Exhibit 23(h)(ii)(b)
FORM OF
SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of September 1, 2002 by and between PFPC INC., a
Delaware corporation ("PFPC"), which is a wholly owned subsidiary of PFPC
Worldwide Inc. and Xxxxxx Square Management Corporation ("RSMC"), a Delaware
corporation, as administrator of WT MUTUAL FUND, a Delaware business trust (the
"Fund").
WITNESSETH:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund has retained RSMC pursuant to an administration
agreement dated as of September 1, 2002 (the "Administration Agreement") to
provide administration and accounting services to the Fund's investment
portfolios listed on Exhibit A attached hereto and made a part hereof, as such
Exhibit A may be amended from time to time (each a "Portfolio"); and
WHEREAS, RSMC wishes to retain PFPC to provide sub-administration and
accounting services to the Portfolios and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the 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 RSMC, the Fund and any
other person duly authorized by the Fund's Board of Trustees to give Oral
Instructions and Written 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. An Authorized Person's scope of
authority may be limited by RSMC or the Fund by setting forth such limitation in
the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(i) "Written Instructions" mean (a) written instructions signed by
an Authorized Person and received by PFPC or (b) instructions sent via
electronic mail by an Authorized person and received and opened by PFPC. The
instructions may be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. RSMC hereby appoints PFPC to provide sub-administration
and accounting services to the each of the Portfolios, in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. RSMC has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC or its affiliates to
provide services to each Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution agreement with respect to each class
of Shares representing an interest in a Portfolio;
(e) a copy of the Administration Agreement and any additional
administration agreement with respect to a Portfolio;
(f) a copy of any shareholder servicing agreement made in respect of
the Fund or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any and
all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC 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
hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by RSMC, the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and Written Instructions.
(b) PFPC 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 to be an Authorized Person) pursuant to this
Agreement. PFPC may assume that any Oral Instruction or Written Instruction
received hereunder is not in any way inconsistent with the provisions of
organizational documents, the Administration Agreement or this Agreement or of
any vote, resolution or proceeding of the Fund's Board of Trustees or of the
Fund's shareholders, unless and until PFPC receives Written Instructions to the
contrary.
(c) RSMC or the Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) so that PFPC 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 shall in
no way invalidate the transactions or 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 shall incur no liability to RSMC or the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions comply with
the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of RSMC or the Fund. If PFPC is in doubt as to any action
it should or should not take, PFPC may request directions or advice, including
Oral Instructions or Written Instructions, from RSMC or the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question
of law pertaining to any action it should or should not take, PFPC may request
advice at its own cost from such counsel of its own choosing (who may be counsel
for RSMC, the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions PFPC receives
from RSMC or the Fund and the advice PFPC receives from counsel, PFPC may rely
upon and follow the advice of counsel. In the event PFPC so relies on the advice
of counsel, PFPC remains liable for any action or omission on the part of PFPC
which constitutes willful misfeasance, bad faith, gross negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from RSMC, the Fund or from counsel and
which PFPC believes, in good faith, to be consistent with those directions,
advice and Oral Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC (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's properly taking or not taking such action. Nothing
in this
subsection shall excuse PFPC when an action or omission on the part of PFPC
constitutes willful misfeasance, bad faith, gross negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Portfolios
which are in the possession or under the control of PFPC shall be the property
of 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.
RSMC, the Fund, Authorized Persons and any regulatory agency having authority
over RSMC or the Fund shall have access to such books and records at all times
during PFPC's normal business hours for reasonable audit and inspection. Upon
the reasonable request of RSMC or the Fund, copies of any such books and records
shall be provided by PFPC to RSMC, the Fund or to an Authorized Person, at
RSMC's or the Fund's expense.
(b) PFPC shall create, maintain and preserve the following records:
(i) all books and records with respect to each Portfolio's
books of account;
(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of RSMC
and the Fund and information relating to RSMC, the Fund and its shareholders,
unless the release of such records or information is otherwise consented to, in
writing, by RSMC or the Fund. RSMC and the Fund agree that such consent shall
not be unreasonably withheld and may not be withheld where
PFPC may be exposed to civil or criminal contempt proceedings or when required
to divulge such information or records to duly constituted authorities.
