFPC Trust;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise
of any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or
other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization
or sale
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of assets of any corporation, and receive and hold
under the terms of this Agreement such certificates
of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such
delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be
stated in said Oral Instructions or Written
Instructions to be for the purpose of effectuating a
duly authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the
Fund;
(vii) release securities belonging to a Portfolio to any
bank or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the Fund
on behalf of that Portfolio; provided, however, that
securities shall be released only upon payment to
PFPC Trust of the monies borrowed, 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 repay such loan upon
redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note
or notes evidencing the loan;
(viii) release and deliver securities owned by a Portfolio
in connection with any repurchase agreement entered
into on behalf of the Fund, but only on receipt of
payment therefor; and pay out moneys of the Fund in
connection with such repurchase agreements, but only
upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by
the Fund in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Fund for
the purpose of redeeming in kind shares of the Fund
upon delivery thereof to PFPC Trust; and
(xi) release and deliver or exchange securities owned by
the Fund for other corporate purposes.
PFPC Trust must also receive a certified resolution
describing the nature of the corporate purpose and
the name and address of the person(s) to whom
delivery shall be made when such action is pursuant
to sub-paragraph d. (xi).
(e) USE OF BOOK-ENTRY SYSTEM. The Fund shall deliver to
PFPC Trust certified resolutions of the Fund's Board of Trustees approving,
authorizing and instructing PFPC Trust on a continuous basis, to deposit in the
Book-Entry System all securities belonging to the Portfolios
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eligible for deposit therein and to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales of securities by
the Portfolios, and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with borrowings. PFPC
Trust shall continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which
are maintained in the Book-Entry System, the records
of PFPC Trust shall identify by Book-Entry or
otherwise those securities belonging to each
Portfolio. PFPC Trust shall furnish to the Fund a
detailed statement of the Property held for each
Portfolio under this Agreement at least monthly and
from time to time and upon written request.
(ii) Securities and any cash of each Portfolio deposited
in the Book-Entry System will at all times be
segregated from any assets and cash controlled by
PFPC Trust in other than a fiduciary or custodian
capacity but may be commingled with other assets held
in such capacities. PFPC Trust and its sub-custodian,
if any, will pay out money only upon receipt of
securities and will deliver securities only upon the
receipt of money.
(iii) All books and records maintained by PFPC Trust which
relate to the Fund's participation in the Book-Entry
System will at all times during PFPC Trust's regular
business hours be open to the inspection of
Authorized Persons, and PFPC Trust will furnish to
Custodian and the Fund all information in respect of
the services rendered as it may require.
PFPC Trust will also provide Custodian and the Fund with such reports
on its own system of internal control as the Fund may reasonably request from
time to time.
(f) REGISTRATION OF SECURITIES. All Securities held for a
Portfolio which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by PFPC Trust in bearer
form; all other securities held for a Portfolio may be registered in the name of
the Fund on behalf of that Portfolio, PFPC Trust, the Book-Entry System, a
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sub-custodian, or any duly appointed nominees of the Fund, PFPC Trust,
Book-Entry System or sub-custodian. The Fund reserves the right to instruct PFPC
Trust as to the method of registration and safekeeping of the securities of the
Fund. The Fund agrees to furnish to PFPC Trust appropriate instruments to enable
PFPC Trust to hold or deliver in proper form for transfer, or to register in the
name of its nominee or in the name of the Book-Entry System, any securities
which it may hold for the Accounts and which may from time to time be registered
in the name of the Fund on behalf of a Portfolio.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its
nominee shall vote any of the securities held pursuant to this Agreement by or
for the account of a Portfolio, except in accordance with Written Instructions.
PFPC Trust, directly or through the use of the Book-Entry System, shall execute
in blank and promptly deliver all notices, proxies and proxy soliciting
materials to the registered holder of such securities. If the registered holder
is not the Fund on behalf of a Portfolio, then PFPC Trust shall deliver such
materials timely to the applicable investment adviser for the portfolio or such
other party as may be identified for such purpose in Written Instructions.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the
absence of contrary Written Instructions, PFPC Trust is authorized to take the
following actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account
of each Portfolio, all income,
dividends, distributions, coupons,
option premiums, other payments and
similar items, included or to be
included in the Property, and, in
addition, promptly advise each
Portfolio of such receipt and
credit such income, as collected,
to each Portfolio's custodian
account;
(B) endorse and deposit for collection,
in the name of the Fund, checks,
drafts, or other orders for the
payment of money;
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(C) receive and hold for the account of
each Portfolio all securities
received as a distribution on the
Portfolio's securities 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 belonging to a Portfolio
and held by PFPC Trust hereunder;
(D) 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 such
securities become payable; and
(E) take any action which may be
necessary and proper in connection
with the collection and receipt of
such income and other payments and
the endorsement for collection of
checks, drafts, and other
negotiable instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) deliver or cause to be delivered Property
against payment or other consideration or
written receipt therefor in the following
cases:
(1) for examination by a broker or
dealer selling for the account of a
Portfolio in accordance with street
delivery custom;
(2) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(3) for transfer of securities into the
name of the Fund on behalf of a
Portfolio or PFPC Trust or 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 such case, the new
securities are to be delivered to
PFPC Trust.
