EXHIBIT 24(2)(j)(ii)
SUB-CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of December 1, 2003 by and between PFPC
TRUST COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), WILMINGTON TRUST COMPANY, a trust company incorporated
under the laws of Delaware ("Custodian") 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 PFPC Trust to provide
sub-custodian services, and PFPC Trust wishes to furnish sub-custodian services,
either directly or through an affiliate or affiliates, as more fully described
herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person authorized by the Fund's Board of Trustees to give Oral 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.
(d) "Book Entry System" means the Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its
nominee or nominees and any book entry system registered with the
SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(g) "Holder" means a record owner of Interests of the Fund.
(h) "Interests" means the beneficial interest of the Fund.
(i) "Oral Instructions" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(j) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(m) "Property" means:
(i) any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with PFPC Trust or which PFPC Trust may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
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(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by PFPC Trust from time to time, from or on
behalf of the Fund.
(n) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC Trust. The instructions may
be delivered electronically or by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide sub-custodian
services to the Fund as set forth herein and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory agreements;
(d) a copy of the distribution/underwriting agreement with respect to
each class of Interests;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC Trust hereunder. Except as specifically set forth herein, PFPC
Trust assumes no responsibility for such compliance by the Fund or any
other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC Trust 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 PFPC Trust to be an Authorized
Person) pursuant to this Agreement. PFPC Trust may assume that any
Oral Instruction or Written Instruction received hereunder is not in
any way inconsistent with the provisions of organizational documents
of the Fund or of any vote, resolution or proceeding of the Fund's
Board of Trustees or of the Fund's shareholders, unless and until
PFPC Trust receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by PFPC Trust or its affiliates) so that PFPC Trust
receives the Written Instructions by the close of business on the
same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC Trust
shall in no way invalidate the transactions or enforceability of the
transactions authorized by
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the Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC Trust shall incur no liability to the Fund
in acting upon such Oral Instructions or Written Instructions
provided that PFPC Trust's actions comply with the other provisions
of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from
the Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should not
take, PFPC Trust may request advice at PFPC Trust's own cost from
counsel of its own choosing (who may be counsel for the Fund, the
Fund's investment adviser or PFPC Trust, at the option of PFPC
Trust).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel,
PFPC Trust shall be entitled to rely upon and follow the advice of
counsel. In the event PFPC Trust so relies on the advice of counsel,
PFPC Trust remains liable for any action or omission on the part of
PFPC Trust which constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC Trust of any duties,
obligations or responsibilities set forth in this Agreement.
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(d) Protection of PFPC Trust. PFPC Trust shall be protected in any
action PFPC Trust takes or does not take in reliance upon directions
or advice or Oral Instructions or Written Instructions PFPC Trust
receives from or on behalf of the Fund or from counsel and which
PFPC Trust believes, in good faith, to be consistent with those
directions or advice or Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon PFPC Trust (i) to seek such directions or advice or
Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions, unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC Trust's properly
taking or not taking such action. Nothing in this subsection shall
excuse PFPC Trust when an action or omission on the part of PFPC
Trust constitutes willful misfeasance, bad faith, gross negligence
or reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC Trust, 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 and Authorized Persons shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC Trust to the Fund or to
an authorized representative of the Fund, at the Fund's expense.
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8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of the
Fund and information relating to the Fund and 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 where PFPC Trust may be
exposed to civil or criminal contempt proceedings or when required to
divulge such information or records to duly constituted authorities.
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. PROPERTY OF THE FUND. Information or material including client data owned
by the Fund shall remain the property of the Fund. In the event of
termination of this Agreement, information belonging to the Fund,
including client data owned by the Fund shall be returned by PFPC, at the
reasonable expense of the Fund, as directed by the Fund. This information
shall be in a form that can reasonably be accessed by the Fund; however,
nothing herein shall require PFPC to disclose any of its intellectual
property to the Fund or to any other service provider or third party.
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10. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
11. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund.
12. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC Trust's own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement.
13. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Fund will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by the Fund and
PFPC Trust. The Fund acknowledges that PFPC Trust may receive float
benefits in connection with maintaining certain accounts required to
provide services under this Agreement.
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14. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC Trust 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 PFPC Trust
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.