Notwithstanding any provision herein to the contrary, each party hereto
agrees that any Nonpublic Personal Information, as defined under Section
248.3(t) of Regulation S-P ("Regulation S-P"), promulgated under the
Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed or otherwise made accessible by a
party hereunder is for the specific purpose of permitting the other party to
perform its duties as set forth in this Agreement. Each party agrees that, with
respect to such information, it will comply with Regulation S-P and the Act and
that it will not disclose any Nonpublic Personal Information received in
connection with this Agreement to any other party, except to the extend as
necessary to carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal year
summaries, and other audit-related schedules with respect to each Portfolio.
PFPC shall take all reasonable action in the performance of its duties under
this Agreement to assure that the necessary information is made available to
such accountants for the expression of their opinion, as required by RSMC or the
Fund.
10. DISASTER RECOVERY. PFPC 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 shall, at no
additional expense to RSMC or the Fund, take reasonable steps to minimize
service interruptions. PFPC 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's own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties or obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, RSMC will pay to PFPC a fee or fees as may be agreed to
in writing by RSMC and PFPC.
12. INDEMNIFICATION.
(a) RSMC agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state or 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 takes (i) at the request or on the direction of or in
reliance on the advice of RSMC or the Fund or (ii) upon Oral Instructions or
Written Instructions. Neither PFPC, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such liability)
arising out of PFPC's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties and obligations under this
Agreement.
(b) PFPC agrees to indemnify and hold harmless RSMC, its affiliates
and the Fund from all taxes, charges, expenses, assessments, claims and
liabilities arising from PFPC's obligations pursuant to this Agreement
(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) reasonable attorneys' fees and
disbursements arising
directly or indirectly out of PFPC's or its nominees' own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
under this Agreement.
(c) In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
(d) The provisions of this Section 12 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of RSMC
or the Fund except as specifically set forth herein or as may be specifically
agreed to by PFPC in writing. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder, to act in good faith and
to use commercially reasonable efforts in performing services provided for under
this Agreement. PFPC shall be liable for any damages arising out of PFPC's
failure to perform its duties under this Agreement to the extent such damages
arise out of PFPC's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses beyond its
control, provided that PFPC has acted in accordance with the standard of care
set forth above; and (ii) PFPC 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 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's control, including
acts of civil or military authority, national emergencies, labor difficulties,
fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply.
(c) Notwithstanding anything else in this Agreement to the contrary
and except to the limited extent set forth in paragraph 13(d) below, PFPC shall
not be liable to RSMC for any consequential or special losses or damages
("Special Damages") which RSMC may incur as a consequence of PFPC's performance
of the services provided hereunder.
(d) PFPC shall be liable for Special Damages incurred by RSMC only
to the extent that Special Damages arise out of PFPC's or its affiliates'
willful misfeasance, bad faith or gross negligence in performing, or reckless
disregard of, their duties under this Agreement; provided, however, the
liability of PFPC with respect to all such Special Damages arising during the
term of this Agreement and thereafter shall be limited One Hundred Thousand
Dollars ($100,000) per transaction or series of directly related transactions;
related transactions may be related as to parties, timing or subject matter.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
(a) PFPC will perform the following accounting services with respect
to each Portfolio:
(i) Journalize investment, capital share and income and
expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the investment adviser for a Portfolio
(the "Adviser") and transmit trades to the Fund's
custodian (the "Custodian") for proper settlement;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund
with the Custodian, and provide the Adviser with the
beginning cash balance available for investment
purposes;
(vi) Update the cash availability throughout the day as
required by the Adviser;
(vii) Post to and prepare the Statement of Assets and
Liabilities and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g.,
advisory and custody fees);
(ix) Monitor the expense accruals and notify an officer of
the Fund of any proposed adjustments;
(x) Control all disbursements and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine the net income of each Portfolio;
(xiii) Obtain security market quotes from independent
pricing services approved by the Adviser, or if such
quotes are unavailable, then obtain such prices from
the Adviser, at the Fund's expense and in either case
calculate the market value of each Portfolio's
Investments;
(xiv) Transmit or mail a copy of the daily portfolio
valuation to the Adviser;
(xv) Compute the net asset value of each Portfolio;
(xvi) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required,
portfolio average dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. DESCRIPTION OF SUB-ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
(a) PFPC will perform the following sub-administration services with
respect to each Portfolio:
(i) Prepare quarterly broker security transactions
summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and
Fund statistical data as requested on an ongoing
basis;
(iv) Prepare for execution and file the Fund's Federal and
state tax returns;
(v) Prepare and file the Fund's Semi Annual Reports with
the SEC on Form N-SAR.