(B) Unless and until PFPC Trust receives Oral
Instructions or Written Instructions to the
contrary, PFPC Trust shall:
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(1) pay all income items held by it
which call for payment upon
presentation and hold the cash
received by it upon such payment
for the account of each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund,
to the account of each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities
issued with respect to any
securities held by PFPC Trust; and
(4) execute as agent on behalf of the
Fund all necessary ownership
certificates required by the
Internal Revenue Code or the Income
Tax Regulations of the United
States Treasury Department or under
the laws of any state now or
hereafter in effect, inserting the
Fund's name, on behalf of a
Portfolio, on such certificate as
the owner of the securities covered
thereby, to the extent it may
lawfully do so.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions
or Oral Instructions establish and maintain
segregated accounts on its records for and on behalf
of each Portfolio. Such accounts may be used to
transfer cash and securities, including securities in
the Book-Entry System:
(A) for the purposes of compliance by the Fund
with the procedures required by a securities
or option exchange, providing such
procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) upon receipt of Written Instructions, for
other proper corporate purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding
Shares through XXX accounts, in accordance with the
Fund's prospectuses, the Internal Revenue Code of
1986, as amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
Custodian, the Fund, PFPC Trust and the Fund's
transfer agent.
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(j) PURCHASES OF SECURITIES. PFPC Trust shall settle
purchased securities upon receipt of Oral Instructions or Written Instructions
on behalf of the Fund or its investment advisers that specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if
applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the
broker through whom the purchase was made.
PFPC Trust shall upon receipt of securities
purchased by or for a Portfolio pay out of
the moneys held for the account of the
Portfolio 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 such Oral Instructions or
Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold
securities upon receipt of Oral Instructions or Written Instructions on behalf
of the Fund that specify:
(i) the name of the issuer and the title of the
security, including CUSIP number if
applicable;
(ii) the number of shares or principal amount
sold, and accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon
such sale;
(vi) the name of the broker through whom or the
person to whom the sale was made; and
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(vii) the location to which the security must be
delivered and delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Subject to the foregoing, PFPC Trust may accept payment in such
form as shall be reasonably satisfactory to it, and may deliver securities and
arrange for payment in accordance with the customs prevailing among dealers in
securities.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to Custodian and
the Fund the following reports:
(A) such periodic and special reports
as Custodian and/or the Fund may
reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the
account of each Portfolio, listing
each Portfolio securities belonging
to each Portfolio with the adjusted
average cost of each issue and the
market value at the end of such
month and stating the cash account
of each Portfolio including
disbursements;
(C) the reports required to be
furnished to the Fund pursuant to
Rule 17f-4; and
(D) such other information as may be
agreed upon from time to time
between Custodian and/or the Fund
and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the
Fund any proxy statement, proxy material,
notice of a call or conversion or similar
communication received by it as
sub-custodian of the Property and PFPC Trust
shall use its best efforts, within
reasonable limits, to
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transmit promptly to the Fund any class
action notices and tender or exchange
offers. PFPC Trust shall be under no other
obligation to inform the Fund as to such
actions or events.
(m) CREDITING OF ACCOUNTS. If PFPC Trust in its sole
discretion credits an Account with respect to (a) income, dividends,
distributions, coupons, option premiums, other payments or similar items on a
contractual payment date or otherwise in advance of PFPC Trust's actual receipt
of the amount due, (b) the proceeds of any sale or other disposition of assets
on the contractual settlement date or otherwise in advance of PFPC Trust's
actual receipt of the amount due or (c) provisional crediting of any amounts
due, and (i) PFPC Trust is subsequently unable to collect full and final payment
for the amounts so credited within a reasonable time period using reasonable
efforts or (ii) pursuant to standard industry practice, law or regulation PFPC
Trust is required to repay to a third party such amounts so credited, or if any
Property has been incorrectly credited, PFPC Trust shall have the absolute right
in its sole discretion without demand to reverse any such credit or payment, to
debit or deduct the amount of such credit or payment from the Account, and to
otherwise pursue recovery of any such amounts so credited from the Fund. Nothing
herein or otherwise shall require PFPC Trust to make any advances or to credit
any amounts until PFPC Trust's actual receipt thereof. The Fund hereby grants a
first priority contractual possessory security interest in and a right of setoff
against the assets maintained in an Account hereunder in the amount necessary to
secure the return and payment to PFPC Trust of any advance or credit made by
PFPC Trust (including charges related thereto) to such Account.