Neither PFPC Trust, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability) arising
out of PFPC Trust's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties under this Agreement.
The provisions of this Section 14 shall survive termination of this
Agreement.
15. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC Trust in writing. PFPC Trust shall be
obligated to exercise care and diligence in the performance of its
duties hereunder, to act in good faith and to use its best efforts,
within reasonable limits, in performing services provided for under
this Agreement. PFPC Trust shall be liable for any damages arising
out of PFPC Trust's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC Trust's
willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties under this Agreement.
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(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control provided that PFPC Trust has acted in
accordance with the standard of care set forth above; and (ii) PFPC
Trust 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 PFPC Trust reasonably
believes to be genuine; or (B) subject to Section 12, delays or
errors or loss of data occurring by reason of circumstances beyond
PFPC Trust's control, including acts of civil or military authority;
national emergencies; 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 (other
than as specifically provided in Section 16(h)(ii)(B)(4) and Section
16(h)(iii)(A) of this Agreement), the Fund shall be responsible for
all filings, tax returns and reports on any transactions undertaken
pursuant to this Agreement, or in respect of the Property or any
collections undertaken pursuant to this Agreement, which may be
requested by any relevant authority. In addition, the Fund shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(d) Notwithstanding anything else in this Agreement to the contrary and
except to the limited extent set forth in paragraph 15(e) below, (i)
neither the Fund, the Custodian nor PFPC Trust shall be liable for
any consequential, special or indirect
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losses or damages ("Special Damages"), which any party may incur as
a consequence of the performance hereunder.
(e) PFPC Trust shall be liable for Special Damages incurred by the Fund
only to the extent that Special Damages arise out of PFPC Trust'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 Trust with
respect to all such Special Damages arising during the term of this
Agreement and thereafter shall be limited to the greater of One
Hundred Thousand Dollars ($100,000) or the sum of all fees paid to
PFPC Trust during the Initial Term or any Renewal Term, per
transaction or series of directly related transactions; related
transactions may be related as to parties, timing or subject matter.
(f) The provisions of this Section 15 shall survive termination of this
Agreement.
16. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Fund,
including cash received as a result of the distribution of
Interests, during the term of this Agreement. PFPC Trust will not be
responsible for any assets until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the
Fund's name using all cash received from or for the account of the
Fund, subject to the terms of this Agreement.
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PFPC Trust shall make cash payments from or for the Account of the
Fund only for:
(i) purchases of securities in the name of the Fund, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, or an underlying Fund's subscription
documents, as appropriate;
(ii) purchase or redemption of Interests of the Fund delivered to
PFPC Trust;
(iii) payment of, subject to Written Instructions, interest, taxes
(provided that tax which PFPC Trust considers is required to
be deducted or with held "at source" will be governed by
Section 16(h)(iii)(B) of this Agreement), administration,
accounting, distribution, advisory and management fees which
are to be borne by the Fund;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, of an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in cash
by the transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for the
direct payment of cash dividends and distributions to
shareholders in accordance with procedures mutually agreed
upon from time to time by and among the Fund, PFPC Trust and
the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to PFPC
Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments made to a sub custodian pursuant to provisions in
sub section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as
custodian for the Accounts.
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(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry
System or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or investment, except upon the express terms of
this Agreement or upon Written Instructions authorizing the
transaction. In no case may any shareholder who is also a
member of the Fund's Board of Trustees, or any officer,
employee or agent of the Fund withdraw any securities (other
than a repurchase by the Fund).
