EXHIBIT 23(H)(II)(B)
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").
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");
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: /s/Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