(n) COLLECTIONS. All collections of monies or other
property in respect, or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PFPC Trust)
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shall be at the sole risk of the Fund. If payment is not received by PFPC Trust
within a reasonable time after proper demands have been made, PFPC Trust shall
notify the Fund in writing, including copies of all demand letters, any written
responses, memoranda of all oral responses and shall await instructions from the
Fund. PFPC Trust shall not be obliged to take legal action for collection unless
and until reasonably indemnified to its satisfaction. PFPC Trust shall also
notify the Fund as soon as reasonably practicable whenever income due on
securities is not collected in due course and shall provide the Fund with
periodic status reports of such income collected after a reasonable time.
15. DURATION AND TERMINATION. This Agreement shall be effective on
the date first written above and shall continue for a period of three (3) years
(the "Initial Term"). Upon the expiration of the Initial Term, this Agreement
shall automatically renew for successive terms of one (1) year ("Renewal Terms")
each provided that it may be terminated by the Fund, Custodian or PFPC Trust
without penalty during a Renewal Term upon written notice given at least sixty
(60) days prior to termination. During either the Initial Term or the Renewal
Terms, this Agreement may also be terminated on an earlier date by the Fund,
Custodian or PFPC Trust for cause.
With respect to the Fund, cause shall mean PFPC Trust's material breach
of this Agreement causing it to fail to substantially perform its duties under
this Agreement. In order for such material breach to constitute "cause" under
this Paragraph, PFPC Trust must receive written notice from the Fund specifying
the material breach and PFPC Trust shall not have corrected such breach within a
30-day period. Custodian may terminate this Agreement for cause immediately in
the event of the appointment of a conservator or receiver for PFPC Trust or any
assignee or successor hereunder by the applicable regulator or upon the
happening of a like event at the direction of an appropriate regulatory agency
or court of competent jurisdiction. With respect to PFPC Trust,
21
cause includes, but is not limited to, the failure of WTC, on behalf of the Fund
and each of the Portfolios, to pay the compensation set forth in writing
pursuant to Paragraph 11 of this Agreement after it has received written notice
from PFPC Trust specifying the amount due and WTC shall not have paid that
amount within a 30-day period. A constructive termination of this Agreement will
result where a substantial percentage of the Fund's assets are transferred,
merged or are otherwise removed from the Fund to another fund(s) that is not
serviced by PFPC Trust. Any notice of termination for cause shall be effective
sixty (60) days from the date of any such notice. Upon the termination hereof,
WTC shall pay to PFPC Trust such compensation as may be due for the period prior
to the date of such termination. Any termination effected shall not affect the
rights and obligations of the parties under Paragraphs 12 and 13 hereof.
In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the shareholders of the Fund to dissolve or
to function without a custodian of its cash, securities or other property), PFPC
Trust shall not deliver cash, securities or other property of the Portfolios to
the Fund. If a successor to PFPC Trust is not appointed by Custodian or the Fund
within such sixty (60) day period, PFPC Trust may deliver them to a bank or
trust company of PFPC Trust's choice, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than
twenty million dollars ($20,000,000), as a custodian for the Fund to be held
under the terms of this Agreement. PFPC Trust shall not be required to make any
such delivery or payment until full payment shall have been made to PFPC Trust
of all of its fees, compensation, costs and expenses. PFPC Trust shall have a
security interest in and shall have a right of setoff against the Property as
security for the payment of such fees, compensation, costs and expenses.
22
16. NOTICES. All notices and other communications, including
Written Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to PFPC
Trust at Airport Business Center, International Court 2, 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxx 00000, (or its successor) (b) if to Custodian, 0000 Xxxxx
Xxxxxx Xx., Xxxxxxxxxx, DE., Attn: Corporate Custody (c) if to the Fund, c/o
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xx., Xxxxxxxxxx, DE., Attn: Asset
Management Department or (d) if to none of the foregoing, at such other address
as shall have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to have
been given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given five days after it has been mailed. If notice is sent
by messenger, it shall be deemed to have been given on the day it is delivered.
17. AMENDMENTS. This Agreement, or any term hereof, may be changed
or waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. Subject to the provision of Section
14(c) hereof, PFPC Trust may assign its rights and delegate its duties hereunder
to any majority-owned direct or indirect subsidiary of PFPC Trust or PNC Bank
Corp., provided that (i) PFPC Trust gives the Fund thirty (30) days' prior
written notice; (ii) the delegate (or assignee) agrees with PFPC Trust and the
Fund to comply with all relevant provisions of the 1940 Act; and (iii) PFPC
Trust and such delegate (or assignee) promptly provide such information as the
Fund may request, and respond to such questions as the Fund may ask, relative to
the delegation (or assignment), including (without limitation) the capabilities
of the delegate (or assignee).
23
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties and Oral Instructions.
(b) CAPTIONS. 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.
(c) GOVERNING LAW. This Agreement shall be deemed to be a
contract made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any
party to this Agreement shall constitute the valid and binding execution hereof
by such party.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx*
------------------------
Title: Executive Vice President
--------------------------
WILMINGTON TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx*
-----------------------
Title: Senior Vice President
------------------------
ACKNOWLEDGED AND AGREED TO:
WT MUTUAL FUND
By: /s/ Xxxxxx X. Xxxxxxxxx*
------------------------
Title: President
---------
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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