At PFPC Trust's own expense and for its own convenience, PFPC
Trust may enter into sub-custodian agreements with other banks
or trust companies to perform duties described in this
sub-section (c) with respect to domestic assets. Such bank or
trust company shall have aggregate capital, surplus and
undivided profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of PFPC Trust. In addition, such
bank or trust company must be qualified to act as custodian
and agree to comply with the relevant provisions of applicable
rules and regulations. Any such arrangement will not be
entered into without prior written notice to the Fund (or as
otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into without
prior written notice to the Fund (or as otherwise provided in
the 1940 Act).PFPC Trust shall remain responsible for the acts
and omissions of any sub custodian chosen by PFPC Trust under
the terms of this sub section (c) to the same extent that PFPC
Trust is responsible for its own acts and omissions under this
Agreement.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust
shall:
(i) deliver any securities held for the Fund against the receipt
of payment for the sale of such securities or otherwise in
accordance with standard market practice;
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(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby
the authority of the Fund as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or
otherwise become payable at the option of the holder; provided
that, in any such case, the cash or other consideration is to
be delivered to PFPC Trust;
(iv) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
(v) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Fund;
(vii) release securities belonging to the Fund to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by the Fund; provided, however, that
securities shall be released only upon payment to PFPC Trust
of the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made
subject to proper prior authorization, further securities may
be released for that purpose; and repay such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing
the loan;
(viii) release and deliver securities owned by the Fund in
connection with any repurchase agreement entered into by the
Fund, but only on receipt of payment therefor; and pay out
monies of the Fund in connection with such repurchase
agreements, but only upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by the Fund
in connection with any conversion of such securities, pursuant
to their terms, into other securities;
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(x) release and deliver securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
(xi) release and deliver securities owned by the Fund for the
purpose of redeeming in kind interests of the Fund upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the Fund
for other purposes. PFPC Trust must also receive a certified
resolution describing the nature of the corporate purpose and
the name and address of the person(s) to whom delivery shall
be made when such action is pursuant to sub paragraph d(xii).
(e) Use of Book Entry System or Other Depository. PFPC Trust will
deposit in Book Entry Systems and other depositories all securities
belonging to the Fund eligible for deposit therein and will utilize
Book Entry Systems and other depositories to the extent possible in
connection with settlements of purchases and sales of securities by
the Fund, and deliveries and returns of securities loaned, subject
to repurchase agreements or used as collateral in connection with
borrowings. PFPC Trust shall continue to perform such duties until
it receives Written Instructions or Oral Instructions authorizing
contrary actions. Notwithstanding anything in this Agreement to the
contrary, PFPC Trust's use of a Book-entry System shall comply with
the requirements of Rule 17f-4 under the 1940 Act. PFPC Trust shall
administer a Book-Entry System or other depository as follows:
(i) With respect to securities of the Fund which are maintained in
a Book Entry System or another depository, the records of PFPC
Trust shall identify by book entry or otherwise those
securities as belonging to the Fund.
(ii) Assets of the Fund deposited in a Book Entry System or another
depository will (to the extent consistent with applicable law
and standard practice) at all times be segregated from any
assets and cash controlled by PFPC Trust in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities.
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PFPC Trust will provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to
time.
(f) Registration of Securities. All Securities held for the Fund which
are issued or issuable only in bearer form, except such securities
held in the Book Entry System or in another depository, shall be
held by PFPC Trust in bearer form; all other securities held for the
Fund may be registered in the name of the Fund, PFPC Trust, a Book
Entry System, another depository, a sub custodian, or any duly
appointed nominee of the Fund, PFPC Trust, Book Entry System,
depository or sub custodian. The Fund reserves the right to instruct
PFPC Trust as to the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to PFPC Trust
appropriate instruments to enable PFPC Trust to hold or deliver in
proper form for transfer, or to register in the name of its nominee
or in the name of the Book Entry System or in the name of another
appropriate entity, any securities which it may hold for the
Accounts.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall
vote any of the securities held pursuant to this Agreement by or for
the account of the Fund, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such
securities. If the registered holder is not the Fund, then Written
Instructions or Oral Instructions must designate the person who owns
such securities.
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(h) Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, PFPC Trust is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund, all
income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and, in addition,
promptly advise the Fund of such receipt and credit such
income to the Fund's custodian account;
(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the Fund's
securities as a result of a stock dividend, share split
up or reorganization, recapitalization, readjustment or
other rearrangement or distribution of rights or similar
securities issued with respect to any securities
belonging to the Fund and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed,
retired, or otherwise become payable (on a mandatory
basis) on the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
(A) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other
consideration or written receipt therefor in the
following cases:
(1) for examination by a broker or dealer selling for
the account of the Fund in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the
Fund or PFPC Trust or a sub-custodian or a nominee
of one of the foregoing, or for exchange of
securities for a different
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number of bonds, certificates, or other evidence,
representing the same aggregate face amount or
number of units bearing the same interest rate,
maturity date and call provisions, if any;
provided that, in any such case, the new
securities are to be delivered to PFPC Trust.
