EXHIBIT 24(2)(k)(i)
ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of December 1, 2003 by and between XXXXXX
SQUARE MANAGEMENT CORPORATION, a Delaware corporation ("RSMC") and WILMINGTON
LOW VOLATILITY FUND OF FUNDS, a Delaware statutory trust (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as a non-diversified, closed-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund, wishes to retain RSMC to provide certain
administration services provided for herein, and RSMC 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) "Adviser" means Xxxxxx Square Management Corporation.
(d) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions or Written Instructions on behalf of
the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
sent to both parties hereto.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Holder" means a record owner of Interests of the Fund.
(g) "Interests" means the beneficial interest of the Fund.
1
(h) "Oral Instructions" mean oral instructions received by RSMC
from an Authorized Person or from a person reasonably believed
by RSMC to be an Authorized Person.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(k) "Written Instructions" means written instructions signed by an
Authorized Person and received by RSMC. The instructions may
be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints RSMC to provide administration
services to the Fund, in accordance with the terms set forth in this
Agreement. RSMC accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide RSMC with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees approving the appointment of RSMC or
its affiliates to provide services and approving this
Agreement;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement;
(d) a copy of any distribution agreement with respect to the Fund;
(e) a copy of any additional administration agreement with respect
to the Fund;
(f) a copy of any investor servicing or similar agreement made
with respect to the Fund; and
(g) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. RSMC undertakes to comply with
the 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
2
RSMC hereunder. Except as specifically set forth herein, RSMC assumes
no responsibility for such compliance by the Fund.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, RSMC shall act
upon Oral Instructions or Written Instructions.
(b) RSMC shall be entitled to rely upon any Oral Instructions or
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by RSMC to be an Authorized
Person) pursuant to this Agreement. RSMC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of the Fund's
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Trustees or of
the Fund's Holders, unless and until RSMC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to RSMC Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by RSMC or its affiliates) so that RSMC
receives the Written Instructions from the Fund as promptly as
practicable and in any event 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
RSMC 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, RSMC shall incur no liability to the Fund in acting
upon such Oral Instructions or Written Instructions provided
that RSMC's actions comply with the other provisions of this
Agreement.
3
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If RSMC is in doubt as to any action it
should or should not take, RSMC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If RSMC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, RSMC may request advice at RSMC's own cost from such
counsel of its own choosing (who may be counsel for the Fund
or RSMC, at the option of RSMC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written
Instructions RSMC receives from the Fund and the advice RSMC
receives from counsel, RSMC may rely upon and follow the
advice of counsel. In the event RSMC so relies on the advice
of counsel, RSMC remains liable for any action or omission on
the part of RSMC which constitutes willful misfeasance, bad
xxxxx xxxxx negligence or reckless disregard by RSMC of any
duties, obligations or responsibilities set forth in this
Agreement.
(d) Protection of RSMC. RSMC 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 the
Fund or counsel and which RSMC 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 RSMC (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 RSMC's properly
taking or not taking such action. Nothing in this subsection
shall excuse RSMC when an action or omission on the part of
RSMC constitutes willful misfeasance, bad faith,
4
gross negligence or reckless disregard by RSMC of any duties,
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund, which are in the
possession or under the control of RSMC, 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. The Fund, Authorized
Persons and any regulatory agency having authority over the
Fund shall have access to such books and records at all times
during RSMC's normal business hours for reasonable audit and
inspection. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by RSMC to the
Fund or to an Authorized Person, at the Fund's request and
expense. Any such books and records may be maintained in the
form of electronic media and stored on any magnetic disk or
tape or similar recording method.
(b) RSMC shall create, maintain and preserve the following
records:
(i) all books and records with respect to the Fund's
books of account; and
(ii) records of the Fund's securities transactions.
(iii) all other books and records as RSMC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY. RSMC agrees to keep confidential all records of the
Fund and information relating to any of the Fund or its Holders, unless
the release of such records or information is otherwise consented to,
in writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld when RSMC may be exposed
to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities.
5
Notwithstanding any provision herein to the contrary, each
party 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 extent 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. RSMC 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 the Fund. RSMC 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 the Fund.
10. DISASTER RECOVERY. RSMC 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, RSMC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. RSMC 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 RSMC'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 set forth herein that are
rendered by RSMC during the term of this Agreement, the Fund will pay
to RSMC a fee or fees as may be agreed to in writing by the Fund and
RSMC.
