EXHIBIT 22(h)(viii)
WT MUTUAL FUND
COMPLIANCE, SUPPORT AND RECORDKEEPING SERVICES AGREEMENT
THIS COMPLIANCE SUPPORT AND RECORDKEEPING SERVICES AGREEMENT (this
"Agreement") is made the 19th day of November, 2004, by and between WT Mutual
Fund, a Delaware business trust ("Fund"), and Xxxxxx Square Management
Corporation ("RSMC"), a Delaware corporation, and a wholly owned subsidiary of
Wilmington Trust Corporation.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
with multiple investment portfolios as listed on Schedule A attached hereto, as
may be amended from time to time (each a "Portfolio"), and which has engaged
multiple investment advisers and sub-advisers to provide investment advisory
services to the Portfolios; and
WHEREAS, RSMC is a registered investment adviser pursuant to the
Investment Advisers Act of 1940, as amended, and the rules and regulations
promulgated there under (the "Advisers Act"), and acts as an investment adviser
to certain Portfolios of the Fund pursuant to a written investment advisory
agreement dated November 1, 1999; and
WHEREAS, the Fund must designate, pursuant to Rule 38a-1 under the
1940 Act, one individual to be responsible for administering the Fund's
compliance policies and procedures, and that such person may be employed by
RSMC; and
WHEREAS, the Fund is required under Rule 31a-2(a)(6) under the 1940
Act to preserve documents and other written information considered by the Board
of Trustees of the Fund (the "Board") in connection with its approval or renewal
of investment advisory agreements; and
WHEREAS, the Fund wishes, in light of the foregoing, to engage RSMC
to provide certain compliance, support and recordkeeping services to the
Portfolios, separate from its advisory services, and RSMC wishes to furnish such
services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and intending to be legally bound hereby, the Fund
and RSMC agree as follows:
1. ENGAGEMENT.
(a) The Fund hereby engages RSMC to perform the services, including
recordkeeping, described in this Agreement for the Fund.
EXHIBIT 22(h)(viii)
(b) RSMC hereby accepts such engagement by the Fund, and will
furnish the services and discharge the duties set forth in this Agreement upon
the terms and conditions hereinafter set forth.
(c) RSMC shall for all purposes herein provided be deemed to be an
independent contractor and, except as expressly provided or authorized herein,
shall have no authority to act for or represent the Fund or its Portfolios in
any way or otherwise be deemed an agent of the Fund or its Portfolios.
2. SERVICES. RSMC shall:
(a) Employ an individual suitable to the Board to fulfill the role
of Chief Compliance Officer of the Fund, as such title is used in Rule 38a-1
under the 1940 Act; and make available such other appropriate individuals
employed by RSMC or its affiliates to serve as officers of the Fund, if
requested and elected by the Board.
(b) Provide:
(i) Non-investment related statistical and research data as
may be requested by the Board, including those Trustees
of the Fund who are not "interested persons" of the Fund
(as such term is defined in the 1940 Act) (hereinafter
the "Independent Trustees");
(ii) Executive and administrative services to support the
Independent Trustees, including the Independent Trustee
serving as the Chairman of the Board (the "Independent
Chair," at such time as the Fund must have an
Independent Chair in order to rely on certain exemptive
rules under the 0000 Xxx) , in order to carry out their
duties, as contemplated in Rule 0-1(7) under the 1940
Act; and
(iii) The recordkeeping services described below in Section 3.