(vi) Monitor each Portfolio's status as a regulated
investment company under Sub-chapter M of the
Internal Revenue Code of 1986, as amended;
(vii) Prepare and file with the SEC the Fund's annual,
semi-annual, and quarterly shareholder reports;
(viii) Monitor sales of the Fund's shares and assure that
the Fund has properly registered such shares with the
SEC and applicable state authorities;
(ix) Prepare and file reports with the SEC including, the
preparation and filing of (i) semi-annual reports on
Form N-SAR and (ii) Notices pursuant to Rule 24f-2;
(x) Prepare and monitor an expense budget for each
Series, including accruals for each category of
expenses;
(xi) Determine the amount of dividends and other
distributions payable to shareholders as necessary to
maintain the qualification as a regulated investment
company of each Series of the Fund under the Code;
(xii) Provide personnel to serve as officers of the Fund if
so elected by the Trustees; and
(xiii) Maintain and monitor the Fund's compliance with the
amounts and conditions of each state registration or
qualification.
16. 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, unless notice of
termination has been given, this Agreement shall automatically renew for
successive terms of one (1) year ("Renewal Terms") each provided that it may be
terminated by either party 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 either party for cause.
With respect to RSMC, "cause" shall mean PFPC's material breach of this
Agreement causing it to fail to substantially perform its duties under this
Agreement. In order for such breach to constitute "cause" under this Paragraph,
PFPC must receive written notice from RSMC or the Fund specifying the breach and
PFPC shall not have corrected such breach within a 30-day period. With respect
to PFPC, "cause" includes, but is not limited to, the failure of RSMC to pay the
compensation set forth in writing pursuant to Paragraph 11 of this Agreement
after it has received written notice from PFPC specifying the amount due and
RSMC 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.
Any notice of termination for cause shall be effective sixty (60) days
from the date of any such notice. Upon the termination hereof, RSMC shall pay to
PFPC 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.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. 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
three 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. Notices shall be addressed
(a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 Attn:
President; or (b) if to RSMC, c/o Wilmington Trust Company, 0000 X. Xxxxxx Xx.,
Xxxxxxxxxx, XX 00000 Attn: Xxxxxx Xxxxxxxxx; or (c) at such other address as
shall have been provided by like notice to the sender of any such notice or
other communication by the other party.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. SHAREHOLDER LIABILITY. PFPC is hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Declaration of Trust of
the Fund and agrees that 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 obligations hereunder shall be
limited to the respective assets of such Portfolios. PFPC agrees that it shall
not seek satisfaction of any such obligation from the shareholders or any
individual shareholder of the Fund, nor from the Trustees or any individual
Trustee of the Fund.
20. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any wholly-owned direct or indirect subsidiary of PFPC or
PNC Bank Corp., provided that (i) PFPC gives RSMC thirty (30) days' prior
written notice; (ii) the delegate (or assignee) agrees
to comply with all relevant provisions of the 1940 Act; and (iii) PFPC and such
delegate (or assignee) promptly provide such information as RSMC or 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).
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
23. 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.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:____________________
Name:__________________
Title:_________________
XXXXXX SQUARE MANAGEMENT CORPORATION
By:____________________
Name:__________________
Title:_________________