(B) unless and until PFPC Trust receives Oral Instructions
or Written Instructions to the contrary, PFPC Trust
shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash
received by it upon such payment for the account
of the Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(3) hold for the account of the Fund all stock
dividends, rights and similar securities issued
with respect to any securities held by PFPC Trust;
and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of the Fund all necessary
ownership certificates required by a national
governmental taxing authority or under the laws of
any U.S. state now or hereafter in effect,
inserting the Fund's name on such certificate as
the owner of the securities covered thereby, to
the extent it may lawfully do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and information
as PFPC Trust may request, PFPC Trust will, in such
jurisdictions as PFPC Trust may agree from time to time,
seek to reclaim or obtain a reduction with respect to
any withholdings or other taxes relating to assets
maintained hereunder (provided that PFPC Trust will not
be liable for failure to obtain any particular relief in
a particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold any sum
in respect of tax which PFPC Trust considers is required
to be deducted or withheld "at source" by any relevant
law or practice.
(i) Segregated Accounts.
(i) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf
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of the Fund. Such accounts may be used to transfer cash and
securities, including securities in a Book Entry System or
other depository:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and
any releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies;
and
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding Interests
through XXX accounts, in accordance with the Fund's
prospectuses, the Internal Revenue Code of 1986, as amended
(including regulations promulgated thereunder), and with such
other procedures as are mutually agreed upon from time to time
by and among the Fund, PFPC Trust and the Fund's transfer
agent.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written Instructions
that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of interests or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for the Fund (or otherwise in
accordance with standard market practice) pay out of the
monies held for the account of the Fund the total amount
payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
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(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of interests or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Fund upon such sale, provided that the total amount payable
is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding anything to the contrary in this Agreement,
PFPC Trust may accept payment in such form as is consistent with standard
industry practice and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Fund, listing each
portfolio security belonging to the Fund (with the
corresponding security identification number)
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held at the end of such month and stating the cash
balance of the Fund at the end of such month.
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f 4 of the 1940 Act; and
(D) such other information as may be agreed upon from time
to time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. PFPC Trust shall be under no other obligation to
inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement PFPC Trust
shall have no responsibility to transmit such material or to
inform the Fund or any other person of such actions or events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion credit
an Account with respect to income, dividends, distributions,
coupons, option premiums, other payments or similar items prior to
PFPC Trust's actual receipt thereof, and in addition PFPC Trust may
in its sole discretion credit or debit the assets in an Account on a
contractual settlement date with respect to any sale, exchange or
purchase applicable to the Account; provided that nothing herein or
otherwise shall require PFPC Trust to make any advances or to credit
any amounts until PFPC Trust's actual receipt thereof. If PFPC Trust
credits an Account with respect to (a) income, dividends,
distributions, coupons, option premiums, other payments or similar
items on a contractual payment date or otherwise in advance of PFPC
Trust's actual receipt of the amount due, (b) the proceeds of any
sale or other disposition of assets on the contractual settlement
date or otherwise in advance of PFPC Trust's actual receipt of the
amount due or (c) provisional crediting of any amounts due, and (i)
PFPC Trust is subsequently unable to collect full and final payment
for the amounts so credited within a reasonable time period
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using reasonable efforts or (ii) pursuant to standard industry
practice, law or regulation PFPC Trust is required to repay to a
third party such amounts so credited, or if any Property has been
incorrectly credited, PFPC Trust shall have the absolute right in
its sole discretion without demand to reverse any such credit or
payment, to debit or deduct the amount of such credit or payment
from the Account, and to otherwise pursue recovery of any such
amounts so credited from the Fund. The Fund hereby grants a first
priority contractual possessory security interest in and a right of
setoff against the assets maintained in an Account hereunder in the
amount necessary to secure the return and payment to PFPC Trust of
any advance or credit made by PFPC Trust (including charges related
thereto) to such Account.