6
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless RSMC
and its affiliates from all taxes, charges, expenses,
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 RSMC
takes (i) at the request or on the direction of or in reliance
on the advice of the Fund or (ii) upon Oral Instructions or
Written Instructions, or (iii) pursuant to its duties under
this Agreement. Neither RSMC, nor any of its affiliates, shall
be indemnified against any liability (or any expenses incident
to such liability) arising out of RSMC's or its affiliates'
own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this
Agreement.
(b) RSMC agrees to indemnify and hold harmless the Fund from all
taxes, charges, expenses, assessments, claims and liabilities
arising from RSMC'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 RSMC'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
7
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 13 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF RSMC.
(a) RSMC shall be under no duty to take any action on behalf of or
the Fund except as specifically set forth herein or as may be
specifically agreed to by RSMC in writing. RSMC 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. RSMC shall be liable for
any damages arising out of RSMC's failure to perform its
duties under this Agreement to the extent such damages arise
out of RSMC'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) RSMC shall not be
liable for losses beyond its control provided that RSMC has
acted in accordance with the standard of care set forth above;
and (ii) RSMC shall not be liable for (A) the validity or
invalidity, or authority or lack thereof, of any Oral
Instruction or Written Instruction, notice, or instrument
which conforms to the applicable requirements of this
Agreement and which RSMC reasonably believes to be genuine; or
(B) subject to Section 11, delays or errors or loss of data
occurring by reason of circumstances beyond RSMC's control,
8
including acts of civil or military authority; national
emergencies; labor difficulties; fire; flood; catastrophe;
acts of God; insurrection; war; terrorism; riots or failure of
the mails transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
and the Fund hereby acknowledge and agree that (i) RSMC, in
the course of providing tax-related services or calculating
and reporting portfolio performance hereunder, may rely upon
PFPC's interpretation of tax positions or its interpretation
of relevant circumstances (as reasonably determined by PFPC)
in providing such tax services and in determining methods of
calculating portfolio performance to be used, and that (ii)
RSMC shall not be liable for losses or damages of any kind
associated with such reliance except to the extent such loss
or damage is substantially due to RSMC's willful misfeasance,
bad faith, gross negligence or reckless disregard.
(d) Notwithstanding anything in this Agreement to the contrary,
without limiting anything in the immediately preceding Section
14(c), the Fund hereby acknowledges and agrees that RSMC shall
not be liable for any losses or damages of any kind associated
with any tax filings with which PFPC has assisted in any way
except to the extent such loss or damage is substantially due
to RSMC's willful misfeasance, bad faith, gross negligence or
reckless disregard .
(e) Notwithstanding anything else in this Agreement to the
contrary and except to the limited extent set forth in
paragraph 14(f) below, (i)none of RSMC or the Fund shall be
liable for any consequential, special or indirect losses or
damages ("Special Damages"), which any party may incur as a
consequence of it's performance hereunder.
9
(f) The provisions of this Section 14 shall survive termination of
this Agreement.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A
CONTINUOUS BASIS. RSMC will perform the following
sub-administration services if required with respect to the
Fund:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary Fund statistical
data as requested on an ongoing basis;
(iii) Prepare for execution and file the Fund's Federal
Form 1065 and state tax returns;
(iv) Coordinate contractual relationships and
communications between the Fund and its contractual
service providers;
(v) Assist with the preparation of the Fund's annual and
semi-annual reports with the SEC on Form N-SAR and
Form N-CSR and file the same via XXXXX;
(vi) Coordinate printing of the Fund's annual and
semi-annual reports; and
(vii) Perform such additional administrative duties
relating to the administration of the Fund as may
subsequently be agreed upon in writing between the
Fund and RSMC.
17. DURATION AND TERMINATION. (i) This Agreement shall be effective on the
date first written above and shall terminate, unless extended, on
December 31, 2006 at 11:59 pm (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 any 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 any party for
cause.
(ii) Any notice of termination for cause shall be effective
sixty (60) days from the date of any such notice. Upon the termination
hereof, the Fund shall pay to RSMC such
10
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 14 and 15 hereof.
19. NOTICES. Notices shall be addressed (a) if to RSMC or the Fund, at 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxx or (c)
if to neither 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. 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 (3) 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.
20. 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.
22. 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.
23. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
24. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and
11
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
(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 conflict 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.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
WILMINGTON LOW VOLATILITY
FUND OF FUNDS
By: /s/ Xxxx X. Xxxxx
-----------------------
Title: Vice President & CFO
--------------------
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Title: President
--------------------
13