(c) Furnish support for the Fund's Secretary in the performance of
any or all of his or her duties as the same may be assigned or modified, from
time to time, by the Board, Independent Chair or President of the Fund. As of
the date of this Agreement, such duties include the following:
(i) Assisting in the preparation and coordination of all
annual calendars, periodic notices, agendas, minutes,
reports and other materials necessary for the timely and
efficient conduct of the meetings of the Board and
shareholders of the Fund;
(ii) Assisting in the preparation and coordination of the
filing, printing and distribution, as necessary, of
preliminary and
EXHIBIT 22(h)(viii)
definitive proxy solicitation materials, annual and
semi-annual reports to shareholders, post-effective
amendments to the Fund's registration statement,
including mailing of trustees and officers
questionnaires, and such other regulatory filings as
required under the 1940 Act;
(iii) Arranging for and coordinating fulfillment with the
Fund's financial printer or person responsible for
fulfillment of the Portfolios' prospectuses as required
to meet demand;
(iv) Arranging for and securing, timely and compliant renewal
and maintenance of all required fidelity bonds and, as
instructed, other insurance policies for the protection
of the Fund, its officers and/or Board;
(v) Aiding the Fund's President in preparing letters or
other correspondence to be included in reports or other
communications with Fund shareholders;
(vi) Serving as principal point of contact, on behalf of the
Fund, with the Fund's distributor regarding the
retention of specific dealers, and the advance review
and approval of the use of specific advertising and
sales literature by the distributor for the purpose of
selling the Fund's shares; and
(vii) Serving as principal point of contact, on behalf of the
Fund, with the Fund's other service providers, including
but not limited to, the investment advisers (not
including sub-advisers) administration and accounting
services agent, transfer agent, distributor,
custodian(s), auditor(s) and legal counsel.
3. RECORDKEEPING AND OTHER INFORMATION.
(a) RSMC shall create, maintain and preserve all necessary records
in accordance with all applicable laws, rules and regulations, including, but
not limited to, records required by Sections 17(g), 17(j) and 31(a) of the 1940
Act and the rules thereunder, as the same may be amended from time to time,
pertaining to the various functions (described above) to be provided by it and
not otherwise created and maintained by another party pursuant to contract with
the Fund, provided that RSMC may preserve certain records which are maintained
by another party as is prudent or advisable in connection with a program for
disaster recovery, or at the direction of the Board.
(b) In furtherance, and not in limitation, of the foregoing, RSMC
shall also preserve all original Fund governance related documents, including,
but not limited to, the Declaration of Trust, By-laws, Committee Charters; all
Board and Committee notices,
EXHIBIT 22(h)(viii)
agendas, minutes and written consents as well as all notices, agendas and
minutes of meetings of shareholders; all original agreements and contracts
entered into by the Fund; and any documents or other written information
considered by the Trustees pursuant to Section 15(c) of the 1940 Act in
approving the terms or renewal of a contract or agreement between the Fund and
investment advisers, including sub-advisers.
(c) All such records shall be the property of the Fund at all times
and shall be available for inspection and use by the Fund. Copies of such
records shall be furnished to the Fund or its authorized representatives at and
upon the Fund's request and expense. Where applicable, such records shall be
maintained and preserved by RSMC for the periods and in the places required by
Rules 17j-1 and 31a-2 under the 1940 Act. Any such records may be maintained in
the form of electronic media and stored on magnetic disk or tape or similar
recording method. RSMC may house these records in a third party storage
facility. RSMC shall use commercially reasonable efforts to assure that adequate
back-up is made of all data stored on electronic media and that any third party
storage facility maintains adequate security as hereinafter provided. RSMC will
maintain and enforce commercially reasonable safety and physical security
procedures for such types of locations, and which provide commercially
reasonable and appropriate technical and organizational safeguards against
accidental or unlawful destruction, loss, alteration and unauthorized disclosure
of or access to information and all other data owned by the Fund and accessible
by RSMC under this Agreement. Without limiting the generality of the foregoing,
RSMC will take commercially reasonable measures to secure and defend its
location and equipment against "hackers" and others who may seek, without
authorization, to modify or access any records or information contained on a
network with remote access capability. RSMC will periodically test the system
for potential areas where security could be breached. RSMC will report any
breaches of security or unauthorized access to the network that RSMC detects.
RSMC will use diligent efforts to remedy such breach of security or unauthorized
access in a timely manner and notify the Fund what the remedy was and provide
detail of that remedy.
4. AUDIT, INSPECTION AND VISITATION. RSMC shall make available during
regular business hours all records and other data created, maintained and
preserved pursuant to the foregoing provisions of this Agreement for reasonable
audit and inspection by the Fund, any person retained by the Fund, or any
regulatory agency having authority over the Fund.
5. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (i) any data or information that is
competitively sensitive material, and not generally known to the public; (ii)
any technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its confidentiality
affords the Fund or RSMC a competitive advantage over its competitors; (iii) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know how, and trade secrets, whether or not patentable or
copyrightable; and (iv) anything specifically designated in writing as
confidential. Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if it: (i) is
EXHIBIT 22(h)(viii)
already lawfully known to the receiving party at the time it is obtained; (ii)
is or becomes publicly known or available through no wrongful act of the
receiving party; (iii) is rightfully received from a third party who, to the
best of the receiving party's knowledge, is not under a duty of confidentiality;
(iv) is released by the protected party to a third party without restriction;
(v) is required to be disclosed by the receiving party pursuant to a requirement
of a court order, subpoena, governmental or regulatory agency or law (provided
the receiving party will provide the other party written notice of such
requirement prior (if practicable under the circumstances) to disclosing such
information to the extent such notice is permitted); or (vi) has been or is
independently developed or obtained by the receiving party without reference to
or use of the disclosing party's information.
6. DISASTER RECOVERY.
(a) RSMC shall maintain in a separate and safe place additional
copies of all records required to be maintained pursuant to this Agreement or
additional tapes, disks or other sources of information necessary to reproduce
all such records.
(b) RSMC shall maintain a disaster recovery back-up facility
available for its use in providing the services required hereunder in the event
RSMC is not able to process the necessary work at its principal facility. RSMC
shall, from time to time, upon request from the Fund provide written evidence
and details of its arrangement with respect to such back-up facility. RSMC
further agrees to provide the Fund from time to time on reasonable request with
a copy of its disaster recovery and contingency plans and to make its staff
available to discuss such plans on reasonable request. Nothing in this Section
shall relieve RSMC of any liability that it might otherwise have under this
Agreement that arise out of its willful misfeasance, bad faith, gross negligence
or reckless disregard in the performance of its duties hereunder.
(c) RSMC shall employ a commercially reasonable virus detection
software program to test the on-site hardware and software applications utilized
by RSMC to deliver the services required hereunder to determine that such
hardware and software does not contain any computer code designed to disrupt,
disable, harm, or otherwise impede operation.
7. COMPENSATION. As compensation for services rendered by RSMC during the
term of this Agreement, the Fund, on behalf of each Portfolio, will pay to RSMC
a fee or fees as calculated and paid by the Fund in accordance with the attached
Schedule A.
8. LIABILITY OF RSMC OR AFFILIATES. RSMC and its affiliates and agents
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except to the extent of a loss resulting from willful misfeasance, bad
faith or gross negligence on their part in the performance of their obligations
and duties under this Agreement. Any person, even though also an officer,
partner, employee or agent of RSMC, or any of its affiliates or agents, who may
be or become an officer of the Fund, shall be deemed, when rendering services to
the Fund as
EXHIBIT 22(h)(viii)
such officer or acting on any business of the Fund as such officer (other than
services or business in connection with RSMC's duties under this Agreement), to
be rendering such services to or acting solely for the Fund and not as an
officer, partner, employee or agent or one under the control or direction of
RSMC or any of its affiliates or agents, even though paid by one of those
entities.
9. AMENDMENT, DURATION, TERMINATION ETC.
(a) Except as provided herein, the provisions of this Agreement may
not be changed, waived, discharged or terminated orally, but only by written
instrument that shall make specific reference to this Agreement and that shall
be signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
(b) The provisions of this Agreement shall become effective at the
open of business on date first written above and shall continue thereafter
unless terminated by the Fund upon sixty (60) days' written notice given to RSMC
or by RSMC by sixty (60) days' written notice given to the Fund; provided,
however, that the foregoing provisions of this Agreement may be terminated
immediately at any time for cause either by the Fund or by RSMC in the event
that such cause shall have remained unremedied for sixty (60) days or more after
receipt of written specification of such cause. Any such termination shall not
affect the rights and obligations of the parties under Section 6 hereof.
(c) In the even that the Fund designates a successor to any of
RSMC's obligations hereunder, RSMC shall, at the expense and direction of the
Fund, transfer to such successor all relevant books, records and other data
created, maintained or preserved by RSMC under the foregoing provisions.