(n) Collections. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PFPC Trust) shall be at the sole
risk of the Fund. If payment is not received by PFPC Trust within a
reasonable time after proper demands have been made, PFPC Trust
shall notify the Fund in writing, including copies of all demand
letters, any written responses and memoranda of all oral responses
and shall await instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall also
notify the Fund as soon as reasonably practicable whenever income
due on securities is not collected in due course and shall provide
the Fund with periodic status reports of such income collected after
a reasonable time.
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(o) Foreign Exchange. PFPC Trust and/or sub-custodians may enter into or
arrange foreign exchange transactions (at such rates as they may
consider appropriate) in order to facilitate transactions under this
Agreement, and such entities and/or their affiliates may receive
compensation in connection with such foreign exchange transactions.
17. DURATION AND TERMINATION. This Agreement shall be effective on the date
first written above and shall continue until December 1,2006 (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 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 the Fund, cause shall mean PFPC Trust's material
breach of this Agreement causing it to fail to substantially perform its
duties under this Agreement. In order for such material breach to
constitute cause under this Paragraph, PFPC Trust must receive written
notice from the Fund specifying the material breach and PFPC Trust shall
not have corrected such breach within a thirty (30) day period. With
respect to PFPC Trust, cause includes, but it not limited to, the failure
of the Fund to pay the compensation set forth in writing pursuant to
Paragraph 13of this Agreement after it has received written notice from
PFPC Trust specifying the amount due and the Fund shall not have paid that
amount within a thirty (30) day period. A constructive termination of this
Agreement will result where a substantial percentage of the Fund's assets
are
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transferred, merged or are otherwise removed from the Fund to another
fund(s) that is not serviced by PFPC Trust.
Any notice of termination for cause shall be effective sixty (60)
days from the date of any such notice. Upon the termination hereof, the
Fund shall pay to PFPC Trust such compensation as may be due for the
period prior to the date of such termination. Any termination effected
shall not affect the rights and obligations of the parties under
Paragraphs 14 and 15 hereof.
In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the shareholders of the Fund to
dissolve or to function without a custodian of its cash, securities or
other property), PFPC Trust shall not deliver cash, securities or other
property of the Fund to the Fund. If a successor to PFPC Trust is not
appointed by the Fund within such sixty (60) period, PFPC Trust may
deliver them to a bank or trust company of PFPC Trust's choice, having
aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000),
as a custodian for the Fund to be held under terms of this Agreement. PFPC
Trust shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to PFPC Trust of all
of its fees, compensation, costs and expenses. PFPC Trust shall have a
first priority contractual possessory security interest in and shall have
a right of setoff against the Property as security for the payment of such
fees, compensation, costs and expenses.
18. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; (b) if to the Fund, at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
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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. If notice is sent by confirming
telegram, cable, telex, electronic delivery, hand or facsimile sending
device, it shall be deemed to have been given immediately. If notice is
sent by first class mail, it shall be deemed to have been given five days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate its
duties hereunder to any wholly owned direct or indirect subsidiary of PFPC
Trust or of The PNC Financial Services Group, Inc., provided that (i) PFPC
Trust gives the Fund 30 days' prior written notice; (ii) the delegate (or
assignee) agrees with PFPC Trust and the Fund to comply with all relevant
provisions of the 1940 Act; (iii) PFPC Trust and such delegate (or
assignee) promptly provide such information as the Fund may request, and
respond to such questions as the Fund may ask, relative to the delegation
(or assignment), including (without limitation) the capabilities of the
delegate (or assignee) and (iv) PFPC Trust remains liable for the delivery
of all services hereunder unless the Fund shall have agreed otherwise in a
written novation to that effect.
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.
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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.
Notwithstanding any provision hereof, the services of PFPC Trust do
not constitute, nor shall they be construed as constituting, legal
advice or the provision of legal services for or on behalf of the
Fund or any other person.
(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.
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(f) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
PFPC TRUST COMPANY
/s/ Xxxxxx X. Xxxxx III
----------------------------------------
By: Xxxxxx X. Xxxxx III
Title: Vice President
WILMINGTON LOW VOLATILITY FUND OF FUNDS
/s/ Xxxx X. Xxxxx
----------------------------------------
By: Xxxx X. Xxxxx
Title: Vice President
WILMINGTON TRUST COMPANY
/s/ Xxxx X. Xxxxx
----------------------------------------
By: Xxxx X. Xxxxx
Title: Vice President
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