10. ASSIGNMENT; BINDING EFFECT. This Agreement may not be assigned by
either of the parties hereto without the prior written consent of the other
party hereto. This Agreement shall be binding upon the inure to the benefit of
the parties hereto and their permitted successors and assigns.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with regard to services to be provided by RSMC to the Fund
hereunder and supersedes all prior agreements or understandings between the
Fund, RSMC or their agents with regard to such services.
12. NOTICE. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
13. SEVERABILITY. 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.
14. GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter enacted,
as the same
EXHIBIT 22(h)(viii)
may be amended from time to time, this Agreement shall be administered,
construed and enforced according to the local laws of the State of Delaware.
15. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. 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. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
[Signature Page Follows.]
EXHIBIT 22(h)(viii)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed, as of the day and year first written above.
WT MUTUAL FUND
By:___________________________________
Name: Xxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
XXXXXX SQUARE MANAGEMENT CORPORATION
By: __________________________________
Name: Xxxxxx X. Xxxxxxxxx
Xxxxx: President
EXHIBIT 22(h)(viii)
SCHEDULE A
FEE SCHEDULE
For the compliance, support and recordkeeping services provided to
the Fund on behalf of each Portfolio of the Fund pursuant to the attached
Agreement, the Fund shall pay RSMC:
(1) An annual fee, not to exceed $375,000, calculated on the
average daily net asset value of each Portfolio at the rate determined as
follows:
ANNUAL FEE AS A % OF
PORTFOLIO AVERAGE DAILY NET ASSETS
--------- ------------------------
WILMINGTON PREMIER MONEY MARKET PORTFOLIO .006% of the Portfolio's average daily net assets.
XXXXXXXXX PREMIER MONEY MARKET PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON PRIME MONEY MARKET PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON U.S. GOVERNMENT PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON TAX - EXEMPT PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON SHORT/INTERMEDIATE PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON BROAD MARKET BOND PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON MUNICIPAL BOND PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON SHORT-TERM INCOME PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON LARGE CAP CORE PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON LARGE CAP GROWTH FUND .006% of the Portfolio's average daily net assets.
WILMINGTON LARGE CAP VALUE PORTFOLIO .006% of the Portfolio's average daily net assets.
CRM LARGE CAP VALUE FUND .006% of the Portfolio's average daily net assets.
WILMINGTON MID CAP GROWTH PORTFOLIO .006% of the Portfolio's average daily net assets.
ROXBURY MID CAP FUND .006% of the Portfolio's average daily net assets.
WILMINGTON MID CAP VALUE PORTFOLIO .006% of the Portfolio's average daily net assets.
CRM MID CAP VALUE FUND .006% of the Portfolio's average daily net assets.
CRM SMALL/MID CAP VALUE FUND .006% of the Portfolio's average daily net assets.
WILMINGTON SMALL CAP CORE PORTFOLIO .006% of the Portfolio's average daily net assets.
ROXBURY SMALL CAP GROWTH FUND .006% of the Portfolio's average daily net assets.
WILMINGTON SMALL CAP VALUE PORTFOLIO .006% of the Portfolio's average daily net assets.
CRM SMALL CAP VALUE FUND .006% of the Portfolio's average daily net assets.
WILMINGTON INTERNATIONAL MULTI-MANAGER PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON REAL ESTATE PORTFOLIO .006% of the Portfolio's average daily net assets.
WILMINGTON LARGE CAP STRATEGIC ALLOCATION FUND .006% of the Portfolio's average daily net assets.
WILMINGTON MID CAP STRATEGIC ALLOCATION FUND .006% of the Portfolio's average daily net assets.
EXHIBIT 22(h)(viii)
WILMINGTON SMALL CAP STRATEGIC ALLOCATION FUND .006% of the Portfolio's average daily net assets.
ROXBURY MICRO CAP FUND .006% of the Portfolio's average daily net assets.
The fee shall be calculated and paid monthly in arrears.
(2) A fixed annual fee equal to one-half of three-fourths
(i.e., three-eighths) of the annual total compensation package of the Chief
Compliance Officer of the Fund, as such annual total compensation package is
approved by the Board pursuant to its obligation under Rule 38a-1, plus such
additional amounts as specifically approved by the Board.
Dated: November 19, 2004
